Court File and Parties

Court File No.: TORONTO 09-10004463

Ontario Court of Justice

Between:

Her Majesty the Queen

— And —

Michael Chong Lao & Thi Luu

Before: Justice Paul H. Reinhardt

Heard on: 18, 21 July & 9 December 2011

Reasons for Ruling released on: 17 April 2012

Counsel:

• Donna Polgar for the Crown
• Kim Schofield for the accused Michael Chong Lao
• Darren Sederoff for the accused Thi Luu

REINHARDT J.:

Charges

[1] Chong Michael Lao and Thi Luu are charged that on or about 23 April 2009, in the City of Toronto, in the Toronto Region, that they unlawfully did:

(1) Produce a controlled substance to wit: Cannabis Sativa, its preparations, derivatives and similar synthetic preparations, namely Cannabis Marihuana, contrary to section 7(2)(b) of the Controlled Drugs and Substances Act; and further:

(2) Have in their possession a controlled substance for the purposes of trafficking, to wit: Cannabis Sativa, its preparations, derivatives and similar synthetic preparations, namely Cannabis Marihuana contrary to section 5(2) of the Controlled Drugs and Substances Act, thereby committing an offence under Section 5(3)(a) of the said Act; and further:

(3) Have in their possession a controlled substance for the purposes of trafficking, to wit: Cannabis Sativa, its preparations, derivatives and similar synthetic preparations, namely Cannabis Marihuana, contrary to section 5(2) of the Controlled Drugs and Substances Act, thereby committing an offence under Section 5(4) of the said Act; and further:

(4) Have in their possession of property to wit: four hundred and thirty-five dollars in Canadian currency, of a value not exceeding five thousand dollars knowing that all or part of the proceeds of the property was obtained or derived directly or indirectly from commission in Canada of an offence thereby committing an offence under section 355(a) of the Criminal Code.

1: Summary of Application

[2] In this proceeding, an Application was brought on 10 November 2010 for an order quashing the Search Warrant, herein, and for an order excluding the items seized from a residence at 39 Patricia Avenue, North York, in the Yonge & Finch area off Toronto pursuant to Section 24(2) of the Canadian Charter of Rights and Freedoms on the grounds that the Applicants' rights as guaranteed by sections 8 of the Charter were infringed, on the basis that the Information to Obtain ("ITO") was devoid of sufficient material to justify the issuance of the warrant.

[3] On 21 July 2011, I granted leave to the defence to cross-examine the affiant on the ITO, Detective Constable David Wallace, Badge No. 8516 of the Toronto Drug Squad. That cross-examination took place over two days, 21 July and 9 December 2011.

[4] In addition to certain admissions and agreed facts, including the ITO, filed, which included all endorsements and faxes between Detective Constable Wallace and the telewarrant centre, I heard testimony from Detective Constable Wallace on 21 July and 9 December 2011, and read the affidavit of his supervisor in this investigation, Detective Scott Mathews, Badge No. 6987, sworn 25 August 2011.

[5] By supplementary Notice of Application prepared in August of 2011, the defence added additional grounds to the request to quash the warrant and to exclude the evidence seized pursuant to the warrant which was, in fact, a "telewarrant".

[6] The applicants' further grounds were that a supervisory Drug Squad officer, Detective Constable Scott Mathews, on 23 April 2009, sometime after the initial faxing of the telewarrant to the Justice of the Peace, phoned the Justice of the Peace and provided information that precipitated the issuing of the warrant. The applicants submitted that this conversation was not recorded, as required by the Criminal Code "telewarrant" provisions, Section 487.1(2), and was a blatant interference with application process.

[7] A further ground was the allegation Constable Wallace, in requesting the telewarrant, did not place before the Justice of the Peace, in the ITO any facts that would provide the Justice of the Peace any grounds to believe that it was "impracticable" for Constable Wallace to appear in person.

[8] The factual basis for these new grounds arose from the amplification hearing in viva-voce testimony and documentation placed before the court, in which Constable Wallace testified that to his knowledge a conversation took place sometime on 23 April 2009 between his supervisor in this police investigation, Detective Constable Scott Mathews, Badge 6987, and the Justice of the Peace who eventually issued the search telewarrant, later that morning, Justice of the Peace A.M. Puusaari.

2: The Contested Legal Issues

[9] The applicants are seeking the quashing of the search warrant herein, and the exclusion of the evidence obtained pursuant to the warrant.

[10] The respondents resist the application.

2.1: Applicants' Submission

[11] The applicants submit that the ITO as it was presented to the court was deficient and misleading, and it did not comply with the statutory and case law requirements for "reasonable grounds to believe" and "established on oath".

[12] In addition, the applicants submit that the telewarrant process in the application for the search warrant was irretrievably compromised by:

(1) The use of a telewarrant in circumstances where the officer could have attended in person at the office of a Justice of the Peace, and

(2) the undisclosed information received by Justice of the Peace Puusaari at approximately 8:35 a.m., on 23 April 2009, shortly before she signed the warrant at 9:15 that day

2.2: The Respondent's Submission

[13] The respondent submits that the warrant is presumptively valid and supportable, without amplification. The applicants were arrested at the scene at the time the warrant was executed.

[14] The respondent submits that the warrant is presumptively valid, and without recourse to any additional information, the ITO is sufficient.

[15] The respondent further submits that this sufficiency is found on the face of the application without recourse to any additional information that may, or may not have been communicated to the Justice of the Peace, by Detective Constable Mathews, and therefore, that information is irrelevant.

[16] The respondent, in addition, submits that there is no requirement that all communications between the law enforcement officers and the issuing Justice be recorded.

[17] The respondent further submits that the formal requirements for applying by telewarrant were met on the facts of this case.

[18] The respondent submits that if there was a conversation between Detective Mathews and Justice of the Peace Puusaari, it was irrelevant.

[19] Therefore, the respondent submits that the applicants have not met their burden under s. 8 of the Charter.

[20] The respondent further submits that the applicant have not met their burden under s. 24(2) of the Charter. The police acted in good faith. There is no evidence that the property was actually used as a home, and therefore the property should not be afforded a high expectation of privacy. The evidence seized is crucial to the case and the societal interest to having the matter adjudicated on the merits should be of paramount concern to the court.

[21] On 9 December 2011 I reserved my ruling.

[22] After a careful review of the evidence on this application, I have concluded that there has been a section 8 violation of the applicant's rights for four distinct reasons:

(1) The search warrant was issued on the basis of an ITO that was carelessly drafted, materially misleading and factually inaccurate and incomplete;

(2) The recourse to the "Telewarrant" provisions of the Criminal Code were not justified based upon the criteria in s. 487.1 of the Code;

(3) I have found as a fact on the evidence before me that there was a discussion between Detective Constable Scott Mathews and Justice of the Peace A.M Puusaari prior to her issuing the Telewarrant. Because the record discloses that the Justice of the Peace initially declined to issue the warrant, the inability of the Crown to adequately explain what communication was received by the Justice of the Peace, after the learned Justice of the Peace had initially declined to issue the warrant, and prior to issuing the warrant, there is no evidence before this court as to the "precipitating" basis on which the decision to issue the warrant was made.

(4) In my view, I further find as a fact that the call that was made by Detective Constable Mathews was an interference with the independence and fairness of the process. This, among other factors, requires exclusion of the evidence.

[23] I have further concluded that the evidence should be excluded pursuant to s. 24(2) of the Charter as a result of a search warrant application that fell so far below constitutional standards that the long term consequences on the administration of justice favoured exclusion.

[24] These are my reasons.

3: The Legal Framework

3.1: Legislation – Warrants

Information for search warrant (Controlled Drugs and Substances Act ("CDSA"))

11. (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that

(a) a controlled substance or precursor in respect of which this Act has been contravened,

(b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,

(c) offence-related property, or

(d) anything that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.

Marginal note: Application of section 487.1 of the Criminal Code

(2) For the purposes of subsection (1), an information may be submitted by telephone or other means of telecommunication in accordance with section 487.1 of the Criminal Code, with such modifications as the circumstances require.

3.2: 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.

(2) An information submitted by telephone or other means of telecommunication, other than a means of telecommunication that produces a writing, shall be on oath and shall be recorded verbatim by the justice, who shall, as soon as practicable, cause to be filed, with the clerk of the court for the territorial division in which the warrant is intended for execution, the record or a transcription of it, certified by the justice as to time, date and contents.

(2.1) The justice who receives an information submitted by a means of telecommunication that produces a writing shall, as soon as practicable, cause to be filed, with the clerk of the court for the territorial division in which the warrant is intended for execution, the information certified by the justice as to time and date of receipt.

(3) For the purposes of subsection (2), an oath may be administered by telephone or other means of telecommunication.

(3.1) A peace officer who uses a means of telecommunication referred to in subsection (2.1) may, instead of swearing an oath, make a statement in writing stating that all matters contained in the information are true to his or her knowledge and belief and such a statement is deemed to be a statement made under oath.

(4) An information submitted by telephone or other means of telecommunication shall include

(a) a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice;

(b) a statement of the indictable offence alleged, the place or premises to be searched and the items alleged to be liable to seizure;

(c) a statement of the peace officer's grounds for believing that items liable to seizure in respect of the offence alleged will be found in the place or premises to be searched; and

(d) a statement as to any prior application for a warrant under this section or any other search warrant, in respect of the same matter, of which the peace officer has knowledge.

