COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lao, 2013 ONCA 285

DATE: 20130501

DOCKET: C55500

Sharpe, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Chong Michael Lao and Thi Luu

Respondents

James Clark and Nicholas Devlin, for the appellant

Kim Schofield, for the respondents

Heard: April 10, 2013

On appeal from the acquittals entered on April 17, 2012 by Justice Paul H. Reinhardt of the Ontario Court of Justice.

Gillese J.A.:

OVERVIEW

[1] The respondents were charged with production of marijuana, possession of marijuana for the purpose of trafficking, and possession of the proceeds of crime. The charges arose after a search warrant was executed at 39 Patricia Avenue in Toronto. Police located 2881 marijuana plants, and the respondents, inside the house.

[2] The respondents brought an application for an order quashing the search warrant and excluding the items seized by the police. They argued that once misleading information was excised from the Information to Obtain (“ITO”), what remained was insufficient to justify the issuance of the warrant, and that the telewarrant application process used in obtaining the warrant had been improperly interfered with by a police constable.

[3] The trial judge accepted these arguments and found a s. 8 violation under the Canadian Charter of Rights and Freedoms. He excluded the evidence under s. 24(2) of the Charter and acquitted the respondents.

[4] The Crown appeals.

[5] For the reasons that follow, I would allow the appeal.

FACTS

Lead-up to the ITO

[6] On April 21, 2009, Detective Constable David Wallace received an email from Debbie Kupcho, an employee of Toronto Hydro Electric System, alerting him to a possible marijuana grow operation at 39 Patricia Ave.

[7] Kupcho provided DC Wallace with hydro readings for the property and two nearby properties, 37 Patricia Ave. and 40 Patricia Ave. She also provided him with a Smart Meter graph, which showed the hourly consumption of power at 39 Patricia Ave. The Smart Meter takes amperage readings every 15 minutes. This information is then transformed into a graph that shows a building load over many days.

[8] The information that Kupcho sent DC Wallace showed average daily consumption data for the previous twenty months for 39 Patricia Ave. and the two other nearby residences.

[9] DC Wallace believed from his experience that the power cycle illustrated by the graph for 39 Patricia Ave. reflected one of the stages of a marijuana growing process. As well as following a mechanical pattern, the power-draw at 39 Patricia Ave. was large. The data showed that from October 2008 to February 2009, 39 Patricia Ave. consumed almost six times more power than the adjacent property at 37 Patricia Ave., and 1.8 times more power than 40 Patricia Ave.

[10] On April 22, 2009, DC Wallace attended at 39 Patricia Ave. at 1:30 p.m. This, it will be noted, was the day before the ITO was submitted and the search warrant issued.

[11] From the edge of the property, DC Wallace could smell the distinct odour of freshly growing marijuana. He recorded this information in his notebook: "can smell slight odour of fresh marijuana coming from the backyard area."

[12] In addition to the smell of marijuana and the hydro data, 39 Patricia Ave. displayed a number of other physical signs commonly seen at grow operations. Specifically, DC Wallace observed that:

(i) the house appeared neglected, relative to other residences in the neighbourhood and did not appear to be lived in;

(ii) no windows in the house were uncovered;

(iii) the front door appeared old and seldom used;

(iv) a pile of newspapers and mail was on the front porch;

(v) there were drapes on the front windows and the two windows at the rear were covered with a dark material;

(vi) the shingles on the roof were peeling badly;

(vii) there was a butane cooker and empty butane cans in the backyard; and

(viii) there was a new grey steel door at the rear of the house.

The ITO

[13] In his affidavit, which forms part of the ITO, DC Wallace began by setting out his background and experience with marijuana grow operations, and describing the general investigative sources on which he had relied.

