Court File and Parties

Court File No.: Halton, 10-2572-01 Date: 2012-03-08 Ontario Court of Justice

Between: Her Majesty the Queen — and — Cuong Quoc Tran

Before: Justice Frederick L. Forsyth

Heard on: October 25, 2011 and January 12, 2012

Reasons for Ruling on Motion to Quash Search Warrant and s. 10(b) Charter Application released on: June 15, 2012

Counsel:

• Robert Lush, for the Crown
• Barry Fox, for the accused Cuong Quoc Tran

FORSYTH, J.:

Ruling on a s. 8 Charter Application to Quash the Search Warrant

1Mr. Tran was charged with a single count contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA). This is an indictable charge and Mr. Tran elected to have his trial conducted by the Ontario Court of Justice on October 25, 2011. Mr. Fox had filed a Charter motion pursuant to s. 8, 10(b) and 24(2) seeking the exclusion of any and all evidence obtained as a result of the alleged breaches of his client's s. 8 and 10(b) Charter rights. The main focus of the application is on the s. 8 alleged violation as a result of a search warrant that was obtained by the police in their investigation of this case and executed on Mr. Tran's residence.

Narrative History

2Detective Constable Jacques Brunelle of the Halton Regional Police Service (HRPS) is the affiant on an Information to Obtain (ITO) a search warrant for the residential dwelling of 1113 Avondale Drive in the Town of Oakville, which was the focal point of his investigation of Mr. Tran. Mr. Fox's application record states that he wished to bring and conduct his motion to have this court quash the search warrant on the scheduled trial day of October 25, 2011.

3At the outset of the proceedings on October 25, 2011 Mr. Fox brought a motion to have this court rule that the co-accused of Mr. Tran, one Hien Thi Thu Le, who was presently joined on the single count information with Mr. Tran, should be severed because her promise to appear with an undertaking attached had been unconfirmed. He wished to argue that that fact of confirmation rendered the proceedings against Ms. Le a nullity and if so, the court would have no jurisdiction over her. On consent of the Crown, Mr. Lush, I agreed to sever Ms. Le at that point from Mr. Tran's information, in order to allow Mr. Fox to present his Charter argument on October 25th as scheduled with respect to Mr. Tran. Both Crown and defence agreed to proceed on October 25th with the Tran Charter application after I severed Ms. Le.

4In the first 26 paragraphs of his application record which was filed with the Court on behalf of Mr. Tran Mr. Fox outlined a narrative history of the procedure used by D.C. Brunelle to obtain the search warrant that was eventually executed on Mr. Tran's residence. I will summarize them briefly for the purposes of this ruling. The Crown agrees with the historical information which Mr. Fox provided in his application record and I will simply refer to the various points as if they are facts.

5D.C. Brunelle prepared the information to obtain a search warrant for 1113 Avondale Drive in this case and submitted it to Justice of the Peace Dechert in Milton on August 18, 2010. Justice of the Peace Dechert declined to issue the search warrant because in paragraph 16 of Appendix D to the ITO D.C. Brunelle had stated that he believed that there are marihuana grow journals to be located inside 5493 Eaton Avenue, a completely different address from 1113 Avondale Drive in the Town of Oakville. In other words, there was an obvious discrepancy between the address of the residence that seemed to be the subject of the ITO and the residence that was sought to be searched.

6D.C. Brunelle remedied that problem by bringing a second ITO to Justice of the Peace D. White, who granted the search warrant on the basis of the second ITO on August 18, 2010 at 10:00 p.m. The entire procedure was conducted by telewarrant by D.C. Brunelle.

7Mr. Fox stated that he understood that the HRPS had launched their investigation in April, 2010 based upon an anonymous tip provided to them by the Crime Stoppers of Halton in November of 2009. The actual date on which that tip was received was omitted from D.C. Brunelle's ITO. Mr. Fox set out para. D, sub. 1 of the ITO in his application record. It reads as follows:

On the 6th of April 2010, I reviewed information received from a Crime Stoppers tip ... For the entire Crime Stoppers tip, please see Appendix F. The following information was received in the Crime Stoppers tip: There is a marihuana grow at 1113 Avondale Drive in Oakville.

8On April 6, 2010 at 8:45 p.m., D.C. Brunelle conducted surveillance at 1113 Avondale Drive and made certain observations. Amongst those observations he observed three motor vehicles parked in the driveway at the residence and upon running the licence plates through a Police Automated Registration System (P.A.R.I.S.) he learned that these three vehicles were registered to Cuong Quoc Tran at an address of 5-1534 Queensbury Crescent, Oakville, not 1113 Avondale Drive, Oakville.

9At 10:10 p.m., D.C. Brunelle returned to 1113 Avondale Drive and observed a fourth motor vehicle parked outside the residence, which he learned from the P.A.R.I.S. check was registered to a Mathin Khan at 1113 Avondale Drive, Oakville.

10At some point before 1:00 a.m. on April 7, 2010 D.C. Brunelle ran a Canadian Police Information Centre (CPIC) check on Cuong Quoc Tran which revealed a criminal conviction in October 2006 involving narcotics offences and a listed address of 6 Exbury Road in Toronto.

11Sometime before 1:00 a.m. on April 7, 2010, D.C. Brunelle sent a request to a Kathy Cumming at Oakville Hydro for "comparables on 1113 Avondale". Sometime before 1:00 a.m. on April 7, 2010, he also sent a request to a Kathy Entwhistel Intel requesting information for a Taranet and credit check on Cuong Tran.

12At 3:17 p.m. on April 7, 2010 he received an email from Kathy Entwhistel which provided him the following information:

a. Taranet for 1113 Avondale (subject to property identification information) property registered since January 25, 1989 to Cuong Tran and Thang Tran.

b. Credit report for Cuong Tran shows employment as manager for Green Leaf Home since September 8, 2008.

c. Showing an address of 1113 Avgondale Dr. Oakville in January 1992 but most recently as 6 Exbury Rd. In North York in September 2006.

Most, if not all, of the foregoing information and subsequent information to follow in these paragraphs of the application record were obtained from either the notes of D.C. Brunelle supplied, of course, by the Crown in compliance with disclosure or from the contents of the ITO itself.

13D.C. Brunelle's notes also revealed that in June 7, 2010 he contacted the medical marihuana access office through Health Canada asking for a database check for people authorized to use marihuana medically and the results were negative for Cuong Quoc Tran at 1113 Avondale Drive, Oakville.

14On July 30, 2010, the officer submitted a request to Dave Marsden of Oakville Hydro to install a data recording ammeter (DRA) at 1113 Avondale Drive in Oakville.

15On August 16, 2010 the officer received the results of the DRA from Kathy Cumming at Oakville Hydro. He set those results out with explanatory comments in the ITO itself and I will refer to them later in this ruling.

16In addition, D.C. Brunelle's notes indicate that he obtained information from the Niche Records Management System (RMS), a localized computer database implemented on November 1, 2005 which contains information on police investigations and occurrences, and any other information that the HRPS has received or obtained in the course of their investigations. All of the information is cross-referenced. His notes revealed that the report that he received on Cuong Quoc Tran reported that he was a Vietnamese male, 53 years old, 5'7", 150 pounds in weight, having black hair and a goatee.

17D.C. Brunelle's notes indicate that on August 17, 2010 at 2:50 p.m., he contacted Kathy Cumming at Oakville Hydro via telephone and requested the Smart Meter information to be downloaded as soon as possible. However, Mr. Fox indicates at para. 20 of the application record that the officer's notes do not reveal the results.

18After Justice of the Peace White issued the search warrant on the second corrected ITO application by D.C. Brunelle on August 18, 2010 at 10:00 p.m., the search warrant was executed on August 18, 2010 at 11:12 p.m.

19At para. 25 of his application record, Mr. Fox submits that D.C. Brunelle's notes indicate that upon entering the residence "arrest at door, seated cuffed in kitchen attempt at RTC." Mr. Fox submits that it is unclear to whom D.C. Brunelle was referring in his notes as the person he had arrested at the door. However, Mr. Fox also indicates that D.C. Schwab's notes indicate that D.C. Brunelle arrested Cuong Tran and D.C. Schwab arrested Hien Thi Thu Le. With respect to both accused language was apparently and definitely an obvious problem and D.C. Brunelle indicated in his notes that he requested an interpreter for Mr. Tran and D.C. Schwab indicated in his notes that the accused had stated "English not good" when asked if rights were understood. Mr. Fox submits that it is not clear from either officer's notes what exactly was said to the two accused at the time of the arrest with respect to their rights to counsel. He submits that it does not seem as if the accused were advised of their right to counsel of choice or asked whether they had counsel to whom they wished to speak upon or shortly after their arrest.

20The narrative history portion of the application record concludes with the statement that once Mr. Tran was arrested, the police conducted a search of the 1113 Avondale Drive residence and both Ms. Le and Mr. Tran were then taken back to 20 Division police station in Oakville and booked.

