Court File and Parties

Court File No.: Toronto

Ontario Court of Justice

Between:

Her Majesty the Queen

Mr. A. Niskar, for the Crown

— And —

Nghia Dinh Pham

Ms. K. Schofield, for the Accused/Applicant

Heard: May 23, 24, 2012, March 20, 2013

Decision

NAKATSURU J.:

Overview

[1] The applicant, Nghia Dinh Pham, stands charged that on November 23, 2006, in the city of Toronto, he unlawfully produced marihuana, possessed marihuana for the purpose of trafficking, and possessed MDMA for the purpose of trafficking. These charges relate to a marihuana grow operation discovered when the police executed a search warrant on apartment 1215, 2020 Sheppard Avenue West. It is alleged that Mr. Pham is the leaseholder of the apartment. The police located 467 marihuana plants and 67 MDMA pills in the apartment.

[2] Mr. Pham brings an application alleging violations of his rights under ss. 10(a), 10(b), and 8 of the Charter. There are two unusual aspects to this application.

[3] First of all, this is a re-trial. Mr. Pham was originally tried on the same offences in 2008 by Justice B. Knazan of the Ontario Court of Justice. He was acquitted of the charges. A similar Charter application was brought before Justice Knazan. Justice Knazan excluded the evidence that is the subject of the present application before me. The Crown appealed the acquittal. The Ontario Court of Appeal ordered a new trial on the basis that the original decision pre-dated the case of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 and the trial judge did not make the findings required for the Court of Appeal to conduct a Grant analysis: see R. v. Pham, [2011] O.J. No. 1579 (C.A.).

[4] Secondly, the parties have agreed to have this application decided based upon the same evidence heard before Justice Knazan. As a result, the transcripts of the former trial have been filed before me. This evidence has been supplemented by the viva voce testimony of D.C. Barbara Adams, the affiant who swore the information to obtain (henceforth the "ITO") in question, and a copy of the booking video of Mr. Pham at the police station.

[5] For the following reasons, I grant the Charter application and exclude the evidence, a set of keys and a lease, seized by the police when they searched apartment 1216, 2020 Sheppard Avenue West, Toronto, on November 23, 2006.

OVERVIEW

[6] The Drug Squad was investigating a number of potential marihuana grow operations in an apartment building located at 2600 Jane Street in the city of Toronto. D.C. Adams prepared six separate search warrants for locations at that address. During the search of an apartment, one Tat Thang Nguyen, was seen by the police outside it. He was arrested and the search of that apartment revealed a large three-stage marihuana grow operation. Mr. Thang Nguyen was suspected of being the ring leader of the grow operations at 2600 Jane Street. Information was obtained from Mr. Thang Nguyen that his home address was 2020 Sheppard Avenue West, apartment 1216.

[7] As a result, the police obtained a search warrant for apartment 1216. D.C. Adams prepared the search warrant for this location in addition to 15 other locations the police wished to search as a result of information obtained from and during the execution of the six original search warrants. The search warrant for apartment 1216 was executed by the police on November 23, 2006. The applicant, Mr. Pham, was located inside the apartment babysitting three young children. During the search of the apartment, the police located a lease for apartment 1215 bearing Mr. Pham's name. After he was arrested, a key to apartment 1215 was found in Mr. Pham's possession.

[8] During this time, it is alleged that Mr. Pham, who speaks little or no English, was detained for an hour with no attempts made to find an interpreter or translator for him. When he was taken to the police station, another hour later, he requested to speak to counsel. No opportunity to do so was given to him.

[9] The police tested the key found on Mr. Pham and it unlocked the door of apartment 1215. The officers also smelled an odour of marihuana emanating from 1215 and heard sounds of fans coming from within. D.C. Adams prepared another search warrant for apartment 1215. When this warrant was executed, the police found marihuana and MDMA pills.

THE ISSUES AND THE POSITION OF THE PARTIES

[10] The applicant argues that there were multiple violations of the Charter. First of all, it is submitted and conceded by the Crown that s. 8 of the Charter was violated. In other words, Mr. Pham was subjected to an unreasonable search and seizure because the ITO in this case should not have issued. The search warrant was issued without the requisite reasonable and probable grounds. The affiant misconstrued the legal threshold required for a search warrant in that she believed that a search was authorized whenever the police "may" uncover evidence. Further, there was a lack of investigation done on apartment 1216 and the affiant's belief that evidence would be found there was conclusory. In addition, it is argued that the affiant simply used boilerplate in preparing her ITO. This had a misleading effect on the justice of the peace. Finally, it is argued, there is over-breadth in the search warrant since the items that police were searching for, found in appendix A, included many items that the affiant did not believe they would find in the apartment.

[11] With respect to the s. 10(a) violation, the applicant submits that he was detained by the police in apartment 1216 without ever being meaningfully told what he was being detained for. He did not speak English. The police never brought an interpreter or used any translation services to convey to Mr. Pham the reason for his detention.

[12] Lastly, regarding s. 10(b), it is submitted that Mr. Pham advised the police he wished to contact counsel at the police station. This is verified by the video of the booking procedure. However, for some reason, he was never given an opportunity to contact counsel. The first time he spoke to duty counsel was when he was brought to court the next day at his bail hearing. His right to counsel as protected by s. 10(b) was clearly violated.

[13] In assessing the three lines of inquiry under Grant, the applicant contends that the balancing of these factors should lead to the exclusion of the keys and lease. The seriousness of the Charter-infringing conduct was on the serious end of the continuum. There were multiple breaches of the Charter. The drafting of the ITO was negligent and careless. There was no good faith to excuse the breaches. Even if the police were overworked or tired, this did not excuse the type of conduct at issue. The police knew they were searching a dwelling home and should have exercised due diligence.

[14] Regarding effect of the Charter-infringing conduct on the applicant, it is submitted that this was serious. The place searched was a dwelling house. Even though the applicant was not the owner or resident of the apartment, the circumstances whereby he was babysitting the resident family's three young children, raised the degree of privacy. The breaches of his ss. 10(a) and 10(b) rights were also serious. The pattern of conduct by the police would have left the applicant with the understandable view that little heed was being paid to any of his constitutional rights.

