Court File and Parties

Court File No.: 2811 998 Date: April 2, 2015

Ontario Court of Justice

(Central East Region)

B E T W E E N:

Her Majesty The Queen

J. Trehearne, Counsel for the Crown

- and -

Robert Sever and Kimberly Simpson

K. Manitius, Counsel for Mr. Sever M. Jacula, for Ms. Simpson

Heard: March 28, April 14, May 12, June 10, June 12, Sept. 2, Sept. 22, 2014; Feb. 20, 2015; March 10, 2015

Reasons for Judgement

BLOCK, J:

Overview

1Durham Regional Police executed a search warrant at 61 Tulloch Drive, Ajax on July 17, 2013. As a result of the discovery of a quantity of marijuana plants and dried marijuana seized pursuant to that warrant the defendants were charged with the offences of production of marijuana and possession of marijuana for the purpose of trafficking.

2Date, jurisdiction, and the continuity, quantity and nature of the drugs seized were agreed upon by all counsel.

3Defence counsel for both accused have challenged the search and seizure on the basis that the warrant could not reasonably have been granted and thus the evidence was seized in violation of section 8 of the Canadian Charter of Rights and Freedoms. They contend that the evidence should be excluded from the trial pursuant to section 24(2).

4Counsel contend that, in the event the evidence is admitted, I should have a reasonable doubt that the defendants were in possession of the contraband substances.

The Notice Issue

5This court permitted the cross-examination of the affiant on May 12, 2014. Prior to that evidence both sides filed material and conducted full argument. All issues that have been anticipated in the Charter application were fully addressed at that time, except for the abuse of process application. After the cross-examination of the affiant, counsel for Mr. Sever filed a renewed Section 8 application. The crown did not formally respond. Counsel for Mr. Sever argues that the court should not consider the crown's ultimate written submissions.

6I will not give effect to this argument. It would be very unfair to the crown. The absence of the crown's written submissions would have handicapped the court's consideration of the issues. The determination of notice compliance issues must be based on whether prejudice has been created by the conduct alleged and whether the trial process has been compromised. In the context of this case, the defendants cannot have been prejudiced by the absence of a formal response.

7The timing of this submission is problematic. This is not a case where the defence would alert the crown to the absence of key evidence by raising the issue during the trial. As a general practice, the court should be advised of notice compliance issues as soon as the party seeking relief becomes aware of the concern. Any actual prejudice can then be addressed by adjournment or other remedies which promote, rather than eliminate, a full examination of the issues. The failure to raise this concern earlier in the proceeding invites the conclusion that the timing of the complaint was determined by a perceived tactical advantage and not by any perceived prejudice.

The Abuse of Process Application

8The submission that I should neither read nor hear the crown's final submissions is especially inappropriate as counsel for Mr. Sever has raised for the first time, in her submissions filed March 4, 2015, an abuse of process application alleging the most serious misconduct by crown counsel. Ms. Manitius has accused the crown of deliberately redacting from the disclosed ITO the affiant's mistake as to which side of the semi-detached house was the target address of 61 Tulloch Crescent. She contends that this was a deliberate, considered, and repeated effort to hide the error from the defendant and obstruct the constitutional right to disclosure. In effect, the prosecutors are being accused of an attempt to obstruct the course of justice.

9The allegations are most serious and call into question the integrity of counsel as members of the Bar and as agents for the Attorney General of Canada. In the unusual case where these allegations are well-founded they must be pursued fearlessly. But the utmost diligence, due care and consideration must be used to determine whether the allegations have merit. Reputations, professional livelihoods and Law Society consequences are at stake.

10The timing of these allegations is extremely unfortunate. If warranted, the application should have been made as soon as the factual basis crystalized some ten months ago. For reasons to follow, I have determined that it is unnecessary for me to rule on the abuse of process application. If I ruled otherwise, fairness would demand a reopening of the case. Crown counsel would have been required to retire from the prosecution of this matter and engage the services of another prosecuting agency. I may well have been required to miss-try the matter. A great waste of court resources and much additional delay and needless anxiety for the defendants would have been the result.

11All counsel are officers of the court. Counsel are presumed to act honourably toward each other. It is my experience that the rare accusations of dishonesty between counsel usually prove to be groundless. Simple error is far more likely to be the cause of disclosure failure. While the factual record is necessarily incomplete without the testimony of crown counsel, I view the error at the centre of this application to be of little importance. It is clear that the police searched the home specified by the tipster and specified to the issuing justice. In the context of this error-laden investigation, a little confusion about which side of the semi-detached house was the target address is a very small mistake. It would not have affected my determination of the search issue. It is inconceivable that respected counsel would dishonour themselves by conspiring to hide such an inconsequential error. I do not think that the factual basis comes close to establishing criminal conspiracy as the only potential explanation.