[14] In the following part of his affidavit, DC Wallace provided the information that he had received from Kupcho, including the Smart Meter graph. He deposed that in the case of a suspected illegal marijuana grow operation, the load jumps up at a specific time each day and then drops down at a specific time each day. This jump in electrical usage reflects the lighting cycle used in an illegal marijuana grow operation. He stated that depending on the stage of growth of the plants, the lights operate on different cycles. He said that the graphs showed an “obvious” sixteen hour cycle was being used at 39 Patricia Ave., and that the graph was a “perfect example” of the workings of a marijuana grow operation.

[15] Next, DC Wallace set out the readings of the daily average consumption of energy at 39 Patricia Ave. and the two neighbouring properties. He stated that 39 Patricia Ave. was using 5.8 times more electricity than was 37 Patricia Ave. and 1.83 times more electricity than 40 Patricia Ave. He said that both of the comparison residences were “approximately the same size” as the residence at 39 Patricia Ave.

[16] In the section that followed, DC Wallace described more fully the observations that he had made the previous day when he attended the property and which he viewed as being consistent with the property being used as a grow operation. He also stated that "[a] smell of fresh marihuana could be detected emanating from the backyard area".

[17] Two pages later in his affidavit, he stated that "Officers attended the side of the residence and noticed a very strong odour of fresh growing marihuana emanating from the rear of the residence”.

[18] DC Wallace deposed that the main grounds in the investigation were the odour of freshly growing marijuana and the hydro consumption. However, based on his experience, he considered that the condition of the residence and property were indicative of a grow operation as well. He explained that a typical grow house appears neglected or uninhabited because it is, in fact, not lived in; windows are covered to conceal the marijuana and keep the necessary heat inside; shingles on the roof of grow houses are often peeling, due to the heat given off by the growing process; the discarded butane cooker and empty canisters in the backyard are consistent with the operators having disconnected the electric stove in the residence so that the stove outlet could be used for power for the grow operation; and, the rear door to the residence, which appeared new, was made of heavy steel. This was not consistent with the other doors on the house, which were old and appeared to be in need of replacement. The fortified steel door was consistent with operators attempting to protect their marijuana crop from other criminals and law enforcement officers.

The Telewarrant

[19] DC Wallace finished preparing the ITO at around 7:15 a.m. on April 23, 2009. At that time, he was in the midst of a long run of long shifts. The Toronto Police were conducting an operation to take-down a large number of marijuana grow operations and he had been tasked with writing many warrants. He was regularly working 12 hour shifts, often putting in overtime of up to 20 hours, and sometimes sleeping in his office.

[20] DC Wallace's supervisor, Detective Scott Matthews directed DC Wallace to send the ITO to the telewarrant centre. Section 487.1(1) of the Criminal Code of Canada provides that an application for a warrant can be made by telecommunication where it would be “impracticable” to appear personally. It reads as follows:

Telewarrants

487.1 (1) Where a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make application for a warrant in accordance with section 256 or 487, the peace officer may submit an information on oath by telephone or other means of telecommunication to a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter.

[21] DC Wallace contacted the telewarrant centre around 7:22 a.m. He did not know when his ITO would be reviewed by the on-duty justice of the peace.

[22] He received a reply from the justice at the telewarrant centre at approximately 8:22 a.m.: “Send now 8:15 am if cannot appear before justice in Intake (unavailable)?”. No warrant was issued at that time.

[23] DC Wallace sent the ITO, complete with his supporting affidavit. In the ITO, he indicated that it was impracticable to appear before a justice of the peace in person because “A Justice of the Peace is not available at this time in the City of Toronto”.

[24] At 9:15 a.m., the search warrant was authorized. The justice handwrote that the ITO was obtained at 8:35 a.m. on April 23, 2009.

[25] At approximately 9:17 a.m., the issuing justice sent a further reply, with the following handwritten note:

Note: The purpose/intent of s. 487.1(4)(a) is to explain why the applicant cannot appear in person before a Justice. Even if it is 7:15AM an explanation as to why affiant cannot wait for Intake is required, "Justice of the Peace not available" does not meet the test w/o an explanation. I have accepted the application in this instance as per telecom 8:15 AM.

