COURT OF APPEAL FOR ONTARIO
DATE: 20000502
DOCKET: C31300
LASKIN, FELDMAN and O'CONNOR JJ.A.
B E T W E E N : )
) Alan N. Young
HER MAJESTY THE QUEEN ) for the appellant
)
(Respondent) )
)
- and - ) James W. Leising
) for the respondent
ALAN CARL KESSELRING )
)
(Appellant) )
)
Heard: November 17, 1999
On appeal from the judgment of His Honour Judge R.E. Salhany
dated December 14, 1998.
BY THE COURT:
[1] This is an appeal from a conviction for unlawful cultivation
of marijuana. The conviction was based entirely on evidence
seized during a warrant-authorized search of the appellant’s
home.
[2] The appellant had sought an order from the trial judge, at a
pretrial hearing, declaring that the search violated s. 8 of the
Canadian Charter of Rights and Freedoms and excluding the
evidence obtained under s. 24(2) of the Charter. The trial judge
concluded that if the information upon which the search warrant
was issued failed to meet the reasonable grounds threshold, “it
missed the mark by very little.” After considering the relevant
factors, the trial judge admitted the evidence under s. 24(2) of
the Charter. The appellant then admitted all the essential
elements of the offence, was found guilty, and was subsequently
sentenced to a twelve month conditional sentence.
[3] The appellant challenges the validity of the search warrant
on two grounds. First, he submits that there was insufficient
information to constitute reasonable grounds for issuing the
warrant. He also argues that the information sworn in support of
the application for the warrant contains misstatements of fact.
The appellant submits that on either ground the warrant should
have been quashed by the trial judge. He then argues that if the
search warrant was invalid, the evidence should have been
excluded under s. 24(2) of the Charter.
[4] We do not accept either argument on the validity of the
warrant and we would therefore dismiss the appeal.
Reasonable grounds to issue warrant
[5] Counsel for the appellant, in his able argument, submitted
that this case fell below the standard set by the Supreme Court
of Canada in R. v. Plant (1993), 1993 70 (SCC), 84 C.C.C. (3d) 203. However, in
our view, that decision is dispositive of this issue. In Plant,
the court held that there were reasonable grounds for the
issuance of the warrant authorizing a search of the appellant’s
house. Taken as a whole, the information supporting the issuance
of the warrant in the present case is at least as strong as the
information in Plant.
[6] Plant, like this case, involved an anonymous “Crime
Stoppers” tip that the target of the search was growing marijuana
in his house. In Plant, the court assessed the sufficiency of
the grounds for issuing the warrant against the approach set out
in R. v. Debot (1989), 1989 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.). There, the
Supreme Court determined that the reliability of a tip of an
informant depends on the totality of the circumstances and
specified three factors in particular: whether the information
provided by the informant was compelling; whether the informant
was credible; and whether the information was corroborated by
the police investigation. We will briefly address each factor
comparing the facts in this case to those in Plant.
[7] The first factor is whether the information was
“compelling”. In Plant, the informant indicated that marijuana
was being grown in a “cute house” beside a house with a lot of
windows on 26th Street between two consecutive cross avenues in
Calgary. The police were able to locate the house from this
general description. It is not apparent from the reasons of the
court whether the tip contained further detail.
[8] Sopinka J., for the majority, found that the information
provided by the informant was compelling because it located the
house in a “fairly specific geographic area” and because the
police were able to readily locate the exact address from the tip
and thereby corroborate the report of the informant.
[9] In our case, the informant provided considerable detail
about the appellant and the nature of the marijuana growing
operation that he said was taking place in the appellant’s house.
The information included the names of the occupants of the house,
a physical description of the appellant, a description of the
house, its approximate location, the appellant’s occupation and
detailed information regarding the hydroponic marijuana growing
operation, which was consistent with the informant having been in
the house and having observed the operation.
[10] The informant’s description of the exact location of the
house was inaccurate. It was in fact 9 houses away from the
location described in the tip. However, the informant provided
sufficient detail to enable the police to locate the house by a
C.P.I.C. check. The informant also incorrectly described some
details of the three vehicles owned by the occupants of the
house. In addition, his statement that the appellant possibly
taught at Conestoga College turned out to be inaccurate. These
errors were relatively minor and did not seriously detract from
the compelling nature of the tip when viewed in its entirety.
