Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

David Michael Floyd

Before: Justice D.M. Paciocco

Decision on Charter Motion Relating to the Validity of the Warrant

Released on: June 15, 2012

Counsel

For the Crown:

• Ms. Lisa Blais
• Ms. Melody Foerster

For the Defendant:

• David Michael Floyd (Self-represented)

Decision

PACIOCCO J.:

Introduction

[1] Mr. Floyd has challenged the search that was obtained and executed on 10 March 2005 as being contrary to section 8 of the Charter. He is self-represented in these proceedings and naturally required some guidance in giving legal form to the many complaints he raised. He claims that the warrant is invalid according to the Charter, and that there have been a host of breaches relating to its obtainment and content. The onus of demonstrating these alleged breaches is on him. He must do so on the balance of probabilities. He must also satisfy the court on the balance of probabilities that the remedy he seeks, exclusion from this trial of the evidence that was obtained using that warrant, is required by section 24(2) of the Charter in order to protect the repute of the administration of justice.

[2] Mr. Floyd made a cavalcade of complaints about the validity of the warrant. I will organize his complaints into four categories and address them in turn. The first is his claim that Detective Catherine Brown, the affiant in the "Information to Obtain" the search warrant, relied upon illegal evidence, namely hydro records that she secured without a warrant. The second complaint is that the "Information to Obtain" affidavit did not disclose the grounds required for securing a search warrant, with reasonable and probable grounds lacking both with respect to the place searched and the offence itself. The third claim is that the warrant should be struck down because of misconduct by Detective Brown relating to misrepresentations and the failure to disclose material information, contrary to the Charter. The fourth has to do with the execution without grounds of the warrant during the evening hours, as well as related concerns. I will examine each complaint in turn.

Complaint 1 – The Legality of the Hydro Records Search

[3] Detective Catherine Brown contacted Ottawa Hydro and secured account information for 2745 Page Road. Mr. Floyd argues that the warrantless consultation of these records violated his Charter rights. In substance he is contending that the inclusion in the "Information to Obtain" affidavit of this "illegally obtained" hydro information renders the warrant invalid, or at the very least, requires that the hydro information illegally obtained should be struck from the "Information to Obtain" affidavit. He cites R. v. Philpott for the proposition that unless the relevant hydro service is in the practice of sharing hydro information with the public a warrant must be secured before it is released. R. v. Philpott does not say this. More importantly the Supreme Court of Canada in R. v. Plant, [1993] 3 S.C.R. 281 held that utility records disclosing the consumption of hydro do not contain information over which a reasonable expectation arises, making it appropriate for hydro officials to share such information without a warrant. While the Court in Plant did note that the relevant hydro Commission in that case, Calgary Hydro, permitted public access to its computer data bank containing hydro records and that this diminished any expectation of privacy, this was an alternative basis for the conclusion that there was no reasonable expectation of privacy in that case. It was not a necessary condition of the permissible warrantless search of hydro records. The key point in the Plant decision was that hydro records disclosing patterns of consumption do not tend to reveal intimate details of the lifestyle and personal choices of individuals. As such they do not intrude sufficiently into the biographical core of information about a person to warrant Charter protected informational privacy. This was treated at the central principle in the case as it was relied upon by the Supreme Court of Canada in R. v. Tessling, 2004 SCC 67, 189 C.C.C. (3d) 129 to conclude that there is no reasonable expectation of privacy in heat emanations detectible from a building using a FLIR (Forward Looking Infra-Red) device. James A. Fontana and David Keeshan The Law of Search & Seizure in Canada (8th ed), (Toronto: LexisNexis, 2010) at 824 describe how Plant "definitively answered" in the affirmative the question: of "whether an individual's utility record can be reviewed by law enforcement without first obtaining a warrant." I agree and on this basis alone reject this particular challenge.

