Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Steven Tsapoitis
Before: Justice Peter C. West
Heard on: February 23, 2016, June 27, 2016, September 22, 2016, and January 4, 2017
Reasons for Judgment released on: February 10, 2017
Counsel:
- Ms. M. Guirguis — counsel for the Crown
- Ms. E. Shaw, Mr. K. Murray — Counsel for the defendant Steven Tsapoitis
Judgment
Introduction and Charges
1Mr. Tsapoitis was charged on October 7, 2013, with careless storage of ammunition, contrary to s. 86 of the Criminal Code of Canada (hereafter referred to as C.C.); possession of a prohibited weapon, namely a crossbow, while not being a holder of a licence permitting such possession, contrary to s. 92 of the C.C. (the Crown elected to proceed by indictment on these two Criminal Code charges); production of cannabis marihuana, contrary to s. 7(1) of the Controlled Drugs and Substances Act (hereafter referred to as the CDSA); and possession of cannabis marihuana for the purpose of trafficking, contrary to s. 5(2) of the CDSA (both of the CDSA charges are indictable offences). He elected trial in the Ontario Court of Justice. Mr. Tsapoitis was also charged on December 19, 2014, with a breach of recognizance charge. The Crown previously elected to proceed by summary conviction of this charge. On February 23, 2016, Mr. Tsapoitis entered pleas of not guilty to all charges and a Garofoli Charter application was commenced. The matter was adjourned after initial submissions by counsel as to the facial validity of the ITO. The matter was adjourned to June 27, 2016 for the defence to bring an application to cross-examine the affiant. The matter was further adjourned to July 22, 2016 for that application to be argued. The July 22, 2016 date was adjourned at the request of the defence and adjourned to August 3, 2016.
2Mr. Tsapoitis was initially represented by Ken Murray; however, on August 3, 2016 Mr. Murray was removed as counsel of record. Mr. Tsapoitis was present and Ms. Eleanor Shaw advised she was now retained to act as counsel on Mr. Tsapoitis' behalf. The matter was adjourned to September 22, 2016 for continuation of the application to cross-examine the affiant. Ms. Shaw abandoned the application for leave to cross-examine the affiant on September 22, 2016 and requested more time to prepare her submissions on the facial validity of the search warrant. Full submissions on the Garofoli application were finally argued on January 4, 2017. I reserved judgment on the Garofoli application to February 10, 2017.
The Search Warrant Execution
3The York Regional Police executed a search warrant on October 7, 2013, on the dwelling house, property, non-residential buildings, outbuildings, garages and vehicles at 21250 Highway 12, Township of Scugog, in Ontario. The ITO reflects this property is owned by Steven Tsapoitis.
4The defence Charter application submitted reasonable grounds did not exist in the Information to Obtain a Search Warrant (ITO) upon which the issuing Justice of the Peace could, acting judicially, issue the CDSA warrant. The accused seeks to exclude the entirety of the seized evidence.
5It is the Crown's position the search complied with s. 8 of the Charter and therefore the evidence is admissible. The Crown submitted if the court found a breach of s. 8 of the Charter, the evidence should be admitted after applying the three factors set out by the Supreme Court of Canada in R. v. Grant, infra.
6Although no evidence was heard during this matter, the Crown sought to enter four photographs (much larger (8 x 11) than the small 1½ x 1½ photographs in the ITO) because the ITO provided to counsel and the court was a black and white photocopy, which could not be made out and the photographs in the ITO before the Justice of the Peace were in colour with better definition. Mr. Murray consented to the Crown filing these photographs (Exhibits 1A-1D). No other evidence was presented by either party.
7I heard argument by both counsel on February 23, 2016, relating to the facial validity of the ITO; however, the matter was adjourned after the first day of argument relating to facial validity as Mr. Murray determined he wished to bring an application for leave to cross-examine the affiant, Detective Constable Brendt Wonch, of the Information to Obtain a Warrant (ITO).
8After the change in counsel, Ms. Shaw decided she would argue the Garofoli Charter application solely on the facial validity of the ITO provided to Justice of the Peace MacDonald on October 4, 2013.
The Information to Obtain (ITO) the Search Warrant
9Detective Constable Brendt Wonch, of the Guns and Gangs Enforcement Unit (GGEU) of York Regional Police was the affiant who prepared the information to obtain the search warrants to search:
(a) the dwelling house, property, non-residential buildings, outbuildings, garages and vehicles located at 532 Lake Drive, Town of Georgina, Ontario;
(b) the dwelling house, property, non-residential buildings, outbuildings, garages and vehicles located at 21250 Highway 12, Township of Scugog, Ontario;
(c) the farm field located at 21150 Highway 12, Township of Scugog, Ontario;
(d) a motor vehicle to wit: a silver Chevrolet Cavalier bearing Ontario licence plate: BMNT 890, wherever it may be found in the Province of Ontario;
(e) a motor vehicle to wit: a green Ford Windstar bearing Ontario licence plate: BMTR 007, wherever it may be found in the Province of Ontario;
(f) a motor vehicle to wit: a white Harley Davidson bearing Ontario licence plate: 560H1, wherever it may be found in the Province of Ontario; and
(g) a motor vehicle to wit: a silver Pontiac Grand Am bearing Ontario licence plate: BKNK 300, wherever it may be found in the Province of Ontario.
10The police investigation began on September 30, 2013, as a result of information provided by a confidential human source #1 (CHS#1) that Zachary Tsapoitis, a suspected Hells Angels member, was involved in an outdoor cannabis grow operation. At the outset of the Garofoli application the Crown advised she was not relying on the CHS#1 information to substantiate the search warrant and had redacted it from the ITO. The ITO is contained in the original Charter application filed by Mr. Murray (Vol. 1, Tab 3). In fact, Appendix D, which contained information pertaining to the CHS#1 was completely removed from the ITO that was disclosed to the defence and provided to the court.
11The only information concerning the CHS#1 is contained in paragraphs 15, 22 and 59 of the ITO. Paragraph 15, which is under "Investigation Overview" indicates the affiant received information from "D/C Leonard #1712 that a Confidential Human Source has provided information to the alleged ongoing illegal activity of Zachary Tsapoitis." Paragraph 22 indicates the affiant learned that CHS#1 had "provided information concerning an individual who is growing marihuana outdoors." Paragraph 23, which is redacted, is a summary of that information and Appendix D apparently provided more detailed background of the information of CHS#1 but it was removed. Paragraph 59, which is part of the "Conclusion" indicates that based on the information from CHS#1 YRP commenced "an investigation pertaining to Zachary Tsapoitis operating an outdoor marihuana grow operation."