(5) A justice referred to in subsection (1) who is satisfied that an information submitted by telephone or other means of telecommunication

(a) is in respect of an indictable offence and conforms to the requirements of subsection (4),

(b) discloses reasonable grounds for dispensing with an information presented personally and in writing, and

(c) discloses reasonable grounds, in accordance with subsection 256(1) or paragraph 487(1)(a), (b) or (c), as the case may be, for the issuance of a warrant in respect of an indictable offence,

may issue a warrant to a peace officer conferring the same authority respecting search and seizure as may be conferred by a warrant issued by a justice before whom the peace officer appears personally pursuant to subsection 256(1) or 487(1), as the case may be, and may require that the warrant be executed within such time period as the justice may order.

Criminal Code, RSC 1985, c C-46, Section 487.1: Telewarrants – (1-5)

3.3: Sections 8 & 24 of the Canadian Charter of Rights & Freedoms

Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.

Enforcement of guaranteed rights and freedoms

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Exclusion of evidence bringing administration of justice into disrepute

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

3.4: Case Law - The Information to Obtain ("ITO") - The Charter Context

[25] Any interference with a reasonable expectation of privacy must be done either pursuant to a warrant or prior judicial authorization, or must fall within some exceptional circumstances. A warrantless search is presumptively unreasonable. (Hunter v. Southam Inc., [1984] S.C.J. No. 36 (S.C.C.) (QL).)

[26] In Hunter v. Southam, supra, the Supreme Court of Canada defined the standard for obtaining prior judicial authorization for a search.

[27] Justice Brian Dickson, later Chief Justice, speaking for the court, stated:

Anglo-Canadian legal and political traditions point to a higher standard. The common law required evidence on oath which gave "strong reason to believe" that stolen goods were concealed in the place to be searched before a warrant would issue. Section 443 of the Criminal Code authorizes a warrant only where there has been information upon oath that there is "reasonable ground to believe" that there is evidence of an offence in the place to be searched. The American Bill of Rights provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation ...." The phrasing is slightly different but the standard in each of these formulations is identical. The state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly-based probability replaces suspicion.

[28] The Supreme Court, in this articulation of the test, balanced the competing interests of crime investigation and expectations of privacy, as follows:

(1) The state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly-based probability replaces suspicion.

(2) The minimum standard, consistent with s. 8 of the Charter, is

"...reasonable grounds to believe", established upon oath, that there is evidence of an offence to be found in the place to be searched.

Hunter v. Southam Inc. paragraph 47 and following

[29] The Supreme Court of Canada in R. v. Debot, [1989] S.C.J. No. 118 (QL), at paragraphs 47 & 53 stated that the appropriate standard is one of "reasonable probability" and in making this determination, the court must have regard to the totality of the circumstances.

3.5: The Standard of Review for a Warrant

[30] I agree with Part II of the Crown's Factum that the reviewing judge does not substitute their own opinion for that of the authorizing justice. (R. v. Garofoli, [1990] 2 S.C.R. 421 (QL) at p. 1452).

[31] The task of the reviewing judge is described with considerable care by Justice Morris Fish of the Supreme Court of Canada in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (QL), at paragraphs 39 to 60:

39 Under the Charter, before a search can be conducted, the police must provide "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" (Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 168). These distinct and cumulative requirements together form part of the "minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure" (p. 168).

40 In reviewing the sufficiency of a warrant application, however, "the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have [page272] issued" (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54 (emphasis in original)). 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.

41 The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, "the reviewing court must exclude erroneous information" included in the original ITO (Araujo, at para. 58). Furthermore, the reviewing court may have reference to "amplification" evidence -- that is, additional evidence presented at the voir dire to correct minor errors in the ITO -- so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice.

42 It is important to reiterate the limited scope of amplification evidence, a point well articulated by Justice LeBel in Araujo. Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds. The use of amplification evidence cannot in this way be used as "a means of circumventing a prior authorization requirement" (Araujo, at para. 59).

43 Rather, reviewing courts should resort to amplification evidence of the record before the issuing justice only to correct "some minor, technical error in the drafting of their affidavit material" so as not to "put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made" such errors (para. 59). In all cases, the focus is on "the [page273] information available to the police at the time of the application" rather than information that the police acquired after the original application was made (para. 59).

58 In failing to provide these details, the informant failed to respect his obligation as a police officer to make full and frank disclosure to the justice. When seeking an ex parte authorization such as a search warrant, a police officer -- indeed, any informant -- must be particularly careful not to "pick and choose" among the relevant facts in order to achieve the desired outcome. The informant's obligation is to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed.

(Emphasis added)

59 The relevant question here is whether the ITO was misleading, not whether it was intentionally [page277] misleading. Indeed, in the Court of Queen's Bench, the judge who had the benefit of observing the Crown's witnesses on the voir dire found no deliberate attempt to mislead. That conclusion should not be disturbed. It is nonetheless evident that the police officer's selective presentation of the facts painted a less objective and more villainous picture than the picture that would have emerged had he disclosed all the material information available to him at the time.

60 The facts originally omitted must be considered on a review of the sufficiency of the warrant application. In Araujo, the Court held that where the police make good faith errors in the drafting of an ITO, the warrant authorization should be reviewed in light of amplification evidence adduced at the voir dire to correct those mistakes. Likewise, where, as in this case, the police fail to discharge their duty to fully and frankly disclose material facts, evidence adduced at the voir dire should be used to fill the gaps in the original ITO.

[32] In R. v. Morris, 1998 NSCA 229, [1998] N.S.J. No. 492 (C.A.) (QL), Justice Thomas Cromwell, as he then was, provided this further guidance:

29 The existence of reasonable grounds is therefore critical to the balancing of the values of privacy and effective crime detection. To repeat often used words:

The state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly-based probability replaces suspicion. (Hunter at p.167).

30 Without attempting to be exhaustive, it might be helpful to summarize, briefly, the key elements of what must be shown to establish this "credibly based probability":

(i) The Information to obtain the warrant must set out sworn evidence sufficient to establish reasonable grounds for believing that an offence has been committed, that the things to be searched for will afford evidence and that the things in question will be found at a specified place: (R. v. Sanchez (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.) at 365)

(ii) The Information to obtain as a whole must be considered and peace officers, who generally will prepare these documents without legal assistance, should not be held to the "specificity and legal precision expected of pleadings at the trial stage." (Sanchez, supra, at 364)

(iii) The affiant's reasonable belief does not have to be based on personal knowledge, but the Information to obtain must, in the totality of circumstances, disclose a substantial basis for the existence of the affiant's belief: R. v. Yorke (1992), 115 N.S.R. (2d) 426 (C.A.); aff'd , [1993] 3 S.C.R. 647.

31 The fundamental point is that these specific propositions define the basic justification for the search: the existence of "credibly-based" probability that an offence has been committed and that there is evidence of it to be found in the place of search.

32 The second requirement for a reasonable search, in cases like this one, is that the justification for the search must be demonstrated, before the search, to an independent and impartial judicial officer, in this case, the Justice of the Peace. This is known as the requirement of "prior authorization." Its purpose is obvious and important. If the right to be free of unreasonable search and seizure is to have meaning, unreasonable searches must be prevented, not simply condemned after the fact. Thus, the process of prior authorization is fundamentally important for the prevention of unreasonable searches. It is no mere formality. As Sopinka, J. said in R. v. Feeney, [1997] 2 S.C.R. 13 at 47:

The purpose of the Charter is to prevent unreasonable intrusions on privacy, not to sort them out from reasonable intrusions on an ex post facto analysis.

33 The prior authorization process, however, is quite fragile. When the police attend before a Justice of the Peace, no one, for obvious reasons, is there as an advocate of the interests of the target of the search. The justice of the peace will usually not be a lawyer or a judge. The circumstances under which the warrant is sought may be urgent and the process, of necessity, quite informal. This simply demonstrates that the process depends on two things: the honesty, good faith and diligence of the police when they gather and present their grounds for consideration and the independence and caution of the Justice of the Peace deciding whether to authorize the proposed search.

34 The nature of the process demands candour on the part of the police. They are seeking to justify a significant intrusion into an individual's privacy. This is especially so when it is proposed to search a dwelling house which has long been recognized as the individual's most private place. The requirement of candour is not difficult to understand; there is nothing technical about it. The person providing the information to the justice must simply ask him or herself the following questions: "Have I got this right? Have I correctly set out what I've done, what I've seen, what I've been told, in a manner that does not give a false impression?": see R. v. Dellapenna (1995), 62 B.C.A.C. 32 (B.C.C.A.) per Southin J.A. at para 37.

35 In reviewing police conduct during the prior authorization process, the court's attention cannot focus solely on the particular search under consideration. It is tempting to do so, especially where, as here, police suspicions proved to be well founded. However, the purpose of the prior authorization requirement must be kept in mind. As noted, that purpose is to prevent unreasonable searches, not to condemn them after the fact. If the prior authorization process is not vigorously upheld by the courts, it will lose its meaning and effectiveness. That process is in place to protect everyone from unreasonable intrusions by the state. In considering this, or any other s. 8 case, the court must not only protect the rights of this individual, but also protect the prior authorization process which helps assure that the rights of all individuals are respected before, not after, the fact.

36 In summary, the requirement of reasonable grounds to believe sets the balance between individual privacy and effective law enforcement. The requirement of prior authorization prevents searches where it is not demonstrated to an independent judicial officer that such grounds exist.

4: Interpretation of The Legislation – (Case Law)

4.1: The Information to Obtain ("ITO") - Full, Frank and Fair Disclosure

[33] Search Warrants, in the normal course, are applied for on an "ex parte" basis, that is, only one party, or litigant, is present. In a criminal law context, in most circumstances, it is only the law enforcement officer seeking the warrant, who appears before the judicial officer. This makes the application subject to the additional scrutiny that applies to ex parte proceedings in other litigation contexts.