The Search

[26] Police officers executed the search warrant shortly after it was issued. Inside the house, they found a sizeable marijuana growing operation, along with the respondents. The officers located and removed 2881 marijuana plants from the house.

The Voir Dire

[27] DC Wallace was the only witness called on the voir dire.

[28] On cross-examination, DC Wallace agreed that he had made some errors in the ITO, but maintained that despite those errors, the information it contained was consistent with a marijuana grow operation being conducted inside 39 Patricia Ave.

[29] One error in the ITO related to the description of the smell of marijuana. Initially in his affidavit, DC Wallace said that: "A smell of fresh marihuana could be detected emanating from the backyard area." However, two pages later he said that “officers” detected “a very strong odour” of fresh growing marijuana.

[30] DC Wallace explained that the smell of marijuana seemed slight to him at the time he attended at the property and that is what he recorded in his notes. But, on reflection, he felt it would have been a stronger odour to someone without as much experience smelling marijuana. He stated "I could smell it clearly from the street, and I wasn't close (to the house)." He agreed that he was the only one to smell the odour and that it was not "officers" as indicated in the second statement.

[31] A second error occurred in his description of the power consumption for 39 Patricia Ave. and the two neighbouring properties. At one point in his affidavit, DC Wallace correctly stated that, on average, 39 Patricia Ave. consumed 5.8 and 1.83 times the power of the two comparator properties. But, in the summary of grounds at the end of the ITO, DC Wallace misstated this information, saying, "the residence also has high hydro readings consuming 5.8 times the amount of hydro than that of the two neighbouring residence which are comparable in size”. The power consumption was only 5.8 times greater than for one comparator, 37 Patricia Ave., not both comparators.

[32] The respondents tendered a willsay statement from a private investigator who had measured and photographed the comparator properties. The investigator estimated 39 Patricia Ave. to be 1350 square feet and the two comparator properties, 37 Patricia Ave. and 40 Patricia Ave., to be 1196 and 675 square feet, respectively.

[33] DC Wallace maintained in cross-examination that the three houses were overall of comparable size for the purposes of power-draw comparisons.

[34] In respect of the telewarrant process, DC Wallace was asked on the voir dire what "telecom" the issuing justice was referring to. He did not know. He said that he could only speculate as to what the justice meant but thought that his supervisor, Det. Matthews, might have had a conversation with the issuing justice about “the timing of why it was being sent at that time in the morning".

[35] Det. Matthews, now a retired officer, provided an affidavit indicating that he had no memory of any conversation with the justice, but that it was possible it had occurred. He deposed that he would not have suggested to the justice that she sign the warrant but would have called to inform himself of the availability of justices at that time.

[36] No recording devices are used in the telewarrant office for telephone conversations.

THE TRIAL DECISION

[37] The trial judge concluded that the search warrant should not have been issued for two reasons: (1) the lack of sufficiently reliable information in the ITO, and (2) improprieties in the application process for the search warrant. In respect of the latter, he found that the standard of impracticability had not been met, as required for a telewarrant application, and that Det. Matthews had improperly interfered with the application process.

The ITO

[38] In general terms, the trial judge found that the ITO had been carelessly drafted, was materially misleading, and was factually inaccurate and incomplete.

[39] Specifically, he redacted the pattern of power consumption at 39 Patricia Ave. His reasons for doing so include the fact that DC Wallace had not attended at the premises and directly observed the Smart Meter hydro readings on any of the days for which data was given, and DC Wallace could not say with certainty that no plant other than marijuana required that type of light cycle to flourish. He found that all that was left of the evidence in relation to power consumption were high readings on select days when the property was not under surveillance and a Smart Meter graph that could not be compared to other properties because they were not comparable.

[40] The trial judge parsed DC Wallace’s observations on the state of the residence and found that following his cross-examination, there was nothing of substance left. For example, in relation to DC Wallace’s view that the residence did not appear lived in, the trial judge found the assertion to be unsupported because DC Wallace conceded on the voir dire that at the time of day he attended at the premises, no one was home at any of the residences in the neighbourhood.