12The affiant sets out the background of the police investigation in the ITO, the core of which can be summarized as follows:
The affiant conducted two queries on the YRP RMS and the PARIS records system on September 30, which provided an address for Zachary Tsapoitis of 532 Lake Drive South, Georgina and a birthdate of April 12, 1984.
CPIC returned a positive record on September 30, 2013, that Zachary Tsapoitis was currently an active member of the Hells Angels motorcycle gang, Keswick chapter.
CNI records system returned information on September 30, 2013, Zachary Tsapoitis had a criminal record for "VIOLENCE, DRUGS and other criminal convictions" for possession for purpose of trafficking marihuana in 2001, assault in 2005, fail to comply with recognizance in 2007 and was on DNA data bank.
On October 1, 2013, surveillance conducted at 532 Lake Drive South by YRP GGEU, the affiant was part of the surveillance and he reviewed a surveillance report prepared by Detective Dinsmore.
Surveillance commenced at 1050 hrs. A silver Grand Am, licence BKNK300 and a white Harley Davidson motorcycle, licence 560H1, were parked in the driveway of 532 Lake Drive.
At 1154 hrs, Zachary Tsapoitis got on the motorcycle, licence 560H1, wearing full Hells Angels colours. He left the residence and traveled to the Canadian Tire in Georgina; 198 The Queensway South, Georgina; 558A Lake Drive; and then back to 532 Lake Drive.
At 1242 hrs, Zachary Tsapoitis and an unknown male get into the silver Chevrolet Cavalier, licence BMNT890. Zachary Tsapoitis is the passenger and the u/k male is the driver. They travel to Snap Fitness, 702 Queensway Georgina; the LCBO at 76 Arlington Drive, Georgina; and then back to 532 Lake Drive.
At 1354 hrs, Zachary Tsapoitis got on the motorcycle with an u/k male as a passenger. They travelled to Sun's Gas Bar at 13029 Durham Road 39, Zephyr and then continued to 21250 Highway 12, Scugog; however, observations are discontinued at 1450 hrs, as the motorcycle pulled into the driveway.
On October 1, 2013, the affiant conducted a YRP RMS query on 198 Queensway South, Georgina. The report referred to Robert Moore in regards to a domestic assault, Robert Moore's birthdate is July 17, 1986. The affiant obtained a YRP mug shot of Robert Moore and Detective McIntyre identified the u/k male as Robert Moore. CPIC record query produced no positive records, no criminal records. Four charges laid in 2006, 2007 and 2009 by YRP but all were withdrawn.
On October 1, 2013, the affiant checks the white H.D. motorcycle, licence 560H1 and discovered the registered owner was Steve Tsapoitis, birthdate July 2, 1956. The address was listed as 21250 Highway 12, Scugog.
On October 2, 2013, queries on the YRP RMS and PARIS return Steve Tsapoitis' address as 21250 Highway 12, Scugog. Steve Tsapoitis is identified as Zachary Tsapoitis' father. CPIC check returned no record. A CNI system query returned what affiant describes as a "lengthy record."
The affiant set out 4 convictions and all of the withdrawals and dismissals relating to Steve Tsapoitis in the ITO. The convictions are as follows: 1975 theft, break and enter, possession stolen property, escape lawful custody, drive while disqualified and breach of recognizance; 1978 dangerous driving; 1981 assault; and 1995 cultivation of narcotic, possession of narcotic.
The affiant obtained further information from Detective Constable Stefancic respecting Zachary Tsapoitis being member in good standing with Keswick Chapter of Hells Angels and a photograph taken August 10, 2013 by Detective Constable Rupert at Hells Angels 10th anniversary party of the London Chapter is put into the ITO, however, because the ITO provided with the application is a photocopy, the photograph does not depict anyone as the picture is in black and white.
On October 2, 2013, the affiant determined that vehicle licence numbers BMNT890 and BKNK300 were both registered to Amanda Tsapoitis with an address of 532 Lake Drive South, Georgina.
On October 2, 2013, the affiant receives information respecting a green Ford Windstar, licence BMTR007, which was observed parked at 21250 Highway 12, Scugog. The registered owner is Steve Tsapoitis.
On October 2, 2013, Steve Tsapoitis is observed by himself driving the Windstar south on Highway 12.
On October 2, 2013, Detective Constable Schutt of Durham Regional Police provided a report of his fly over of the rural property located near 21250 Highway 12, Scugog. He had been requested by YRP to do the fly over of the corn fields to see if any outdoor grow operations were present. On October 1, 2013, D/C Schutt, at about 1526 hrs, conducted two passes of the property in greater altitudes. He photographed the property using a Digital SLR with a zoom lens. In reviewing the pictures "[He] noted one area of interest in the SE corner of the field directly north of the address of 21259 Highway 12. There I could see a pattern of removed corn stalks that had a greener plant in its place. The pattern appeared to be 3 rough rows." He believed it to be consistent with a marihuana grow. The two photographs were included in the ITO (roughly the size of 1½ x 2 inches). (Exhibit 1A and 1B are 8" x 11" colour photographs of the smaller photos in the ITO filed by the Crown.)
These photographs were provided to D/C Robinson, YRP, a drug expert, who provided a report to the affiant on October 2, 2013. He concluded there was a small area of the field which contained 20-25 marihuana plants. It appeared some of the marihuana plants had already been harvested. D/C Robinson provided the opinion that usually in outdoor grow operations the plants themselves are grown far away from any buildings, usually in the middle of a corn field. The reasoning behind his opinion is that the growers want to greatly reduce the risk of being caught tending the illicit marihuana plants.
There is a footnote 15 provided by the affiant below the paragraph in the ITO which dealt with D/C Robinson's report, which states: "Plants grown this close to a premise while in a cornfield suggests to me that the person growing the marihuana plants want to be able to monitor, care for and protect the marihuana plants as closely as possible." The affiant is not qualified in the ITO as being a drug expert.
On October 2, 2013, Constable Jeremy Beatty and Constable Dominic Reynolds of the YRP Emergency Response Unit (ETF) at the request of GGEU attended the farmer's field at 21250 (sic) Highway 12, Scugog to investigate it surreptiously. (It should be noted the actual address of the corn field is part of 21150 Highway 12.) A report was provided, which the affiant reviewed that indicated Detective McIntyre requested the two ETF officers to go onto the property at 21150 Highway 12, without first obtaining a search warrant, to see whether there were, in fact, marihuana plants as seen in the photographs. The two officers discovered marihuana plants varying in size approximately 25 to 30 metres, according to the report, from the property at 21250 Highway 12. They seized evidence in regards to the grow operation and left the grow operation.