Importantly, the police officer who swore the information used to
obtain the search warrant specifically pointed out these
misstatements in the information.
[11] In our view, the information provided by the informant in
this case was at least as compelling as the information provided
by the informant in Plant.
[12] The second factor is whether the informant was credible. In
both Plant and this case, the informants were anonymous and it
was impossible to determine whether they were credible except by
reference to the subsequent police investigation.
[13] The final factor is whether the information was
corroborated. In Plant, the only information corroborating the
tip came from hydro records. The police conducted a computer
search of the municipal hydro records. This search revealed that
the electricity consumption at the appellant’s house, over the
previous six months, was four times the average of two comparably
sized residences in the city of Calgary. In the information used
to obtain the search warrant, the police officer stated that the
electricity consumption was consistent with other hydroponic
marijuana growing operations and with the use of high voltage
grow lights. The police also conducted a warrantless perimeter
search of the appellant’s house. However, the court found that
the search violated s. 8 of the Charter and therefore excised the
observations made during the search from this assessment of the
validity of the warrant.
[14] In the present case, there was information corroborating the
tip both from observations of the appellant’s house and hydro
records.
[15] After the police located the house from the tip, they made
observations of the house from the street. They saw condensation
on a second floor window on two consecutive days. They also saw
plywood covering two basement windows. The information had
indicated that the growing operation was located in the attic and
the basement. The evidence was that condensation may indicate a
growing operation. These observations by the police were
therefore some evidence tending to corroborate the information in
the tip. As we pointed out, the observation evidence in Plant
was excluded from the court’s assessment.
[16] In this case, the police conducted a search of hydro records
by telephone and included results of the search in the
information that was sworn in support of the application for a
search warrant. However, there were three inaccurate statements
in the data contained in the sworn information about the actual
usage in the appellant’s house. We will discuss the effect of
these errors when we consider the appellant’s second ground of
attack on the validity of the warrant. The errors were corrected
by evidence introduced by the appellant on the voir dire to
review the legality of the warrant. On the voir dire, the
appellant also introduced evidence regarding the electricity
consumption of other houses on the same street as the appellant’s
house.
[17] It is well-settled that a court reviewing the sufficiency of
the information in support of a search warrant should do so on
the basis of the corrected and the amplified record: R. v.
Garofoli (1990), 1990 52 (SCC), 60 C.C.C. (3d) 161 (S.C.C.); R. v. Plant,
supra.
[18] The search warrant of the appellant’s residence was issued
on January 29, 1997. Hydro records showed that in 1994, the
appellant’s house had used an average of 59.9 kilowatt hours per
day. This figure jumped to 88.3 kilowatt hours in 1995 and was
76.7 kilowatt hours in 1996. In the sworn information, the
officer stated that the indoor cultivation of marijuana involves
the use of devices that increase the consumption of electricity.
The obvious implication is that a sudden increase in consumption
could be some evidence of a hydroponic growing operation.
[19] Evidence led on the voir dire showed the appellants’ house
used two to three times more electricity than another house,
which was described as the most closely comparable house on the
street. However, there was some uncertainty in the evidence
about the comparability in size and design of the two houses.
The evidence also showed that the houses on the street varied
considerably in structure and age.
[20] Counsel for the appellant acknowledged that hydro records
“may be corroborative of criminal activity if the hydro records
demonstrated an inexplicable and excessive amount of electrical
consumption which would warrant the conclusion that there is a
probability of a hydroponic operation being undertaken in the
premises.” However, he submits that for the records to have any
probative value, there must be expert assessment of their
significance or a valid comparison sample. Without expert
evidence or a proper comparison, hydro records cannot support the
obtaining of a warrant.
[21] We agree that, in some cases, an expert opinion may be
needed to explain the significance of hydro consumption evidence.
We also agree that if the Crown relies on comparison samples,
these samples should be reasonably comparable otherwise the
samples may have little probative value.
[22] However, we think expert evidence was unnecessary in this
case, and the comparison evidence did have some evidentiary
value. That evidence showed a marked and sustained increase in
hydro consumption from 1994 to 1995 and through 1996. Moreover,
although the details of the house on the street chosen as the
comparable were unclear, the difference in electricity use was
significant. Electricity use in the house in question was two to
three times higher than was the comparable.