[15] The final line of inquiry regarding society's interest in the adjudication on the merits is diminished in the context of this case. The applicant does not seek to exclude the marihuana plants and MDMA pills. The applicant is prepared to live with the original decision by Justice Knazan to uphold the search warrant for apartment 1215. Rather, it is only the keys and the lease that the applicant wishes to exclude from his trial. It is submitted that the Crown can prove this case without the keys and lease with further police investigation. They are not essential had the police properly investigated the matter in the first place.

[16] The Crown responds by conceding the s. 8 and the s. 10(b) violations. However, regarding s. 10(a), he submits that the applicant has failed in his proof of this. The booking video illustrates the care taken by the police in making sure he was aware of his rights. At the station, a Vietnamese speaking police officer carefully translates the interaction between the police and the applicant. While the Crown cannot specifically point to any evidence showing that the applicant was advised of the reason for his detention, it would have been obvious to him what was occurring even if his facility with the English language was poor. It is submitted that it was not necessary that the reasons for his detention be immediately translated to him given the context of what was taking place at the time.

[17] Regarding s. 24(2), the Crown argues that consideration of the three factors in Grant should lead to the rejection of the application. The violations were not that serious. It is submitted that with respect to s. 8, while the Crown did concede the violation, the lack of reasonable and probable grounds in the ITO was just a bare miss. It may have been wrong to use the word "may", but the police had more information about Mr. Thang Nguyen and his role in the grow operations that made the search of his residence one that could lead to evidence being found. In addition, the police attempted to obtain a valid search warrant and acted in good faith. It was clear due to hand written additions on both the ITO and the search warrant that the justice of the peace and D.C. Adams discussed the application for the warrant in a thoughtful way. While a template was used for the ITO, there was nothing wrong with doing so in this case. The affiant properly and fairly added the new facts discovered by the police in addition to what is being challenged as boilerplate. It was not misleading. With respect to over-breadth, it is submitted that the warrant is not overbroad. While there is nothing specific in the ITO, the overall investigation would make the items ones that the police could potentially find.

[18] The main factor that should be considered in assessing the seriousness of the breach is the fact that there was no bad faith. Here a team of police officers worked diligently and tirelessly to investigate all potential sources of evidence in an investigation that morphed from six search warrants to 21 search warrants. Each time, the police knew the need for and sought judicial authorization. In these circumstances, where the objective grounds just fell short, the conduct of the police falls on the less serious side of the continuum.

[19] Regarding the impact of the conduct of the police on the Charter-protected interests of the applicant, the Crown takes the position that although the apartment was a dwelling house, the applicant's own reasonable expectation of privacy was no more than that possessed by a part-time employee. He was simply babysitting and did not own or rent the premises. He did not own the property within the apartment. Due to the diminished expectation of privacy, the impact of the Charter-infringing conduct of the police was lessened.

[20] With respect to s. 10(b), the Crown argues that the violation had no effect on the applicant's Charter-protected interests. The violation did not impair his right to remain silent and not to incriminate himself. The evidence of the key and the lease are disconnected to the violation of his right to counsel.

[21] Finally, with respect to the last line of inquiry, the key and the lease are reliable evidence. The offences the applicant is charged with are grave. There has been a shift in public values whereby these commercial grow operations are viewed with more seriousness. The final submission is that the evidence is essential to the Crown's case. At the initial trial, once the evidence of the key and the lease was excluded, Justice Knazan ruled on the merits that the Crown had failed to prove beyond a reasonable doubt that the applicant had knowledge and control of the drugs found within apartment 1215.

[22] The Crown submits that exclusion of the evidence in these circumstances would bring the administration of justice into disrepute.

SUMMARY OF THE EVIDENCE AND FINDINGS

A. The Information to Obtain

[23] D.C. Barbara Adams was a member of the Drug Squad and is the affiant who swore the ITO for the search of apartment 1216, 2020 Sheppard Avenue West. The following is a brief summary of the ITO. The offence that was being investigated was the offence of the unlawful production of cannabis marihuana by Mr. Tat Thang Nguyen. The reasonable grounds in support of the application are provided in appendix C.

[24] In that appendix, D.C. Adams states that on November 23, 2006, the Toronto Drug Squad Clandestine Lab Teams executed six Controlled Drugs and Substances Act search warrants at an apartment building located at 2600 Jane Street in the city of Toronto. The original ITO for those warrants is attached as appendix D. The source of the information about a number of grow operations at 2600 Jane Street came from tips, an anonymous letter, and a confidential informant. A police officer also attended the address and heard sounds of exhaust fans used in the cultivation of marihuana coming from a number of apartments. Those six search warrants were issued and executed on November 23, 2006.

[25] When executed, the officers found illegal marihuana grow operations in the apartments. The officers arrested a male, Mr. Tat Thang Nguyen, outside apartment 1203. He had keys for that apartment on his person. When the officers executed the search warrant on the unit, they found a large grow within. D.C. Adams avers that Mr. Thang Nguyen is suspected of being the ring leader of the grow operations at that address.

[26] When arrested, Mr. Thang Nguyen had an Ontario driver's licence with the home address of 2020 Sheppard Avenue West, apartment 1216. The male admitted that was his residence.

[27] On November 23, 2006, D.C. Amos and D.C. Adams walked the floors of the apartment building at 2600 Jane Street. They located numerous other apartments used as grow operations. The officers heard the loud sound of exhaust fans running inside and a strong smell of fresh marihuana as well as chemicals emanating from the apartment doors. Some 15 apartments were identified.

[28] The police also arrested Danny Wallace, the superintendent of the building, for conspiracy to produce marihuana. Upon arrest and after being given his rights, Mr. Wallace spoke to the officers and said he had been taking a kick back from each of the units. He denied running the operation and said he only played a bit part. He identified the apartments he knew to be grow operations which matched the ones that the police identified. He advised that the male arrested on the twelfth floor during the execution of the original search warrants was the ring leader and that Mr. Wallace was frightened of the male.

[29] D.C. Adams avers that she believes that grow operations existed in the 15 identified apartments at the building and gives her reasons for that. She also avers that evidence of various kinds will be found in these apartments at 2600 Jane Street and will afford evidence of the offences.