October 2, 2013, at 1000 hrs, surveillance commenced of 532 Lake Drive South, Georgina. The Grand Am, Cavalier and H.D. white motorcycle were in driveway. Various unknown individuals exited the house with a young child and a dog. At 1406 hrs, Zachary Tsapoitis exited the residence (wearing colours), stood near the motorcycle, spoke to an U/F and then threw his helmet towards the house and went inside.
At 1426 hrs., Zachary Tsapoitis left the residence and drove the Cavalier away and went to 319 Tampa Drive, Keswick and parked outside the residence. At 1514 hrs., he was back at 532 Lake Drive. He left moments later on the motorcycle and went to St. Thomas Acquinas Elementary School and picked up a young child and went back to 532 Lake Drive at 1545 hrs. He then drove with the child to 198 North Channel Drive, Keswick where Zachary Tsapoitis met with an U/M at 1619 hrs. Tsapoitis was seen alone on the motorcycle going to Pioneer Gas Station in Keswick, where he bought gas. He went back to 198 North Channel Drive where met another U/M and went in residence. At 1645 hrs, he went back to 532 Lake Drive with the young child. Other unknown individuals were at residence. Everyone went inside residence. There was no further surveillance conducted.
On October 3, 2013, the affiant contacted Health Canada and determined there was no legal outdoor marihuana grow operations located at either 21150 Highway 12 or 21250 Highway 12. There was a license for an indoor grow operation at 21250 Highway 12, the licence was in name of Steve Tsapoitis, with limits of 25 indoor plants, 1125 grams of marihuana to possess in the residence and 150 grams to possess and transport.
On October 4, 2013, affiant called Health Canada again, there was no medical marihuana licence in name of Zachary Tsapoitis, either indoor or outdoor.
13As a result of the above information obtained through police investigation, D/C Wonch made the following conclusions in the ITO.
On October 1, 2013, Zachary Tsapoitis drove the white Harley Davidson motorcycle to 21250 Highway 12, Scugog, which was his father Steve Tsapoitis' house. He was observed getting off the motorcycle and walking in the direction of the residence but observations were discontinued. (In the summary of the investigation this information concerning Zachary Tsapoitis getting off the motorcycle and walking towards the residence was not included.) There were no observations of Zachary Tsapoitis going into the residence or speaking to his father, Steve Tsapoitis or walking through the row of trees and shrubs behind the residence to go onto the corn field.
As a result of a fly over by Durham Regional Police a small marihuana outdoor marihuana grow operation was believed to be located on the property of 21150 Highway 12, Scugog. A drug expert examined the photographs taken from the plane and gave the opinion this was a marihuana grow operation and that a portion of the grow operation had already been harvested. Two YRP ETF officers went onto the property without a warrant, at the request of the GGEU and confirmed the existence of 25 marihuana plants on the property of 21159 Highway 12, Scugog, and that a number of plants had been harvested.
The affiant concluded although the marihuana grow operation was not on the property owned by Steve Tsapoitis, its close proximity to the property line (25-30 metres approximately) meant the grow operation was "within viewing distance." The affiant concluded the reason this outdoor marihuana grow operation was close to 21250 Highway 12 was so "it could be watched over." This conclusion was contrary to the drug expert's opinion that marihuana grow operations in corn fields are usually as far away from a residence, in the centre of the corn field, to avoid detection.
The affiant concluded, based on the fact a majority of the marihuana grow operation had already been harvested, the marihuana grow operation was "intentionally planted close to 21250 Highway 12" for the sake of easy movement and this was where the marihuana was taken after it was harvested.
The affiant pointed to Steve Tsapoitis being the father of a known full patch Hells Angels member and indicated for the first time in the ITO, without any foundation or indication of where this information came from, that Steve Tsapoitis was once a member of an outlaw motorcycle gang himself. The affiant points to the fact Steve Tsapoitis has a "lengthy criminal record" and in 1995 was convicted of cultivation. The affiant draws the conclusion Steve Tsapoitis had knowledge of this grow operation and was participating with Zachary Tsapoitis in growing, cultivating and harvesting it. The affiant referred again to the closeness of the grow operation to the property line of 21250 Highway 12 and therefore the ease of movement after harvesting the marihuana.
The affiant referred again to Zachary Tsapoitis being a full patch member of Hells Angels and that he had a criminal record from 2001 for possession for purpose of trafficking of a schedule II drug.
The affiant referred to the CHS#1 indicating Zachary Tsapoitis has an outdoor marihuana grow operation. Zachary Tsapoitis is followed to 21250 Highway 12 on one occasion. The affiant concluded because the marihuana grow operation was so close to Steve Tsapoitis' property line it was reasonable to believe both Zachary and Steve Tsapoitis were involved in this marihuana grow operation.
The affiant requested a search warrant for Steve Tsapoitis' residence because documentation would not be kept outside with the plants. Also the affiant opined outdoor operations start with hydroponic grow operations indoors, although there was no evidence in the ITO upon which this conclusion was based.
The affiant advised because Zachary Tsapoitis did not reside with his father, Steve Tsapoitis, he was requesting a search warrant for 532 Lake Drive Georgina as well, where documentation might be found and where dried marihuana from the harvest might be stored.
The affiant also requested a warrant to search the Harley Davidson motorcycle driven by Zachary Tsapoitis because he drove it on a regular basis (two occasions) and was viewed attending the area of the grow operation (one occasion) and he believed evidence of the grow operation would be found in the motorcycle.
The affiant also requested a warrant to search the Chevrolet Cavalier and Pontiac Grand Am owned by Amanda Tsapoitis and the Ford Windstar owned by Steve Tsapoitis because large quantities of harvested marihuana could not be transported on a motorcycle. He believed evidence of the grow operation might be found in those vehicles. The affiant requested a search warrant for these vehicles to be executed anywhere in the Province of Ontario.
The affiant advised they were seeking a warrant to search the corn field to remove and seize the outdoor marihuana grow operation but were not seeking to search the residence or any building on the property of 21150 Highway 12. The ITO did not provide any information respecting who the registered owner of the property located at 21150 Highway 12 was.
Analysis
General Principles Relating to Review of ITO
14The defence brought an application under ss. 8 and 24(2) of the Charter alleging Mr. Tsapoitis' Charter rights were violated as the grounds in the ITO were insufficient to justify the issuance of the search warrant. As with any s. 8 and s. 24(2) Charter application, the reviewing court is not to stand in the 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] 2 S.C.R. 1421, at p. 1452; and R. v. Wiley, [1993] 3 S.C.R. 263, at pp. 273-274.
