DATE: 20060419
DOCKET: C43119
COURT OF APPEAL FOR ONTARIO
ROSENBERG, BORINS and LANG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Alan D. Gold
for the appellant
Respondent
- and -
John North
MICHAEL GARY JACOBSON
for the respondent
Appellant
Heard: March 9, 2006
On appeal from conviction by Justice Andromache Karakatsanis of the Superior Court of Justice, sitting without a jury, dated December 2, 2004 and sentence imposed March 10, 2005.
ROSENBERG J.A.:
[1] The principal issue on this appeal is the weight that can be attached to an anonymous “Crimestoppers” tip that forms part of the grounds for obtaining a search warrant. At the appellant’s trial, the evidence showed that the tipster had only a suspicion of criminal activity at the appellant’s residence. Karakatsanis J. relied upon this tip, as confirmed in part by the police, to find that the search warrant was properly granted. She therefore found that the search was reasonable and the evidence admissible. The appellant now appeals from his convictions for producing marijuana and possession of marijuana for the purpose of trafficking. He argues that the search warrant was invalid and the evidence of a substantial marijuana cultivation operation at his home should have been excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms.
[2] Although I take a different approach to the trial judge to the use of the tip, in my view, her conclusion as to the validity of the warrant was correct. Accordingly, I would dismiss the conviction appeal.
[3] I would, however, allow the sentence appeal because of the fresh evidence adduced in this court and substitute a conditional sentence for the sentence of imprisonment imposed by the trial judge.
THE FACTS
[4] To assist in understanding the facts, I set out below a brief chronology of the events as disclosed by the investigating officer, Constable Sammut, in his testimony on the voir dire to determine the admissibility of the evidence.
September 11, 2002 Crimestoppers tip is received by police.
October 1, 2002 Toronto Police Services Drug Squad receives the tip and “a few days later” it is assigned to Constable Sammut for investigation. The tip relayed to the officer was as follows:
Caller feels a suspect living at 522 Douglas Avenue may be cultivating marijuana. There are heavy blinds on the windows, as well as newspapers. A vent was put in the garage and it is lit all the time. There is no activity during the day, only in the evening from 10:00 p.m. on. The occupant has lived there for at least six months. People can be seen entering in the evening. There is sound of water running constantly. There are heavy lights there as well.
Occupant is a 25 year old, male, white.
October 23, 2002 Constable Sammut first attends the address at 10:00 a.m. He sees the following:
• Jeep Cherokee in the driveway [vehicle not registered to the appellant]
• windows covered with heavy blinds, except that one large bay window is covered with a thick sheet and towels
• condensation on all the windows, especially on right side of bay window indicating to the officer that high level of heat coming from within the house
• vent attached to the garage, which the officer thought was unusual for a residential home.
November 4, 2002 Constable Sammut returns around noon and makes the following observations:
• vehicle registered to the appellant is in the driveway
• same coverings on windows and heavy condensation
• new larger vent on the garage
• roll of heavy clear plastic at the side of the house.
November 8, 2002 Constable Sammut returns between 11:10 and 11:50 a.m. and makes the following observations:
• same coverings on windows and same heavy condensation
• appellant’s vehicle still in the driveway.
November 14, 2002 Constable Sammut receives Toronto Hydro records for 522 Douglas and neighbouring houses, records indicate that owner of home is Jordan Jacobson; Constable Sammut concludes that hydro consumption is much higher at 522 Douglas than at the neighbouring houses.
November 15, 2002 Constable Sammut returns and makes same observations, although vehicle not present, and also notes that front yard appears unkempt with leaves not raked.
November 18, 2002 Constable Sammut receives results of title search that shows property is owned by Jordan Jacobson who is the appellant’s brother.
November 20, 2002 Constable Sammut attends 522 Douglas at 1:20 p.m. and confirms nothing has changed; he then obtains warrant to search 522 Douglas; warrant is executed at 4:37 p.m. that day and discloses substantial marijuana cultivation operation in the house and garage; appellant is present when warrant is executed.
[5] Constable Sammut testified that he believed he had reasonable grounds to obtain the warrant without the tip and without the hydro information.
[6] The information to obtain the warrant is divided into five parts. For the purposes of the issues in this case the relevant parts of the information are the “Introduction of the Informant”, “Background of the Investigation” and “Grounds to Believe the offence has been Committed”.
[7] Under the heading “Introduction of the Informant”, Constable Sammut sets out his substantial experience in the Toronto Police Service Drug Squad and in particular his knowledge of hydroponics marijuana operations.