[34] Justice Robert Sharpe, as he then was, in United States of America v. Friedland, [1996] O. J. No. 4399 (Ont. Gen. Div.) (QL) described the duty of a party bringing an ex parte application (in that case with respect to a Mareva injunction) as an "exceptional one". He stated at paragraph 27:

Did the Plaintiff make full and frank disclosure of the case when it sought the ex parte Mareva injunction?

26 It is a well established principle of our law that a party who seeks the extraordinary relief of an ex parte injunction must make full and frank disclosure of the case. The rationale for this rule is obvious. The Judge hearing an ex parte motion and the absent party are literally at the mercy of the party seeking injunctive relief. The ordinary checks and balances of the adversary system are not operative. The opposite party is deprived of the opportunity to challenge the factual and legal contentions advanced by the moving party in support of the injunction. The situation is rife with the danger that an injustice will be done to the absent party. As a British Columbia judge noted recently:

There is no situation more fraught with potential injustice and abuse of the Court's powers than an application for an ex parte injunction.

(Watson v. Slavik, [1996] B.C.J. No. 1885, August 23rd, 1996, paragraph 10.)

27 For that reason, the law imposes an exceptional duty on the party who seeks ex parte relief. That party is not entitled to present only its side of the case in the best possible light, as it would if the other side were present. Rather, it is incumbent on the moving party to make a balanced presentation of the facts in law. The moving party must state its own case fairly and must inform the Court of any points of fact or law known to it which favour the other side. The duty of full and frank disclosure is required to mitigate the obvious risk of injustice inherent in any situation where a Judge is asked to grant an order without hearing from the other side.

28 If the party seeking ox parte relief fails to abide by this duty to make full and frank disclosure by omitting or misrepresenting material facts, the opposite party is entitled to have the injunction set aside. That is the price the Plaintiff must pay for failure to live up to the duty imposed by the law. Were it otherwise, the duty would be empty and the law would be powerless to protect the absent party.

[35] It is for this underlying principled reason that a search warrant affiant must set out the facts fully, fairly and frankly for the authorizing judge in order that he/she can make an assessment of whether these facts rise to the standard required in the legal test for the warrant. The requirement of full, frank and fair disclosure is fundamental, as explained by Justice Sharpe, above. In his decision in R. v. N.N.M., [2007] O.J. No. 3011 (S.C.J.) (QL), at paragraph 320 and following, Justice Casey Hill elaborates on this point:

320 Because a search warrant application is generally an ex parte application, there is a "legal obligation" to provide "full and frank disclosure of material facts" with the relevant facts set out "truthfully, fully and plainly": Araujo, at 469-470 (emphasis of original). A justice can only perform the judicial function of issuing a warrant if "provided with accurate and candid information": R. v. Hosie (1996), 107 C.C.C. (3d) 385 (Ont. C.A.) at 399; R. v. Agensys International Inc. (2004), 187 C.C.C. (3d) 481 (Ont. C.A.) at 491. The "requirement of candour is not difficult to understand; there is nothing technical about it": R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.) at 551. An affiant for a warranted search is under a duty to avoid drafting which attempts to trick the reader, for example by the use of boiler-plate language, or which could mislead the court "by language used or strategic omissions": Araujo, at 470. Careless language in an ITO "deprives the judicial officer of the opportunity to fairly assess whether the requirements of a warrant have been met" and "strikes at the core of the administration of justice": Hosie, at 398-9.

321 An aspect of an affiant's disclosure obligation is to reveal, not to conceal, any unconstitutional investigative step by which the authorities have secured information relevant to the ongoing investigation: Grant (S.C.C.), at 196-7; R. v. Creelman, [2007] N.S.J. No. 174 (C.A.) at para. 28-36. As a general rule, it does not lie with the police to not disclose on the basis that they are confident that the misconduct is irrelevant because of an independent source for the information, inevitable discovery or attenuation. The court considering the warrant application will itself make the determination of the relevance of the pre-application behaviour. The disclosure may be relevant not only to the discretion to issue/refuse a warrant but also to whether the justice asks for more information (Araujo, at 464) or considers the imposition of conditions relating to execution of the warrant: Baron, at 526.

322 The existence of fraud, non-disclosure, misleading information, unconstitutionally obtained facts, new evidence, or the omission of facts material to the exercise of discretion to issue a warrant are all relevant to review of a warrant and relate to whether there continues to be any basis for the decision of the authorizing judge: Garofoli, at para. 56. Ordinarily, the reviewing court looks to the remaining grounds of belief in an ITO after redaction of the offensive text, or in the case of an omission with the addition of the relevant missing fact(s), in order to determine whether there is a basis upon which the court could have issued the warrant: R. v. Bisson (1994), 94 C.C.C. (3d) 94 (S.C.C.) at 95-6; Araujo, at 471-2; R. v. Wiley (1993), 84 C.C.C. (3d) 161 (S.C.C.) at 170-2; R. v. Kesselring (2000), 145 C.C.C. (3d) 119 (Ont. C.A.) at 123. "In this way, the state is prevented from benefitting from the illegal acts of the police officers, without being forced to sacrifice search warrants which would have been issued in any event": Plant, at 215; Smith, at 76.

323 That said, a reviewing judge is not foreclosed, in appropriate circumstances, "from concluding on the totality of the circumstances that the conduct of the police in seeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventive function it serves": Morris, at 553 (passage approved in Araujo, at 473); Creelman, at para. 36; R. v. Colbourne (2001), 157 C.C.C. (3d) 273 (Ont. C.A.) at para. 40; Kesselring, at 127-8; R. v. Dellapenna (1995), 62 B.C.A.C. 32 at para. 50; R. v. Donaldson (1990), 58 C.C.C. (3d) 294 (B.C.C.A.) at 310-312.

4.2: Telewarrants

4.2.1: "Impracticable" – Meaning and Standard of Proof

[36] "Impracticable" has been defined as "something less than impossible" that "imports a large measure of practicality, what may be termed common sense." (R. v. Erickson, 2003 BCCA 693, [2003] B.C.J. No. 2982 (QL) (BCCA) (C.A.) at para. 33.) This has been interpreted as a relatively low threshold to meet (R. v. Lemiski, [2011] O.J. No 78 (QL) (S.C.J.) at para. 44). The legislation is intended to incorporate technology to bridge gaps over distance and time (R. v. Philips, 2004 BCSC 1797, [2004] B.C.J. No. 2919 (QL) (S.C.) at paras. 23-24). The onus is on the accused to establish on a balance of probabilities that the standard of impracticability was not achieved (R. v. Nguyen, [2009] B.C.J. No. 341 (QL) (C.A.) at para. 18). The test consists of both subjective and objective elements: the affiant must have a subjective belief that it would be impracticable to appear personally before a justice, and this belief must be objectively reasonable (R. v. Pederson, [2004] B.C.J. No. 229 (QL) (C.A.) at paras. 21-23).

4.2.2: An Officer's Belief and Experience as to Impracticability

[37] In R. v. Ling, [2009] B.C.J. No. 267 (QL) (C.A.) and R. v. Koprowski, [2005] B.C.P. No. 2940 (QL) (P.C.), the court held that the affiant must discover whether or not a Justice is available by phoning the courthouse in advance, regardless of their belief that a Justice of the Peace was not available. In Koprowski, the affiant made no inquiry to determine whether or not there were provincial court justices available, instead relying on his past experience in observing others being refused because of a lack of judges. The affiant claimed that time was of the essence, and that it would be impractical to make the round trip drive between his home courthouse and another courthouse. The warrant was quashed because (1) the affiant had not made any specific inquiries as to the availability of justices at his local courthouse; (2) the affiant could have driven to another courthouse and radioed back to his detachment once he had the signed warrant; and (3) the affiant had not made any inquiries as to the availability of justices at another nearby courthouse.

[38] In R. v. Berry, 2002 BCSC 1742, [2002] B.C.J. No. 3044 (QL) (C.A.) and Erickson, supra, the affiants were in a location where it was well known that the nearest Justice was in another community. Phoning the courthouse in advance was not a requirement in these circumstances.

[39] Most recently, in R. v. Scott, [2012] B.C.J. No. 401 (QL) (C.A.), the British Columbia Court of Appeal, when considering a variety of decisions regarding impracticability, held at paragraph 34:

I believe it is fair to say they indicate a bald statement as to the unavailability of a justice will not suffice as a statement of the circumstances creating impracticability. There must be something more to permit the issuing justice to assess the reasonableness of the officer's belief that an application for a warrant in the usual course is impracticable. These decisions also suggest, however, that this requirement may be met by a statement that establishes there are no justices available in the community where the officer is posted. Moreover, as set out previously, I see nothing objectionable in the issuing justice or, later, the reviewing justice, taking judicial notice of concrete local circumstances in assessing the adequacy of the officer's statement (emphasis added).

[40] These "concrete local circumstances" typically mean geographical distances, like the circumstances in Berry and Erickson, where the affiant and the Justice of the Peace were in different cities many kilometres apart.