15A Charter review is not a de novo hearing. The issue is whether the issuing judge could have issued the warrant on the basis of the sworn ITO. In R. v. Morelli, 2010 SCC 8 , [2010] S.C.J. No. 8, the Supreme Court held at para. 40:
…The question is not whether the reviewing court would itself have issued the warrant, but whether 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.
16A search warrant is obtained ex parte so an affiant must provide "full, frank and fair" disclosure of the relevant facts to the issuing Justice of the Peace.
17Justice Hill, in R. v. Ngo, 2011 ONSC 6676 , [2011] O.J. No. 5023, at para. 34, has summarized various instructive guidelines to be applied by courts engaged in reviewing the constitutionality of an ITO:
(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), 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] 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), 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), 11 C.C.C. (2d) 188 (Ont. H.C.), at p.190; R. v. Durling (2006), 2006 NSCA 124 , 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 19; R. v. Sanchez (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at p. 364; Re Chapman and the Queen (1983), 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), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562; R. v. Araujo (2000), 2000 SCC 65 , 149 C.C.C. (3d) 449 (S.C.C.), at p. 470; R. v. Ling (2009), 2009 BCCA 70 , 241 C.C.C. (3d) 409 (B.C.C.A.), at para. 43 (leave to appeal refused, [2009] S.C.C.A. No. 165).
18Justice Hill provides a further helpful summary of the overarching principles to be applied when assessing and reviewing whether there were reasonable and probable grounds to believe set out in the search warrant's ITO at para. 35 of Ngo, supra:
(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), 52 C.C.C. (3d) 193 (S.C.C.), at p. 213) "or even on a balance of probabilities": R. v. Jacobson (2006), 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 , 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), 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 , [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), 107 C.C.C. (3d) 385 (Ont. C.A.) at 399; R. v. Agensys International Inc. (2004), 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 , 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), 110 C.C.C. (3d) 1 (SCC) at 12), a reviewing court must take these factors into account: R. v. Lawes, 2007 ONCA 10 , [2007] O.J. No. 50 (C.A.) at para. 4; R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.) at 501; R. v. Juan (2007), 2007 BCCA 351 , 222 C.C.C. (3d) 289 (BCCA) at para. 19; R. v. Tran, 2007 BCCA 491 , [2007] B.C.J. No. 2341 (C.A.) at para. 12; R. v. Mouland, 2007 SKCA 105 , [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 , 214 C.C.C. (3d) 547 (Alta. C.A.) at 559; R. v. Grotheim, 2001 SKCA 116 , [2001] S.J. No. 694 (C.A.) at para. 30; R. v. Quillian, [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 marijuana 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 , [2003] N.S.J. No. 453 (C.A.), at para. 15; R. v. Durling (2006), 2006 NSCA 124 , 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 20, 27; R. v. Jackson (1984), 9 C.C.C. (3d) 125 (B.C.C.A.) at p. 131; Re Lubell, at p. 190; R. v. Sanchez (2004), 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 grow-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".
19I adopt these principles in conducting my review of the ITO.
20A recent decision by Paciocco J. in R. v. Floyd, [2012] O.J. No. 3133 (C.J.), similarly provides a useful summary of the review process in assessing the "reasonable and probable standard" which I adopt:
8 In Hunter v. Southam Inc., [1984] 2 S.C.R. 145 it was explained that "reasonable and probable grounds" arise when "credibly-based probability replaces suspicion." The reference to "credibly-based" probability reflects that the reasonable and probable grounds standard requires more than that the quantum of evidence is adequate to move from suspicion to a reasonable probability. Part of the assessment is whether there are adequate objective indicators contained in the "Information to Obtain" affidavit to conclude that the information offered is credible enough to be relied upon to support conclusions about what is reasonably probable: R. v. Debot (1989), 52 C.C.C. (3d) 193 at 215 (S.C.C.).
9 In sum, the "reasonable and probable grounds" or "credibly-based probability" concept requires that the grounds furnished must demonstrate that there is a probability as opposed to a suspicion that the relevant facts could be true, assuming the information to be true (the "sufficiency inquiry"), and that there are reasonable grounds to believe that the information relied upon is credible enough to support a conclusion that there is a reasonable probability that the relevant fact exists (the "credibility inquiry").
10 This two-part "reasonable and probable grounds" standard is relevant to two inquiries that must each be met before a "reasonable and probable grounds" search warrant can issue. First, the affiant who has sworn the "Information to Obtain" affidavit, in this case Detective Catherine Brown, must honestly believe that they have reasonable grounds to believe that an offence is occurring and that what is being sought is evidence that will be found at the place to be searched, in this case 2745 Page Road. If the affiant does not actually believe that, the search warrant is invalid. This first inquiry is the "subjective" component of the reasonable and probable grounds standard: (R. v. Storrey, [1990] 1 S.C.R. 241 at 250.) The second inquiry, the "objective" component, requires that the affiant's belief that they have reasonable and probable grounds must be supported by enough information to enable a reasonable person to come to the same conclusion: R. v. Storrey [1990] 1 S.C.R. 241 at 250.
11 Not only must there be "reasonable and probable grounds" as described before a warrant can issue, those grounds must be demonstrated to the issuing justice. This latter requirement is "known as the requirement of 'prior authorization'": (R. v. Morris 1998 NSCA 229 , [1998] N.S.J. no. 492 at para. 32 (N.S.C.A.). It is meant to ensure that the decision to compromise a reasonable expectation of privacy is made by an impartial and independent judicial officer rather than an investigator who may have an interest in pursuing the investigation.
12 During a review of the validity of a warrant that has been issued the reasonable and probable grounds standards are to be evaluated by the reviewing judge with deference. This is because the legal responsibility for issuing the warrant belongs, in law, to the judicial officer who has been called upon to issue that warrant. Accordingly the standard on review is not whether the reviewing judge would have found the relevant "reasonable and probable grounds" on the basis of the information before the issuing justice. The ultimate issue, and the one that I must determine here, is whether the issuing justice could reasonably find the grounds to be sufficient.
13 While this review is ordinarily conducted using the precise record of information that was before the issuing justice, the law does provide in some cases for the amendment of that record by the removal of information or the addition or amplification of that record with additional information: R. v. Araujo 2000 SCC 65 , [2000] S.C.J. No. 65 at paras. 51-53 (S.C.C.). The relevant principles in settling the record for review are as follows.