21In paras. 35 through 70 of his application record, Mr. Fox refers to certain excerpts from the ITO that led to the successful issuing of the search warrant to D.C. Brunelle, which he submits support his application on behalf of Mr. Tran to have this court find that the learned Justice of the Peace White did not have reasonable grounds upon which to issue the warrant once certain offending paragraphs of the ITO have been excised or considered to be redacted by this reviewing court.

22Particularly, in paras. 66 through 70, Mr. Fox sets out his submissions in support of his request of the court to not only find that Mr. Tran's s. 8 and s. 10(b) rights of the Charter were violated by D.C. Brunelle, but also that the evidence obtained as a result of those violations ought to be excluded from this trial pursuant to s. 24(2) of the Charter. In particular, with respect to the search warrant itself, at para. 67 Mr. Fox submits that D.C. Brunelle chose not to provide full and frank disclosure on several issues in the ITO.

23At para. 68, he submits that the ITO is deficient on its face and did not contain reasonable and probable grounds to grant a search warrant for 1113 Avondale Drive in Oakville.

24At para. 70, he summarizes the grounds upon which he asks the court to find that a reasonable observer would question whether or not a fair trial for Mr. Tran was actually possible, based on the evidence on this motion. They are as follows:

a. An unknown tipster provided information to the police;

b. The information provided was "bare bones", and the source of the tipster's knowledge is unknown;

c. The date of the tip was some 5 months prior to the police initiating the investigation because other files took precedence at the time;

d. The police provided inaccurate information to the issuing Justice in order to obtain a search warrant.

25On October 25, 2011, at the outset of the application, Mr. Fox indicated that he wished to cross-examine D.C. Brunelle on both the process of obtaining the search warrant and also upon the contents which he included in his ITO. Therefore, D.C. Brunelle took the witness stand and the cross-examination commenced. D.C. Brunelle stated that he had obtained a telewarrant authorizing a search of the premises of 1113 Avondale Drive, Oakville, between the hours of 10:30 p.m. on August 18, 2010 to 6:00 a.m. on August 19, 2010. The telewarrant itself was introduced during the cross-examination as Exhibit #1 on consent.

26D.C. Brunelle agreed with Mr. Fox that the information which he included in Appendix D, his grounds for belief, paragraph a(1) to the effect that he had experience investigating various gang, drug and criminal offences was definitely the extent of his qualifications or expertise with respect to drug offences. For example, he agreed that he had no actual drug or hydro reading expertise by way of his training.

27Mr. Fox referred the officer to section [d] of Appendix D of his ITO and D.C. Brunelle agreed that nowhere in paragraph 1, which informs the justice of the peace that he had reviewed information received from a Crime Stoppers tip on April 6, 2010, is there any indication of the date on which that tip had been received by the police. He also agreed that in no other place in the ITO was that date ever revealed to the justice of the peace. He therefore agreed that obviously the justice of the peace would not have any idea of the date on which the tip had been received without reading the Crime Stopper tip itself. He agreed that the tip was included in Appendix F of the ITO but had been redacted from the ITO before the court proceeding on the motion by Mr. Fox to ask this court to quash the warrant.

28D.C. Brunelle stated that he had learned that the anonymous tip was received in November of 2009 but neither he nor anyone else at the HRPS acted upon it until April 2010 because of other files requiring attention. He stated that the justice of the peace was indeed provided the entire Crime Stoppers tip which did include the date on which it had been received.

29He testified that the Crime Stopper tip did not include a name of the confidential informant but it did refer to information which, in the officer's view, could lead to knowledge of the source of the tip. His own investigation, he said, caused him to believe that Mr. Tran was the owner of the 1113 Avondale Drive, Oakville home.

30Mr. Fox took D.C. Brunelle through various paragraphs of his investigation section of the ITO which was section D. The officer agreed that the three motor vehicles that he had observed parked in the driveway at 1113 Avondale Drive, although registered to the accused Mr. Tran, showed an address for Mr. Tran of 5-1534 Queensbury Crescent in Oakville. He also agreed that the fourth car that he had observed had been registered to another person whose address was shown as 1113 Avondale Drive. He agreed that he himself had never observed Mr. Tran to be either entering or leaving the 1113 Avondale residence before he prepared his ITO. He also agreed that he had not observed nor provided any information in his ITO about any indicia of a drug grow operation in connection with the residence at 1113 Avondale Drive.

31Mr. Fox referred him to paragraph 5 of his section D investigation contents of the ITO in which he had set out hydro consumption comparisons amongst 1113 Avondale, 1129 Avondale, and 1130 Avondale. D.C. Brunelle said that he had chosen those neighbouring houses to study because they were similar in structure and size to 1113 Avondale. However, he agreed that he had absolutely no idea of the number of occupants in either of the other two homes. Nor did he have any idea of what type of energy consuming devices they may have had in their homes.

32With respect to the information which he had provided in paragraph 6 of the investigation section of the ITO, regarding the land registry search involving the property at 1113 Avondale, he said that the search had revealed that the accused and a Thang Tran were the registered owners of the property. However, he agreed that he had not included in the ITO the disclaimer that is mentioned in the Teranet search vehicle that it is not an official government document and that it may not be current in its information.

33At this point, the proceeding was remanded for continuation to October 26, 2011 and Mr. Fox resumed his cross-examination of D.C. Brunelle on October 26th. He referred the officer to paragraph 10 of his section D investigation portion of the ITO wherein he had stated that he had submitted a request to Dave Marsden of the Oakville Hydro metering services requesting a DRA to be installed at 1113 Avondale Drive to measure the consumption of hydro electricity from the transformer leading to the residence. The officer told Mr. Fox that he did realize that, of course, he needed a search warrant to enter upon the property and that was why he requested Oakville Hydro to enter upon the property to install the DRA. He then qualified that answer by saying that he wasn't really certain whether it was necessary for the Oakville Hydro person to enter upon the property to install the device and that the justice of the peace did not ask him that question either. He said that he certainly did ask for the DRA to be installed at that address however. He also agreed that he had never inquired of Mr. Marsden or anyone else about where or how the device would be installed.

34The credit bureau check of Mr. Tran was entered as Exhibit # 3, and also an email that had been authored by D.C. Brunelle that was a communication between him and an HRPS administrative assistant. The credit check, he agreed, showed that a Cuong Tran with the same date of birth as the accused was residing at 1113 Avondale Drive in Oakville.

35Entered as Exhibit # 4 on consent was then the police CPIC record check with respect to Mr. Tran. He said that he only provided Justice of the Peace White in the ITO with the actual criminal record portion of the CPIC report and not the portion that shows an address for the subject. However, he pointed out that the Exhibit #4 CPIC record check which he had run on April 6, 2010 was a more complete document and showed an address for Mr. Tran of 6 Exbury Road in Toronto.

36With respect to paragraph 13, which contained D.C. Brunelle's conclusion that he believed the information he received from the Niche RMS query to be important because it showed that Cuong Tran was found to be growing marihuana at this residence at 1113 Avondale Drive in Oakville and subsequently charged with possession for the purpose of trafficking and production of a controlled substance in 2006, Mr. Fox obtained an agreement from D.C. Brunelle that the Niche RMS report and the information that he provided in paragraph 13 of the ITO did not show either conviction or withdrawal of those charges.

37The officer also readily agreed that in the paragraphs which he included in the ITO showing hydro consumption readings which he obtained from Oakville Hydro with respect to 1113 Avondale Drive and the neighbouring houses there was no indication of any information from an expert in hydro consumption to interpret those readings.

38The email which had been introduced as part of Exhibit #3 was filed in Mr. Fox's application record at Tab 12. It reveals that it was a communication from D.C. Brunelle to the Crown, Mr. Lush, on May 7, 2011. In that email, the officer set out certain paragraphs of information. At paragraph 3, he said:

I essentially started this investigation and reviewed the Crime Stoppers tip on April 6th 2010 however the tip was received in November of 2009. The entire tip was included in the sealed search warrant. There could be various reasons why the delay between the tip and the investigation but I would bet on other files taking precedence at the time.

39In re-examination by the Crown, D.C. Brunelle said that he only received the information about the 2006 theft of hydro charge from an occurrence report of the same year, authored by P.C. Manella, and D.C. Brunelle said that he didn't know what had happened to it.

40The cross-examination of D.C. Brunelle being concluded, Mr. Lush closed the Crown's case in response to the s. 8 Charter application in the sense that he did not intend to call any witnesses himself and was content that the evidence being received from D.C. Brunelle on his cross-examination as the affiant of the ITO was sufficient, in addition to any other exhibits and evidence that had been filed.

41Mr. Lush then indicated that he wished to provide the court with the entire chapter and verse of the Crime Stoppers tip since the testimony of D.C. Brunelle had been that Justice of the Peace White had been provided the entire contents for his consideration on the application by the officer to have the warrant issued. Therefore, the Crown argued that in order to review the justice of the peace's decision to issue the search warrant, the court must have available to it all of the information considered by the justice of the peace. Mr. Fox objected, arguing that since he had seen none of the Crime Stoppers tip contents, he could not make submissions on what use the court should make of it, if any, in reviewing the justice of the peace's decision. I requested the Crown to provide a written argument on the point and to exchange it with the defence and the matter was then remanded to January 12, 2012.