[8] A summary of the material under the “Background of the Investigation” heading is as follows:
• An anonymous party called police and provided the following information:
Caller states a white male rents the house located at 522 Douglas Avenue in Toronto. The blinds are always drawn, there is a vent in the garage of the house that runs 24 hours. Water is heard running all the time. And there is no daytime Activity however, people can be seen coming and going after 10PM. Caller states there are heavy light there as well.
• Officer Sammut describes his own visits to the property in somewhat less detail than as he testified to on the voir dire. For example, in the information, the officer did not refer to the roll of plastic at the side of the house or that the vent in the garage had been replaced with a large one.
• Officer Sammut sets out results of title search showing the property was sold to Jordan Jacobson on February 25, 2002 for $390,000 with no mortgage; the appellant’s name also appears on the deed as an owner but his name is crossed out.
[9] A summary of the material under the heading “Grounds to Believe the offence has been Committed” is as follows:
• “On the basis of the foregoing paragraphs” Constable Sammut believes on reasonable grounds that [the appellant’s brother] is using 522 Douglas to produce cannabis marijuana for the following reasons:
o He confirmed that the address provided by the anonymous caller exists.
o He attended the address on three different occasions and observed heavy blinds and towels covering the windows.
o He confirmed that a vent was on the side of the garage.
o Every time he attended, there was heavy condensation on the windows indicating a large heat source coming from the residence.
o In his experience, large amounts of hydro are required to operate a marijuana hydroponics growing operation, which may explain why hydro consumption was 2½ times greater than the neighbours, which may explain why there is condensation.
o Land title search confirmed the owner is Jordan Jacobson.
o No change has occurred at the residence; the leaves are not raked and the front of the house is unkempt.
o The type of lamps used in marijuana cultivation operations give off a great deal of heat and this heat would be dissipated through the walls of the room where the marijuana is grown and through the external walls of the location.
o The informant believes the hydro readings and the condensation on the windows are [consistent] with the operation of a cannabis marijuana lab.
[10] It will be noticed that Constable Sammut did not set out the exact hydro readings for 522 Douglas and the neighbouring houses. He merely described the consumption at 522 Douglas as 2½ times greater than the consumption at the neighbours home. On the voir dire, the actual records were produced. The trial judge concluded that the reference in the information to the hydro consumption was inaccurate and she held that this material must be struck out from information. It is unnecessary to elaborate on the basis for this ruling other than to note that the trial judge was satisfied that the officer had not intended to deliberately mislead the justice of the peace.
THE REASONS OF THE TRIAL JUDGE RESPECTING SUFFICIENCY OF THE WARRANT
[11] The trial judge noted that Constable Sammut believed he had the necessary grounds to obtain a search warrant even without the hydro consumption information. The trial judge agreed and she gave the following reasons:
Even if the hydro information is excised from the affidavit, however, it seems to me that there are sufficient grounds upon which the justice could have issued the search warrant. In fact, in those common cases where the hydro has been bypassed, there is no hydro consumption data at all.
It seems to me in this case that the corroborated tip, the observations over four weeks on five separate occasions that the front windows were covered with heavy blinds or towels; that there was condensation on the front windows; that there was no condensation on neighbouring houses even where there was a similar window; that there was a vent on the side of the garage, even if it was covered or not being used, is reliable evidence that might reasonably be believed on the basis upon which the authorization could have issued. [Emphasis added.]
[12] Earlier in her reasons, the trial judge discussed the Crimestoppers tip at some length. She referred to the decision of the Supreme Court of Canada in R. v. Debot (1989), 1989 13 (SCC), 52 C.C.C. (3d) 193 and found that the tip as confirmed by the police was “as least as compelling as the tip in R. v. Plant[^1]”. She also referred to this court’s decision in R. v. Kesselring (2000), 2000 2457 (ON CA), 145 C.C.C. (3d) 119 and held that information in a tip can be considered compelling even though the tip itself contains inaccuracies. She concluded that “significant facts were corroborated, including most of the facts that would be apparent during the day—confirmation of the address, that all the blinds were drawn that there was a vent in the garage”.
ANALYSIS
The Conviction Appeal
[13] In his submissions before this court, Mr. Gold argues on behalf of the appellant that the trial judge’s approach to the Crimestoppers tip was fundamentally flawed. He submits that the tip was nothing more than a suspicion of criminal activity, not an assertion of criminal activity. As such, although it could be referred to as part of the background to the investigation, the information contained in the tip was of no value in determining whether there were grounds for obtaining the warrant. He submits that once the tip and the hydro consumption information are excluded there was no basis upon which the justice of the peace could have issued the warrant.