14 First, factual claims made in the "Information to Obtain" affidavit that are without an objective foundation of credibility should be disregarded. For this reason, bald unsupported conclusions and erroneous or false facts should notionally be excised from an "Information to Obtain" affidavit: R. v. Morris (1989), 1998 NSCA 229 , 134 C.C.C. (3d) 539 at 553 (N.S.C.A.), cited with approval in R. v. Aruojo 2000 SCC 65 , [2000] S.C.J. No. 65 at para. 54, and see para. 58.
15 Second, facts that should have been disclosed that weaken the significance or credibility of the grounds relied upon should also be taken into account since it is expected that during ex parte warrant applications the affiant will make full and frank disclosure of the actual state of affairs. Where this has not occurred such facts can be considered by the reviewing judge as if they had been before the reviewing judge: Re Church of Scientology (No. 6) (1987), 31 C.C.C. (3d) 449 at 528-529 (Ont. C.A.), cited with approval in R. v. Aruojo 2000 SCC 65 , [2000] S.C.J. No. 65 at para. 57.
16 Third, in appropriate cases even information that could have supported the warrant but that was not put before the issuing justice by the affiant can be added during the review stage through "amplification." In particular, amplification can occur where additional information that was available to the affiant at the time the "Information to Obtain" affidavit was sworn is inserted to correct errors or inaccuracies in the "Information to Obtain" affidavit that have been made in good faith: R. v. Aruojo 2000 SCC 65 , [2000] S.C.J. No. 65 at para. 57. This can involve the correction of misstated information. In R. v. Plant, [1993] 3 S.C.R. 281, for example, the information stated that the informant had supplied the address but evidence showed that the police had actually determined the address from the precise description of the house. The sufficiency of the "Information to Obtain" affidavit" was evaluated with this correction in mind.
21The Crown did not make a request for a "judicial summary" to be prepared pursuant to Step 6 as set out in Garofoli, at para. 79. This was further addressed in R. v. Rocha, 2012 ONCA 707 , [2012] O.J. No. 4991 (C.A.), where Rosenberg J.A., made the following comment at para. 4:
…The Crown elected not to disclose the entire unredacted ITOs to the trial judge and thus the respondent was not provided with a judicial summary of the redacted material. Accordingly, the sufficiency of the ITOs stood or fell on the redacted versions.
22Jurianz J.A., who wrote a concurring judgment, made the following observations:
58 The Crown in this case did not request the trial judge to consider the excised information. And this court has found there was insufficient information in the ITO to support the issuance of the warrant to search the respondent's home, without considering all the information upon which the warrant was issued in the first place.
59 I have added these concurring reasons to highlight the dilemma raised in such cases and to encourage attention being paid to it in future cases. I appreciate there may be practical questions about the procedure to be followed in applying step 6 of Garofoli and about the content of the judicial summary. However, only resort to the procedure will lead to the development of jurisprudence to resolve those questions.
23During submissions I raised with the Crown directly whether a request to invoke step 6 of Garofoli would be made and I was advised no such request was forthcoming. Consequently, the sufficiency of this ITO stands or falls on the redacted version put before the court.
Principles Applied to this Case
24Ms. Shaw, in her oral submissions, and relying on Mr. Murray's written submissions, went through each of the paragraphs contained in the ITO in detail, pointing out what she identified and submitted were deficiencies, misleading information, and material omissions. It is the defence position there was no evidence from which to draw reasonable inferences that Steve Tsapoitis was, in any way, involved with the outdoor marihuana grow operation, which was discovered as a result of the fly over by Durham Regional Police, confirmed by the opinion of the drug expert, D/C Robinson, and confirmed by the two YRP ETF officers who entered, without any legal authorization, the corn field located on the property of 21150 Highway 12, Scugog. Ms. Shaw argues no issuing justice could reasonably be satisfied on the information contained in the ITO that there were objective reasonable and probable grounds for concluding Steve Tsapoitis was involved with Zachary Tsapoitis in this outdoor marihuana grow operation, if in fact there were even reasonable and probable grounds to believe Zachary Tsapoitis was involved in this grow operation.
25The defence submits on the face of the ITO itself there was not sufficient information to meet the reasonable and probable grounds standard and when the record is adjusted using the principles described above and the credibility foundation for the information is examined, the search warrant violates s. 8 of the Charter. As indicated in the cases, Ms. Shaw is entitled to examine each observation in detail; however, at the end of the day I must review the "substantive core" (Ngo, at para. 36) of the information contained in the ITO to determine whether "the challenging party has demonstrated the absence of any reasonable basis for the issuance of the warrant" (Ngo, at para. 36).
26The question to be determined is whether after excising any offending portions of the ITO there remains a sufficient basis on the record for the issuing justice of the peace to issue the search warrant (see R. v. Garofoli, [1990] S.C.J. No. 115, at para. 56; R. v. Araujo, 2000 SCC 65 , [2000] S.C.J. No. 65, at para. 51; R. v. Morelli, 2010 SCC 8, at para. 40).
27Ms. Shaw abandoned her application for leave to cross-examine the affiant and consequently, the issue to be determined is whether on the face of ITO there was sufficient information for the issuing justice to meet the reasonable and probable grounds standard and issue the search warrant. As indicated above the issue on review is whether the justice "could" not "would" issue the warrant based on the sworn ITO.
28The police investigation was commenced as a result of information provided by CHS#1 to a police officer, D/C Leonard, who prepared a report, which was reviewed by the affiant. The only information remaining in the ITO under review concerning CHS#1 is that the CHS#1 advised D/C Leonard that Zachary Tsapoitis was growing marihuana outdoors. Everything else relating to the information supplied by CHS#1 regarding this outdoor grow operation, such as when the CHS#1 provided the information; whether CHS#1 advised the police of the location of the grow operation; whether CHS#1 personally saw the grow operation or was told about it by Zachary Tsapoitis or someone else; whether any details were provided as to the number of marihuana plants, stages of growth, how long it had been operating or any information concerning the background of CHS#1, including whether this was the first time they had provided information, their reliability if there were previous dealings with the police or any circumstances surrounding the reasons or motivation for the CHS#1 to provide information to the police, or whether CHS#1 had a criminal record. All of this information, if it was present in the ITO before the issuing justice of the peace, was completely redacted by the Crown. In fact, Appendix D, which the ITO indicates provided detail about the CHS#1 background and the information provided was completely removed by the Crown. I did not even see how many redacted pages were contained in Appendix D.
29At the outset of the Charter application the Crown advised she was not relying on any of the redacted information and would not be requesting step 6 as set out in Garofoli.