42On January 12, 2012, I ordered production of the Crime Stoppers tip to the court after ruling that the ITO the warrant without it was insufficient in my view to sustain the justice of the peace's issuance of the search warrant. I summarized orally the portions of the Crime Stoppers tip that I felt should be disclosed to the defence. That summary then became, on consent, Exhibit #6 on the motion.

43I then received final submissions from both Crown and Defence counsel on the accused's Charter application and in particular on the subject of my review of Justice of the Peace White's grounds to have issued the search warrant.

44In his application record under the heading, Part 11 Relevant Law, from paragraph 27 through 34, Mr. Fox set out the authorities and principles from those authorities on which he relies in this application. He dealt with the standard of review to be applied by the trial judge with respect to an application to quash a search warrant and the requirement for full and frank disclosure in the contents of the ITO. The Crown responded in his formal written response to the applicant's motion, stating that he agreed with the references to the legal standard to be applied that were made by Mr. Fox in this application record. I also agree and I will simply set out the most relevant portions in this ruling.

Relevant Legal Principles

29. On an application to quash a search warrant, the trial judge is limited to determining whether or not there is evidence, upon which a justice acting judicially could determine that a warrant should be issued, and whether the warrant contained sufficient particulars of the items to be seized. A reviewing court is not entitled to look at the search results in order to determine whether the search warrant should have issued. R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 (See para. 29 of Application Record).

30. If there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place, the authorization should be affirmed.

31. It is well established that any ex parte authorization must be based on full and frank disclosure, and the failure of which may invalidate the legality of the authorization.

32. With respect to full, frank and fair disclosure the Supreme Court of Canada in Araujo provided guidance on the issue of misleading statements in an ITO (at paras. 46 and 47):

46 ... The legal obligation on anyone seeking an ex parte authorization is full and frank disclosure of material facts. So long as the affidavit meets the requisite legal norm, there is no need for it to be as lengthy as À la recherche du temps perdu, as lively as the Kama Sutra, or as detailed as an automotive repair manual. All that it must do is set out the facts fully and frankly for the authorizing judge in order that he or she can make an assessment of whether these rise to the standard required in the legal test for the authorization. Ideally, an affidavit should be not only full and frank but also clear and concise. It need not include every minute detail of the police investigation over a number of months and even of years.

47 A corollary to the requirement of an affidavit being full and frank is that it should never attempt to trick its readers. At best, the use of boiler-plate language adds extra verbiage and seldom anything of meaning; at worst, it has the potential to trick the reader into thinking that the affidavit means something that it does not. Although the use of boiler-plate language will not automatically prevent a judge from issuing an authorization (there is, after all, no formal legal requirement to avoid it), I cannot stress enough that judges should deplore it. There is nothing wrong -- and much right -- with an affidavit that sets out the facts truthfully, fully, and plainly. Counsel and police officers submitting materials to obtain wiretapping authorizations should not allow themselves to be led into the temptation of misleading the authorizing judge, either by the language used or strategic omissions. R. v. Araujo, 2000 SCC 65 (CanLII), [2000] 2 S.C.R. 992 (See para. 32 of Application Record).

45In paragraph 33 Mr. Fox referred the court to a decision of the Ontario Court of Justice of R. v. Rizzo [1997] O.J. No. 6280. In that case, Mr. Justice Taillon was dealing with a possible conclusion of bad faith on the part of the affiant of the ITO for a search warrant, a conclusion which could be drawn from the totality and cumulative effect of the misleading pieces of information or incorrect pieces of information. Mr. Justice Taillon stated:

It is my view, that whether the evidence and misleading [or] irrelevant information were deliberate or not, or advertent, or inadvertent, there were too many errors – there were too many pieces of information that should not have been contained in the information to obtain these search warrants. It may be that, on balance, there was some bad faith.

In my view, it is a search breach where misleading information, irrelevant information and information in error is provided to a justice of the peace, which information had the result of the issuance of search warrants, which were then acted upon and resulted in property being seized.

46In both his application record and also in his amplification submissions on January 12th Mr. Fox submits that the court should conclude that the ITO prepared by D.C. Brunelle is not an example of full, frank and fair disclosure to Justice of the Peace White.

The Anonymous Crime Stoppers Tip

47First of all, he refers the court to the fact that D.C. Brunelle failed to disclose to the justice of the peace the historical date on which the anonymous Crime Stoppers tip had been received by the HRPS, which was November 2009. That date was nine months before D.C. Brunelle presented his ITO to the Justice of the Peace White requesting a search warrant based largely on that anonymous Crime Stoppers tip and hydro readings, argues Mr. Fox. Mr. Fox submits that the officer did not even review the tip until April 6, 2010 and then waited another four months before preparing his ITO. D.C. Brunelle's evidence reveals that there was only one day of surveillance conducted by the police on the residence at 1113 Avondale Drive and that was on April 6, 2010, the same day on which the officer decided to review the November 2009 anonymous Crime Stoppers tip.

48Mr. Fox submits that it is clear from the evidence of D.C. Brunelle that there is no action of any kind taken as a consequence of the November 2009 tip, between November of 2009 and April 6, 2010, and also no subsequent action or police investigation by way of surveillance taken after April 6, 2010 before the officer applied for the search warrant in August of 2010.

49Mr. Fox submits that the exhibit email containing the paragraph written by D.C. Brunelle to the Crown, offering his own opinion that no action had been taken between the date of the tip and the April 6th investigation would be because other files had taken precedence, reveals that he was in full knowledge that no action had been taken in that five month period and yet he failed to disclose this information in the ITO. By so failing to disclose the gap between the receipt of the Crime Stoppers tip and the date when he first looked at the tip on April 6th, Mr. Fox submits that the officer misled Justice of the Peace White to believe that the information to which he was referring in his ITO as having reviewed on April 6th, had actually been received on April 6th or at least somewhat contemporaneously to that date, when it was actually five months stale by that time. Mr. Fox argues that that amounts to a material misrepresentation which would have been, objectively speaking, an extremely important consideration for the justice of the peace when deciding whether or not to issue the search warrant.

50Mr. Fox submits that the conclusion offered by D.C. Brunelle in connection with the first three motor vehicles that he had observed on the driveway of 1113 Avondale Drive on April 6, 2010 to the effect that they were registered to Cuong Quoc Tran at 1113 Avondale Drive, was a representation to Justice of the Peace White that was simply not true because the P.A.R.I.S. query had revealed that they were registered to Cuong Quoc Tran at an address of 5-1534 Queensbury Crescent in Oakville.

51At paragraphs 50 through 53 of the application record, Mr. Fox sets out his arguments with respect to the importance of the fact that D.C. Brunelle apparently did nothing to confirm the tipster's anonymous information through surveillance or any other investigatory technique. Because of the importance of that aspect of his argument, I will set out para. 50 in full in this ruling:

In Garofoli Justice Sopinka touched on the issue of information obtained through confidential informants and wrote at para. 68:

... Moreover, I conclude that the following propositions can be regarded as having been accepted by this Court in Debot and Greffe, 1990 CanLII 143 (SCC), [1990] 1 S.C.R. 755:

(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.

[page1457]

(ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:

(a) the degree of detail of the "tip";

(b) the informer's source of knowledge;

(c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources.

(iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information. (See para. 50 of Application Record)

52Further, at paragraph 51 of his application record, Mr. Fox states:

Specifically on the issue of information obtained from tipsters, the Superior Court of Justice in R. v. Philpott, [2002] O.J. No. 4872 concluded that case law supports the general proposition that failure to disclose the basis upon which an informer came to his or her knowledge is a defect in substance sufficient to render a search warrant invalid. At paragraph 90, the court held:

90 Where a tipster provides information to the police, the officer seeking to obtain a search warrant must set out, in as much detail as possible, the basis of the tipster's knowledge. As well, the officer must substantiate the credibility, veracity or reliability of the tipster and disclose how knowledge of any facts was acquired by the tipster.

The Hydro Readings

53At paragraph 41 of his factum, Mr. Fox attacks the statements made by D.C. Brunelle in his ITO with respect to the contribution of the comparative hydro readings which he had received from Kathy Cumming of Oakville Hydro with respect to 1113, 1129 and 1130 Avondale Drive to the body of information that would contribute to reasonable grounds for Justice of the Peace White to have issued the search warrant.

41. In paragraph 5 DC Brunelle indicates that he requested information from Kathy Cumming of Oakville Hydro of 1113 Avondale Drive, 1129 Avondale Drive and 1130 Avondale Drive. DC Brunelle indicated he requested this information on these particular properties because "they are both comparable in size and structure." However this statement is misleading because DC Brunelle fails to indicate what the particular size and structure of the properties are, there are no photographs of the properties, no indication as to whether or not any of the properties have a pool or hot tub, how many individuals reside at the residences, whether air conditioning systems were operating at the time the readings were gathered, or the nature of the heating systems used at any of the three residences. Therefore, there is nothing in this paragraph to indicate that the homes were in fact of "comparable size and structure."