[14] I agree in part with the appellant’s submissions. Often, where an information to obtain a search warrant contains reference to a tip, whether anonymous or otherwise, the tip is a statement of criminal activity. Debot is an example. In that case, the police received a tip from an informer that the accused was to meet with two other named persons at a specific time for the purpose of completing a drug transaction involving a specified amount of a drug. The informer described where the transaction was to take place and who was bringing the drug to the town. The informer said that he had obtained the information from one of the parties to the proposed transaction. The officer also described why he considered the informer to be reliable. The police did some surveillance and confirmed some minor aspects of the tip. The police confirmation did not itself, however, disclose any criminal activity.
[15] In Debot at p. 215, Wilson J. discussed how a court should evaluate the weight to be attached to an informer’s tip about criminal activity. She held that there are three concerns with an informer’s tip:
First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.
[16] The tip in this case could not form part of the grounds for obtaining the warrant because it was not compelling, the anonymous informer was not known to be credible and the police were able only to confirm some of the details of the tip.
[17] The tip was not compelling for the following reasons. The informer only had a suspicion of illegal activity. It is significant that the informer describes his or her state of belief as follows: “Caller feels a suspect living at 522 Douglas Avenue may be cultivating marijuana.” [Emphasis added.] There is nothing to indicate the informer’s means of knowledge; certainly there is no indication the informer has been inside the house and observed criminal activity. Rather, the informer was merely describing circumstances that anyone watching the house might observe. And, it is not apparent that the informer had personally made the observations or was passing on an observation made by others.
[18] As to corroboration of the tip, the police were only able to confirm the broad outlines of information and some important information could not be confirmed. For example, the police did not see the vent running 24 hours and did not hear water running all the time. Constable Sammut went to the house four times and he did not observe any of this. Further, while the informer said there was no activity during the day and only activity late at night, the police did see some activity during the day (vehicles were present). They did not go to the house at night. Since the informer was not accurate about the daytime activity, I do not see how his or her nighttime observations could be relied upon.
[19] However, I am also satisfied that Constable Sammut recognized the limited value of the tip. He structured the information so that the justice of the peace would not be misled as to the basis for obtaining the warrant.
[20] The Crimestoppers tip supplied in this case was essentially part of the narrative; the tip explained why the police launched their own investigation of 522 Douglas. And, that is how it was used in information to obtain the warrant. It was referred to at some length but as part of the “Background of the Investigation”. It is true that when Constable Sammut came to set out his grounds for belief he wrote that he had reasonable grounds “on the basis of the foregoing paragraphs” which would include the material in the tip. However, when he summarized his grounds the sole reference to the tip was the following: “The informant acting on the information provided by the anonymous party confirmed the address does exist.” The substantial grounds for the officer’s reasonable belief are the fruits of his own investigation. These grounds, omitting the hydro information, can be distilled to: the heavy blinds and towels, the vent, the condensation that was not observed on any other house in the area indicating a large heat source, and the officer’s experience that a hydroponics marijuana operation requires lamps that produce large amounts of heat.
[21] In my view, in the circumstances of this case, the sufficiency of the information to obtain the warrant must stand or fall on the basis of the police investigation. This is not a case where the material in the informer’s tip could provide any further grounds for the obtaining the warrant, and it does not appear that Constable Sammut relied upon the informer’s tip as grounds for obtaining the warrant. The value of the informer’s tip lay with what Constable Sammut used it for – it initiated the investigation.
[22] Thus, to the extent the trial judge relied upon the informer’s tip in this case, she erred. However, in my view, her conclusion was correct. Without the hydro information this was a close case. However, the police officer’s observations, filtered through his experience with marijuana cultivation operations, provided sufficient information upon which the justice of the peace could have issued the warrant. The heavy blinds, the use of the towels, the condensation, and the vent all indicate the house and the garage contained a substantial heat source that the occupant was attempting to shield from view. A reasonable inference, based on the officer’s experience, was that the house and garage were being used to grow marijuana. While there could be other inferences, the officer’s investigation tended to dispel them. For example, the fact that the blinds, sheet and towels were present for over a month tended to minimize the possibility that the homeowner was merely engaged in some temporary lawful activity such as painting the house or conducting an extensive fumigation operation. There were no trades people’s vehicles present that might explain renovations that might have called for the coverings on the windows. It may be that the occupant was preoccupied with his privacy, but this would not explain the condensation or the vent in the attached garage. The standard of reasonable grounds does not require proof beyond a reasonable doubt or even proof on a balance of probabilities. If the inference of specific criminal activity is a reasonable inference from the facts, the warrant could be issued.