30Consequently, it is extremely difficult, if not impossible, to conduct a review of the CHS#1's information to determine if it was compelling, credible or corroborated (see R. v. Debot (1986), 30 C.C.C. (3d) 207 (C.A.). In R. v. Greaves-Bissesarsingh, [2014] O.J. No. 3892 (SCJ) at para. 35 Justice Code explained:
It appears from Wilson J.'s reasons in Debot, and from the subsequent jurisprudence, that the term "compelling" refers to considerations that relate to the reliability of the informer's tip such as the degree of detail provided and the informer's means of knowledge, that is, whether the informer made first-hand observations or merely relied on second-hand hearsay, rumour, or gossip. The term "credibility" would appear to capture considerations such as the informer's motivation, criminal antecedents, and any past history of providing reliable information to the police. The term "corroboration" refers to any supporting information uncovered by the police investigation.
31There is no way to assess the credibility or reliability of the CHS#1's information because any information relating to the CHS#1's background, motivation or criminal antecedents has been redacted. As already indicated above, the Crown did not seek to have me, as part of the review, examine the redacted portions of the ITO and I am not in a position to assess the credibility and reliability of CHS#1. I am unaware whether the CHS#1 provided any details of the outdoor grow operation or what the basis of the CHS#1's knowledge was.
32The Crown argues the CHS#1's information about an outdoor marihuana grow operation was corroborated by the discovery of the grow operation in a corn field on the property of 21150 Highway 12, Scugog, which was close to the property line of Steve Tsapoitis' residence at 21259 Highway 12, Scugog. The difficulty with this submission is the fact there is no information as to whether the CHS#1 provided any detail as to the location where Zachary Tsapoitis was growing marihuana outdoors. There is no evidence as to when the information was provided by the CHS#1. Further, there was no evidence from the police investigation that supported a reasonable inference Zachary Tsapoitis was involved or connected with the marihuana plants found in the corn field at 21150 Highway 12. There was no police investigation indicated in the ITO which indicated who the registered owner of the property situated at 21150 Highway 12 was or whether that individual had any connection with Zachery Tsapoitis. In fact, there was no indication in the ITO as to whether the police did any investigation of the owner of 21150 Highway 12.
33In my view, what is most significant is that none of the surveillance conducted by the police over two days (October 1 and 2, 2013) revealed any connection between Zachary Tsapoitis and the 25 marihuana plants discovered in the corn field on the property of 21150 Highway 12, Scugog.
34Instead, the police jumped to the conclusion that because Zachary Tsapoitis drove to his father's residence at 21250 Highway 12, on one occasion, on October 1, 2013, the outdoor marihuana plants observed in photographs taken from a plane on October 2, 2013 and confirmed by ETF officers surreptiously entering the corn field the same day, were "intentionally" planted by both Zachary Tsapoitis and his father, Steve Tsapoitis. There was no information or evidence uncovered in the police investigation to support this conclusion, which in my view does not rise above rank speculation as it was completely unsupported by the evidence disclosed in the ITO. In fact, the police discontinued their observations of Zachary Tsapoitis as soon as he drove into the driveway of 21250 Highway 12 and no observations were made as to who he met or dealt with or what he did or how long he remained at that address. The reasonable inference from the police discontinuing their surveillance was they believed Zachary Tsapoitis was paying his father a visit, something completely unrelated to an outdoor grow operation.
35The officers who went onto the corn field on the property of 21150 Highway 12 did not, according to the ITO, do anything more than confirm the plants were marihuana by seizing a sample of one of the plants. The affiant refers to these officers estimating the distance of the grow operation from the property line of 21250 Highway 12 as being 25 to 30 metres. The affiant, contrary to the opinion of the drug expert, D/C Robinson, concluded the closeness of the grow operation to the property line of 21250 Highway 12 was for the purpose of Steve Tsapoitis watching over it and to remove any harvested marihuana easily onto his property. In fact, the affiant asserts the grow operation is within "viewing distance" of Steve Tsapoitis' residence. The affiant asserts his belief that Zachary and Steve Tsapoitis were both involved in the outdoor grow operation and that together they removed the harvested marihuana onto Steve Tsapoitis' property. These assertions are made by the affiant without any factual foundation.
36First, there was no evidence to support the affiant's conclusion the marihuana plants were "within viewing distance." In fact, Exhibit 1A, the enlarged photograph of the photograph displayed in paragraph 47 of the ITO, filed by the Crown with the consent of the defence, shows there was a row of trees and shrubs along the property line of 21250 Highway 12, separating the two properties, which is taller than the bungalow residence. The back of the bungalow appears to be the same distance (25 to 30 metres) from the property line, as the distance the grow operation is from the property line.
37Second, there was no evidence of a path or of any footprints leading to or from the grow operation and the property at 21250 Highway 12. It is my opinion these assertions and conclusions amount to nothing more than impermissible speculation and are grossly misleading. I am mindful the police do not need to explain away every indicia of crime they did not observe or see in relation to a grow operation (Nguyen, supra, at para. 51), however, where the affiant is asking the issuing justice to draw conclusions about the closeness of the outdoor grow operation to a residence, the absence of any evidence supporting the conclusion is significant and should have been disclosed. The absence of any evidence of a foot path or footprints leading to and from 21250 Highway 12 and the grow operation leads to the reasonable inference the marihuana grow operation is not connected to that property, particularly the majority of the marihuana plants had already been harvested.
38The affiant also concludes the marihuana was "intentionally planted close to 21250 Highway 12" so it could be removed from the outdoor grow operation onto Steve Tsapoitis' property, which the affiant asserts actually happened. There is no evidence in the ITO to support these assertions or conclusions. The conclusions the affiant asks the issuing justice to make based on the evidence presented are completely unreasonable and are not supported by the factual foundation presented in the ITO. Again, these conclusions are nothing more than speculation and are misleading. The affiant's conclusions never rise above mere speculation and at best, amount to nothing more than suspicion.
39The description in the ITO, in paragraphs 60 and 73, of Zachary Tsapoitis driving the white Harley Davidson motorcycle, owned by his father, Steve Tsapoitis, on a "regular basis" and that he was followed to the area of the outdoor grow operation, which the affiant contends provided a basis for believing that both Zachary Tsapoitis and Steve Tsapoitis were involved in the outdoor grow operation, in my view is very misleading. First, Zachary Tsapoitis is only observed on two occasions driving the motorcycle. His use of the motorcycle can only be described as mundane and routine: visiting a friend, attending the LCBO, attending Canadian Tire, going to the gym, once attending his father's house, purchasing gas and picking up a young girl at an elementary school and then driving her to different places. Second, his attendance at his father's residence could be for numerous legitimate reasons and have nothing to do with a joint enterprise to operate an outdoor marihuana grow operation. The speculative nature of the conclusions drawn by the affiant respecting this one attendance to 21250 Highway 12 are further compounded, as described above, by the fact the surveillance was discontinued when Zachary Tsapoitis drove into the driveway.