54In paragraph 11 of his ITO, D.C. Brunelle states:

On the 16th of august 2010, I received the results of the DRA from Kathy Cumming at Oakville Hydro. I reviewed the results of the DRA which demonstrated hydro electric readings in kilowatt/hour each 15 minutes between August 5th to August 9th 2010.

As seen on this graph, there is a constant rise in power at 1113 Avondale Drive for approximately 12 hours in each consecutive 24 hour period. I know from my training and experience that these readings are not consistent with that of other typical residential hydro consumption readings. A 12-hour cycle is conductive [sic conducive]with the necessary light cycle for growing marihuana plants in the flower/budding stage of growth. This budding stage of marihuana growth is part of a three stage process for growing marihuana which I will explain below. ...

55D.C. Brunelle then set out his understanding of the Stage 1 - Seedling/Clone stage of the marihuana plant and the Stage 2 - Vegetative stage, followed by the Stage 3 - Flower/Budding stage and provided detailed information to Justice of the Peace White of the growth cycle of marihuana plants. After doing so, he provided the following conclusion for the Justice of the Peace:

I believe this information is important because it demonstrates that the hydro electric consumption in the graph above is consistent with that of a marihuana grow operation in its flower/budding stage. The 12 hours of high pressure lighting in addition to fans, pumps and ballasts cause consistently elevated hydro electric consumption readings. I believe that this demonstrates a marihuana grow operating at 1113 Avondale Drive in Oakville.

56In paragraph 45 of his factum, Mr. Fox argues that D.C. Brunelle had absolutely no basis to form this conclusion and provide it to the justice of the peace. He argues as follows:

... However, DC Brunelle has no basis for this conclusion. As stated in Philpott, at para 104: opinions given with respect to hydro consumption should be informed opinions. Additionally, DC Brunelle fails to take into account that these readings could represent purely innocent conduct as recognized in R. v. Li [2010] O.J. No. 4692 where the court held an ITO based on hydro readings alone, without more, could not form reasonable and probable grounds to issue the search warrant. The court reasons that DRA readings could just as easily be associated with activities like the use of a hot tub or swimming pool, or other timer-governed production of any other energy absorbent enterprise.

57In paragraph 47 of his factum, Mr. Fox refers the court to Section E of the ITO of D.C. Brunelle wherein he stated:

The information received from Oakville Hydro identifies Cuong Tran as the hydro account holder for 1113 Avondale Drive.

Mr. Fox submits that there is nothing in D.C. Brunelle's notes to confirm that he had reason to believe that Cuong Tran was the account holder of the hydro at 1113 Avondale Drive in 2010.

58Finally at paragraph 48 of his factum, Mr. Fox sets out the portion of the judgment in R. v. Philpott [2002] O.J. No. 4872, a decision of the Ontario Superior Court of Justice, upon which he relies for his argument that hydro consumption records without proper comparables and expert interpretation are meaningless in an effort by the Crown to justify the issuing of a search warrant based on that information being provided in the ITO. Mr. Justice Quinn stated in Philpott:

169 Records indicating hydroelectric consumption may serve as corroboration in a case like the one at bar if proper comparables 13 are provided and supplemented by expert evidence as to the significance of the readings. Without proper comparables, and expert interpretation, hydroelectric records are meaningless. Note 13: Proper comparables might include consumption figures for similar residences in the same neighbourhood and over the same time-frame and from previous occupants of the subject premises.

174 ... Indeed, some officers regard increased hydroelectric consumption alone as sufficient to justify the issuance of a search warrant. It is not. Other evidence is required. Evidence of increased hydroelectric consumption, or a particular level of consumption, means little without some basis upon which to associate it with the hydroponic cultivation of marihuana. At bar, the "other evidence" of which I speak would include records as to the average consumption in the neighbourhood and knowledge of the lifestyles of the current and previous owners or occupants and of those in respect of whom comparables are used.

59At paragraph 49 Mr. Fox reminds this court that there is no evidence in this case that D.C. Brunelle's ITO contained any reference to proper comparables of hydro consumption in the neighbourhood of 1113 Avondale and there was no expert evidence offered to the justice of the peace with respect to the significance of the readings that were obtained. I will simply mention at this point that the Crown, Mr. Lush, in his response to this argument by Mr. Fox, supplied the court with a decision of Mr. Justice Hill in the Ontario Superior Court of Justice cited as R. v. Ngo [2011] ONSC 6676. This decision was rendered on November 10, 2011. I will refer to that decision when I summarize the Crown's argument in response to Mr. Fox's submissions.

60Mr. Fox argues that on a number of occasions in the ITO D.C. Brunelle presented information to the justice of the peace as if it was current, whereas further scrutiny reveals that it was not necessarily so. He argues that this technique of D.C. Brunelle objectively supports a conclusion by the reviewing justice that the justice of the peace could well have been misled by that misinformation. At paragraph 46 of his factum, Mr. Fox outlines one example of his argument. In that paragraph, he argues:

Further, the information presented in this paragraph is from 2006 and not relevant to whether Cuong Tran is currently residing at the residence as DC Brunelle indicates. In fact, as mentioned, the results from the CPIC query and Credit Check query reveals that Cuong Tran has a current listed address of 6 Exbury Road in Toronto. Therefore, it is the Applicants submission that this paragraph is seriously misleading.

61Mr. Fox made that submission in the context of the information provided by DC Brunelle in his ITO that Cuong Tran was found to be growing marihuana at his residence of 1113 Avondale Drive in Oakville in 2006.

62In conclusion, in addition to his argument that the conclusions and opinions offered by D.C. Brunelle on the evidence of the comparative hydro consumption at 1113 Avondale and neighbouring residences, combined with his opinions about the hydro consumption at 1113 Avondale on the dates of August 5 to 9 and August 10 to 15 were unfounded, given D.C. Brunelle's admitted lack of the knowledge and experience which would be required to justify those opinions, Mr. Fox offered the following summary of what he submits are fatal flaws in the Information to obtain this particular search warrant.

63Mr. Fox argues that:

a) an unknown tipster provided information to the police;

b) the information provided was bare bones, and the source of the tipster's knowledge is unknown;

c) the date of the tip was some five months prior to the police initiating the investigation because other files took precedence between the date of the tip which turned out to be November 2009 and the date when D.C. Brunelle decided to review it on April 6, 2010;

d) D.C. Brunelle provided inaccurate information to the issuing justice in order to obtain the search warrant;

e) only one day of surveillance, April 6, 2010 itself, was conducted on the residence of 1113 Avondale;

f) even then, D.C. Brunelle waited another four months before obtaining additional hydro readings between August 5 and 15, before submitting his ITO to Justice of the Peace White after correcting the erroneous address that had been inserted in the original ITO which had been rejected by Justice of the Peace Dechert earlier the same day.

64For all of these reasons, Mr. Fox asks this court to find that Mr. Tran has succeeded in satisfying his onus on a balance of probabilities to allow this court to conclude that the issuance of the search warrant for 1113 Avondale Drive in Oakville by Justice of the Peace White violated his s. 8 Charter right to be free from unreasonable search and seizure.

Position of the Crown

65Mr. Lush filed a written Crown response to the applicant's Charter application. In that response he generally accepted the summary of the facts that were set out by Mr. Fox in his application record. He also stated that the affidavit to obtain the search warrant, or in other words the ITO, that was also included within Mr. Fox's application record, accurately sets out the circumstances relied upon by the Crown for the issuing of the warrant by the Justice of the Peace on the basis of that ITO. Mr. Lush also agreed with the statements made in the applicant's application record about the legal standard to be applied to a review of the issuing of a search warrant.

66In particular, the Crown submits that D.C. Brunelle, the affiant, fully complied with the requirements of full and open disclosure in his ITO.

67With respect to the companion issue of the s. 10(b) Charter application breach, the Crown stated in his written response that the evidence of the voir dire would disclose total compliance with the law with respect to the s. 10(b) rights of the accused upon being arrested by D.C. Brunelle.

68Finally, at paragraph 6 of the Crown's response, Mr. Lush argued that even if the court should find that some errors were made by the police after a review of the totality of the circumstances including what the Crown submits was the good faith of the police, the evidence found upon the search and the effect of the inclusion of the evidence on the fairness of the trial, the effect on the reputation of the court if the evidence was to be ruled inadmissible and the societal interest in the adjudication of this case on the merits, all cry out for the inclusion of the physical evidence of the drugs discovered as a result of the execution of this search warrant on the residence at 1113 Avondale Drive in Oakville.