4.2.3: The requirement to record information not written in s. 487.1(2)

[41] In R. v. Bui, [2005] O.J. No. 744 (QL) (S.C.J.), a telephone conversation between the Justice of the Peace and the officer in regards to a telewarrant application was not recorded. The officer testified that the Justice of the Peace had phoned him because she was surprised by two pages in the application headed "IN RESPONSE TO WARANT BEING DENIED". During the telephone conversation, he explained the particular circumstances to the issuing justice and the warrant was signed. The officer also testified that he did not record the conversation because he did not appreciate that it was relevant at the time. Ontario Superior Court Justice Anne Molloy held (at para 54):

It is by no means uncommon for there to be routine discussions between the person requesting an order in an ex parte application and the justice who will be considering whether to make that order. The Justice of the Peace would have been well aware that her decision was required to be based solely on the sworn evidence in the record before her, and any review of her decision is likewise based on that record. There is no reason to believe that the decision to issue the warrant was based on anything but the written record. There is no real difference between a telephone discussion in the context of a telewarrant and a discussion in a judge's chambers on an ex parte application. Such occurrences are routine. It might have been preferable in this case for any communication between the officer and the Justice of the Peace to have been in writing, even if just to avoid the type of argument that has arisen here. However, I find no impropriety in the mere fact of a discussion and no basis for setting aside the search warrant because of it.

5: Review of Facts on Application

[42] On Thursday, 23 April 2009, a telewarrant to search was executed at the residence located at 39 Patricia Avenue, Toronto, pursuant to section 11 of the Controlled Drugs and Substances Act.

5.1: The Telewarrant

[43] By the consent of the parties, Exhibit 1, the documentation that is before the court in this application includes the Telewarrant ("telewarrant"), the Information to Obtain ("ITO") and all of the fax transmissions that were sent or received by Constable Wallace and Justice of the Peace Puusaari, including their hand-written additions and signatures.

[44] By agreement of the parties, the Crown prepared and we marked as Exhibit 10, a copy of that same telewarrant and ITO, Exhibit 1, with each page numbered with circled numbers on the left hand top side of each page, and the paragraphs in Appendix "C" the ITO, numbered on the left hand margin, from 1 to 59.

[45] Detective Constable Wallace testified before me that he initiated the telewarrant request with a fax from his office to the telewarrant centre at 7:15 a.m. on 23 April 2009.

[46] The documentation before the court further reveals the following:

[47] The initial request for the telewarrant was received by the telewarrant office in the Region at 7:22 a.m. on 23 April 2009. (Exhibit 10, page 26)

[48] On the fifth page of the Exhibit 10, in the first paragraph, Constable Wallace, as the informant, deposes that he has reasonable grounds to believe that it is impracticable to appear before a justice of the peace in person to request the warrant, for the following reasons:

A Justice of the Peace is not available at this time in the City of Toronto. (Exhibit 10, page 5)

[49] At approximately 8:21 a.m. D.C. Wallace received an "Initial Reply From a Justice of the Peace" form, with a reply from her Worship, Justice of the Peace A.M. Puusaari, who did not authorize the warrant at this point, and wrote:

Send now 8:15 AM if cannot appear before justice in intake (unavailable)? (Exhibit 10, p. 25, and p. 26)(Transcript of Proceedings, 21 July 2011 at p. 98)

[50] In his testimony D.C. Wallace agreed with defence counsel's suggestion that Justice of the Peace offices open at 8:30 a.m., a mere 9 minutes after the "Initial Reply From a Justice of the Peace" form was faxed back to him from the telewarrant centre asking him to tell her if he was "unavailable" to attend in person before a justice in intake. (Transcript of Proceedings, 21 July 2011 at p. 92, Transcript of Proceedings, 9 December 2011 at p. 44)

[51] At 9:15 a.m., one hour exactly after the time she had set for Constable Wallace to tell her if he was "unavailable?" in her "send now" request, Justice of the Peace Puusaari issued the Search Warrant, authorizing a search of the premises at 39 Patricia Avenue, between the hours of 9:15 a.m. and 8:59 p.m. (Exhibit 10, page 2)

[52] On the second page of the ITO, Justice of the Peace Puusaari signed and certified, in her own handwriting, underlined below, as to the time and date when she obtained the information on which she based her decision to issue the warrant, as follows:

I certify that this information was obtained at 8:35a. m . on the 23 rd day of April, 2009

A.M. Puusaari

(Exhibit 10, page 6)

[53] At approximately 9:17 a.m., her Worship, Justice of the Peace Puusaari sent a further reply, the following part in her own handwriting, underlined below, stating:

Note: The purpose of s 487.1 (4)(a) is to explain why the applicant cannot appear in person before a Justice even if it is 7:15 a.m. 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 a.m.

(Exhibit 10, pp. 27, 28)

[54] This reply clearly suggests that at 9:17, the learned Justice of the Peace knew that the initial telewarrant application at 8:15 was deficient in some essential particulars, but had decided to issue the warrant in any event, "as per telecom 8:15 a.m."

[55] On the hearing date of 21 July 2011, during cross-examination, Detective Constable Wallace explained to counsel his understanding of these notations, and the sequence of events and communications between law enforcement officers and Justice of the Peace Puusaari on the morning of 23 April 2009.

[56] Detective Constable Wallace testified before me that the times that were shown on the faxed documents were based on two sets of clocks, the digital clock recordings on the fax machine in his office, and the digital clock recording on the fax machine in Justice of the Peace Puusaari's office. He therefore suggested that the times were not precise but approximate.

[57] In cross examination he agreed that the sequence that follows, which I have now incorporated into this ruling, is accurate, although the recorded times were approximate.

[58] Constable Wallace testified that he recalled that there was, indeed, a response to Justice of the Peace Puusaari's request for more information from him after he received her faxed reply at 8:21 that morning.

[59] Constable Wallace testified that he was aware that there had been "some discussion" between Detective Constable Mathews and the Justice of the Peace, and later he stated that he agreed that he believed she had received "some other information" to justify the issuing by "telewarrant process" of the warrant, in addition to Constable Wallace's sworn information to justify the telewarrant application. (Transcript of Proceedings, 21 July 2011 at pp. 100, 119).

[60] Constable Wallace stated at page 101 of the transcript of 21 July 2011, lines 3 to 5:

I know Scott Mathews did have some discussion with her.

[61] Constable Wallace further agreed that when he stated in the ITO that a Justice of the Peace was not available, the real reason for his telewarrant request was that his superior Detective Constable Matthews had told him to proceed in that fashion. He further agreed that it was as a result of certain conversations between Detective Matthews and the Telewarrant office that the application was accepted and endorsed by the Justice of the Peace. (Transcript of Proceedings, 21 July 2011, at p. 102)

[62] D.C. Wallace stated to the Court that in regard to the procedural aspect of the application for the warrant, and the decision to apply by telewarrant, rather than in person, he was operating under directions from his superior Detective Matthews.

[63] He testified before me on 21 July 2011, at pp. 92, 93 of the transcript, as follows:

A. I was directed by my supervisor, due to the kind of project going on that were supposed to do a large bulk of marijuana grow operations, to send it to the telewarrant centre. It isn't my common practice to do that early in the morning. I'd much rather go see a justice of the peace, but that was why it happened.

Q. Because you're aware that that at least at Old City Hall the justice of the peace is available to see beginning at 8:30?

A. On paper, yes.

Q. Okay. But there office opens and is ready to receive affiants for search warrants at 8:30, maybe there's some late justice of the peace arrival, but officially they're ready at 8:30, right?

A. Correct, The thing with this address, I would have had to go to 1000 Finch.

Q. Okay. And 100 Finch is also available, open and ready, at 8:30

A. ...It's not my common practice and it's probably the only time I've ever done that that early in the morning, to send it to the telewarrant centre, but I do agree with you that sometimes there are ones available.

[64] In cross-examination, on the question of why this particular warrant was proceeded by telewarrant "fax" rather than "in-person", while all the other warrants that day were done "in person" it became clear that the only reason was his orders from Detective Mathews:

Q. So what's your information about the number of warrants faxed that day?

A. Faxed that day?

Q. Yes.

A. By my office or by myself you're talking about?

Q. Well, you indicated that there was...

A. Yeah.

Q. ... a lot of warrants.

A. Yeah. Only one by my team...

Q. Right.

A. ...that I can say. I believe I saw a justice traditional in the office two or more times that day, possibly three.

Q. But later on that day.

A. I saw a justice of the peace in their office at least two, possibly three more times that day, throughout the day.

Q. Right.

A. That's one of the reasons I didn't go to the warrant myself. I was tasked with righting more.

Q. Okay. So there's no reason that you can point to that would, that could explain not waiting and going between 8:30 and nine o'clock, other than you were told to proceed in that fashion?

A. Well, I – operationally and logistically, that's why it was done that way, correct.

Q. Your – those were your instruction by Detective Mathews?

A. Correct.

(Transcript, 21 July 2011, pages 108 & 109)

[65] Retired Detective Matthews has deposed in an affidavit, sworn on 25 August 2011 that he does not recall calling the respective Justice of the Peace on this matter, but that it is possible he may have done so. He states he would not have suggested to the Justice of the Peace to sign the warrant, but would have called simply to inform himself of the availability of Justices at the particular time. (Exhibit on the Voir Dire, 17 – Affidavit of Detective Scott Matthews, sworn 25 August 2011)

[66] On August 23, 2011 the Court Reporters' Office advised no recording devices are used in the telewarrant office with respect to telephone conversations. (Letter from Court Reporter's Officer, filed on consent, dated 23 August 2011)

[67] Consequently, this court, in this application, is left without any conclusive testimony or documentation as to the actual substance of the "information obtained at 8:35 am" that, on the face of the record, was considered by Justice of the Peace Puusaari in deciding to sign the telewarrant.

5.2: The Information to Obtain ("ITO")

[68] In this application, the case law cited above requires this court, in reviewing the ITO, to consider the alleged flaws in the ITO and determine whether, once those areas have been reviewed or redacted in the hearing and amplified by the testimony in court, they could have provided the "minimum standard" of "reasonable grounds to believe" that the accused were producing a controlled substance or had in their possession a controlled substance for the purpose of trafficking at 39 Patricia Avenue in Toronto.