[23] I would add one comment. Mr. Gold submits that the entire informer’s tip should have been reproduced in the information to obtain the warrant, including the informer’s own tentative opinion. While it might have been better to do so, the real issue was whether the justice would have been misled as to the value of the informer’s assertion. In my view, the justice would not have been misled. The way that the information was structured accurately sets out the value of the tip – that it was the reason for initiating the police investigation.
The Sentence Appeal
[24] The trial judge sentenced the appellant to six months imprisonment to be followed by 18 months probation concurrent on one count of producing marijuana and one count of possession of marijuana for the purpose of trafficking. The trial judge rejected the defence position that a conditional sentence of imprisonment was appropriate. A police officer gave expert evidence at the sentencing hearing that the appellant’s operation was fairly sophisticated and the plants could have produced a substantial amount of dried saleable marijuana that the appellant could sell at a wholesale level for between $130,000 and $208,000.
[25] At the time of sentencing, the appellant was thirty-three years of age. He had received a conditional discharge in 1992 for simple possession of hashish. He had been using marijuana since he was thirteen years of age and described himself as an addicted daily user since age fifteen. In 2004, after his arrest on these charges, the appellant attended the Homewood Health Centre’s treatment programme. He successfully completed the residential component of the programme although the prognosis was considered guarded.
[26] The appellant had attended a community college and taken a residential construction management programme. He had sporadic employment and was unemployed at the time of sentencing and living at home. He had begun taking courses to become a dog handler. Some information was placed before the trial judge about the appellant’s psychological state. Several months before his arrest, the appellant began treatment for depression which included psychotherapy and treatment with antidepressants. The psychiatrist thought the appellant had been self-medicating his depression by using cannabis. He summarized the appellant’s condition in these terms:
There is no evidence in the mental status of any form of thought disorder or significant fluctuation in his mood except that there is a little bit of depressiveness that he has been treating with cannabis; I think this is certainly under much better control with the Remeron, and Celexa.
[27] In her reasons, the trial judge concluded that the appellant was the sole benefactor of the operation and that he was motivated by the desire for profit. The operation called for investment, planning and premeditation. The trial judge noted that conditional sentences have been imposed in similar cases, but that a trial judge is also entitled to not impose a conditional sentence. She referred in particular to a case from this court[^2] where there was the additional aggravating factor, not present in this case, of a hydro bypass.
[28] The trial judge was satisfied that the appellant did not pose a significant risk to the community if given a conditional sentence. However, she did not consider that a conditional sentence would be consistent with the applicable sentencing principles, especially in view of the increasing prevalence of marijuana cultivation operations in Toronto. She noted that there was a danger to the community from criminal activity that may be associated with such operations. The trial judge held that deterrence and denunciation were particularly pressing. However, she also considered that a relatively short period of incarceration was appropriate given the appellant’s personal circumstances.
[29] On appeal, Crown counsel fairly consented to the admission of fresh evidence. I am also satisfied that the proposed evidence meets the test for fresh evidence as laid down in R. v. Lévesque (2000), 2000 SCC 47, 148 C.C.C. (3d) 193 (S.C.C.). The evidence relates to events after the sentencing and thus meets the due diligence criterion. The evidence is credible and when taken with the other evidence at the trial can be expected to have affected the result. See R. v. Lévesque at paras. 30 to 32.
[30] The most compelling piece of fresh evidence is from a psychiatrist who began to treat the appellant in July 2005 (after the sentencing and while the appellant was on bail pending appeal). Dr. Fulgosi’s report shows that the appellant’s mental health problems are far more profound than was apparent at the time of the sentence hearing. When Dr. Fulgosi first saw him, the appellant was in a state of paralyzing depression. Over the next months, Dr. Fulgosi adjusted the medication regimen on several occasions in an attempt to treat the depression. There has been some improvement in that the appellant is less anxious or agitated but he remains non-functional and immobilized in his life. With the approach of the date for the appeal, the appellant’s mental state suffered further deterioration. Dr. Fulgosi considered that the appellant was in an extremely fragile and precarious clinical balance and if required to serve time in prison he was at risk of complete decompensation and breakdown.