[41] As for the evidence relating to the odour of marijuana, the trial judge noted the two different statements in the ITO as to the strength of the smell and how many people smelt it. He further noted that DC Wallace admitted that he had not made observations relating to the wind direction or how far away from the house he was when he detected the odour.

[42] After excising the offending portions of the ITO, the trial judge held that what remained of the affidavit failed to provide reasonable grounds to believe that the respondents were producing a controlled substance or had in their possession a controlled substance for the purpose of trafficking at 39 Patricia Ave.

The Telewarrant

[43] The trial judge found that recourse to the telewarrant provisions in s. 487.1 of the Criminal Code was not justified because DC Wallace gave no compelling reason why he could not apply for the non-urgent warrant in person. He noted that while DC Wallace prepared a number of warrants that day, all the other warrants were applied for in person. He concluded that while it might have been inconvenient, it was not impracticable for DC Wallace to have attended in person. Further, in using the telewarrant process rather than applying in person, the trial judge found that DC Wallace was simply following the direction of Det. Matthews.

[44] The trial judge’s determination that there had been an improper interference with the application process flowed from his finding that there had been a telephone discussion between Det. Matthews and the justice prior to her issuing the telewarrant. He was of the view that the issuing justice had initially refused to authorize the warrant and saw as significant these words in the issuing justice’s fax sent at 9:17 a.m. on the day in question: “I have accepted the application in this instance as per telecom 8:15 AM”. He described Det. Matthews’ affidavit evidence as vague and noted that he had not been called as a witness. He also called attention to the fact that the telephone call had not been recorded.

Section 24(2)

[45] The trial judge considered the three branches of inquiry in an analysis under s. 24(2) of the Charter and concluded that the evidence should be excluded.

[46] First, he found that the Charter–infringing state conduct was serious. The lack of an adequate evidentiary foundation for issuing the warrant and the improprieties in the application process supported exclusion of the evidence.

[47] Second, in relation to the impact on the respondents’ Charter-protected interests, he rejected the Crown’s submission that the respondents had a limited privacy interest in the property. He did not accept that the evidence led to the conclusion that the respondents were not living at 39 Patricia Ave.

[48] Third, as to society’s interest in an adjudication on the merits, he found that to permit the police practices in relation to the application process and preparation of the ITO in this case would bring the administration of justice into disrepute.

[49] In the result, he excluded the evidence and dismissed the charges.

THE ISSUES

[50] On appeal, the Crown raises three issues. Did the trial judge err in:

1. improperly excising valid grounds in the ITO and finding, after redaction, that the ITO lacked reasonable grounds for a search warrant to issue;

2. holding that the requirements for a telewarrant had not been met and that there had been an improper interference with the application process; and

3. excluding the evidence under s. 24(2) of the Charter?

DID THE ITO LACK SUFFICIENT GROUNDS FOR THE WARRANT TO ISSUE?

[51] I begin by calling to mind the role of the trial judge when reviewing the search warrant authorization and the ITO filed in support thereof.

[52] In R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452, Sopinka J. states that the role of the reviewing judge is not to substitute his or her view for that of the authorizing judge. If, based on the record that was before the authorizing judge as amplified on review, the reviewing judge concludes that the authorizing judge could have granted the authorization, the reviewing judge should not interfere.

[53] This point was reiterated in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992. At para. 51, the Supreme Court states that the reviewing judge must determine whether, after redacting any false and materially misleading information, there continues to be any basis for the decision of the authorizing judge to issue the warrant. The question is, simply, whether there remains “at least some evidence that might reasonably be believed on the basis of which the authorization could have issued”.

[54] I fully agree with the trial judge that the affidavit in support of the ITO was sloppy. This is not to be condoned. Such evidence is extremely important and care needs to be taken when presenting it. However, for the reasons that follow, I conclude that while the ITO was far from ideal and certainly contained errors, when assessed on the governing legal standard, it did provide sufficient grounds for the issuance of the warrant.