40There was no evidence in the ITO that Zachary Tsapoitis went into the residence or that he even met with his father, Steve Tsapoitis or that he left immediately after arriving because nobody was home or that he walked into the corn field. To conclude that any of those events occurred would be pure speculation because the police discontinued their surveillance and made no further observations.
41Of course, the outdoor marihuana plants were not discovered until the next day, so perhaps the police did not recognize the potential importance of continuing their surveillance of Zachary Tsapoitis when he drove into the driveway of his father's residence; however, the fact remains there were no observations on what Zachary Tsapoitis did after he arrived at 21250 Highway 12 because the surveillance was discontinued. As indicated previously, a reasonable inference as to why the police discontinued their surveillance was they believed Zachary Tsapoitis was just visiting his father.
42The ITO makes reference to the fact that Zachary Tsapoitis is a full patch member of the Hells Angels, Keswick Chapter, although there is no information or evidence showing Zachary Tsapoitis associating with other Hells Angels members or that this particular Hells Angels Chapter had been involved in marihuana grow operations as identified by other police investigations. The police only conducted two days of surveillance of Zachary Tsapoitis, which did not reveal any evidence to support his involvement in an outdoor marihuana grow operation.
43In referencing Steve Tsapoitis' criminal record, the affiant set out 7 sets of charges that were withdrawn by the Crown. These items were set out to support the assertion that Steve Tsapoitis had a lengthy criminal record. The withdrawal and dismissal of charges is not part of a criminal record for an individual and should not have been included in the ITO. The only possible reason for including such irrelevant items was to taint and prejudice Steve Tsapoitis in the eyes of the issuing justice. Further, the affiant, without any factual basis, when commenting on the fact Zachary Tsapoitis is a member of Hells Angels refers to Steve Tsapoitis as once being a member of an outlaw motorcycle gang himself. Reference is made to this in the affiant's conclusions at the end of the ITO, yet there is no indication previously in the ITO of where this information came from. Further, the assertion only makes reference to the generic term, outlaw motorcycle gang, without identifying a specific group. Again, in my view this was an attempt to prejudice Steve Tsapoitis in the eyes of the issuing justice. Both of these two pieces of information were not relevant to the issue of whether there are reasonable and probable grounds to believe Steve Tsapoitis was involved in this outdoor marihuana grow operation.
44The affiant asserted at the outset of the ITO he recognized his obligation to be full, frank and fair in the ITO. It is my view the inclusion of withdrawn and dismissed criminal charges in the ITO is anything but "fair." Further, the reference to Steve Tsapoitis, in the conclusions, being a member of an outlaw motorcycle gang, without providing any factual basis, is also anything but "full, frank and fair." This information was intended to prejudice Steve Tsapoitis in the eyes of the issuing justice.
45The affiant also concludes outdoor marihuana grow operations start as indoor hydroponic grow operations as the plants are started indoors until they are big enough to be planted outside. Again, no opinion from the drug expert was provided concerning this conclusion. From the reported cases it is equally true that many outdoor marihuana grow operations commence by planting seeds in the ground similar to a farmer planting his corn field. The affiant was aware Steve Tsapoitis had a medical marihuana licence to grow and possess marihuana, so it was obvious he would have documentation, growing schedules and hydroponic grow equipment such as lights, ballasts, fertilizer, etc., in his residence. Yet the affiant does not mention his legitimate possession of these items in the ITO; rather, the affiant makes reference to Steve Tsapoitis' 18 year old record for cultivation as providing evidence Steve Tsapoitis has knowledge of this outdoor marihuana grow operation on the property adjacent to his property and is using his previous knowledge of how to manage a grow operation to assist Zachary Tsapoitis growing marihuana outdoors in this corn field.
46Steve Tsapoitis certainly had knowledge of how to grow marihuana indoors because of his current medical marihuana license but this does not lead to a reasonable belief he is involved in an outdoor grow operation on an adjacent property that is 150' to 300' away from his residence. Further, it does not lead to a reasonable belief that Steve Tsapoitis and Zachary Tsapoitis are operating this grow operation together as a joint enterprise or that they harvested the majority of the marihuana plants onto Steve Tsapoitis' property.
47For the reasons indicated above, in paragraphs 28 to 46, I find that many of the conclusions drawn by the affiant in the ITO upon which the issuing justice was asked to rely, should be excised from the ITO as being misleading or based on impermissible speculation and not being reasonable inferences available on the evidence contained in the ITO. As indicated earlier, an issuing justices is entitled to draw reasonable inferences from the facts set out in the ITO. Unfortunately, in this case, many of the inferences advanced by the affiant were unreasonable and not available on the facts set out in the ITO as redacted by the Crown.
48It may well have been the case that the redacted information and evidence of the CHS#1 provided the necessary missing link to draw the inferences asserted by the affiant in the ITO., however, the Crown chose not to rely on the redacted evidence and did not request I review those redacted portions of the ITO as part of step 6.
49The totality of the factual basis upon which the affiant was asking the issuing justice to draw conclusions that Zachary and Steve Tsapoitis were both involved in this outdoor grow operation can be described as follows:
A CHS#1 telling a police officer Zachary Tsapoitis was growing marihuana outdoors;
Zachary Tsapoitis was observed driving his father Steve Tsapoitis' motorcycle on two occasions doing errands;
On one occasion, October 1, 2013, Zachary Tsapoitis was seen driving the motorcycle into the driveway of his father's residence at 21250 Highway 12, however, surveillance was discontinued;
On October 2, 2013, an outdoor marihuana grow operation, with 20-25 marihuana plants, in a corn field on an adjacent property, 21150 Highway 12, with a portion of the grow operation already harvested, was discovered;
Steve Tsapoitis had a medical marihuana licence to grow up to 25 marihuana plants indoors;
Steve Tsapoitis had a criminal record, which includes a 1995 conviction for cultivation of a narcotic and possession of a narcotic;
Zachary Tsapoitis had a criminal record, which includes possession of a controlled substance for the purpose of trafficking in 2006; and
Zachary Tsapoitis was a full patch member of the Hells Angels, Keswick Chapter.