[4] Even if I am wrong about the law, this particular Charter challenge nonetheless fails. An issued search warrant is presumptively valid and this search was done pursuant to a warrant issued on 10 March 2005 by a judicial officer. Mr. Floyd therefore bears the onus of demonstrating its invalidity: (R. v. Feldman, 93 C.C.C. (3d) 575). This burden includes the obligation of establishing the factual basis for the alleged breach. Mr. Floyd has led no evidence about Hydro Ottawa's privacy policies or the terms of the hydro contract relating to hydro consumption. I therefore have no evidence as to whether Hydro Ottawa does or does not share their accounts publicly. I am therefore unable to verify Mr. Floyd's claim to a reasonable expectation of privacy. I therefore find no section 8 violation based on the fact that Detective Brown obtained and relied in the "Information to Obtain" on data secured through a warrantless requisition of information from Ontario Hydro.

Complaint 2 - The Sufficiency of the Grounds

[5] A search that is not legal is unconstitutional. The legality of this particular search depends on its compliance with section 11 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. If the warrant does not meet the requirements of that provision the warrant is illegal and hence a search pursuant to that warrant is illegal and therefore unconstitutional, and the appropriate remedy must be considered.

[6] Section 11 of the Controlled Drugs and Substances Act requires, in the context of this application, that before issuing a search warrant the issuing justice has to be satisfied on oath that there are reasonable grounds to believe (1) that there was a Cannabis Marijuana grow-operation at 2745 Page Road at the time the warrant was issued, (2) that the things searched for as listed in Appendix B to the warrant will afford evidence, and (3) that evidence would be found at that location described in Appendix "C" at the time the warrant was issued: (See R. v. Sanchez, 93 C.C.C. (3d) 357 at 365). The sufficiency challenge in this case raises the third and first of the foregoing requirements. It is argued in substance that the place to be searched – relevant to requirement (3) - was not described with sufficient precision to identify that location. If a place cannot be identified, ex hypothesi it cannot be concluded that there are "reasonable grounds" to search that place. The central argument, however, relates to requirement (1) above. It is argued that it has not been shown that there are "reasonable grounds" to believe that there was a Cannabis Marijuana grow-operation at 2745 Page Road on 10 March 2005.

[7] When the standard of "reasonable grounds" is used in a statute, as it is with the Controlled Drugs and Substances Act, it is interpreted to invoke the usual standard required for constitutionally valid searches, namely "reasonable and probable grounds." This "reasonable and probable grounds" standard does not require a finding that the relevant conclusions are more probable than not. Instead the reasonable and probable grounds standard lies between suspicion and proof beyond a reasonable doubt (R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 at para. 37).

[8] In Hunter v. Southam Inc., [1984] 2 S.C.R. 145 it was explained that "reasonable and probable grounds" arise when "credibly-based probability replaces suspicion." The reference to "credibly-based" probability reflects that the reasonable and probable grounds standard requires more than that the quantum of evidence is adequate to move from suspicion to a reasonable probability. Part of the assessment is whether there are adequate objective indicators contained in the "Information to Obtain" affidavit to conclude that the information offered is credible enough to be relied upon to support conclusions about what is reasonably probable: R. v. Debot, 52 C.C.C. (3d) 193 at 215.

[9] In sum, the "reasonable and probable grounds" or "credibly-based probability" concept requires that the grounds furnished must demonstrate that there is a probability as opposed to a suspicion that the relevant facts could be true, assuming the information to be true (the "sufficiency inquiry"), and that there are reasonable grounds to believe that the information relied upon is credible enough to support a conclusion that there is a reasonable probability that the relevant fact exists (the "credibility inquiry").

[10] This two-part "reasonable and probable grounds" standard is relevant to two inquiries that must each be met before a "reasonable and probable grounds" search warrant can issue. First, the affiant who has sworn the "Information to Obtain" affidavit, in this case Detective Catherine Brown, must honestly believe that they have reasonable grounds to believe that an offence is occurring and that what is being sought is evidence that will be found at the place to be searched, in this case 2745 Page Road. If the affiant does not actually believe that, the search warrant is invalid. This first inquiry is the "subjective" component of the reasonable and probable grounds standard: (R. v. Storrey, [1990] 1 S.C.R. 241 at 250). The second inquiry, the "objective" component, requires that the affiant's belief that they have reasonable and probable grounds must be supported by enough information to enable a reasonable person to come to the same conclusion: R. v. Storrey, [1990] 1 S.C.R. 241 at 250.