12My determination that I need not rule on the abuse of process application means that the allegations remain unresolved. The allegations may engage law society and other reporting obligations on the part of all counsel involved in this matter. Counsel making the statement and counsel aware of the allegation may have law society obligations to report. The subject crowns may have a duty to self-report to the law society and to their superiors.

The Charter Section 8 Application

13At the heart of this case is the ITO dated July 15, 2013 that caused the issuing justice to authorize the search of 61 Tulloch Crescent. I have determined this warrant could not have reasonably been granted and that the search of 61 Tulloch Crescent violated section 8 of the Charter.

14The core of the ITO was an anonymous tip received by the police sometime in 2013. The tipster gave the police the following information: there was a marijuana grow operation at 61 Tulloch Crescent, Ajax, the basement windows in the premises were covered by wood and garbage bags, fluorescent lighting was observed through cracks in the basement window covering and that there was a Grey Chevy Silverado 8074XK parked in the driveway. Whether the very little detail supplied by the tipster was based on firsthand knowledge is unreferenced in the ITO. There is a striking lack of detail in the information provided.

15The information from tipster was received sometime in 2013. The efforts to corroborate the information supplied began on July 2, 2013. The issuing justice was relying on information that may have been seven months stale.

16On July 2, 2013, the affiant requested a fly over by the Air Support Unit of the Durham Regional Police to determine if there was a heat source from the target address consistent with the tipster's claim. The police sought the issuance of the warrant without obtaining a result from this request.

17It would appear that the affiant made but one surveillance visit to 61 Tulloch Crescent on July 3, 2013. The products of this visit do not corroborate the information supplied by the anonymous source except for the presence of the truck, a fact that does not support the inference of criminal activity at this address, and the observation that the basement windows were covered up. There was no evidence that the affiant observed fluorescent light through gaps in the material covering the basement windows as claimed by the tipster.

18The affiant did provide hydro results on July 3, 2013 for the period February 20, 2013 through April 20, 2013. The ITO records his observation that in that two month period, 61 Tulloch Crescent had an average daily consumption of 38.05 k/W. 57 Tulloch Crescent had an average use of 23.13 k/W and 59 Tulloch Crescent had an average use of 25.49 k/W in the same period. The issuing justice was not informed of the fact, elicited in cross-examination, that this period was an atypical spike in use. There was no information concerning the period closer to the issuance of the warrant. The ITO did not reference the information supplied the affiant regarding the months of August 2012, October 2012, December 2012, February 2013, when hydro use at the target premises was substantially lower than the comparison properties. The affiant admitted that he was uninformed of the number of units in the target premises and how that might affect hydro consumption patterns. The inference I drew was that the affiant supplied hydro-data that supported his application and ignored data that detracted from it.

19The affiant was reckless in his duty to conduct a fair investigation. In cross-examination the affiant claimed to know that there was no hot tub at the premises, a possibility that might well offer an innocent explanation for the power spike described above. He said he gained this knowledge from his unobstructed street view of the backyard at 61 Tulloch Crescent on the July 3, 2013 inspection. He said he drew the same conclusion from a Google Map image he had reviewed, an image that he was unable to provide the court. His evidence was contradicted by another Google Map image produced by counsel that he agreed was similar. In that image the backyard was completely obscured by large trees. The street view of the backyard at 61 Tulloch Crescent was similarly completely obstructed by trees. The affiant then claimed that his conclusion that there was no pool or hot-tub was based on the fact that such accoutrements are inconsistent with a backyard filled with trees. His evidence was not credible. I drew the conclusion the evidence of hydro use was unreliable and should be excised from the ITO.

20The affiant did not contact the owner of the premises, Ormsby Realty Ltd prior to applying for the warrant. As a result, he was unaware of the number of rental units at 61 Tulloch Crescent. He was also unaware of the utility billing arrangements between the owner and the tenants. He was unaware of the identity of the tenants. Unfortunately, this absence of diligence characterized the entirety of the warrant application process.

21Deficiencies in investigation compromised other efforts to corroborate the tipster's information. The affiant told the issuing justice that he observed condensation in the window above the front door. He was unable to say, under cross-examination, whether the condensation was on the indoor or outside surface of the window. No air-conditioning units were observed at the premises. Nevertheless, the affiant suggested in the ITO that the cause of the condensation was the use of air-conditioning units to deal with the heat created by the grow operation.

22Finally, the evidence before the court was that there was no evidence of the water use at 61 Tulloch Crescent. The affiant communicated to the issuing justice that the absence of water usage readings indicated that the readings were not provided to the utility because marijuana growers would withhold evidence of the high water consumption associated with the grow operation. In my view this was a considerable and unreliable leap, especially as the affiant admitted that he had no idea whether the tenants or the owners were responsible for monitoring water use at the rented premises or how many separate units were located there.

23In my view there is no meaningful corroboration of the miniscule amount of information supplied by the tipster. The grounds supplied were very far from the reasonable and probable grounds required and the warrant is ruled invalid. The defendants application that their right to be free from unreasonable search under s.8 were violated is allowed.