[30] Under the heading "Conclusion", D.C. Adams states the following:

Based on the above information I believe that Tat Thang Nguyen is responsible for operating numerous illegal marihuana grows in the building located at 2600 Jane Street in the City of Toronto. I further believe that the male lives in the building located down the street at #2020 Sheppard Avenue West in apartment #1216. I believe evidence may be stored in the apartment to prove he had knowledge of the marihuana grows in the second building. (hand written addition only partially legible) "to documentation to confirm many grows at 2600 Jane St. or any other locations"

[31] The search warrant itself lists the items that D.C. Adams avers she has reasonable and probable grounds to believe will be found at apartment 1216: cannabis plants, shields, lights, venting fans, ballasts, house fans, scales to weigh cannabis, debt list, timers/thermometers, water pumps, identification of suspect(s), keys to apartments at 2600 Jane Street, receipts, "any banking or other documentation" (handwritten addition), and "any computers or other equipment which can store information" (handwritten addition).

B. Evidence Relevant to s. 8

[32] D.C. Adams is an experienced officer. She testified before me on consent of the parties on this Charter application. She has been an officer since 1991. She started with the Drug Squad in 2006 and has been an affiant for search warrants before. On the day in question, the Drug Squad commenced with six original search warrants in an investigation regarding 2600 Jane Street in 31 Division. Ultimately, she prepared some 15 other search warrants; some 21 in total. D.C. Adams testified that she did a lot of warrants and that it was a busy day. D.C. Adams testified that she started typing up the search warrants for the other locations once the police uncovered evidence of their existence. She started typing at 5 a.m. and into the afternoon of the next day. She testified that she had been working for 24 hours.

[33] D.C. Adams believed that she had reasonable and probable grounds for apartment 1216. Mr. Thang Nguyen had a driver's licence for 1216 and he said that was where he lived. The police wanted to go into that apartment and get further evidence of the grow operations at Jane Street, documents, proceeds of crime, and dry marihuana. At the time she believed Mr. Thang Nguyen was part and parcel of the operation; that he was the operator of the grows. At that time, the police located grows in the first six search warrants including the one that Mr. Thang Nguyen had come out of. At the same time she prepared the search warrants for his residence, she was also preparing warrants for the 15 additional grow operations that the police believed existed at 2600 Jane Street. At the original trial, she agreed that she obtained the warrant for 1216 based essentially on the information she received from Mr. Thang Nguyen and what was on his driver's license.

[34] She did not recall if she asked Mr. Thang Nguyen where he lived and if he confirmed it. She did not have it noted nor did she recall. The address was on his licence. The address was written on it but D.C. Adams could not recall any verbal interaction with Mr. Thang Nguyen or whether the arresting officers asked him about his address. She did not recall his English speaking ability. In the ITO, she stated that male admitted it was his address. D.C. Adams does not recall the conversation when she testified before me but she stated it would have been fresh in her mind at the time.

[35] D.C. Adams believed at the time she sought the warrant that there "may" be documents or other evidence in the residence. She testified that she sought the warrant because there "may" be evidence. She believed that this was what was legally required of her, the belief that there "may" be evidence. She agreed that there was no other investigation done with respect to apartment 1216 before she sought the warrant.

[36] D.C. Adams was cross-examined further about her beliefs. When asked that there may have been evidence at Danny Wallace's apartment, she agreed that it was possible. When asked about the fact that no search warrant was sought for Mr. Wallace's residence, D.C. Adams testified that she felt there would not be evidence there as he was being paid to ignore the grows. The police felt Mr. Wallace was not involved in the running of the grow operations so hence her belief there would not be evidence. Upon further cross-examination, D.C. Adams agreed that there may have been evidence at Mr. Wallace's home. She admitted that perhaps the police should have gotten a warrant for Mr. Wallace's apartment since there may have been evidence there and it could have been a mistake not to.

[37] D.C. Adams was crossed on the fact she had felt that there were sufficient reasonable and probable grounds in the ITO. She was asked whether evidence "may" be found in a certain premise would fall short of reasonable and probable grounds and she admitted she was now aware of that. She agreed that in the applicant's case, there were not reasonable and probable grounds in the ITO. She testified that if she was doing it today, she would do a lot different than back then. She stated she is now more experienced. D.C. Adams agreed that circumstances lead to a certain carelessness by her in preparing the ITO. She agreed readily to that suggestion. The circumstances were that unexpected grow operations were being discovered; the search warrant for apartment 1216 was written with 15 other warrants that she was doing for the building. D.C. Adams agreed that for all the search warrants she was doing, the ITO's were basically the same.

[38] D.C. Adams agreed that day things were being too rushed. It would not happen that way today. It happened that day because the unit was fairly new; things were rushed way more than they should have been. Looking back, knowing what they knew now, D.C. Adams testified that the Toronto Police Service would not handle it the same way.

[39] When she obtained the search warrant for apartment 1216, there was a dialogue with the justice of the peace but D.C. Adams could not recall what was spoken about. She wrote down some handwritten portions to the ITO. She added a portion to the grounds to be more specific. "For documentation to confirm grows at 2600 Jane St. or any other location." D.C. Adams testified that she thought there may be evidence in terms of documents, proceeds, and possibly dried marihuana. She agreed that she did not believe there would be water pumps in the apartment. D.C. Adams could not recall what she put into the search warrant with respect to what they wanted to search for but she testified that she was going in for documents.

[40] Having heard the officer testify and having reviewed her testimony at the original trial before Justice Knazan, I find that D.C. Adams was a credible witness. She made many candid admissions and regretted the mistakes made with respect to the search warrant in this case. I accept her evidence in that regard. Unfortunately, when she testified before me, her evidence was not the most reliable. On many occasions, she simply did not recall. This is understandable to me. Using her words, these events took place six years ago. Anyone put in her position would likely be unable to recall some of the events given the passage of time, including, as in D.C. Adams' case, some material facts.

[41] The applicant testified at his original trial on the Charter application. He testified that on November 23, 2006, he was babysitting Ms. Uyen's children. Ms. Uyen lives at apartment 1216. She rented the apartment. The police seized other documents from apartment 1216 including a rental agreement for apartment 1216, banking, insurance, and government documents all in the name of Le Thi Uyen.