[55] In my respectful view, the trial judge erred by discounting or redacting virtually all of the grounds contained in the ITO, including many that had not been proved to be false or materially misleading, and in concluding that there was insufficient evidence, that might reasonably be believed, for issuing the warrant.

[56] The trial judge discounted the evidence of the pattern of power consumption because, in his view, DC Wallace conceded that there might be other explanations for the pattern and because he had not attended the premises in person on any of the days that the readings were taken. In my view, he erred in discounting this evidence.

[57] The pattern of power consumption at 39 Patricia Ave. showed a robotically precise cycle of a high power draw for a period of time, followed by a lull. The cycle was predictably repeated every day. DC Wallace swore that he knew from experience that this type of power cycle is used at one of the stages of the marijuana growing process. He stated this in the IT0 and did not resile from that position.

[58] Moreover, it appears that the trial judge discounted the Smart Meter evidence because he could not independently verify DC Wallace’s interpretation of that data. As the reviewing judge, that was not the function he was to perform. His role was to decide whether the respondents had discharged their burden of showing that DC Wallace’s interpretation was incorrect or misleading. While there were some legitimate questions raised about the precise pattern of power consumption (i.e. the length of the cycle), there is no question that the data showed the type of pattern deposed to by DC Wallace, namely, that over a period of time, power was consumed at 39 Patricia Ave. in a mechanically precise way, with a timed high-intensity period of usage followed by a drop, which corresponded to the needs of a marijuana grow operation.

[59] In relation to the state of the residence, the trial judge excised virtually all of DC Wallace’s observations about its physical condition and appearance. As the Saskatchewan Court of Appeal recently noted in R. v. Savage 2011 SKCA 65, 239 C.R.R. (2d) 102, at para. 20, the fact that there may be innocent explanations for certain observations when considered individually does not mean the observations are to be treated as innocuous or ignored. The test is not whether there might be an innocent explanation for an observation but whether the presence of such facts enhances or makes more likely the possibility of a the crime: Savage, at para. 21.

[60] DC Wallace was not challenged on the fact that he made the observations. He did not resile from those observations. They should not have been excised.

[61] The trial judge also erred, in my respectful view, in excising the evidence regarding the smell of marijuana. It will be recalled that he did so because he felt that DC Wallace had overstated the evidence on this point. However, the evidence that DC Wallace smelled marijuana at the house was uncontradicted. It was proper for the trial judge to excise the description of the smell as “strong” but there was no basis for excising the evidence of the smell of freshly growing marijuana entirely from the ITO.

[62] What remained after excising the offending portions of the ITO? In para. 1 of its factum, the Crown describes the information as follows.

The house at 39 Patricia Ave. showed the textbook signs of being a marijuana grow-operation. It looked uninhabited but consumed large quantities of electricity. It drew that power in a classic, repeated cycle consistent with mechanically timed high-intensity marijuana grow lights. The windows were all covered and the shingles were peeling (a common side-effect of the excess heat and humidity). And, perhaps most tellingly, the odour of fresh marijuana could be smelled from the sidewalk.

[63] I agree with this description. None of these indicia of the grow operation were proved to be false or misleading.

[64] Accordingly, the trial judge erred in finding that the ITO lacked sufficient grounds for a search warrant to issue.

WERE THERE IMPROPRIETIES IN THE TELEWARRANT PROCESS?

[65] It will be recalled that s. 487.1 of the Criminal Code permits an application for a search warrant application to be made by telecommunication where it would be “impracticable” to attend personally. The trial judge found that while it would have been inconvenient for DC Wallace to attend in person to apply for the warrant, it was not impracticable. Having found that the standard of impracticability had not been met, use of the telewarrant procedure was in breach of s. 8 of the Charter.