69As did Mr. Fox, Mr. Lush also made supplementary oral submissions on January 12, 2012 immediately after I ordered production of the Crime Stoppers tip to the court to decide whether or not any portion of it would be ordered to be disclosed to the applicant's counsel, Mr. Fox. My decision on that issue is contained in Exhibit #6 on this blended trial and voir dire filed with the court. In brief, I did order disclosed to the applicant from the anonymous Crime Stoppers tip the date on which it was received by the police – the 30th of November 2009 at 1:57 p.m. – as well as the information provided by the informant about the date of the crime which was "a couple of months." I also ordered disclosed the fact that the informant had supplied the address of 1113 Avondale Drive, Oakville and that the anonymous informant caller had believed that the location was a supply house and not a house for trafficking. In addition, I order disclosed the portion of the anonymous tip in which the caller had expressed the belief that this same address was posted on a website of the Halton Regional Police known as www.hrps.ca as a grow operation residence in 2006.

70In Mr. Lush's supplementary oral submissions he argued that there is no evidence before this court that the Oakville Hydro people actually physically entered upon the property of 1113 Avondale Drive in order to install the DRA. He submitted that they simply could have read the hydro consumption from the transformer on the street and he argued that there is no privacy right in hydro consumption readings for any customer. In any event, argues Mr. Lush, that issue is a Charter issue which Mr. Fox could argue on the trial itself but it has nothing to do with the review of the issuing of a search warrant.

71With respect to the Teranet search that was conducted by D.C. Brunelle and criticized by Mr. Fox for not having included in his ITO that this search on occasion "may" not be totally reliable. Mr. Lush simply argued that that omission is of no moment with respect to an allegation of bad faith or material misrepresentation. In other words, the Crown argued that the mere fact that there was a disclaimer in that type of search that it is not an official government document and therefore may not be totally currently correct, does not render reliance upon the information which it provided to D.C. Brunelle that the accused, Mr. Tran, and Thang Tran were listed on that document as the registered owners of 1113 Avondale Drive as of April 6, 2010 improper or misleading.

72With respect to the argument by Mr. Fox about the stale-dated nature of the anonymous Crime Stoppers tip which was dated November 30, 2009 by the time D.C. Brunelle got around to looking at it on April 6, 2010, the Crown submitted that the justice of the peace would have been entitled to assume that if there was evidence of a marihuana grow operation available to the anonymous informant in November 2009 it would still be an ongoing grow operation at that same address on April 6, 2010. The Crown made this submission in the face of the absence of any evidence of any subsequent surveillance of the residence between November 30, 2009 and April 6, 2010.

73With respect to the efforts made by D.C. Brunelle to update the information provided by the confidential anonymous informant the Crown argues that he engaged in many objectively appropriate steps to update the information to the currency of both April 6, 2010 and August 2010. For example, the Crown refers the court to the evidence that the officer did a licence plate check on the vehicle that he observed in the driveway of 1113 Avondale on April 6, 2010 and learned that it was registered to the accused Mr. Tran and it was the same licence plate and vehicle that had been registered to him in 2006 when he was charged and convicted of a marihuana grow operation.

74Mr. Lush referred the court to the information contained in the ITO from the date of recording ammeter readings of the hydro fluctuation on a daily basis during the days in August just preceding his application to the justice of the peace for this warrant. The Crown relies upon that evidence to argue that the justice of the peace was entitled to draw a conclusion that there would be reasonable grounds to believe that a marihuana grow operation was ongoing as late as August of 2010 based, at least partially, on those hydro readings.

75Of course, the Crown also argues that the hydro consumption comparative readings between 1113 Avondale Drive and the neighbouring residences that were supplied to the justice of the peace for the periods of time from November 2009 to the end of March 2010 also would reveal that the consumption itself was three or four times greater in 1113 Avondale as opposed to the comparative neighbouring residences.

76A combination of these two areas of evidence, argues Mr. Lush, would entitle the justice of the peace to properly conclude that he possessed the reasonable grounds necessary to believe that a marihuana grow operation was ongoing in that residence on the date of the issuance of the warrant, August 16, 2010. For this particular argument, Mr. Lush relies heavily upon the decision of R. v. Ngo, supra, the decision referred to above by Mr. Justice Hill of the Ontario Superior Court of Justice in November 2011. I will deal with that decision in some detail in my analysis shortly, but suffice it to say that the Crown relies heavily upon Mr. Justice Hill's statements in paragraph 47 of that decision as follows:

47 The information in the ITO relating to excessive hydro consumption, as one factor to be considered in the totality of the circumstances, was sufficiently detailed and informative and accurate for consideration by the issuing court. The ITO referred to "neighbouring" residences as the comparators. While Krause (the officer involved in Ngo) could have provided the municipal address of the comparators, the "neighbouring" description was adequate. ... No expert evidence or interpretation of the hydro data was necessary. The differential in hydro consumption was marked. The omission of the Kwh/day reference of 25 relating to 136 Pefferlaw Circle, a figure less than all the averages at the subject residence, is not relevant and, in the absence of a Garofoli cross-examination, is not evidence of any attempt by the affiant to mislead. Potential alternative explanations for low usage at the comparator residences or for higher usage at 134 Pefferlaw Circle does not detract from the probative value of the reported information.

77Mr. Lush submits that this court should be more persuaded by Mr. Justice Hill's decision on this point than by Mr. Justice Quinn's statements in R. v. Philpott, supra. The Ngo case was decided some nine years later than the Philpott decision, the latter being a 2002 decision by Mr. Justice Quinn. Both of these decisions emanate from the Superior Court of Justice, a superior and binding court to this court in summary conviction appeal matters. However, in each of the Philpott and Ngo decisions, the presiding justices in the Superior Court were sitting as trial judges and therefore Mr. Lush is correct in submitting to this court that their decisions should be of persuasive value as opposed to binding upon this court, such as would be the case in a summary conviction appeal decision.

78Mr. Lush reminds this court of the standard to be applied as stated in the statement of the law in the application record of Mr. Fox, with which he agrees, and submits that this court should find that there was no attempt by D.C. Brunelle to mislead Justice of the Peace White and that subjectively and objectively speaking, the ITO contents properly allowed Justice of the Peace White to form the reasonable grounds to believe that on August 16, 2010, a marihuana grow operation was ongoing in the residence of 1113 Avondale Drive in Oakville. Therefore, the Crown argues that this search warrant was properly issued and that this court should dismiss the applicant's s. 8 Charter application relating to its issuance.

79If this court should decide to allow the application and find that there was a s. 8 breach of Mr. Trans' Charter right relating to the issuance of this search warrant, then the Crown of course reserves the right to argue the s. 24(2) admissibility issue.

Analysis

General Principles

80I have carefully considered and instructed my mind in accordance with the statement of principled analysis comprehensively set out by Mr. Justice Hill in R. v. Ngo, supra, as follows:

ANALYSIS

General Principles

33 In a s.8/24(2) pre-trial motion, the court reviewing a search warrant ITO does not stand in place of the justice of the peace who issued the warrant. The properly circumscribed limits of review were summarized in R. v. Mahmood et al., 2011 ONCA 693, at para. 99:

A reviewing judge does not substitute his or her view for that of the justice who issued the warrant. Rather, the reviewing judge considers the record before the issuing justice, the ITO, trimmed of any extraneous or unconstitutionally obtained information, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 40-42; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 8 and 30; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 54 and 59: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452; and R. v. Wiley 1993 CanLII 69 (SCC), [1993] 3 S.C.R. 263, at pp. 273-274.

(emphasis of original)

34 In performing its role of constitutional review of an ITO, various instructive guidelines have been applied by courts including:

(1) The warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance: R. v. Campbell, 2010 ONCA 588, at para. 45. (aff'd, 2011 SCC 32).

(2) "[T]he 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": R. v. Nguyen, 2011 ONCA 465, at para. 57.

(3) As noted in R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.)(QL), at para. 135:

The appropriate approach for judicial review of the facial validity of a search warrant and related ITO is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, a common sense review not line-by-line word-by-word dissection, provides the fair and reasonable context for the assertions in question: R. v. Grant (1999), 1999 CanLII 3694 (ON CA), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No. 168 (Q.L.), 150 C.C.C. (3d) vi); R. v. Chan, 1998 CanLII 5765 (ON CA), [1998] O.J. No. 4536 (Q.L.) at para. 4, 40 W.C.B. (2d) 143 (C.A.); R. v. Melenchuk and Rahemtulla, [1993] B.C.J. No. 558 (Q.L.) at para. 15-18, 19 W.C.B. (2d) 194 (C.A.); Simonyi Gindele et al. v. British Columbia (Attorney General) (1991), 1991 CanLII 984 (BC CA), 2 B.C.A.C. 73 (C.A.) at 79.

(4) Police officers are not legal draftspersons and cannot, in an ITO, be expected to "spell out things with the same particularity of counsel": Re Lubell and the Queen (1973), 1973 CanLII 1488 (ON SC), 11 C.C.C. (2d) 188 (Ont. H.C.), at p.190; R. v. Durling (2006), 2006 NSCA 124 (CanLII), 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 19; R. v. Sanchez (1994), 1994 CanLII 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at p. 364; Re Chapman and the Queen (1983), 1983 CanLII 3587 (ON SC), 6 C.C.C. (3d) 296 (Ont. H.C.), at p. 297.