5.2.1: Errors in Drafting the ITO

[69] Constable Wallace testified that when he was drafting the ITO, herein, he was working on two different, intense, and stressful projects: "Operation Spring Clean" carried on by the Toronto Drug Squad "Clandestine Lab" project team, and also as part of the "Guns & Gangs Task Force "Target Anti-Violence Initiative Strategy" or ("TAVIS"). In his words:

I know it was a very busy bunch, that's why I can't pinpoint in down (sic) because it was pretty crazy those, those weeks. (Transcript, 9 December 2011, p. 61)

[70] He testified further, on 9 December 2011, at page 66:

A. It's nuts. It's very busy. There's – we work eight hour shifts, there is a mandatory four hours overtime, plus...

Q. Mandatory four hours overtime?

A. Correct, So you are doing 12 hour shifts. And, that's not including some days we'd be there for 20 if the case took that long to do.

[71] With respect to some of the most glaring internal contradictions and omissions that were revealed in the ITO for 39 Patricia Avenue in Toronto, with specific reference to the hydro consumption data, Constable Wallace specifically stated:

Q. Okay. So that's, that's an error in drafting?

A. Correct. It was seven o'clock in the morning when I was – you know, six in the morning when I was drafting this, and at the time we were doing a spring initiative where it was supposed to be an eradication of grow ops in houses and was pretty stressed and working very hard that probably for a couple of weeks before and into the month of May.

Q. But you're and experienced officer correct?

A. At the time I've done, I've done probably about 20, 25 warrants, but never where I was writing two, three a day, I'm not experienced at that, no. I can't...

(Transcript, 21 July 2011, pp. 79, 80)

5.2.2: The Hydro Consumption Data ("Hydro Data")

[72] In the ITO, Detective Constable David Wallace purported to present hydro data of "hydro consumption" at 39 Patricia Avenue in support of the proposition that this data supported his conclusion at page ten of the ITO, at paragraph 58, that he believed on "reasonable grounds" that the address located at 39 Patricia Avenue "is being operated solely for the purpose of growing cannabis marihuana."

[73] It is important to understand the context. There was no confidential tipster or police surveillance prior to Constable Wallace's one visit to the property for about forty-five minutes on 22 April 2009. His investigation was initiated by an e-mail at 1:41 p.m. on 21 April 2009 from Debbie Kupcho, an employee of the Toronto Hydro Electric System, who never attended the properties or neighbourhood, and had never viewed the properties for which she sent Constable Wallace, hydro data.

Hourly Consumption

[74] Constable Wallace deposed, at paragraph 14 of the ITO that:

This e-mail showed that the hourly consumption of hydro at 39 Patricia Avenue in the City of Toronto was high and the graph was consistent with a residence being operated as a marihuana grow operation. (Emphasis added)

[75] The hydro data which Constable Wallace presented in the ITO in his application for a telewarrant purported to be hydro readings for 39 Patricia Avenue and hydro readings for two comparative addresses. He deposed that the information he obtained and was relying one included hourly "Smart Meter Amperage" readings over 15 minute intervals, which are converted into a graph that shows a buildings load over many days:

The Smart Meter takes amperage readings every 15 minutes. This information is then transformed into a graph that shows a buildings load over many days. In the case of a suspected illegal marihuana grow operation the load jumps up at a specific time each day and then drops down at specific time each day. This jump in electrical usage shows the lighting cycle used in an illegal marihuana grow operation. Depending upon the state of grow of the plants, the lights operate on a 12 hour or 18 hour cycle. (Emphasis added) (ITO, paragraph 17)

Marihuana plants in the vegetative stage require 1000 watt high voltage lights operating in 16 to 18 hour cycles to mimic the outdoor environment. Marihuana plants past the cloning stage require 1000 watt high voltage lights operating in 12 hour cycles to mimic the outdoor environment. (ITO, paragraph 18)

The graph shows the recording start on April 1 st 2009 at 2009 at 00:00 hrs and completes on April 21 st , 2009 at midnight. The smart meter showed an obvious 16 hour cycle being used at the address located at 39 Patricia Avenue. This graph is a perfect example of the workings inside an illegal marihuana grow operation . (Emphasis added) (ITO, paragraph 19)

[76] In the ITO, at the bottom of page 12 and first half of page 13, Detective Constable Wallace, presented the hydro graph which he deposed revealed the hydro consumption at 39 Patricia Avenue., and which he elaborated on, above, in the quotes. He stated that the 39 Patricia graph showed the lighting cycle used in illegal marijuana grow operations, which depending on the stage of growth, operated on a 12 or 18-hour cycle. He then stated that the graph showed the recording starting on 1 April 2009 at 00:00 hrs and completing on 21 April 2009 at midnight, and that the smart meter showed an obvious 16 hour cycle being used at 39 Patricia Avenue.

[77] In his testimony before me, he explained that he had received no hourly "comparables" from Debbie Kupcho for this time period for other properties in the neighbourhood, with respect to their hydro consumption patterns. (Transcript 21 July 2011, page 17)

[78] Constable Wallace was cross-examined as to why he concluded that the hourly readings showed a distinctive pattern that would suggest a grow op.

[79] Constable Wallace conceded that he did not attend the residence at 39 Patricia on any of the days for which he received hourly readings.

[80] Constable Wallace further conceded that he could have requested that Debbie Kupcho provide him with the "Smart Meter" hourly readings for the day on which he attended the property, 22 April 2009.

[81] Constable Wallace testified:

Q. Okay, But you have the ability, and it's done in other cases, to call and say "what is the consumption today?"

A. Correct.

Q. But that wasn't done here.

A. No.

Q. And the reason you would do that is to see if when you go to the residence if it's high that day, maybe you see an explanation for it or maybe you don't.

A. One of the reasons, correct.

Q. Okay, but we don't have the tool for us today. We don't have the tool. You don't provide the justice of the peace that tool to say I went on the 22 nd and I know hydro consumption was X (sic) but I didn't see any reason for that hydro consumption. We don't have that in this case, right?

A. Correct.

(Transcript 21 July 2011, page 31)

[82] In cross-examination, he conceded that he had prepared an ITO, on another property, 188 Ranee Avenue, in Toronto, in November of 2008, and provided hourly "comparables" graph for the adjacent property, 190 Ranee Avenue. (See Exhibit "A" in this application, the warrant to search 188 Ranee Avenue, and transcript 21 July 2011, pp. 28, 29)

[83] Constable Wallace also conceded that it was preferable to have hourly "comparables" from other neighbourhood properties with respect to "hydro consumption" in order to demonstrate the distinctive pattern of consumption in a marijuana grow op, over a 24 hour cycle.

[84] No information was provided in the ITO placed before the Justice of the Peace A.M. Puusaari, regarding average hourly hydro consumption pattern in Toronto at this time of year.

[85] Constable Wallace conceded that in this investigation, he made no inquiries of Debbie Kupcho, to ascertain whether 24 hour cycle hourly "comparables" graphs were available for comparable times for the neighbourhood in which 39 Patricia was situate, to indicate whether this was, indeed, a distinctive pattern of hydro consumption.

[86] Constable Wallace finally conceded that he did not attend the residence at 39 Patricia on any of the days for which he received hourly readings.

[87] In that concession, on the question of the "interpretation" of 24 hour cycle graphs, the following exchange took place on 21 July 2011, at page 80:

Q. Now, you have, you have indicated I believe, but let me ask this again. You're certainly not an expert on hydro, right?

A. Correct.

Q. Okay. And all that the hydro graphs seem to show is that there seems to be a pattern, right?

A. Correct.

Q. Okay. Because we can look at that and there seems to be. And what seems to happen, if you look at that pattern, is that there is a high for maybe eight, nine hours in comparison to the rest; then there's maybe seven hours or so of medium and then seven, eight hours of lower, right?

A. Um...

Q. There seems to be three sets.

A. Correct, on the tail off there at the end, there are – I didn't go to the house, so I – there's different reasons for that, and if – I can't really say what happened at the house...

[88] By the end of the above cross-examination, with respect to the "hourly consumption" data Constable Wallace had conceded that there were different reasons for hourly consumption patterns that were not necessarily related to the use of premises as grow operations.

[89] In addition, in this cross-examination, he conceded neither he, nor any other observer, trained or otherwise, had made any observations of the property during the periods for which he had "Smart Meter" and daily consumption data, to provide an understanding or significance of that data.

Daily Consumption and the issue of "Comparables"

[90] Constable Wallace goes on the depose that he received from Ms. Kupcho further data on the daily hydro consumption from 39 Patricia Avenue and two neighbouring address in consumption in three different months, and places those reports in the ITO:

The average daily consumption of 39 Patricia Avenue is as follows:

For the period ending Daily Consumption

26 Feb 2009 63.28 kw/h

24 Dec 2008 59.59 kw/h

27 Oct 2008 58.83 kw/h

The average daily consumption of 37 Patricia Avenue is as follows:

26 February 2009 10.78 kw/h

24 Dec 2008 9.93 kw/h

27 Oct 2008 8.68 kw/h

The average daily consumption of 37 Patricia Avenue is as follows:

26 Feb 2009 34.52 kw/h

24 Dec 2008 35.8 kw/h

27 Oct 2008 41.57 kw/h

[91] Constable Wallace goes on to depose on his paragraph 24 at page 7 of the ITO:

The residence of 39 Patricia Avenue is using 5.8 times more electricity that the residence at 37 Patricia Avenue and 1.83 times more electricity than the residence located at 40 Patricia Avenue. Both of these comparison residences are approximately the same size as the residence located at 37 Patricia Avenue.