[66] In reaching this conclusion, the trial judge considered the full factual matrix including the non-urgent nature of the application, the absence of any “cogent” reason for DC Wallace not appearing in person, and the timing of the initial request in relation to the opening hours of the intake justice of the peace offices.

[67] I see no basis on which to interfere with the trial judge’s finding on this matter.

[68] I do not accept the Crown’s submission that telewarrants merely provide an alternate process for obtaining warrants and that there is no reason to limit their use. If that were the case, the legislation would not have included the requirement that appearance in person must be “impracticable”. I agree with the trial judge that inconvenience is not the same as impracticability and, in my view, it was open to the trial judge to conclude that the record before him did not establish that it was “impracticable” to obtain a warrant in the usual manner.

[69] With respect, however, I cannot defer to the trial judge’s view that Det. Matthews’ telephone call to the justice was an interference in the application process that undermined its independence and fairness. In my view, that conclusion is speculative.

[70] The trial judge stated that the Crown’s inability to adequately explain what communication was received by the justice, after she initially declined to issue the warrant and prior to issuing it, meant that there was no evidence before the court as to the precipitating basis on which the decision to issue the warrant was made.

[71] There was no evidence nor any reasonable basis on which to infer that the justice initially declined to issue the warrant or that she did anything other than properly carry out her judicial role.

[72] The evidence was to the contrary. DC Wallace testified that if such a telephone conversation took place, it was to find out about the timing of the application and when it might be considered. Det. Matthews’ affidavit evidence was to the same effect. He deposed that he did not remember calling the justice but it was possible. He went on to depose that if he did call the telewarrant centre that morning, it would have been only to confirm whether there was a justice available at that time to consider the application.

[73] There was nothing to contradict this evidence.

SHOULD THE EVIDENCE BE EXCLUDED UNDER SECTION 24(2)?

[74] In light of my conclusions on the validity of the search warrant and the application process, I must perform a fresh s. 24(2) analysis. In the circumstances of this case, that analysis is very straightforward.

[75] Having found that there was an adequate evidentiary foundation for issuing the warrant and no impropriety in the application process, the only Charter-infringing conduct is the use of the telewarrant process without having adequately demonstrated that it was impracticable to appear in person. In my view, in the circumstances of this case, this does not amount to a serious Charter breach. A consideration of the first factor supports admission of the evidence.

[76] In relation to the second factor, the Crown submits that when addressing the respondents’ Charter-protected interests, the trial judge reversed the burden of proof when he found that the evidence did not lead “to the conclusion that the appellants were not living” at the house.

[77] I agree.

[78] The trial judge appears to have based his analysis on the assumption that the respondents were residents of the property. However, it was the respondents’ onus to prove their connection to the house and they called no evidence. While the Crown conceded that the respondents had an expectation of privacy sufficient to permit them to bring the Charter challenge, nothing more was known than that they had been found in the house at the time the warrant was executed. There was no evidence that the respondents used the property as a home – as opposed to a factory for growing marijuana.

[79] Viewed against the backdrop of DC Wallace’s evidence that the house looked as if it were not lived in, in my view, it was an error for the trial judge to proceed as if the respondents had a regular homeowners’ expectation of privacy in 39 Patricia Ave. Any expectation of privacy the respondents had in the home was seriously diminished: see R. v. Nguyen 2011 ONCA 465, 273 C.C.C. (3d) 37.

[80] The second factor also favours admission of the evidence.

[81] As for the third factor, society clearly has an interest in having marijuana grow operations dealt with.

[82] In light of my conclusion that the ITO did contain sufficient information to justify the issuance of a warrant, and in view of the fact that the police did obtain a warrant, albeit using the wrong procedure, I conclude that exclusion of the evidence in this case would bring the administration of justice into disrepute.

DISPOSITION

[83] Accordingly, I would allow the appeal, set aside the acquittals, and order a new trial.

Released: May 1, 2013 (“E.E.G.”)

“E.E. Gillese J.A.”

“I agree. Robert J. Sharpe J.A.”

“I agree. David Watt J.A.”