The factual basis in the ITO does not meet the reasonable and probable ground standard for the issuance of a search warrant. In fact, the evidence in the ITO, at its highest, does not even create a reasonable suspicion that Zachary Tsapoitis was involved in the outdoor marihuana plants discovered in the corn field of 21150 Highway 12. Therefore, I find the evidence contained in the ITO, as a whole, after excisions, did not amount to reasonable and probable grounds. There was no evidence in the ITO which met the reasonable and probable grounds standard that Steve Tsapoitis was involved in growing marihuana in the corn field in the property adjacent to his own. Consequently, I find there is a violation of Mr. Steve Tsapoitis' section 8 Charter rights.
Should the Evidence Discovered as a Result of the Execution of the Search Warrant be Excluded Pursuant to s. 24(2)?
50Having found there were no reasonable and probable grounds for the issuance of a search warrant, such that Steve Tsapoitis' section 8 Charter rights were violated, should the evidence discovered by the police on the execution of the search warrant on October 7, 2013, pursuant to s. 24(2) of the Charter be excluded pursuant to s. 24(2) of the Charter.
51In R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, at para. 71, the Supreme Court of Canada summarized the proper approach to s. 24(2) of the Charter in the following words:
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.
A: Seriousness of the State Conduct
52In considering the first prong of the Grant test a court must must consider whether admitting the evidence would send the message to the public that courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct is leading to the Charter violation, the greater the need for courts to dissociate themselves from that misconduct by excluding the evidence. Minor or inadvertent violations of the Charter fall at one end of the spectrum of conduct, while wilful or reckless disregard of Charter rights falls at the other end. Extenuating circumstances (e.g. the need to prevent the disappearance of evidence) may mitigate the seriousness of police misconduct. Good faith will also reduce the need for the court to disassociate itself from the police conduct. However, neither negligence nor wilful blindness by the police can properly be characterized as good faith. Deliberate, wilful, or flagrant disregard of Charter rights may require exclusion of the evidence. Even a significant departure from the standard of conduct expected of police officers will lean this aspect of the inquiry in favour of exclusion of the evidence. Further, if the Charter-infringing police misconduct was part of a pattern of abuse, such conduct would support the exclusion of the evidence. See R. v. Grant, supra, at paras. 72-75; R. v. Rehill, 2015 ONSC 6025 , [2015] O.J. No. 5068, at para. 28.
53In this case, as I found, reasonable and probable grounds to believe Steve Tsapoitis was involved in a joint enterprise with his son, Zachary Tsapoitis, to grow marihuana in the farmer's corn field was non-existent. As a result of the Crown's decision to redact all information concerning the CHS#1, there was no evidence to support a reasonable belief that Zachary Tsapoitis was involved in the outdoor marihuana grow operation discovered by the police in the corn field, which was part of the property located at 21150 Highway 12, let alone any evidence that Steve Tsapoitis was involved in this grow operation with his son. D/C Wonch drew a number of conclusions, which were not supported by the evidence and information contained in the ITO. In fact, as I have found, these conclusions did not rise above impermissible speculation. The affiant, in my view, was unable to demonstrate "reasonable and probable grounds" that Steve Tsapoitis was involved in the outdoor grow operation the police discovered. The fact that D/C Wonch would submit an application for a search warrant of a residential premise where there was no evidence to support his conclusions that Steve Tsapoitis was jointly involved with his son, Zachary Tsapoitis, in this outdoor grow operation and that the harvested marihuana was taken onto Steve Tsapoitis' property is, in my view, approaching bad faith.
54Consequently, I find the nature of the breach to be serious. This is not a technical contravention. A safeguard for privacy – reasonable and probable grounds – was completely missing. While there was clearly evidence of an outdoor grow operation in the corn field on the property of 21150 Highway 12, Scugog, there was no evidence to support the affiant's conclusion of probable credibility that Steve Tsapoitis was involved in any way. As indicated by Paciocco J. in R. v. Floyd, supra, at para. 94"There was no demonstration of probable credibility, and credibility is not some incidental feature. It is a condition precedent to reasonable and probable grounds."
55Although Steve Tsapoitis has no standing respecting the illegal entry onto the property at 21150 Highway 12, the fact that Detective McIntyre of the GGEU tasked two YRP ETF officers to surreptiously enter this property, without a warrant, was a serious breach of that owner's section 8 Charter rights. There were clearly reasonable and probable grounds to obtain a general warrant pursuant to s. 487.01 or a search warrant pursuant to s. 487 of the Criminal Code, given the evidence of the fly over, the photographs obtained and the drug expert's opinion. The Ontario Court of Appeal has held that the warrantless entry onto a corn field by police is an infringement of s. 8 of the Charter (see R. v. Lauda, [1999] O.J. No. 2180 (C.A.). There were no exigent circumstances to justify this Charter violation and in my view, this conduct informs the seriousness of the police conduct in the Grant analysis. The YRP GGEU officers were prepared to infringe Charter rights by entering onto private property without first seeking a search warrant. The affiant made an application to search a residential dwelling house without any evidence supporting reasonable and probable grounds that the owner of the dwelling house was involved in the outdoor grow operation.
56I find therefore the s. 8 Charter breach to be serious. This factor favours exclusion.
57Second, I find the impact on Steve Tsapoitis' Charter protected privacy rights was significant. He had a high expectation of privacy in his home and in the outlying buildings on his property adjacent to his residence. I adopt Paciocco J.'s characterization of the impact of a search warrant executed on an individual's residence in R. v. Floyd, supra, at para. 96:
…The search of home not only involves the compelled loss of control over one's place of refuge and exposes occupants to the stigma of a police operation, the entry of a home exposes extensive information about one's lifestyle. When the home is a family home the stress of the event is compounded by the impact such an event has on other family members. Not only was Mr. Floyd's home entered. It was secured for a protracted period of time by a team of officers. While I reject any suggestion that the search was conducted in an abusive fashion, the impact of the breach on Mr. Floyd's Charter protected interest was considerable.
58I find this factor favours exclusion of the evidence seized.
59In considering the third factor in Grant, there is no doubt the evidence seized during the execution of the search warrant is crucial to the Crown's case. Excluding this evidence seized will undercut this prosecution and undermine the societal interest in adjudicating this case on its merits. This factor supports the admission of the evidence seized.
60Having considered and balanced these factors it is my view the administration of justice would be brought into disrepute by the admission of this evidence that was obtained as a result of the unconstitutional search of Steve Tsapoitis' residence. The admission of evidence obtained where there were no reasonable and probable grounds would send the message that such a serious Charter breach in this case is being condoned and not worthy of receiving Charter protection. There can be no doubt the cost of exclusion is a heavy one, however, on balancing the factors, it is my view the cost to the reputation of the administration of justice by admitting the evidence would be greater than the costs of its exclusion.
Released: February 10, 2017
Signed: Justice Peter C. West