[23] We acknowledge that the comparison evidence in this case was
not as clear or as cogent as that in Plant where the electricity
use in the house was four times higher than in the two
comparables. However, in Plant, there was no evidence of a
sudden increase in the use of electricity in the appellant’s
house similar to the evidence of the increase in this case.
Taken as a whole, it seems to us that the value of the
electricity consumption evidence in this case was comparable to
that in Plant.
[24] In our view, the significantly elevated hydro usage,
together with the two observations of condensation on the second
floor window and boarded up windows in the basement, provided
information which, taken as a whole, corroborated the informant’s
tip at least as much as did the police investigation in Plant.
[25] In summary, we are satisfied that the information supporting
the issuance of the warrant in this case is at least as strong as
that in Plant and that it therefore meets the reasonable grounds
threshold.
Misstatements in the Information
[26] The appellant makes three complaints about the way in which
the officer who swore the information described the data relating
to electricity consumption in the appellant’s house. First, the
officer said that the hydro records showed that the average usage
in 1994 was 45 kilowatt hours per day. The correct figure for
1994 was 59.9 kilowatt hours. The only reason suggested for the
error was that the hydro information had been obtained over the
phone.
[27] Next, the officer said that the hydro records revealed that
the electricity consumption had averaged 80 kilowatt hours per
day for the previous two years (1995 – 1996). The correct
figures were an average of 88.3 in 1995 and 76.7 in 1996. The
two year average was slightly over 80 kilowatt hours. Finally,
the officer said that hydro usage was consistent throughout the
year. The actual records showed monthly fluctuations.
[28] In addition, the officer, in the sworn information,
described the house across the street, which he used as a
comparable, as similar in size and design. Although the
significance of the differences was not developed, there was
evidence on the voir dire that it was visibly different. The
officer giving evidence on the voir dire was unable to say how
his partner had selected this house as a basis for comparison.
[29] In addition to the inaccurate statements about the hydro
data, the information stated that the appellant had been charged
with sexual assault but the charge had been withdrawn, whereas on
the voir dire, the officer acknowledged that the official record
showed that the appellant had been acquitted.
[30] The issue that must be decided is whether the inclusion of
these inaccurate or imprecise statements in the sworn information
renders an otherwise validly issued search warrant invalid.
[31] A search warrant must be quashed if it is shown that the
police in applying for the warrant engaged in a deliberate
deception: R. v. Donaldson (1990), 1990 630 (BC CA), 58 C.C.C. (3d) 294
(B.C.C.A.). The trial judge did not find any deliberate attempt
to deceive. Indeed, he found that the police officers acted in
good faith based on the information they had received.
[32] Viewed in the worst light, the appellant’s complaints
demonstrate a lack of care and precision on the part of the
police in collecting the hydro data and information as to the
appellant’s criminal record and in describing it in the sworn
information. There may be cases where a lack of care will be
sufficiently serious that an otherwise valid warrant should be
set aside. Police officers should attempt to be scrupulously
accurate in preparing and swearing informations used to obtain
warrants. However, not all errors in an information in support
of an application for a search warrant will render the warrant
invalid on review. See for example R. v. Plant at p. 216.
[33] Although a lack of care, if that is what occurred here, is
regrettable, in our view, the complaints made by the appellant
are not sufficiently serious to justify setting aside the
warrant. These matters did not seriously mislead the authorizing
Justice of the Peace, nor is there any indication that the police
officer proceeded in an offhanded or cavalier manner. To the
contrary, the officer in this case was careful to point out the
differences between the information provided by the informant and
what the police later learned in their investigation. This
showed an attempt on his part to be accurate and fair. The
deficiencies in this case do not raise concerns regarding the
officer’s good faith and are not as serious as those in R. v.
Hosie (1996), 107 C.C.C. 93d) 385 (Ont. C.A.), where the
information used to obtain the warrant incorrectly suggested that
the informant had proved to be reliable on previous occasions
when in fact the source was unproven. In the result, we do not
find the circumstances in this case sufficient to justify the
invalidation of the search warrant. In view of this conclusion,
we need not consider the application of s. 24(2) of the Charter.
Disposition
[34] The appeal is therefore dismissed.
Released: “JIL” May 2 2000
“John Laskin J.A.”
“K. Feldman J.A.”
“Dennis O’Connor J.A.”