[11] Not only must there be "reasonable and probable grounds" as described before a warrant can issue, those grounds must be demonstrated to the issuing justice. This latter requirement is "known as the requirement of 'prior authorization'": (R. v. Morris, 1998 NSCA 229, [1998] N.S.J. no. 492 at para. 32). It is meant to ensure that the decision to compromise a reasonable expectation of privacy is made by an impartial and independent judicial officer rather than an investigator who may have an interest in pursuing the investigation.

[12] During a review of the validity of a warrant that has been issued the reasonable and probable grounds standards are to be evaluated by the reviewing judge with deference. This is because the legal responsibility for issuing the warrant belongs, in law, to the judicial officer who has been called upon to issue that warrant. Accordingly the standard on review is not whether the reviewing judge would have found the relevant "reasonable and probable grounds" on the basis of the information before the issuing justice. The ultimate issue, and the one that I must determine here, is whether the issuing justice could reasonably find the grounds to be sufficient.

[13] While this review is ordinarily conducted using the precise record of information that was before the issuing justice, the law does provide in some cases for the amendment of that record by the removal of information or the addition or amplification of that record with additional information: R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No. 65 at paras. 51-53. The relevant principles in settling the record for review are as follows.

[14] First, factual claims made in the "Information to Obtain" affidavit that are without an objective foundation of credibility should be disregarded. For this reason, bald unsupported conclusions and erroneous or false facts should notionally be excised from an "Information to Obtain" affidavit: R. v. Morris, 1998 NSCA 229, 134 C.C.C. (3d) 539 at 553, cited with approval in R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No. 65 at para. 54, and see para. 58.

[15] Second, facts that should have been disclosed that weaken the significance or credibility of the grounds relied upon should also be taken into account since it is expected that during ex parte warrant applications the affiant will make full and frank disclosure of the actual state of affairs. Where this has not occurred such facts can be considered by the reviewing judge as if they had been before the reviewing judge: Re Church of Scientology (No. 6) (1987), 31 C.C.C. (3d) 499 at 528-529 (Ont. C.A.), cited with approval in R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No. 65 at para. 57.

[16] Third, in appropriate cases even information that could have supported the warrant but that was not put before the issuing justice by the affiant can be added during the review stage through "amplification." In particular, amplification can occur where additional information that was available to the affiant at the time the "Information to Obtain" affidavit was sworn is inserted to correct errors or inaccuracies in the "Information to Obtain" affidavit that have been made in good faith: R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No. 65 at para. 57. This can involve the correction of misstated information. In R. v. Plant, [1993] 3 S.C.R. 281, for example, the information stated that the informant had supplied the address but evidence showed that the police had actually determined the address from the precise description of the house. The sufficiency of the "Information to Obtain" affidavit was evaluated with this correction in mind.

[17] It is possible that the amplification doctrine may also permit the insertion of relevant information that was simply omitted. In R. v. Kesserling, [2000] O.J. No. 1436 the "Information to Obtain" affidavit failed to include important information supporting the conclusion that hydro records disclosed inordinate electricity consumption consistent with a grow operation. Proof during the voir dire that the officer had information at the time the warrant was secured that other houses on the same street consumed materially less electricity was used to "amplify" the record. After the Kesserling decision was released, however, and without referring to that decision, the Supreme Court of Canada cautioned courts to exercise care with amplification and made comments that raise questions about whether amplification should be used to add information that is not omitted by error. In R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No. 65 at para. 59 Justice Lebel said:

"When using amplification courts must strike a balance between two fundamental principles of search and seizure law that come into a rather unique tension... The danger in amplification is that it might become a means of circumventing a prior authorization requirement. Since a prior authorization requirement is fundamental to the protection of everyone's privacy interest amplification can go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham. On the other hand to refuse amplification would 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 some minor, technical error in drafting their affidavit material. Courts must recognize (along with investigative necessity) the two principles of prior authorization and probable grounds at the time of the application.... in considering the jurisprudence on amplification (emphasis added)."