(5) It will not be surprising that an ITO will have some flaws - "[f]ew applications are perfect": Nguyen, at para. 58. The question remains whether the core substance of the ITO could support the justice of the peace's exercise of discretion to issue the warrant.

(6) While it is expected that an ITO will present reliable, balanced and material facts supporting the asserted grounds of belief, an ITO affiant need not attempt to replicate a Crown disclosure brief - the document should be clear, concise, legally and factually sufficient, and "need not include every minute detail of the police investigation": C.B.C. v. A.-G. for New Brunswick (1991), 1991 CanLII 50 (SCC), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562; R. v. Araujo (2000), 2000 SCC 65 (CanLII), 149 C.C.C. (3d) 449 (S.C.C.), at p. 470; R. v. Ling (2009), 2009 BCCA 70 (CanLII), 241 C.C.C. (3d) 409 (B.C.C.A.), at para. 43 (leave to appeal refused, [2009] S.C.C.A. No. 165).

35 Central to the current application is the concept of reasonable grounds to believe. In the context of a search warrant ITO, the overarching principles may be summarized as follows:

(1) The application must disclose reasonable grounds or credibly-based probability regarding the essential statutory prerequisites. This standard of reasonable probability does not equate to proof beyond a reasonable doubt or to a prima facie case (R. v. Debot (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.), at p. 213) "or even on a balance of probabilities": R. v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22. Accordingly, reasonable grounds "are not proof absolute" though they must be more than mere suspicion: R. v. Smith (1998), 1998 ABCA 418 (CanLII), 126 C.C.C. (3d) 62 (Alta. C.A.), at p. 77.

(2) Whether an ITO affiant subjectively had grounds of belief, and whether those grounds reasonably existed in an objective sense, is a fact-specific determination in each case.

(3) Grounds of belief are to be considered in their totality, not isolated out for independent evaluation. The point was made in Campbell, at para. 57:

Considered independently each of these grounds may not have justified the authorization. However, a justice of the peace could have found from their cumulative effect that there were reasonable grounds to issue the warrant.

See also R. v. Nguyen, 2007 ONCA 24, at para. 4: ("The cumulative effect of the information demonstrated the existence of reasonable and probable grounds to believe that a grow operation would be found inside the house").

(4) "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" for a search warrant: Nguyen (2011), at para. 48. In R. v. N.N.M. (2007), 2007 CanLII 31570 (ON SC), 223 C.C.C. (3d) 417 (Ont. S.C.J.), at para. 320, the court stated:

Because a search warrant application is generally an ex parte application, there is a "legal obligation" to provide "full and frank disclosure of material facts" with the relevant facts set out "truthfully, fully and plainly": Araujo, 2000 SCC 65 (CanLII), [2000] 2 S.C.R. 992, at 469-470 (emphasis of original). A justice can only perform the judicial function of issuing a warrant if "provided with accurate and candid information": R. v. Hosie (1996), 1996 CanLII 450 (ON CA), 107 C.C.C. (3d) 385 (Ont. C.A.) at 399; R. v. Agensys International Inc. (2004), 2004 CanLII 17920 (ON CA), 187 C.C.C. (3d) 481 (Ont. C.A.) at 491. The "requirement of candour is not difficult to understand; there is nothing technical about it": R. v. Morris (1998), 1998 NSCA 229 (CanLII), 134 C.C.C. (3d) 539 (N.S.C.A.) at 551. An affiant for a warranted search is under a duty to avoid drafting which attempts to trick the reader, for example by the use of boiler-plate language, or which could mislead the court "by language used or strategic omissions": Araujo, at 470. Careless language in an ITO "deprives the judicial officer of the opportunity to fairly assess whether the requirements of a warrant have been met" and "strikes at the core of the administration of justice": Hosie, at 398-400.

(5) The affiant's experience is relevant to the assembly of investigative facts and their promotion as affording reasonable grounds of belief. This principle was described at para. 68(6) of the Cunsolo case in these terms:

Because a trained officer is entitled to draw inferences and make deductions drawing on experience (R. v. Jacques and Mitchell (1996), 1996 CanLII 174 (SCC), 110 C.C.C. (3d) 1 (SCC) at 12), a reviewing court must take these factors into account: R. v. Lawes, 2007 ONCA 10 (CanLII), [2007] O.J. No. 50 (C.A.) at para. 4; R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.) at 501; R. v. Juan (2007), 2007 BCCA 351 (CanLII), 222 C.C.C. (3d) 289 (BCCA) at para. 19; R. v. Tran, 2007 BCCA 491 (CanLII), [2007] B.C.J. No. 2341 (C.A.) at para. 12; R. v. Mouland, 2007 SKCA 105 (CanLII), [2007] S.J. No. 532 (C.A.) at paras. 26-27; R. v. Ingle, [2007] B.C.J. No. 2024 (C.A.) at para. 53; R. v. Rajaratnam (2006), 2006 ABCA 333 (CanLII), 214 C.C.C. (3d) 547 (Alta. C.A.) at 559; R. v. Grotheim, 2001 SKCA 116 (CanLII), [2001] S.J. No. 694 (C.A.) at para. 30; R. v. Quillian, 1991 CanLII 13109 (AB KB), [1991] A.J. No. 1211 (Q.B.) at para. 56.

The soundness of this approach has been specifically recognized in the context of marihuana grow-op investigations: "The officer's observations, filtered through his experience with marihuana cultivation operations, provided sufficient information upon which the justice could have issued the warrant": Jacobson, at para. 22.

(6) An issuing justice is entitled to draw reasonable inferences from stated facts and an informant is not obliged to underline the obvious: Lubell, at p. 190.

(7) A court considering the issuance of a search warrant is entitled to draw "reasonable inferences:" R. v. Schiers, 2003 NSCA 138 (CanLII), [2003] N.S.J. No. 453 (C.A.), at para. 15; R. v. Durling (2006), 2006 NSCA 124 (CanLII), 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 20, 27; R. v. Jackson (1984), 1983 CanLII 244 (BC CA), 9 C.C.C. (3d) 125 (B.C.C.A.) at p. 131; Re Lubell, at p. 190; R. v. Sanchez (2004), 1994 CanLII 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct.-Gen. Div.), at pp. 365, 370; R. v. Church of Scientology (No. 6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.), at pp. 514-5 (leave to appeal refused, [1989] S.C.C.A. No. 87, [1989] 1 S.C.R. vii).

(8) Only infrequently is an ITO affiant required to discuss things not observed at the suspected site of a marihuana crow-op: Nguyen (2011), at para. 50. It is implicit that the surveillance did not observe other indicia of the existence of a grow-op: Nguyen (2011), at para. 50. "There is no obligation" on a warrant applicant "to explain away in advance, every conceivable indicia of crime they did not see or sense": Nguyen (2011), at para. 51.

(9) While a dwelling-house attracts a high level of expectation of privacy, there is no investigative necessity pre-requisite to the issuance of a warrant to search a house in the way there might be for a law office, media premises or a church. As noted in Nguyen (2011), at para. 51, "[t]here is no obligation" on the police in applying for a search warrant to explain "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".

The Anonymous Crime Stoppers Tip

81An information to obtain a search warrant can properly contain a Crime Stoppers tip. However, since these are usually anonymous, they will not normally be sufficient without other evidence to justify the issuance of a search warrant because their reliability cannot be assessed: See R. v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 207 C.C.C. (3d) 270 (O.C.A.).

82I have carefully considered the statements of Mr. Justice Sopinka in the Supreme Court of Canada decision of Garofoli, supra, with respect to information obtained through confidential informants, which was set out in full by Mr. Fox in paragraph 50 of his application record to which I referred above.

83In addition, I have carefully considered the statements of Mr. Justice Quinn from R. v. Philpott, supra, to the effect that the officer seeking to obtain a search warrant must set out in as much detail as possible the basis of the tipster's knowledge as well as substantiating the credibility, veracity or reliability of the tipster and disclosing how the knowledge was acquired by the tipster.

84In my view the most important guidelines to a reviewing court from Garofoli with respect to an anonymous Crime Stopper tip is the statement by Mr. Justice Sopinka that:

The reliability of the tip is to be assessed by recourse to "the totality of the circumstances." There is no formalistic test as to what this entails. Rather, the court must look to a variety of factors including:

a) The degree of detail of the tip;

b) The informer's source of knowledge;

c) Indicia of the informer's reliability such as past performance or confirmation from other investigative sources;

d) The results of the search cannot, ex post facto, provide evidence of reliability of the information.