[31] The sentence as originally imposed was within the appropriate range and the trial judge’s reasons disclose no error in principle. On the other hand, it could not be said that a lengthy conditional sentence with strict terms would have been unfit, although in my opinion a conditional sentence for a cultivation operation of this magnitude in a residential area would be rare, even for a first offender. However, the fresh evidence demonstrates that a custodial sentence would be devastating for this appellant. Given this state of affairs, it would be contrary to the public interest to imprison the appellant when a conditional sentence is within the range of acceptable dispositions.
[32] Crown counsel, Mr. North, referred us to this court’s decision in R. v. Shahnawaz (2000), 2000 16973 (ON CA), 149 C.C.C. (3d) 97 where a majority of the court varied a conditional sentence to six years imprisonment for trafficking in heroin despite the evidence of the impact imprisonment would have on the appellant who suffered from post-traumatic stress disorder because he was tortured by the authorities in his country of origin. The difference between this case and Shahnawaz is that in the latter case the court was of the view that the original sentence was unfit given the gravity of the offence. That is not the case here. A conditional sentence with strict conditions would not have been unfit.
[33] The other distinction is that in Shahnawaz, there was no evidence that the accused’s psychiatric condition played any role in the commission of the offences. Speaking for the majority, Charron J.A. said at para. 32 that the situation might be otherwise, “if, for example, Mr. Shahnawaz’s involvement in the offence was due to an addiction to heroin. In such a case, the treatment of the addiction would have a direct bearing on his rehabilitation and its availability could indeed become the focal point of sentencing.” I do not say that the appellant’s addiction in this case need be the focal point of sentencing, but it is a factor. The appellant had been using marijuana to self-medicate and since commission of the offence had taken a residential treatment programme for the addiction and undertaken psychiatric treatment for the underlying mental health problems.
[34] Accordingly, I would allow the sentence appeal and vary the six-month custodial disposition to an eighteen-month conditional sentence on the following conditions:
(1) Keep the peace and be of good behaviour.
(2) Appear before the Court when required to do so by the Court.
(3) Report forthwith upon release to a supervisor at 1550 16th Avenue, Building E., Richmond Hill, Ontario and thereafter report when and where required by the supervisor in the manner directed by the supervisor.
(4) Remain within the Province of Ontario unless written permission to go outside the province is obtained from the court or the supervisor.
(5) Notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change in employment or occupation.
(6) Abstain from the purchase, possession and consumption of drugs except in accordance with a medical prescription.
(7) Abstain from owning, possessing or carrying any weapon including any offensive weapon/ammunition/ explosive substance or weapon as defined in the Criminal Code.
(8) Perform 100 hours of Community Service work. The work is to commence within 60 days of the date of commencement of the Order and shall be completed at a rate of not less than 25 hours per month in consecutive months and shall be completed to the satisfaction of the supervisor or designate, within the conditional sentence period.
(9) House Arrest: For the first six months of this order, not to be out of your residence, except for the following:
(a) to seek and maintain employment during the hours of 7:00 a.m. and 7:00 p.m. with details of job search or employment activities to be provided in advance to the supervisor;
(b) to attend for treatment at the office of Dr. Dan Fulgosi, 123 Edward Street, Suite 502, Toronto and therapy at the office of Greg Koval, 345 Lakeshore Road East, Toronto or 1 Yonge Street, Toronto with advance notice of such appointments to be provided in writing to the supervisor;
(c) to attend religious services on Saturdays and other religious holidays at Pride of Israel Synagogue, 59 Lissom Crescent, Willowdale, Ontario;
(d) medical emergencies;
(e) at any other time with the prior written permission of the supervisor.
After the first six months, house arrest to be replaced by a curfew of 10:00 p.m. to 6:00 a.m., except with the prior written permission of the supervisor.
(10) The jailor shall provide the offender with a copy of the Order.
(11) The supervisor shall comply with the provisions of s. 743.3(3).
[35] The conditional sentence will commence upon release of these reasons. The probation order as imposed by the trial judge will stand.
DISPOSITION
[36] Accordingly, I would dismiss the appeal from conviction. I would grant leave to appeal sentence and vary the sentence to a conditional sentence on the terms set out in these reasons.
Signed: “Marc Rosenberg J.A.”
“I agree S. Borins J.A.”
“I agree S.E. Lang J.A.”
RELEASED: “MR” April 19, 2006
[^1]: R. v. Plant (1993), 1993 70 (SCC), 84 C.C.C. (3d) 203 (S.C.C.).
[^2]: R. v. Nguyen, [2002] O.J. No. 5490.