[92] However, in the paragraph 47 at page 9 of the ITO, Constable Wallace contradicts himself and states:

The residence also has high hydro readings consuming 5.8 times the amount of hydro then that of two neighbouring residence s which are comparable in size.

[93] At the end of his discussion of hydro usage, he asks the judicial officer reading the ITO to " SEE APPENDIX "D" TERAVIEW AND HYDRO CHARTS"

[94] Logically, this bolded reference would suggest that these hydro charts in Appendix D support Constable Wallace's conclusion regarding the daily consumption of hydro at 39 Patricia. However, in my view, they don't. The hydro charts in Appendix ""D" turn out to be of three addresses: 37, 39 and 40 Patricia Avenue. They each cover much longer time frames, from June 2007 to December 2008 and February 2009. The charts show very comparable hydro consumption at 39 and 40 Patricia except for the October and December 2008 and February 2009, in which the hydro usage at 39 Patricia of 2008 is 183% that at 40 Patricia Avenue, in February of 2009, 166% in December of 2008 and 141% in October of 2008, definite "spikes" in consumption in comparison with the two other properties.

[95] I also have before me in this application, a "Will Say" for Stephen D. Jones, Private Investigator, measured sketches of the layouts of the three properties, and photographs of 37, 39 & 40 Patricia Avenue, which were placed before me on consent, without the necessity of Mr. Jones being called as a witness, and become Exhibit 19 in this application.

[96] Mr. Jones inspection of the three properties reveals that they each are quite different in design and configuration, so that their hydro usages are not objectively comparable. 39 Patricia is a two-story home with a separate detached garage, with 1350 square feet of interior living space on two stories. 37 Patricia is a back-split with an attached garage that takes up 748 square-feet at grade with the living quarters attached totalling 1196 square feet. Thus, the interior living space for 37 Patricia is 11.5 % less living space for 39 Patricia. 40 Patricia is a small bungalow, approximately half the size of the other two properties, with interior living space of 675 square feet.

[97] These differences in the size of the three properties suggest, reasonably, that they are not comparable and do not support the inferences that Constable Wallace purports to make in the ITO, regarding daily consumption.

[98] In the narrative accompanying the "average daily consumption" figures I have referred to above, at the middle of page 6, paragraph 23 of the ITO, Constable Wallace states:

The recent readings for 39 Patricia Avenue for the dates April 19 th , 2009 to April 20 th , 2009 was 70.55 kwh/day.

[99] It would have been very straight forward for Constable Wallace to have included in Appendix "D" the Hydro Charts for the months of March and April to support this assertion, but he chose not to do so.

[100] Moreover, the "hydro readings charts" for the three properties, in Appendix "D" actually suggest a very different picture than the narrative provided by Constable Wallace, in the ITO text, when the actual hydro consumption figures are viewed over a longer period of time. (See Appendix "D", in which 40 Patricia Avenue shows comparable hydro consumption to 39 Patricia Avenue on a daily basis for most of the dates in the hydro data, in Appendix "D", except for those few dates inserted into the narrative text of the ITO, at page 6, paragraph 23.)

[101] Finally, Constable Wallace deposed at page 9, paragraph 44:

I am unaware of any other plant that requires that amount of hydro in conjunction with the light cycle pattern to flourish.

[102] With respect, Constable Wallace's lack of knowledge cannot be used to prove a positive assertion of "distinctiveness" for this pattern of consumption.

[103] Again, there is no way for the Justice of the Peace or any other judicial officer to evaluate, or weigh this assertion. Nowhere in the ITO does Constable Wallace match up that assertion with data about any other legal hydro consumption pattern, any other observations in the neighbourhood, or any other material in Appendix "D" and the narrative.

[104] Moreover, there is no evidence in the ITO as to how or in what fashion marijuana may be distinguished from any other "non-controlled" plants being grown in-doors.

[105] In my view, in the absence of any direct observations by Constable Wallace over the time periods of the 21 days of "Smart Meter" hydro readings, or the "Smart Meter" readings for those same 21 days for adjoining properties, the conclusions regarding 39 Patricia Avenue as demonstrating the "distinctive" features of a marijuana grow op hourly consumption pattern are unsupportable, and must be redacted.

[106] In addition, in my view, a careful reading of Constable Wallace's narrative regarding hydro consumption in the ITO, the comparisons he did provide for "spot" daily consumption in Appendix "D", as amplified by the cross-examination before me, and the material in Exhibit 19 would not permit the Justice of the Peace to accept the hydro data as a valid basis for his assertion of ultimate "reasonable grounds" found in his concluding paragraphs, and therefore also must be redacted.

5.2.3: State of the Residence

[107] In this investigation, Constable Wallace spent a total of forty-five minutes observing the residence, on 22 April 2009. No other officer attended or made observations. There was no surveillance carried out on any other days prior to the drafting of the ITO. There was no information form any citizen informant about the use or condition of the property. (See ITO, paragraph 35). Wallace gave the following items as indicative of a "Grow-Op":

(1) Window Coverings;

(2) House Appears "Not Lived In & Neglected";

(3) Shingles are peeling;

(4) Discarded Butane Cooker & Canisters in the backyard

[108] Constable Wallace testified that 39 Patricia is located at the corner of Patricia Avenue and Lariviere Road, in North York. The property consists of a two-story grey brick house with a covered front porch, and a detached garage to the rear. (Transcript 21 July 2011, page 32.)

[109] In cross examination, Wallace conceded that the front windows of the premises were covered with normal residential drapes. He also said that although he did not get close enough to be sure, the rear windows of the residence could have been covered with pull-down blinds like the ones in the 112A at Old City Hall in Toronto. (Transcript 21 July 2011, page 133)

[110] He also conceded in cross-examination that there was no condensation on the windows of 39 Patricia Avenue, an "often-used" indicia in ITO's that there is a grow operation inside. (Transcript, 21 July 2011, page 136.)

[111] In cross-examination, Constable Wallace conceded that a photograph taken by the defence and showed to him in court revealed that 40 Patricia Avenue also had peeling roof shingles in 2011.

[112] He could not confirm or reject the proposition put to him by counsel that 40 Patricia Avenue, and perhaps other residences near the subject residence also had peeling roof shingles in April of 2009.

[113] In cross-examination he conceded that he did not really take a close look at any residence other than 39 Patricia Avenue, during his visit on 22 April 2009, except to decide whether they were "comparables". (Transcript 21 July 2011, page 132.)

[114] Also in cross-examination, Constable Wallace conceded that since his observation was in early spring, it would not be unlikely that there would be dirt on a backyard butane cooker, and that no butane tanks would be connected to it, as he observed on 22 April 2009 at 39 Patricia Avenue. (Transcript 9 December 2011, page 39.)

[115] In cross-examination, Constable Wallace further conceded that butane cookers in back yards, on picnic tables are found in "normal residential use" in Toronto. (Transcript 9 December 2011, page 40.)

[116] In addition, he conceded that his assertion, at paragraph 29, that "The residence appears not lived in" was not supportable either. He conceded that at the time of day he attended, there was no one home at any of the residences in this neighbourhood. (Transcript 21 July 2011, page 91)

[117] Although he made few observations, and no notes on any of the "state of residence" type observations he made at 39 Patricia Avenue, after observing a series of photographs of neighbouring properties, he had to admit that they had many features that he found at 39 Patricia Avenue, which he was relying upon to suggest that 39 Patricia was not occupied.

[118] By the end of his cross-examination, on this portion of his "eye-witness" observations on 22 April 2009, Constable Wallace had resiled from virtually every observation he had put in the ITO regarding the "state of the residence" or weakly relied upon what I can only describe as speculation. (Note the reference in the transcript of 9 December 2011 at page 101, with respect to the front porch screen door: "I would think if you had opened it, it would probably fall right off the hinges, that's how bad of repair it was.")

[119] In my view, based on the record before the authorizing justice, as amplified on this review, there is nothing left that could afford any grounds under the heading "state of the residence", and his paragraphs 29, 31 and 34 regarding the "state of the residence" as providing support for the issuing of the warrant must be redacted.

5.2.4: Odour of Marijuana

[120] Constable Wallace stated in the ITO, page 8 at paragraphs 32 and 54 that when the property was investigated:

A smell of fresh marihuana could be detected emanating from the backyard area. (ITO, page 8, paragraph 32.)

Officers attended the side of the residence and noticed a very strong odour of fresh growing marijuana emanating from the rear of the residence. (ITO, paragraph 54.)

[121] During cross-examination, Constable Wallace admitted that he only smelled marijuana when he was at the side of the residence, and it was only a slight smell as indicated in his notes. He then stated that after writing "slight" in his notes, he had done some thinking afterwards and because he was sensitive to the smell of it, he thought that it would seem strong to a regular person walking down the street. He conceded that he did not reflect these distinctions in the drafting of the ITO. (Transcript, 21 July 2011, pp. 138, 143, 145.)

[122] Detective Constable Wallace also admitted in cross-examination that he did not indicate in the ITO his observance point in relation to other properties, which was the sidewalk on Lariviere Road, or make observations regarding the wind direction, although this certainly would affect the determination of the origin of the smell. He also admitted that it was not "officers" who attended the house and detected the odour, but only himself.

[123] Detective Wallace could not initially estimate the distance he was away from the house when he detected the odour but agreed it could be 30 to 40 feet. Photographs of the side of the house were entered as exhibits and showed that there was a row of large bushy cedars, a chain link fence and a driveway between Constable Wallace's observation point and the 39 Patricia Avenue building.