In Quebec (Attorney General) v. Laroche, 2002 SCC 72, 169 C.C.C. (3d) 97 Justice Lebel again cautioned, this time more directly, that amplification should not be used to cure defects that are fundamentally flawed.

[18] Once the record for review is settled, "the function of the reviewing judge is to determine whether there is any evidence remaining, after disregarding the allegations found to be false and taking into consideration the facts found to have been omitted by the informant, upon which the justice could be satisfied that the warrant should issue" (R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No. 65 at para. 57). When this task is undertaken the reviewing judge must examine the totality of the "Information to Obtain" affidavit. (R. v. Araujo, [2000] S.C.J. No. 65 at para. 54). While it is appropriate to pay close regard to the significance and reliability of specific information included in an "Information to Obtain" affidavit when evaluating "reasonable and probable grounds" what the reviewing judge must ultimately determine is whether, on the "Information to Obtain" affidavit as a whole given the quality of the information consulted, the justice could properly be satisfied that the warrant should issue.

[19] The place to begin applying all of these principles is with the subjective component of the reasonable and probable grounds inquiry. I have no hesitation in concluding that this subjective belief component was met in this case. The ITO attests to Detective Brown's subjective belief that she had reasonable grounds to obtain the warrant and conduct the search. The issuing justice could certainly accept this sworn assertion to be true on the information before him and nothing in evidence presented during this voir dire suggests this representation to be inaccurate. The subjective element of the reasonable probable grounds requirement is therefore satisfied in this review.

[20] The "objective" component is the one in issue here both with respect to the challenge to the sufficiency of the "place to be searched" and the grounds for the offence.

Reasonable and Probable Grounds and the Place to be Searched

[21] Mr. Floyd's arguments relating to the description of the place to be searched were not entirely clear to me. His essential complaint was that a second officer would be unable to identify the place to be searched from the description in the Warrant to Search and the "Information to Obtain" affidavit because there is no address number posted on 2745 Page Road and the properties in the area are not numbered sequentially according to a predictable pattern. I have characterized this argument as a challenge to the sufficiency of the grounds to believe that there would be evidence to be found at the place to be searched, since if the place is not adequately identified, it necessarily follows that reasonable and probable grounds to believe there may be evidence at that place is necessarily absent. It is also possible to characterize this as a challenge to the search itself – if the warrant does not identify the location adequately it cannot be used to justify a search of the place searched leaving the search itself illegal.

[22] In the end it does not matter how this legal challenge is characterized because the contention that the description in the warrant documents is inadequate to permit a second officer to identify the place from that description alone is unsustainable. Even if there is no address numbers posted on the property, the address furnished would narrow the place to be searched down to few properties. From there, the physical description of the siding, the vehicles likely to be parked at the place to be searched, the outbuildings and the state of snow removal, all included in the warrant, would provide precise enough markers to enable identification. This particular Charter challenge, however it is conceived, therefore fails.

Reasonable and Probable Grounds to Believe the Offence is Occurring

[23] Mr. Floyd argues, in substance, that no issuing justice could reasonably be satisfied on the information in this case that there were objective reasonable and probable grounds for concluding that there was a marijuana grow operation at 2745 Page Road. While on its face there is sufficient information to meet the reasonable and probable grounds standard in this regard, if the record is adjusted using the principles described above and the credibility foundation for the information is examined, the warrant violates section 8 of the Charter.

[24] There are indeed a plethora of credibility issues to be canvassed relating to Detective Brown's "Information to Obtain" affidavit. The foundation for the warrant depends ultimately on information from (1) three untried confidential police informants, two of them apparently anonymous, (2) on a disappointing police investigation conducted to confirm the credibility of these informants, and (3) on the problematic use of hydro information. There is no other evidentiary foundation to support the warrant.