The Application of These Principles to This Case of Tran

85In the opening declaration of his information to obtain a search telewarrant, D.C. Brunelle states that he has reasonable grounds to believe and does believe that there is (emphasis added) a controlled substance or precursor, a thing in which such a controlled substance or precursor is contained or concealed, offence related property, or a thing that will afford evidence in respect of an offence under the Controlled Drugs and Substances Act to wit: Appendix A -

1. Cannabis Marihuana;

2. Marihuana grow journals – these are journals or logs kept by the marihuana grower which pertain directly to the marihuana grow operation and may contain information such as when to transition between Marihuana growth stages, what nutrients were provided, what cycle of lighting was provided and any other similar references. These journals could be kept on paper or electronic device such as a computer or cell phone.

86In Appendix B D.C. Brunelle sets out the allegations that Cuong Quoc Tran on or about the 18th day of August 2010 did produce a controlled substance, to wit: Cannabis marihuana contrary to s. 7(1) of the Controlled Drugs and Substances Act and secondly, that the same Cuong Quoc Tran on the same day in the same year did unlawfully possess a controlled substance for the purpose of trafficking, to wit: Cannabis marihuana contrary to s. 5(2) of the Controlled Drugs and Substances Act.

87In paragraph (c), D.C. Brunelle describes the residence for which he seeks the search warrant as a two-storey end unit town home located at 1113 Avondale Drive in Oakville. He states that the front door, garage door and window shutters are painted brown. He makes no reference to any of the windows being covered with plastic wrap and, in particular, no reference to inside windows being covered with plastic wrap.

88In section (d) of the investigation paragraphs of his ITO D.C. Brunelle states that he reviewed information received from a Crime Stoppers tip on April 6, 2010. He made no mention whatsoever of the fact that the date upon which the anonymous tip had been received by the HRPS was November 30, 2009 and that it had not been reviewed by him since that date. However, he did refer the justice of the peace to the entire Crime Stoppers tip and appended it to his ITO as Appendix F. He then stated that the following information was received in the Crime Stoppers tip: "there is a marihuana grow at 1113 Avondale Drive in Oakville." On August 18, 2010 when D.C. Brunelle was applying for this telewarrant, the anonymous Crime Stoppers tip was eight and one-half months old.

89An examination of the contents of the Appendix F anonymous Crime Stoppers tip reveals that Justice of the Peace White had available to him the following information:

1. That the tip was received by the HRPS on November 30, 2009 in connection with the residence known as 1113 Avondale Drive in Oakville.

2. That the anonymous caller stated that four months previously, there was a strong odour of marihuana coming from the house for about a week and then the odour was gone. However, three weeks prior to November 30, 2009, the odour was very strong again. The anonymous caller stated that he or she believed that harvest time must be around the time when there is a strong odour and the caller believed that the location was a supply house and not a house used for trafficking, pointing out that there was very little traffic coming in and out of the house.

3. The caller also described the residence as having its inside windows covered with plastic wrap.

4. The caller also advised that the same address was posted on the HRPS website as a grow op in 2006.

5. The caller also stated that the house was being maintained by the suspects.

90At paragraph (c) of his investigation section of the ITO D.C. Brunelle states to the justice of the peace that the suspect Cuong Quoc Tran lives at 1113 Avondale Drive in the Town of Oakville. However, in paragraph 2 of section (d), he sets out the results of the P.A.R.I.S. motor vehicle registration inquiry on the three vehicles which he had observed in the driveway of 1113 Avondale on his isolated day of surveillance of April 6, 2010. The registration of the vehicles listed under the name of the accused Cuong Quoc Tran all indicate that he was residing as of April 6, 2010 at 5-1534 Queensbury Crescent in Oakville. Therefore, in my view the justice of the peace would not have been entitled to conclude from that information that Mr. Tran was actually residing at 1113 Avondale as of August 18, 2010, although he was provided information that would entitle him to conclude from the Teranet search in my view that Mr. Tran was the registered owner of that property as of April 6, 2010.

D.C. Brunelle's Efforts to Substantiate the Credibility, Veracity or Reliability of the Anonymous Crime Stoppers Tip in His ITO

91I agree with Mr. Fox that on the face of his ITO presented to the learned justice of the peace D.C. Brunelle did nothing to substantiate the anonymous tipster's source of knowledge as the foundation for the tip. By his own admission, because of workload, he did not even read the tip until some four months and one week after it was received. Thereafter he conducted a single day of surveillance – April 6, 2010 – on the residence and made no mention of any of the windows being covered with plastic wrap as had been described by the anonymous tipster on November 30, 2009. He was unable to provide any evidence of an odour of marihuana emanating from the residence, whether it be strong or otherwise. He provided no surveillance evidence that would permit the justice of the peace to form a reasonable belief that Mr. Tran was maintaining or participating in the maintenance of the house.

92D.C. Brunelle did not state that this particular informant had been involved in the past with any other police drug investigations.

93At paragraph (e) of the investigative section of his ITO D.C. Brunelle presented his conclusions for his true belief that Mr. Tran was, on August 18, 2010, unlawfully producing marihuana and also in possession of marihuana for the purpose of trafficking at the residence of 1113 Avondale Drive in Oakville by submitting ten discrete bullet points of conclusion for his belief.

• The information provided in the Crime Stoppers tip regarding the belief of a marihuana grow operation at 1113 Avondale Drive in Oakville.

• The hydro consumption at 1113 Avondale Drive is consistently higher when compared to two other homes in the area.

• The hydro consumption readings through the DRA and Smart Meter show a consistent 12 hour cycle of consumption consistent with that of a marihuana grow in its flower/budding stage.

• The information received from Oakville Hydro which identifies Cuong TRAN as the hydro account holder for 1113 Avondale Drive.

• The three vehicles located at 1113 Avondale Drive belonging to Cuong Quoc TRAN.

• The results of the Teranet query identifying Cuong TRAN as the property owner at 1113 Avondale Drive.

• The results of the credit check on Cuong TRAN identifying him residing at 1113 Avondale Drive in Oakville.

• Cuong TRAN was found to be growing marihuana at his residence at 1113 Avondale Drive in Oakville and subsequently charged with Possession for the Purpose of Trafficking and Production of a Controlled Substance in 2006.

• The criminal record of Cuong TRAN for Producing a Scheduled Substance and Possession of a Scheduled Substance for the Purpose of Trafficking in 2006.

• The response from Health Canada that no persons residing at 1113 Avondale Drive have legal authority to possess or produce marihuana.

94It is clear that D.C. Brunelle relied upon the anonymous Crime Stoppers tip to a considerable extent in the formation of his belief that the accused, Mr. Tran, as of August 18, 2010 was committing the subject offences and he urged the justice of the peace to do the same.

95However, it is equally clear that he also relied heavily on the results of the hydro consumption statistics which he had earlier set out in his ITO. No fewer than three of his ten conclusion points relate to the hydro consumption at 1113 Avondale.

96He also relied upon the information received from his searches that three vehicles located at 1113 Avondale Drive on April 6, 2010 were owned by Mr. Tran and also that the results of the Teranet inquiry identified Mr. Tran as the property owner.

97He also relied upon the knowledge which he set out for the justice of the peace of the 2006 conviction of Mr. Tran for similar offences arising out of the same residence.

98While I am mindful that the grounds of belief of D.C. Brunelle are to be considered in their totality on this review, and not to be considered in isolation, I nevertheless find that the complete paucity of substantiation of the credibility, veracity or reliability of the anonymous tipster of November 30, 2009 by D.C. Brunelle was totally contrary to the edicts of the Supreme Court of Canada in Garofoli, supra.

99Indeed, the absence of any information provided by D.C. Brunelle with respect to the inside windows being covered with plastic wrap and an odour, strong or otherwise, of marihuana emanating from the residence as the confidential informant had supplied some months earlier, if anything, should have rendered the anonymous Crime Stoppers tip in the mind of the justice of the peace to be even less helpful and relevant to his task of deciding whether or not he had reasonable grounds to believe on August 18, 2010 that there was a marihuana grow operation in progress at 1113 Avondale.

100In Ngo, supra, Mr. Justice Hill at paragraph 28 found that "the police did not undertake a cursory investigation. Surveillance occurred on several days. More than one officer experienced in grow op investigations participated and reported relevant observations."

101Most certainly in the case at bar, from an objective analysis of what would have been available to the justice of the peace, I find that D.C. Brunelle's solitary day of surveillance on April 6, 2010 of the residence could not be considered to be anything other than a cursory investigation. Even during that particular investigation there is no evidence of Mr. Tran being present at the house and the only indicia of his connection to the house on that day was the fact that three of his motor vehicles, which were registered to another address altogether, happened to be present on the driveway of 1113 Avondale.

The Hydro Readings

102As Mr. Justice Hill stated in R. v. Ngo, supra, at paragraph 35(5):

The affiant's experience is relevant to the assembly of investigative facts and their promotion as affording reasonable grounds of belief. ...

The soundness of this approach has been specifically recognized in the context of marihuana grow-op investigations: "The officer's observations, filtered through his experience with marijuana cultivation operations, provided sufficient information upon which the justice could have issued the warrant": Jacobson, at para. 22.