[42] The applicant testified that on the day of the execution of the search warrant, he arrived between 5 to 6 p.m. He has keys to the Ms. Uyen's apartment. The applicant testified that he was very close with Ms. Uyen and her children. They were distant cousins from Vietnam. He testified that the children loved him as he was there very often, once or twice a week. Prior to November 23rd, the applicant last babysat five days before. He would come down whenever the mother was busy and asked him to do so. That was the reason why he had the key. However, he never went in there alone for any other reason. Sometimes he would drop by and other times he would stay overnight. He would also go there with his friends while he babysat. Mr. Pham had belongings like underwear, documents such as bills and the lease, even a toothbrush and razor left in the apartment. When he stayed overnight, he would sleep on the sofa. He never paid rent for 1216 or the bills. He did buy groceries for the apartment though. He agreed in cross that if Ms. Uyen told him to leave, he would as she was the owner. Part of his role as a babysitter was to feed the kids, not let them out or to allow anyone to come in.

[43] The applicant resided in the town of Grimsby. He admitted it was his name on the lease for apartment 1215 but he testified that he had never been to 1215 when there was marihuana growing. He conceded that he could smell it sometimes.

C. Evidence Relevant to s. 10(a)

[44] On November 23, 2006. D.C. Klimtschuck assisted in the execution of the search warrant on apartment 1216. He testified that the police knocked on the door. The process was that the officers would stand in a line, and someone would knock and announce police and that they were there to execute a search warrant. D.C. Adams confirmed that this was what they did. The police were either in uniform or in tactical gear. The door was answered by a little girl and there were two other girls in the apartment. One girl was 8 to 9 years old, the other 5 or 6 and the youngest about 2 years. The applicant and the three girls were the only ones in the apartment. It was a two bedroom apartment. The applicant was in the living room area when the police arrived. The children were fairly young and in need of care. The apartment was entered at 20:36. D.C. Adams took care of the children. The oldest girl spoke English and assisted in trying to contact the mother. The two younger girls did not even speak. D.C. Adams testified that she did not see anything in the behaviour of the children and the applicant that would suggest he was a parent. The children could wander around but generally stayed in the back bedroom.

[45] D.C. Klimtschuck dealt with the applicant who identified himself and gave an address of 146 Olive Street, Grimsby. The officer detained him at 20:37. The applicant was not handcuffed but he was given a pat down search as he was under investigative detention. D.C. Klimtschuck believed that the applicant was not allowed to use the telephone in the apartment. When asked the question how he was detained, D.C. Klimtschuck testified "We—through his body language, obviously he wasn't speaking English but we let him sit on the couch and just tried to explain to him that he had to stay there while we were conducting our search."

[46] In the master bedroom, at 21:45, D.C. Klimtschuck found a rental agreement in the name of Dinh Nghia Pham for apartment 1215, 2020 Sheppard Avenue West which was across the hall. D.C. Klimtschuck arrested the applicant at 21:45. He was handcuffed. D.C. Klimtschuck testified that he attempted to give him his right to counsel but the applicant did not speak any English. He testified that the police did not have a translator on site. However, they arranged for one to meet them at the division. At 22:25 they left the apartment for the police station.

[47] After the applicant's arrest, D.C. Adams found a set of keys on him but she did not remember where the keys were specifically located. She tried the keys on apartment 1215 and found a key opened the door.

[48] In executing the search warrant, D.C. Adams acknowledged that it was likely that occupants at 1216 would speak Vietnamese. She, however, did not think of an interpreter.

[49] D.C. Klimtschuck agreed from his first dealings he was aware that the applicant did not speak English. He also knew there was a landline telephone in the apartment. The officer was aware that AT&T had a language translation service used by the Toronto Police Service. When asked if there was any reason why the service was not used to advise the applicant why he was detained or given his right to counsel, the officer testified there was no reason. D.C. Klimtschuck testified that he did not know if anybody else tried to ensure if the applicant knew what was going on. He testified that he did not do so. D.C. Adams testified that at the first trial the applicant spoke a little bit of English but she did not recall the conversation with him. However, D.C. Adams did not deal much with the applicant. She did not try and explain his rights to him. Although the older girl spoke perfect English, she did not recall if that girl was used as a translator and did not recall asking her to do so.

[50] At 22:03, two females entered the apartment. The first, Le Thi Uyen, was the resident and the mother of the children in the home. The other was Loan Huynh with an address in Brantford.

[51] It was at 23:18 back at the division that the rights were read and interpreted by P.C. Hoang to the applicant. D.C. Klimtschuck had tried to give his right to counsel earlier by getting on the radio to try and find the appropriate translator in Vietnamese but no one was available. P.C. Hoang was busy on a call and could not come to the apartment so they arranged to meet at the station.

[52] When D.C. Klimtschuck was crossed on the fact that the first time anyone translated anything to him was back at the station two hours and forty minutes after the initial detention, he replied that he could not speak to that. The two females had arrived and he was not sure if they could speak to the applicant. He was also not sure whether the three children could. He did not know their ages or what languages they spoke. He did agree that he never asked these other people to explain anything to the applicant. The officer testified that he never gets anyone other than a police officer to explain a person's s. 10(b) right to counsel. The officer testified that he could not speak for others but he agreed that he did not ask anyone to explain to the applicant his reason for his detention.

[53] The applicant testified he was never told in a manner he could understand why he was being detained. He testified that he did not understand why the police were there at the apartment.

D. Evidence Relevant to s. 10(b)

[54] The evidence regarding this can be brief. It is agreed by the parties that there is a s. 10(b) violation. It is further agreed that although the applicant was given his right to counsel by the police, he was never given an opportunity to call counsel when he duly requested one at the station. This was a contested issue at the original trial. However, since then, the video of the booking has been secured and is an exhibit on this application. That video clearly shows the applicant requesting to speak to a lawyer. P.C. Hoang translates in Vietnamese for him.

[55] The applicant testified that after his arrest he never got a chance to speak to a lawyer until he got to bail court. He testified that he had his handcuffs on after his arrest and was in the apartment with them on for over an hour.

[56] The Crown agrees as an admitted fact that the applicant was never given an opportunity to contact counsel. The applicant arrived at 31 Division at 23:18 on November 23, 2006, and was paraded. Nothing was done to facilitate his request to speak to counsel. The applicant did not get a chance to speak to a lawyer until the next morning when he arrived at court for his show cause hearing. Thus, the night passed with the applicant in police custody without any opportunity given to him to exercise his right to counsel.