Exclusion of Evidence Under Section 24(2)

24I now arrive at the consideration of the exclusion of the evidence pursuant to section 24(2) of the Charter. I have concluded that the application of the three-part test outlined in Her Majesty the Queen v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353 requires me to exclude the evidence of the dried marijuana and the plants from evidence at trial against both defendants.

25I disagree with the submission that the Charter-infringing conduct was not serious. When a warrant is the product of very terse report by an anonymous tipster, there is an expectation that the police will make great efforts to corroborate the information supplied before applying to enter a private residence. This duty has been established by case-law of the highest authority and has guided trial courts review of warranted searches for several decades. This is particularly important when the information is dated. The police cannot claim good faith when they defy this venerable body of law. In this case there was none of the necessary diligence we must expect. The corroborative efforts consisted of one visit to the target address and a very limited and wholly insufficient request for utilities data which was filtered by the affiant to support the inferences sought. The lack of good faith is further demonstrated by the evidence given by the affiant, Detective Robertson regarding the pool/hot tub issue. The officer was, at very least, markedly careless in his duty to provide full, frank and fair evidence to this court. I am skeptical that there was ever an effort to find out whether an innocent explanation was readily available for the period of excessive hydro use reported. Success in getting a bad warrant endorsed does not mean that the state conduct is validated. The first Grant factor favours exclusion of the evidence at trial.

26The infringement of the defendant's rights was serious because the target was a private home. It does not significantly reduce their expectation of privacy that marijuana cultivation for gain took place in that home. There is no evidence that any third party had access to the home in the absence of the two defendants. The second Grant factor also favours exclusion.

27The third Grant narrowly favours exclusion of the evidence. It is correct to say that the exclusion of this reliable, real evidence is dispositive of this prosecution. It is also correct to say that society has a significant interest in protecting domestic privacy by ensuring that police authorities follow well-established rules when they seek ex parte sanction to search private homes. This public interest would be compromised by state sanction of searches based on stale hunches instead of reasonable and probable grounds.

Possession

28I will now consider the issue of possession although, in my view, the appropriate result of the exclusion of evidence flowing from the invalidity of the warrant applies to both parties. Both defendants claim that the evidence does not establish that they had possession of the illicit materials at the heart of this case. I infer that anyone who entered the property would have knowledge of the plants, if not the dried marijuana. It was found in one of the two main floor bedrooms, packaged for distribution. The plants and seedlings were kept in the basement along with the growing equipment. No intact door separated the basement from the ground level where the rest of the living quarters were located. The washer/dryer was located in the basement. The smell of marijuana was strong in the premises and would have been immediately noticeable to any casual visitor. The real disputed question is not whether the accused had knowledge of the contraband, it's whether they had control of it.

29One defendant had a level with his name inscribed on it in the bedroom used as an office. He had personal papers, admittedly dated, amongst men's clothes in the bedroom. He asked the police on arrest for permission to put on some of those clothes. Although there was no documentation tendered that would establish that his formal address was the premises searched, I reluctantly conclude that this evidence establishes his control of the premises at the relevant time. If I were required to consider the fruit of the search warrant, I find him to be in possession of the contraband located at 61 Tulloch Crescent.

30Similar evidence applies to the other defendant. She had an eight-month old prescription at the scene. The Chevy Silverado parked in the driveway was registered to her and indicated an address of 61 Tulloch Crescent. There were women's clothes in the bedroom, where some personal documentation in her name was also found. The address on those items was not 61 Tulloch Crescent. She asked permission to change into other garments at the house after her arrest. A witness testified in her defence. The witness told the court that she was a close personal friend of the defendant and that the defendant lived with her father in Toronto and nursed him through his final illness in the relevant time period. She knew this because she visited the defendant several times a week in this period. She said that the two defendants maintained an on again/off again relationship. Her evidence would tend to establish that the defendant may have been a frequent visitor to 61 Tulloch, but was not in control of that address. The witness was a spirited and combative witness, but I find that I cannot reject her evidence. I have a reasonable doubt that the defendant was in control of the premises or the contraband in question.

31One defendant was said to have made several inculpatory statements to two different officers. He was alleged to have said on arrest to one officer: "you got me, I know why you're here". He is claimed to have said to another officer, while on transport to 17 Division, that he "was trying to get out of this business" and that he "had probably 100 plants and he was not making a lot of money".

32Neither officer made any contemporaneous note of these alleged utterances although one officer was the central note taker for the search team and the other is a 14 year veteran of the force. It is my view that neither of these officers would have underestimated the importance of these alleged admissions. I agree with counsel for the defendant that this is an appropriate case to apply Her Majesty the Queen v Zack, [1999] O.J. No. 5747. If I had not granted the charter relief sought, I would not rely on the evidence of these alleged utterances.

33I acquit both defendants of the charges before the court.