[25] To avoid redundancy I will proceed as follows. I will begin to settle the factual record that must ultimately be reviewed by considering issues relating to the deletion of misleading information or the addition and amplification of material that can conveniently be resolved at the outset. After doing so I will then examine each source of information in turn to describe the contribution it makes and to identify issues relating to its credibility. For convenience I will combine my examination of points (1) the three confidential informants and (2) confirming information found during investigation relating to each informant. I will then examine the use that was made of the hydro records. As I describe each source of information I will begin to explore not only its contribution but its credibility. While examining these sources of information I will also resolve any remaining issues of deletion, addition and amplification of the ultimate review record that could not conveniently be done at the outset. While the exercise I have described will involve a dedicated evaluation of the credibility of the information provided by each Informant in turn, I want to be clear that I am not forgetting the principle that ultimately the reasonable and probable grounds evaluation is to be applied to the "Information to Obtain" affidavit as a whole and not to piecemeal items of evidence evaluated in isolation. It is important, however, for a reviewing judge to get a relevant measure of the credibility of each source of information relied upon before attempting to evaluate the reasonableness of finding the information as a whole satisfies the credibly-based probability foundation. Once I have examined each source of evidence in the way I described I will then undertake the overall evaluation of the "Information to Obtain" affidavit using the standards set out above.

The Settlement of General Issues Relating to the Record for Review

Deletions of Information that has no Foundation in Credibility

[26] In conducting this review I will be deleting the representations in paragraphs 2.03 and 3.03 relating to all information having been corroborated to the extent possible through investigations of the information provided. Specifically, I am deleting the last two sentences in paragraph 2.03 dealing with the informers, and the italicized portions of paragraph 3.03 relating to Informant "B." For clarity the passages to be deleted are italicized:

2.03 The information provided by Informants "A", "B" and "C" relating to the subject matter of this investigation has resulted in the commencement of a criminal investigation. All information has been corroborated, to the extent possible, through investigations of the information provided. The information they have provided has, to the extent possible, proved through investigations by me to be accurate and reliable.

3.03 …. The information that Informant "B" has provided, to the extent possible, has been proven through investigation to be accurate and reliable" Informant "B" was questioned by Detective Carey with respect to this subject. The information he has provided to me Detective Carey Informant "B" to the extent possible, has been proven through investigation to be accurate and reliable .… [Sic – the ungrammatical presentation of this last sentence is found in the "Information to Obtain" affidavit.]

I am deleting these passages because they are manifestly unsupported by any information contained in the "Information to Obtain" affidavit and they have been shown to be misleading. As the examination of the "Informant" information I undertake below demonstrates there is no record of corroboration for most of the information supplied by the Informants, including many details which could easily have been confirmed, if true. Indeed, in the evidence provided before me Detective Brown testified to no attempts to confirm the physical characteristics of the locations described or of the activities alleged. She described a single visit to the location the day before this warrant was secured, which visit occurred after the material substantive provisions of the "Information to Obtain" affidavit now relied upon had already been drafted. This visit was conducted so that Appendix "C" could be amended to satisfy the concerns that prevented Justice of the Peace Chappelle from issuing a warrant during an earlier warrant application due to concerns Justice of the Peace Chappelle had about inadequacy in the property description. Contrary to the representations in the targeted paragraphs, most of the "Informant" information was uncorroborated. Nor has the information proven to be accurate and reliable through investigation "to the extent possible." To the contrary efforts at confirmation were cursory and half-hearted.

[27] I am also deleting from my review aspects of the general summary of "F. GROUNDS TO BELIEVE AN OFFENCE HAS BEEN COMMITTED" for which there is no foundation. Specifically, I am deleting the italicized portions of the following paragraph:

I verily believe that there is an indoor cannabis marijuana growing operation in the garage of 2745 Page Road because of the following:

• Three separate confidential Informants have come forward to report this cannabis marijuana indoor grow operation independently over the course of one year and all of their information corroborates each other's accounts.