ANALYSIS

[57] It is agreed that the applicant's rights pursuant to s. 8 and s. 10(b) were violated. The only issue that I must decide before undertaking the s. 24(2) analysis is the determination of whether the applicant has established a violation of his s. 10(a) right.

THE S. 10(a) VIOLATION

[58] I find that the applicant has proven a violation of s. 10(a) on a balance of probabilities. Everyone has on arrest or detention the right to be informed promptly of the reasons. There is no fixed formula or specific words required in order to ensure that s. 10(a) is respected. It is the substance of what the detainee can reasonably be supposed to have understood which governs. In all the circumstances, viewed reasonably, was what the detainee told sufficient to permit him to make a reasonable decision to decline to submit to the detention or arrest or to decide whether or not to exercise his right to consult counsel: see R. v. Evans, [1991] 1 S.C.R. 869. The whole of the circumstances must be considered.

[59] Firstly, I find that the applicant spoke little or no English. D.C. Adams testified that the applicant did understand some English but I do not give that evidence much weight. D.C. Adams' recollection in general was not very good. She could not specifically recall any of the conversation she was alluding to when she came to this opinion. Lastly, she had very little direct dealings with the applicant. I prefer the evidence of D.C. Klimtschuck. He had direct dealings with the applicant and was in charge of his arrest and the advising of his rights. He further had a more specific recollection of the applicant's poor facility with the English language. The applicant's own testimony supports this finding of fact.

[60] Secondly, the applicant testified that he did not understand why he was being detained by the police or why they were there. The parties here agreed to have these issues decided mainly on the transcribed evidence at the first trial. In such circumstances, I acknowledge it is difficult to make findings of credibility. After careful consideration, I find that I can accept the applicant's testimony on this. He was not cross-examined specifically on this by the Crown. Cross-examination of the applicant in general did not impair his credibility. I note that s. 10(a) was a live issue at the original trial. There is no unfairness in relying on this testimony now especially in light of the fact that the Crown has agreed to accept this procedure on this application. It also makes sense in the context of what was happening at the time. The applicant did not speak English and the officers did not take any meaningful steps to advise him of what was going on. Although the police knocked and shouted out they were there with a search warrant, the evidence is the applicant did not answer the door. The eldest girl did. No officer testified that they ever showed the search warrant to him.

[61] While the eldest girl spoke very good English, there is no evidence she ever communicated or was allowed to communicate with the accused. Indeed, it appears that the children were separated from the applicant. They were largely in the bedroom. The applicant sat on a couch in the living room. D.C. Adams testified that they did not interact in a very familiar way. There is also no evidence that the females including the mother of the children and her friend who attended later advised the applicant what was going on. In any event, their arrival at the apartment took place long after his initial detention and the obligation on the police under s. 10(a).

[62] None of the police officers who testified ever indicated that any officer attempted to explain to the applicant in a fashion that he understood why he was being detained and the reasons for the police presence. D.C. Klimtschuck who had the closest contact with the applicant tried to speak to the applicant and was unsuccessful due to the communication barrier. When he was asked was the applicant ever advised in a manner in which he could understand why he was being detained by the police, D.C. Klimtschuck answered no. When asked if there was any reason why the telephone translation service was not used to advise the applicant why he was being detained, the officer could not come up with any reason why this was not done. D.C. Klimtschuck testified that though he did not know if anybody else tried to ensure if the applicant knew what was going on, he testified that he did not. Although he tried to get a police officer who spoke the language on the radio, when he was unsuccessful, it appears to me that he just gave up. I find that D.C. Klimtschuck decided to wait until the applicant was taken to the police station to ensure that he fully understood what was going on. It may well be that he just assumed the applicant knew or was indifferent to whether he knew. Either way, neither he nor any other officer took the necessary steps to ensure s. 10(a) was respected. In this case, he knew the applicant did not speak English from the moment he first had contact with him.

[63] In some cases, it may be excusable that a period of time passes before an interpreter can be secured for the accused. In some cases, where there is a delay, the purpose behind s. 10(a) may still be respected. However, in this case, a significant period of time passed. This is not a case where a detainee or an accused is within a reasonable period of time told of the reason for his or her detention or arrest, either on the scene or at the police station. No explanation arises from the evidence for the laches in respecting the applicant's s. 10(a) rights. Indeed, D.C. Klimtschuck was aware of the AT&T translator services but he did not use the telephone to contact the service.

[64] I do appreciate that at some point in time, probably very soon after the arrival of the police, the applicant would have been aware that the police were looking around the apartment and searching it. However, this fact does not translate into a finding that s. 10(a) was respected. The applicant needs to know more than simply the police were there and searching. The applicant needs to know that he was being detained for investigative purposes while the police conducted a search for evidence pertaining to the offences they were investigating. He needed to know that he could not leave. It must be remembered that he was left in charge of the children and there were other reasons why he may have decided not to have left other than the fact he was being detained. In addition, he should have been told that he was being detained while the police were conducting a search under a judicially issued search warrant. In other words, that the police had legal authority to do what they were doing.

[65] One of the reasons underpinning s. 10(a) is to ensure that the detainee has sufficient information to make a reasonable decision to exercise the right to counsel. In this case, the applicant was deprived of the basic information required to properly determine whether to exercise this right.

[66] There is a final matter I should comment upon. The applicant was not given his s. 10(b) right to counsel promptly at the time of his detention: see R. v. Suberu, [2009] 2 S.C.R. 490. I will not, however, consider this violation in the s. 24(2) analysis given that the applicant has not raised the issue and the state of the law at the time had not been clarified.

THE SECTION 24(2) ANALYSIS

The Seriousness of the Charter-Infringing Conduct

[67] This is a key issue upon which the application turns. In assessing the three lines of inquiry set out in Grant, I will assess each Charter violation separately being mindful, of course, that the applicant argues that the multiplicity of violations strengthens his case for exclusion.

[68] I will first address the s. 8 violation. While the Crown concedes there was a lack of reasonable and probable grounds for the search warrant for apartment 1216 to issue, there is no agreement as to the seriousness of the departure from known standards. It is therefore important to scrutinize the nature of the s. 8 violation that I am dealing with. The starting point is the test for determining whether the ITO met the standards in the Controlled Drugs and Substances Act and under the Charter. The test on a sufficiency review is whether the issuing justice "could" – not "would" – have issued the warrant on the basis of the sworn ITO put before him or her. As said by the Supreme Court in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 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.