[124] In his cross-examination, after conceding that it was only he, and no other officers that made observations of the property, he also conceded that because he was drafting a "bunch" of ITO's he and may have forgotten to describe his observations and places of observation in more detail:

Okay, like I said, I was in a rush to do these. I was doing a bunch and I might have skipped over putting in "slight". (Transcript 21 July 2011, page 140)

[125] In his cross-examination he also conceded that he had no notes, and paid no real attention to any adjacent, adjoining or other properties in the vicinity as possible sources for the now admittedly "slight smell" of marijuana.

6: Summary of the Review of the ITO Material

6.1: Does The Record Disclose Evidence To Support the Use of The Telewarrant?

6.1.1: Was it impracticable for DC Wallace to apply for the warrant in person?

[126] No cogent evidence was given to the Justice of the Peace or presented in this hearing as to why Constable Wallace could not appear in person. Although he was in the midst of a busy, multi-stage operation, this could be said of the majority of large-scale police initiatives that come before these courts, at least in this building.

[127] The ITO, Exhibit 10, page 6, stated that "informant states that the there are not reasonable grounds to believe that it is necessary to execute the warrant at night."

[128] The ITO, Exhibit 10, page 24, "Initial Fax Contact Form", stated that the application was "Not Urgent".

[129] In addition, in my view, Constable Wallace should have done more to substantiate his circumstance. He could have phoned courthouses in the Toronto area or make other inquires, and then documented his efforts on the first paragraph for the modified "Form 1" provided for the Telewarrant ITO. (Exhibit 10, page 5 & 6)

[130] In the viva voce hearing, Constable Wallace told me that he was preparing " a lot" of warrants that day, which might justify the use of the "telewarrant" process, for practical reasons. However, in cross-examination, he conceded that all the other warrants were applied for in person.

[131] It is not uncommon for this to happen, in a busy courthouse, and it is clear that the fact of multiple warrants would not preclude attending in person.

[132] Constable Wallace conceded and the testimony on this as a whole lead me to conclude, and to find as a fact that it was his instructions from Detective Constable Mathews that caused him to proceed by telewarrant, rather than in person, for this single search warrant.

[133] In summary, after reviewing the testimony on this point, I find that Constable Wallace has given no compelling reason as to why he could not wait. Indeed, if he had chosen to apply for a warrant in person in the first place, and if he had left at 7:15 (the time he applied for the telewarrant) and driven for an hour and a quarter or an hour and a half, as he testified he would have had to do, a justice of the peace would have been available to issue the warrant in person, either at the 1000 Finch courthouse or at Old City Hall.

[134] It may have been inconvenient, but it was not impracticable.

[135] Perhaps most important, the record and his testimony make it clear that he was following the direction of Detective Matthews, and not his past experience when deciding to apply by telewarrant.

6.1.2: "Established on Oath" – The Missing Telephone Conversation

[136] This case is distinguishable from the facts before Justice Anne Molloy in R. v. Bui. In R. v. Bui, the telephone conversation that occurred between the officer and the Justice of the Peace, although not recorded, definitively occurred, and was testified to before Justice Molloy. Moreover, the conversation took place between the affiant officer who applied for the warrant and the issuing justice. The officer was able to testify in court as to the content of the conversation, and further, explain the confusing information in the telewarrant application both to the issuing justice and to the reviewing court.

[137] In this case, although I know from a credible witness to this point, Constable Wallace, that the conversation took place, the content of that conversation is unreviewable since it was between the supervising officer, Constable Mathews, and the issuing justice. The affidavit of Detective Matthews is vague at best and gives no indication of what, if anything was said. If further grounds were given as to why it was impracticable for Constable Wallace to apply for the warrant in person, or why the warrant should issue, those grounds are not reviewable by this court.

[138] Finally, although this affidavit was admitted on consent of the applicants, to form part of this hearing, Constable Mathews did not testify, was not subject to cross-examination, and the affidavit, is, both because of its lack of content, and because Constable Mathews was not a witness in this proceeding, fundamentally of no assistance to this court.

[139] This distinguishes and contrasts markedly with the facts before Justice Molloy in Bui, supra, where the verbal communication with the Justice of the Peace was by the affiant, who was a witness before the court in the Garofoli application and could testify to the content of the call.

[140] Crown counsel further submits that section 487.1(2) of the Criminal Code refers to "an information", not information, and thus refers to a term with specific meaning. This submission, in my view, fails. In my view, some grounds as to impracticability must be shown, for a telewarrant to survive Charter scrutiny. At this stage in the review, on the facts of this case, no such grounds exist, in my view.

[141] Secondly, if those grounds were given in a telephone conversation, they are forever lost. The failure to record the conversation may not be fatal, but without it, in my review, in this case, having regard to all of the material placed before me on this application, the standard of impracticability has not been met.

[142] Finally, the fact that an undisclosed communication between a non-affiant and the Justice of the Peace took place undermines the statutory code for such applications and is a direct interference with the independence of the justice and constitutional "oversight" role of this court.

6.2: The ITO

[143] After the viva voce hearing, after review and redaction, what are we left with?

The Hydro Consumption Data

[144] Although Constable Mathews initially deposed to the Justice of the Peace in the ITO, at paragraph 19, that the "Smart Meter Amperage Graph" revealed a "perfect example of the workings inside an illegal grow operation", this ascertain faded away once he was asked about the basis of this proposition.

[145] What Constable Mathews was left with, after cross-examination was "high readings" on select days during which the property was not under surveillance, and a "Smart Meter" graph that could not be compared with other properties on the street, because no such "comparables were provide to him, or sought by him.

[146] Constable Mathews had to concede that he had not provided the justice-of-the- peace with any data to support his assertion of the "perfect example" he alleged was shown on the graph.

[147] By the end of the cross-examination, with respect to both the daily and the hourly consumption data, Constable Wallace had conceded that there were different reasons for daily and hourly consumption patterns that were not necessarily related to the use of premises as grow operations.

State of the Residence

[148] By the end of his cross-examination, on his "eye-witness" observations on 22 April 2009, Constable Wallace had resiled from virtually every observation he had put in the ITO regarding the "state of the residence" or weakly relied upon what I can only describe as speculation. (Note the reference in the transcript of 9 December 2011 at page 101, with respect to the front porch screen door: "I would think if you had opened it, it would probably fall right off the hinges, that's how bad of repair it was.")

[149] In addition, he conceded that his assertion, at paragraph 29, that "The residence appears not lived in." Was not really supported by his observations on 22 April 2009.

[150] In my view, based on the record before the authorizing justice, as amplified on this review, there is nothing left that could afford any grounds under the heading "state of the residence", and his paragraphs 29, 31 and 34 regarding the "state of the residence" as providing support for the issuing of the warrant must be redacted.

Odour of Marijuana

[151] In carrying out the review function of this court, I must redact parts of paragraph 42 and 54 of the ITO which read:

[152] Paragraph 42:

The main grounds in investigation are the odour of fresh growing marihuana and the hydro consumption.

[153] Paragraph 54:

Officers attended at the side of the residence and noticed a very strong odour of fresh growing marihuana emanating from the rear of the residence.

[154] In my view, the testimony of Constable Wallace does not support significant parts of both of these paragraphs with respect to whether the odour was of "growing" marijuana.

[155] In the result, the only element that should have found its way into a properly drafted ITO would have been Constable Wallace's concession that what he actually observed and wrote in his notes was:

Overcast, warm, slightly damp, light wind, can smell light odour of fresh marijuana coming from the backyard area (transcript 21 July 2011, page 139)

[156] I accept the submissions of the defence in this proceeding, following the observations of Justice Marc Rosenberg in R. V. Polashek, [1999] O.J. No. 968 (C.A.) on the usefulness of testimony or depositions on "smell", at paragraph 13, regarding the context of an arrest:

The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory and thus largely incapable of objective verification. A smell will often leave no trace. As Doherty J.A. observed in R. v. Simpson at p. 202 "subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee's sex, colour, age, ethnic origin or sexual orientation."Olfactory perception is highly subjective and must be treated cautiously.

[157] This caution was approved and followed in R. v. Erickson, [2006] O.J. No. 3099 (S.C.J.) by Justice Nancy Mossip, who, in exercising her review function, as I am required to do in this application, stated, at paragraphs 48 to 50, in her ruling, quashing a search warrant for a residence:

48 Constable Chatland relied very heavily on his smell of marijuana during his walk-by of 708 Salinger, which he agreed would be at a brisk pace. I have already referred to the lack of detail with regard to this observation and other factors which weaken this evidence because of lack of information regarding wind and weather conditions.

49 Further, the principle set out in the case of R. v. Polashek (1999), 134 C.C.C. (3d) 187 (O.C.A.) at page 194, is that olfactory perception is highly subjective and must be treated cautiously.

50 In my view the Justice of the Peace was misled about this evidence as the officer used exaggerated language as to the odour and did not set out the circumstances in which he smelled the marijuana in sufficient detail.

[158] In reaching the same conclusion as that of Justice Mossip, I find that the alleged grounds drafted by Constable Wallace and placed in the ITO regarding the "odour of marijuana" would mislead the Justice of the Peace. The officer's observation would be "material" if accurate, but because they lack sufficient surrounding detail, and are conceded by the affiant to be miss-statements of the actual observations he did make, in my view they would likely mislead the Justice of the Peace on this important element of the application for the warrant.

6.3: Conclusion re The Issuing of the Warrant

[159] In such circumstances, as set out above, the "presumption of validity" must yield to the evidence in the hearing that reveals, once the offending portions of the ITO are redacted, no basis for the issuance of the telewarrant.

[160] At paragraph 42 of the ITO, Constable Wallace deposes:

The main grounds in this investigation are the odour of fresh growing marihuana and the hydro consumption. This is extremely evident with both the high consumption used in the home as well as the Smart Meter graph provided by hydro investigators.