103In Ngo, supra, Mr. Justice Hill referred to the experience of Peel Regional Police Service Constable Krause, who was the affiant of the ITO in that particular case, as follows:

In the ITO, Krause described his extensive experience with the P.R.P.S. Morality Bureau "Green Team" including the investigation and dismantling of marihuana grow labs. Krause further deposed that Constables Zehr, Rerrie, Holland and Carroll, also of the Morality Bureau, had knowledge of marihuana grow labs.

104At paragraph 10 of Ngo, Mr. Justice Hill stated:

In addition, throughout the ITO, usually in italics, Constable Krause would state that based upon the investigative facts reported and his "experience and knowledge" a certain inference ought to be drawn, for example:

• Re unusually high hydro consumption:

The cultivating of marihuana requires a significant amount of energy to sustain the demands of light for the plants growth. From my experience, I know that having considerably higher readings in comparison to the neighbouring residence[s], may be an indicator that a marihuana grow operation is present within the residence. (Emphasis added)

105At paragraph 31 of Ngo, Mr. Justice Hill referred to an aspect of the Crown's position which he ultimately accepted, as follows:

31 As to the hydro consumption data, the information provided to the justice of the peace was accurate and not overstated. The comparators were neighbouring residences. ... Constable Krause simply asserted that the apparent excessive hydro usage "may" be indicative of the presence of a grow-op.

106By contrast, D.C. Brunelle in his introductory paragraph of Appendix D in the ITO, stated that he was currently assigned to the Regional Guns and Gangs Unit as a detective constable investigating various gang, drug and criminal offences. He made no mention in that opening paragraph of having any expertise in investigating marihuana grow ops or, for that matter, with respect to P.C. Krause in Ngo, any such degree of experience with dismantling marihuana grow labs or investigating them. Indeed in cross-examination by Mr. Fox on the ITO contents D.C. Brunelle readily agreed that he had no actual drug or hydro reading expertise by way of any of his police training. Notwithstanding this admission of the state of his inexperience at the time of his preparation of this ITO, D.C. Brunelle promoted his experience in marihuana grow op operation investigations to the justice of the peace by stating "I know from my training and experience that these readings are not consistent with that of other typical residential hydro consumption readings." This statement was made in reference to the results of the DRA information which he had received from Oakville Hydro for 1113 Avondale Drive.

107In addition, he then provided the justice of the peace with the three stage process for growing marihuana, prefaced by his statement "this budding stage of marihuana growth is part of a three-stage process for growing marihuana which I will explain below:."

108At the conclusion of his explanation of the three-stage process he stated categorically, and not conditionally, as did P.C. Krause in Ngo, "I believe that this demonstrates a marihuana grow operation at 1113 Avondale Drive in Oakville." These statements were made by D.C. Brunelle in connection with the hydro readings which he had obtained on the August dates just preceding the August 18th preparation of this ITO.

109Later, at paragraph 15 of the investigation section of his ITO, D.C. Brunelle stated "using the readings between August 10th to August 15th, I constructed the following graph:." He then set out the graph of hydro peaks and consumption during a 12-hour period in each consecutive 24-hour period of those days for 1113 Avondale Drive. Having thus provided that information to the justice of the peace, he stated again categorically, "I believe this information is important because it demonstrates that the hydro electric consumption in the graph above is consistent with that of a marihuana grow operation in its flower/budding stage. I believe that this demonstrates a marihuana grow operation at 1113 Avondale Drive in Oakville."

110Finally, at paragraph 16, he states:

Marihuana plants require light, air, water, nutrients, a growing medium and heat to manufacture food and to grow. Without proper care of any one of these essentials (sic) elements, growth will stop and death of the plant will occur. In my training, I know that it is common practice for marihuana growers to keep journals, log books or other types of records to keep track of the marihuana grow operation. These records kept by the marihuana grower pertain directly to the marihuana grow operation and may contain information such as when to transition between marihuana growth stages, what nutrients are provided, what cycle of lighting is provided and any other similar references. These journals could be kept on paper or electronic device such as a computer or cell phone. I believe that there are journals inside 1113 Avondale Drive in Oakville and that these will afford evidence in the commission of the stated offences.

111Specifically, D.C. Brunelle promoted the extent of his training in marihuana grow operations to Justice of the Peace White in that particular paragraph in some considerable detail. I find that in doing so he engaged to a significant extent in overstatement of his experience and qualifications in marijhuana grow op investigations.

112In light of D.C. Brunelle's admission and cross-examination about his lack of training in actual drug or hydro reading expertise in marihuana grow operations, and indeed by contrast with his general statement of qualifications in paragraph (1) of the ITO, which simply refers to his work in guns and gangs and drug and other offences in general, I find that the statements to which I've just made reference which he included in his investigative section of the ITO with respect to his interpretation of the meaning of the hydro consumption statistics provided to him by Oakville Hydro were seriously overstated and could be considered to be a material misrepresentation to the learned justice of the peace upon which, from an objective standpoint, it can only be assumed the latter relied in arriving at his reasonable grounds for belief that there was a marihuana grow operation in progress on August 18, 2010 at 1113 Avondale Drive.

113Although Mr. Justice Hill in Ngo, supra, stated at paragraph 47 that no expert evidence or interpretation of the hydro data provided by P.C. Krause was necessary and noted that the differential in hydro consumption between the subject residence and neighbouring residences was marked, I find that he drew that conclusion in the absence of a Garofoli cross-examination in Ngo, which is not the case here. I have my doubts that Mr. Justice Hill would have spoken in such an approbating fashion with respect to the statements made by D.C. Brunelle about the interpretation which the justice of the peace should place upon the hydro readings in the case at bar, given his lack of experience and justification for promoting those statements.

Conclusion

114I find that all of the interpretations of the hydro evidence provided by D.C. Brunelle to Justice of the Peace White should be excised from the ITO because they amount to a material misrepresentation in the absence of expert evidence on those points. To that extent, I am persuaded to follow the reasoning of Mr. Justice Quinn in R. v. Philpott, supra, but in particular because of my finding that D.C. Brunelle had no justifiable right to promote his experience in marihuana grow operations from a technical, nutritional, and cultivating standpoint. Put another way, I find that the overstatements of D.C. Brunelle's experience in marihuana grow operations amounts to disclosure to the justice of the peace that was less than full, frank and fair.

115D.C. Brunelle was certainly not in the same position as the officer in R. v. Jacobson, supra, who was entitled to provide his observations filtered through his experience with marihuana cultivation operations and the Ontario Court of Appeal found that that was sufficient information upon which the justice could have issued the warrant.

116Therefore, I find that the information which the justice of the peace objectively should have been allowed to consider with respect to whether or not this warrant should have issued, would have been the anonymous Crime Stoppers tip, the insufficiency of which I have earlier discussed, given the absolute lack of any material updating of it by D.C. Brunelle, and, in addition, the hydro consumption patterns simpliciter, comparatively speaking, of 1113 Avondale and the neighbouring residences, as well as the 24 hour graph of hydro consumption at 1113 Avondale for August 10 through 15.

117In addition the justice of the peace would be entitled to consider the fact that three motor vehicles belonging to Mr. Tran were seen on the driveway of 1113 Avondale on one single day of April 6, 2010, although those vehicles were also registered to Mr. Tran at a completely different address as of April 6, 2010.

118Likewise, the information from the Teranet query and the credit check would have been properly available to the justice of the peace to have reasonable grounds to believe that Mr. Tran perhaps owned the property and perhaps resided at the property.

119In addition, the justice of the peace was entitled to learn about the previous conviction in 2006 of Mr. Tran for possession for the purpose of trafficking and production of a controlled substance arising out of the same 1113 Avondale address.

120However, I find that this information could, objectively and subjectively, only provide to the justice of the peace, when considered and analyzed on a cumulative basis, a great deal of suspicion against Mr. Tran but falling short of reasonable grounds to believe that there was a marihuana grow operation ongoing at 1113 Avondale Drive in Oakville on August 18, 2010 when Justice of the Peace White issued this search warrant.

121I find myself in the same position as Mr. Justice Taillon in R. v. Rizzo (supra) when he stated:

It is my view, that whether the evidence and misleading [or] irrelevant information were deliberate or not, or advertent or inadvertent, there were too many errors—there were too many pieces of information that should not have been contained in the information to obtain these search warrants. It may be that, on balance, there was some bad faith. In my view it is a search breach, where misleading information, irrelevant information, and information in error is presented to a justice of the peace, which information had the result of the issuance of search warrants which were then acted upon and resulted in property being seized.

122For all of the foregoing reasons, I find that the applicant has satisfied me on the required balance of probabilities that his s. 8 right to be secure from unreasonable search and seizure was breached by the issuance of this particular search warrant for his residence.

123I will receive submissions from both counsel on the s. 24(2) issue on June 21, 2012.

124This completes my written reasons for my oral decision given without these reasons on March 8, 2012. I thank both counsel for their very well prepared and eloquently presented positions.

Released: June 15, 2012

Signed: "Justice Frederick L. Forsyth"