[69] The Crown has conceded the s. 8 violation. I agree with that concession. As a result, the justice of the peace could not have issued a search warrant based on this ITO.

[70] I am keenly aware that affiants are neither legislative drafters nor professional editors and their work should not be assessed by the standards of either. With that in mind, I can readily conclude that this ITO was deficient by constitutional standards.

[71] In outlining those deficiencies, I do agree with the Crown that the use of a template or as the defence characterizes it, "boilerplate" is not inherently wrong. There are the benefits of accuracy and efficiency in using standard language and paragraphs. Appending previous relevant ITO's as appendixes, as here, assists in the discharge of the affiant's obligation to make full, fair, and frank disclosure. At the same time, I appreciate the advantages of clarity, conciseness, and specificity. Many judicial authorities have commented on it and deplored obtuse or unnecessarily long ITO's. At the end of the day, regarding this ITO, the use of boilerplate and standard paragraphs could not have had a misleading effect on the justice of the peace. The justice of the peace is obliged to review and assess the requirements for the valid issuance of a search warrant even if that means going through the various paragraphs impugned by the applicant. In this instance, the ITO is such that its wording and structure would not have significantly impaired the justice of the peace in that duty.

[72] Aside from this, I agree with the applicant's submissions regarding the extent of the s. 8 violation. In its seminal 1984 decision of Hunter v. Southam, [1984] 2 S.C.R. 145 at 168, the Supreme Court authoritatively held that:

In cases like the present, reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure.

[73] The evidentiary burden with respect to these essential elements is also long settled. As said by the Supreme Court, "the appropriate standard is one of 'reasonable probability'" and the totality of the circumstances must be considered: see R. v. Debot, [1989] 2 S.C.R. 1140.

[74] In the case at bar, the s. 8 deficiencies viewed cumulatively are serious. In my view, they are interrelated and spring from the same source; the negligence of the police.

[75] After carefully considering D.C. Adams' testimony, I find that her knowledge of the requisite standard for the issuance of a search warrant is not in keeping with well-known standard as indicated in Debot. She avers that she believed evidence "may be stored" in apartment 1216. This was not a simple slip of wording or an inadvertent mistake confusing "may" with a word or phrase more determinative in keeping with the constitutional standard. In cross-examination, she testified that "may" was the wording she chose to use in drafting ITO's. When crossed about why she did not get a search warrant for Danny Wallace's home, she eventually admitted that perhaps they should have. This despite her initial belief that she did not because she did not believe the police would find any evidence there as he was just being paid to turn a blind eye to the operations. She was then further cross-examined upon the fact that her use of the term "may" in the context of this ITO failed to establish reasonable and probable grounds. She readily agreed with this suggestion. In my view, the approach taken by D.C. Adams slips below the constitutional threshold and falls within the realm of a speculative search with the hopes of uncovering some relevant evidence. The amplification done in this case, far from persuading me that this was an innocent mistake in the choice of words, has left me with a serious concern that this ITO was obtained without due regard to the safeguards that s. 8 is meant to provide.

[76] It provides no comfort that the justice of the peace actually issued this search warrant. The fact that the affiant did not fully appreciate the standard required for a search warrant to issue, apparent on the face of the ITO, should have been picked up by the issuing justice of the peace. The failure of the judicial officer to do so does not rehabilitate the affiant's error but perpetuates it.

[77] This deficiency in the knowledge of D.C. Adams may have been largely immaterial if the ITO had objectively set out sufficient reasonable and probable grounds for the search warrant to issue. The Crown places his stock in this argument. After careful consideration of the ITO, I cannot agree with the Crown. While it is true that Mr. Thang Nguyen was not simply a person arrested outside a grow operation with keys on him and that there was information that he was the ring leader of the operations, there remain three deficits in the ITO. First of all, the Crown argues that the evidence of Danny Wallace is significant. However, while Wallace does provide more details about the operations and his opinion that Mr. Thang Nguyen is the leader, Wallace does not give any details as to how he knows of the involvement of Mr. Thang Nguyen. He is further a co-conspirator who gives this statement when he is arrested and with obvious motives to deflect the police away from his own culpability. Secondly, D.C. Adams in her testimony and in the body of the ITO does not refer to Wallace's statements as providing her the reasonable grounds to search Mr. Thang Nguyen's residence. Finally, perhaps most importantly, lacking are any grounds to link Mr. Thang Nguyen's suspected involvement to the finding of any evidence in his purported residence, apartment 1216. Merely the arrest of a suspected ring leader does not in and of itself establish the requisite reasonable grounds to search his or her residence.

[78] At the end of the day, the only grounds offered is the bald conclusion by the affiant that she believes evidence may be stored in apartment 1216 including documentation. That latter was a hand-written addition to the ITO when D.C. Adams was in the presence of the justice of the peace. As conceded by the Crown, this does not suffice for a valid warrant to issue.

[79] In my view, it is not simply the lack of grounds that makes the s. 8 violation serious, but the fact that the pre-requisites for a valid search warrant in this regard, are well-known and basic. Searches of dwelling homes must be undertaken with care and due diligence.

[80] In R. v. Genest, [1989] 1 S.C.R. 59 a unanimous Supreme Court of Canada held:

While it is not to be expected that police officers be versed in the minutiae of the law concerning search warrants, they should be aware of those requirements that the courts have held to be essential for the validity of a warrant.

[81] Finally, I agree with the applicant that the search warrant suffers from over-breadth. As the ITO and D.C. Adams' testimony make clear, the police had no reason to believe that there would be a marihuana grow operation in apartment 1216. Indeed, they had little if any information at all about that dwelling house. D.C. Adams' subjective belief was simply that Mr. Thang Nguyen just lived there. Yet under the items the police were looking to search for is a whole list of equipment used in a grow operation, such as ballasts, timers, shields, etc. There is nothing in the ITO to establish any grounds to search for a great number of these items. It is here, perhaps, that the use of boilerplate or a past search warrant as a template has led the affiant astray.