[161] I have therefore concluded that the warrant should not have issued for two reasons;

(1) The lack of sufficiently reliable information to issue the warrant

(2) The use of a "telewarrant" where the standard of "impractibility" has not been met

[162] In the result, should the search warrant herein be quashed and the evidence excluded?

6: The Legal Framework Revisited

6.1: What are the Exclusionary Principles Under 24(2)?

[163] In R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, and R. v. Harrison, 2009 SCC 34, [2009] S.C.J. No. 34, the Supreme Court of Canada re-cast the criteria for exclusion to make it a forward-looking analysis.

[164] In R. v. Grant, at paragraph 71, Chief Justice McLachlin and Justice Louise Charron enumerate the principles that must be applied when considering exclusion under s. 24(2) of the Charter:

71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and

(3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

3: Analysis

Seriousness of the Charter-Infringing State Conduct

[165] As described in Harrison, at paragraph 22, this branch of the test involves the following:

22 At this stage the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. Did it involve misconduct from which the court should be concerned to dissociate itself? This will be the case where the departure from Charter standards was major in degree, or where the police knew (or should have known) that their conduct was not Charter-compliant. On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is much less of a concern.

[166] In Grant, at paragraph 75, the Court elaborated by stating:

75 Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, [1995] 2 S.C.R. 297, per Cory J. "Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, [1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends [page396] to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

[167] Thus, according to Grant, a disregard of Charter standards can result not only from acting in bad faith, but also out of a consistent degree of recklessness or carelessness in police action. In R. v. Ma, [2006] O.J. No. 5839, Justice Stephen Clark of this court articulated this concern:

75 It is true, in the analysis, that there is no need to find bad faith, and the Court, indeed, does not find bad faith in this particular case. There was nothing that was done deliberately by the police officers, nor any deceit, but there was a high enough degree of carelessness, as set out in R. v. Sutherland to consider that the breach was serious. This is a case about quality control. The carelessness in this matter, perhaps inadvertent, was inconsistent with the standard of care expected from police officers applying for search warrant. The objective standard must be applied or else it will lead to institutional recklessness or carelessness with respect to the s. 8 Charter right. As Justice Hill has indicated, it is enough if the Court finds that it was a product of a casual attitude toward a search warrant, and a failure to be attentive to the public responsibility associated with ex-parti permission to enter a dwelling. Warrants cannot be obtained by going through the motions. It is true that although no expert or elevated legal skills are required when preparing materials for such an exercise, this does not diminish the fact that a high standard of competency must be demonstrated to withstand the rigors of legal and judicial scrutiny.

[168] In my view, there are two distinct Crown shortcomings in the telewarrant application before the court, which are serious, and support exclusion;

1. The process in which the telewarrant was applied for;

2. The lack of an evidentiary foundation for the issuing of the warrant.

[169] I agree with Justice Clark that "warrants can't be obtained by going through the motions."

The Process

[170] The request in this case was not accompanied by urgency, according to the affiant, Constable Wallace, on the face of the telewarrant.

[171] Moreover, it would have been practicable to attend in person

[172] More serious, in my view, is the interference by Constable Mathews in the process of the application. He was not the affiant, and he did not take notes about what he said to the Justice of the Peace. Whatever he said was neither under oath, or recorded.

[173] I have found, above, that his telephone communication with the Justice of the Peace caused her to issue the warrant, despite her concern about the use of the telewarrant process. His interference undermines the integrity of the application process, and because it was not documented, undermines the independence of that process, and its susceptibility to oversight and review in an application such as this.

The lack of evidentiary foundation

[174] In my view, the second shortcoming is also serious, because it reveals a plethora of unsubstantiated assertions and invalid inferences from a rushed and careless investigation.

[175] The attempt to justify the ITO shortcomings by describing the stress of a time-table imposed by two overlapping police "projects" while obviously attracting the sympathy of this court cannot be a foundation for the telewarrants survival at this stage.

[176] In my view, paragraphs of evidence were cut and pasted in to the ITO, without regard to which property had been investigated, or where specific observations had been made, or by whom.

[177] It is one thing to use "cut & paste" to list Constable Wallace's police training and experience (ITO paragraphs 1 – 5) or to summarize police investigative sources (paragraphs 6 to 13) but it is quite another to "slot in" material from other investigations of other properties, as evidence of what was observed at or about the property, 39 Patricia Avenue, which was the subject of the request to the Justice of the Peace to issue the warrant.

[178] Examples of such inserts into the text of this ITO, in my view, are found in Part 4 of the ITO, at page 8, and following, and include paragraph 45 and 54.

[179] In paragraph 45 the affiant deposes:

I am very well versed in the conversion and use of private homes for the purposes of producing marihuana. I have personally attended numerous search warrants at private homes with similar grows . Each of these grows consist of potted marihuana plants, fertilizers are present in the homes, chemicals used to nurture and encourage the growth of these plants, as well, as tinfoil or plastic sheeting on the walls and tarps over the windows to reflect light.

[180] Following amplification through cross-examination, it became clear that none of these descriptors are found to have anything to do with Constable Wallace's actual observations at 39 Patricia Avenue, as to the "state of the property"

[181] In paragraph 54 the affiant deposes:

Officers attended the side of the residence and noticed a very strong odour of fresh growing marihuana emanating from the rear of the residence.

[182] As explained above in these reasons, this paragraph is out of "whole-cloth" and was most likely, in my view, imported from another search warrant.

[183] In my view this is "carelessness" that undermines the validity of the ITO preparation process, and should not be condoned.

Impact on the Charter-Protected Interests of the Accused

[184] The court in Grant describes the revised test, in paragraphs 76 - 78:

76 This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

77 To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. For example, the interests engaged in the case of a statement to the authorities obtained in breach of the Charter include the s. 7 right to silence, or to choose whether or not to speak to authorities (Hebert) - all stemming from the principle against self-incrimination: R. v. White, [1999] 2 S.C.R. 417, at para. 44. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.

78 Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.

[185] Despite Constable Wallace's assertion in the ITO, that the property appeared to be uninhabited, he eventually had to resile from many of the underpinnings of that view, admitting that he could not be certain from his brief attendance at the residence.

[186] I have concluded on the facts in this case that the Crown's assertion in their factum that there should be a lesser degree of protection of the "privacy" interest, based upon the property appearing to be un-inhabited, is untenable for two reasons. Firstly, I do not think that the evidence, taken as a whole leads to the conclusion that the applicants were not living there. Secondly, I am reluctant to conclude that here would be a lesser expectation of privacy for a landlord, tenant or licensee who had a lawful right to access the property.

Society's Interest in an Adjudication on the Merits

[187] In R. v. Huynh, [2011] O.J. No. 100, my colleague, Justice Peter Harris, who presides with me here at Old City Hall, had this to say on the "societal interest" in excluding the evidence in a case that is very similar on the facts to this case, at paragraphs 39 & 40:

39 Courts are aware that society's interest in a trial on the merits is often undermined where highly reliable and important evidence is excluded. The evidence in issue here, the growing and dried marijuana, was highly reliable and essential to the Crown's case. The charges are also serious particularly when large quantities of marijuana are involved - - with all the attendant violence that "grow ops" often introduce into residential neighbourhoods. Real, non-conscriptive evidence that is of great value to the Crown's case most often favours admissibility as exclusion would exact too great a toll on the truth-seeking function of the trial.

40 I have conducted the inquiries mandated by Grant, and balanced the need to discover the truth and adjudicate cases such as this on its merits with factors pointing to exclusion, such as the seriousness and the impact of the violation -- and I have concluded that the evidence should be excluded pursuant to s. 24(2) of the Charter. In this case the search warrant application was based on an ITO that was so carelessly drafted, materially misleading and factually inaccurate and incomplete that it fell far below constitutional standards and consequently the long term consequences on the administration of justice favoured exclusion. Here there was a failure to properly appreciate and identify the privacy interests at stake and to relate the grounds on which the warrant was sought to those individual privacy interests. In my view, to do otherwise than exclude this evidence in circumstances where the propriety of the police conduct would stand unchallenged would, viewed reasonably and from a long-term perspective, bring the administration of justice into disrepute.

[188] In my view, similar considerations apply in this case.

[189] The ITO was part of a telewarrant application that was deficient in terms of it being suitable for telewarrant use under s. 487.1(4)(a) both on the information provided under oath in the telewarrant and as amplified in the viva voce hearing.

[190] It was also a telewarrant application, that when amplified by viva voce evidence, was based, at least partially on information provided to the justice of the peace that was not under oath as envisioned by the statutory code found in s. 487.1(1).

[191] In addition the issuing of the warrant and the use of the telewarrant should not be condoned, as I have started above, where there is cogent evidence, as I have here, of interference in the codified procedure of the application by a direct call to the Justice of the Peace by a non-affiant to convince her to issue the warrant.

[192] The ITO itself was carelessly drafted and misleading and did not, on amplification, provide a basis for the issuing of a search warrant.

[193] Moreover, it included material which appeared to be from other investigations that were "cut & pasted" into the evidence portion of the ITO, which would tend to mislead the Justice of the Peace who read the application, in my view.

[194] All of the above factors, in my view, support exclusion.

[195] To take the longer view, as mandated by the Supreme Court of Canada in the cases of Grant and Harrison, to decide not to exclude the evidence, and to permit these police practices, as demonstrated in this application, to continue, going forward, would bring the administration of justice into disrepute.

[196] In the result, the evidence obtained as a result of the search of 39 Patricia Avenue is excluded, and the two counts before the court against the applicants, are dismissed.

Released: 17 April 2012

Signed: "Justice Paul H. Reinhardt"