[82] These deficiencies are all inter-related in my view. What occurred in this case was that the affiant was simply overwhelmed and rushing to churn out these search warrants. It appears to be an assembly line approach, with the affiant banging out the ITO's for over a dozen new search warrants without paying due regard to legal essentials required by the task at hand. Thus, she is not aware of the threshold for the issuance of a warrant, she requests a warrant without the grounds to do so, the police do not undertake any further investigation, and the warrant itself is poorly edited and over-broad.

[83] Indeed, D.C. Adams when she testified before me recognized the need to disassociate the police from this type of conduct. She testified that things were too rushed and the Toronto Police Service would not handle the situation in the same way today. Her demeanour when she gave that aspect of her testimony revealed her sense of frustration and exasperation with how things transpired. She admitted things were handled carelessly.

[84] This is not to say that I am not sensitive to the hard work put in by the police officers and the fatigue they no doubt endured during this long shift. At the same time, the explanation of a lack of resources can only go so far. The police knew even with the original six search warrants that this was a large operation at 2600 Jane Street. It was not as if they were only investigating a single grow operation and became unexpectedly overwhelmed. A reasonable amount of forethought and planning should have ensured that sufficient resources were committed in this investigation. Secondly, there was no exigency or urgency to justify the negligent and careless drafting of the ITO. Certainly, the execution of the original six search warrants and the police presence in the building lead them to uncover more potential grow operations to investigate. However, no one's life, safety, or property was being imperilled. The evidence of the grow operations were not likely to immediately vanish. While there were safety concerns, these could have been appropriately managed while the police investigated further. There was no reason to be rushing the search warrants. Especially when important civil rights hang in the balance and the police were going to search a location that to their knowledge and belief was a dwelling house.

[85] I accept that the affiant did not deliberately set out to breach the applicant's Charter rights. The officer honestly believed she was acting within the law but she was wrong. The police took the appropriate steps in getting a search warrant. Nevertheless, these facts do not translate into a finding of good faith for s. 24(2) purposes. As the Supreme Court of Canada held in R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631 (S.C.C.) at para. 59:

It should first be noted that the officer's subjective belief that the appellant's rights were not affected does not make the violation less serious, unless his belief was reasonable (see, e.g. Mercer, [1992] O.J. 137, at p. 191). As Sopinka, Lederman and Bryant note, supra, at p. 450, "good faith cannot be claimed if a Charter violation is committed on the basis of a police officer's unreasonable error or ignorance as to the scope of his or her authority."

[86] I find that in this case there is a need for judicial disassociation. The departures from the standards for the issuance of search warrants were not minor, technical, or a result of an understandable mistake. They were a significant departure from known standards. Furthermore, there were no extenuating circumstances to attenuate the seriousness of the police conduct. Where the accused demonstrates that the drafting of the ITO was not reasonably diligent, the seriousness of the Charter-infringing conduct may support exclusion of the evidence: see R. v. Morelli, supra, at paras. 99-103; R. v. Rocha, 2012 ONCA 707, [2012] O.J. No. 4991 (C.A.) per Rosenberg J.A; R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4 (Ont. C.A.).

[87] Consideration of the s. 10 violations leads me to conclude that both violations were serious. The violation of s. 10(a) may or may not be related to the circumstances that the police found themselves; that is the amount of work they had to do that night. At the end of the day, the police did very little to ensure that the applicant knew why he was being detained. Of course, it was not deliberate in that the officer tried to undermine the applicant's right. It was not the police's doing that the applicant could not understand English. Nevertheless, D.C. Klimtschuck's testimony reveals that there were some options available to him to ensure the applicant knew what was going on: there was the older child who spoke English and the AT&T service. Despite that, he bluntly admitted he did nothing to try and ensure the applicant knew what was transpiring. The applicant was not left in this state for a few minutes. Some forty minutes passed from the time the police entered to the time he was arrested. Surely, in the large multi-cultural city that we live in, the police could have done more in that time.

[88] Secondly, the s. 10(b) violation was flagrant. Again, I have no evidence to conclude it was deliberate in the sense the police wished to undermine his right. But the booking video makes it clear that the applicant asked to speak to a lawyer. This was translated. The police who were present were aware of this. Yet, at no time, did the police ever give him an opportunity to contact or call a lawyer. To characterize this as anything less than serious and flagrant would be wrong.

[89] Thus, there are multiple violations of the applicant's rights. It is true that the s. 10 violations are not directly connected to the finding of the evidence. Suffice it to say, they are temporally connected to the seizure sufficient to engage a s. 24(2) analysis: see R. v. Goldhart, [1996] 2 S.C.R. 463 at para. 40. The tenuousness of their connection is acknowledged. Yet their existence cannot be denied. They seemed related to the s. 8 violation to this extent; the police treatment of the applicant that night may well originate in the same cause of their negligence in not having the grounds for the search warrant. Regardless, from the applicant's perspective, the police did not serve him well in respecting his Charter rights that night.

[90] I find that the first line of inquiry supports the exclusion of the evidence.

The Impact of the Breaches on the Charter-Protected Interests

[91] I agree with the Crown that it is important to appreciate that the applicant did not live at apartment 1216. While it is a home, it is not his home. Therefore, it does not carry with it the same expectation of privacy as the applicant's own home. One's home is one's castle. However, mere presence does not convert a dwelling into one's castle. The well-known adage does not mean that a person enjoys the same level of privacy each time he or she crosses the threshold of any and all dwelling houses. That much is obvious.

[92] Nevertheless, the fact that apartment 1216 is a dwelling house remains an important contextual factor to consider in assessing the applicant's reasonable expectation of privacy. It is not the same as if he was babysitting in a factory or an office.

[93] In my opinion, the Crown's reliance on the case of R. v. Nguyen, 2011 ONCA 465, 273 C.C.C. (3d) 37 (Ont. C.A.) is misplaced. In that case, the police searched a house that was used as a grow operation but there was no evidence anyone used it as a residence. The Court of Appeal agreed that the trial judge over-emphasized that the state conduct was with respect to a search of a home. In Nguyen, the expectation of privacy was seriously diminished. I agree that it takes more than four walls or a building to make a home. The fact that a residential house is involved does not automatically mean it is dwelling house. A factory can be set up, by-laws permitting, in a building that normally functions as a home. That does not elevate the expectations of privacy above that associated with a factory. The case at bar is different. Apartment 1216 is a home although it is not the applicant's home.

[94] In all the circumstances, the applicant enjoyed a reasonable expectation of privacy that was significant. He was present during the search. The door of the home was shut to the police and all uninvited outsiders. Inside the applicant enjoyed the privacy associated with a dwelling used as home and afforded the same protection from intrusion as a home. At the time of the search, he was the only adult in the home taking care of three young children. He was a frequent visitor to the premise and babysat every one or two weeks. He had some minor pieces of belongings and documentation stored there. He brought his own friends to the apartment when he was babysitting. He was not a casual visitor. Rather, he was entrusted with the safety and security of all the valuables in the home in the absence of the residents. Most importantly, he was entrusted with the safety and security of the young children. When the applicant was present, he had the exclusive power and responsibility to ensure that his and the children's privacy were respected. While the degree of his reasonable expectation of privacy is not on the same level as the resident, the mother, it nonetheless is significant.

[95] Therefore, I find that Charter-infringing conduct of the police had a serious impact on the interests protected by s. 8.

[96] I further find that the s. 10(a) violation had a serious impact on the applicant's Charter protected interests. He was not advised of the reason for his detention. He had no way of knowing that the police were searching under a purportedly valid search warrant. He had no information regarding whether he should exercise his right to counsel. He was, of course, not even told he had a right to counsel upon detention. One must not overlook the vulnerable nature of an individual who does not speak English, being in sign or body language told to sit on a couch for an extended period of time, while the police tear apart the apartment that he was supposed to be safeguarding with the children he was supposed to be supervising being watched over by police in another room. At the very least, he should have been told what the police were doing so he could more meaningfully decide what his next steps should be.

[97] On the other hand, the impact of the s. 10(b) violation upon the applicant's interests is relatively speaking minor. While the breach was flagrant, the essential interest served by his right to counsel was not affected. The right to remain silent and to be free from self-incrimination, important interests protected by s. 10(b), were not affected. No evidence directly resulted from the breach. The evidence sought to be introduced at this trial exists independent of any violation of s. 10(b).

[98] On this second line of inquiry, for the above reasons I conclude that the impact of the s. 8 and s. 10(a) violations on the applicant's Charter-protected interests are serious and favours exclusion of the evidence. Consideration of the s. 10(b) violation favours admission.

Society's Interest in the Adjudication on the Merits

[99] As often is the case, consideration of this line of inquiry favours inclusion of the evidence.

[100] The evidence at stake in this application is reliable evidence. They are a key and a lease. The lease speaks for itself. The key opens the door to apartment 1215 where the grow operation was later located.

[101] I also agree with the Crown that the offences are serious. The production of marihuana has many known adverse consequences including to the health and safety of those who may reside proximate to the location of its production. The ITO sets out some of the known hazards created by clandestine grow operations. In addition, the potential for profit can be large making it inviting to organized crime. Society has an interest in seeing such charges tried on their merits.

[102] At the same time, I do not agree with the Crown that I should consider all the various grow operations investigated by the police on that day as relevant to the issue of seriousness of the offences. This factor must be limited to the offences that the applicant is charged with. To do otherwise would not be fair to the applicant.

[103] Finally, the seriousness of the offence is tempered by the fact that the charges deal with marihuana, a drug on the lower end of the continuum with respect to dangerous drugs and substances governed by the Controlled Drugs and Substances Act.

[104] Furthermore, I accept the Crown submission that the evidence is central to the prosecution case. It is noteworthy though that at the original trial before Justice Knazan, despite exclusion of the key and lease, the trial Crown in that case believed that she could prove these offences beyond a reasonable doubt on the remaining evidence available. The Crown proved to be incorrect and the applicant was originally acquitted of all counts.

[105] In the unusual situation before me at this re-trial, the Crown has with hindsight and with the benefit of Justice Knazan's final verdict, conceded that if the evidence of the key and lease are excluded, he would be unable to prove this case. In my opinion, it is a reasonable position. Thus, the evidence is essential for the Crown.

[106] That being said, aspects of the defence submission on this issue have some resonance with me. Here the evidence is not the drugs which form the gravamen of the offences. It is evidence that furthers the proof of possession; that is, knowledge and control. Proof of that issue is not necessarily static and is always subject to further police investigation. For instance, it would be reasonable to assume that at least some point in time, there existed another copy of the lease in the hands of the landlord. Others could be interviewed with respect to who may have rented or accessed apartment 1215.

[107] While I accept that given the present state of affairs and the position taken by the parties at this re-trial, the evidence in question is essential to the Crown's case, I must say that this factor is not quite as compelling as in other drug prosecutions when the evidence of the drugs themselves are sought to be excluded.

The Final Balance and Conclusion

[108] Taking all of the factors involved in the above three considerations into account, I am persuaded that the overall repute of the justice system, viewed in the long term, would be adversely affected by the admission of the evidence. The tipping point where exclusion is the appropriate resolution over a trial on the merits has come given the seriousness of the violations, the multiplicity of the violations, and the effects on the interests of the applicant. Further, while serious, these charges are not the most serious in drug prosecutions and the evidence excluded could have been, at least theoretically, compensated for by further investigation.

[109] This case mainly revolves the concerns around the s. 8 violation. In Morelli, supra, at paras. 110-111, Justice Fish eloquently addressed these concerns in his majority opinion:

Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. But justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices.

The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause. To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term.

[110] Ultimately, to admit the evidence in this case would in the long term bring the administration of justice into disrepute. The police must expend the resources and conduct themselves diligently to ensure constitutional rights are respected. Negligence and carelessness, even in circumstances where individual officers are working tirelessly, if permitted to justify unconstitutional conduct by the judicial acceptance of it on the s. 24(2) analysis, over time, will breed public cynicism and provide little incentive to rectify the problems that causes such conduct.

[111] Absent exigent circumstances, the obligations of the police to safeguard Charter rights do not come second to investigative zeal or good police work. These obligations are a part of good police work. The same zeal should be shown for upholding Charter rights. Our jurisprudence has carefully balanced the investigative needs of the police with the need to uphold individual rights. On the specific facts of this case, exclusion of the evidence respects that appropriate balance.

[112] Order to go accordingly with these reasons.

Released: April 9, 2013

Signed: Nakatsuru J.