[28] Dealing first with the deletion of the "independently" claim, it is important to appreciate that one or both of Informants "A" and "C" are anonymous. That anonymity makes it impossible for the police to have confirmed that the three tips were "independent." The anonymity of Informant "C" is made express in the "Information to Obtain" affidavit. The only reasonable conclusion from the "Information to Obtain" affidavit is that the same is true for Informant "A." There is no indication as there is with Informant "B" that Informant "A" was interviewed, and the sparse nature of the information furnished suggests that no interview took place. Moreover it appears that no criminal record search was done on Informant "A" as was undertaken with Informant "B." The most reasonable inference is that Informant "A's" biographical information is unknown to the police. Since "C" and possibly "A" are apparently anonymous informants, it is possible that more than one of the Informants were in fact the same person. While it may be reasonable for the issuing justice to infer that they are likely separate persons as the three tips are expressed in different ways, there is absolutely no basis for concluding that the three informants came forward "independently." Indeed, it is highly coincidental that Informant "A" came forward on 19 January 2005 and Informant "B" only two days later. The alleged crime is not an impending event that would easily explain this coincidence. As the information from Informant "C" shows, the investigation was into an ongoing criminal enterprise that was at the time the warrant was sought at least a year old. There is no foundation in the warrant for the assertion that the Informant's are independent. Specifically, there seems to be no factual basis for concluding that they never discussed 2745 Page Road between themselves or were unaware of the report of others. The claim they came forward "independently" must therefore be disregarded.

[29] In addition, while there are similarities in some of the information provided (detailed below) it is a gross overstatement to say "all of their information corroborates each other's accounts." In making these deletions I am mindful that this passage purports to set out Detective Brown's own beliefs and that this passage might simply record her misunderstanding of what the investigation produced. She is however the affiant whose information is being relied upon by the issuing justice and the relevant information listed in this paragraph is presented as objective fact. The identified representations are therefore misleading and require removal.

[30] I am also deleting certain representations relating to hydro usage. To understand the extent and reason for the deletion about to be described it is important to understand that Detective Brown relied in the "Information to Obtain" affidavit on two factors relating to hydro usage – (1) the excessive consumption and (2) dramatic fluctuations over time. The hydro representations of concern here relate to "excessive consumption." Specifically, I am deleting the reference in paragraph 4.02 to excessive hydro consumption, which I am italicizing below:

4.02. It has been my experience that cannabis marijuana production involves the consumption of large amounts of electrical power. In some cases, as in this one, excessive hydro consumption is noted in the billing records.

There is no basis shown in the "Information to Obtain" affidavit for concluding that there was excessive hydro consumption at 2745 Page Road. No indication is provided as to what ordinary consumption ranges would be and there is no reference made to comparisons of hydro consumption between 2745 Page Road and comparable structures. Indeed, evidence provided during the voir dire disclosed that no effort was made by any police officers to compare the hydro usage at 2745 Page Road to comparable buildings. Detective Brown was re-examined on this point but provided no information available to her that the Hydro Ottawa readings were excessive. The only information received pertained to variations within the readings furnished for 2745 Page Road. The words I am deleting here therefore amount to a bald assertion of opinion unsupported in the "Information to Obtain" affidavit.

Additions of Information that should have been Disclosed

[33] Mr. Floyd urged that the "Information to Obtain" affidavit should have disclosed details relating to a separate search warrant executed at 2742 Page Road on 18 January 2005, the day before the investigation began into this alleged grow-op. The 2742 Page Road warrant is mentioned by one of the Informants but the precise date on which it was executed is not supplied and, more importantly, the nature of the investigation is not revealed. Mr. Floyd argued that Detective Brown knew that 2742 Page Road was a grow operation search warrant because she was the investigator in that case, and she knows that 2742 Page Road is directly across from 2745 Page Road. She also knew that the search of 2745 Page Road found evidence of a grow operation. Given that two Confidential Informants spoke of the smell of marijuana when speaking of 2745 Page Road, he argued, the confirmed existence of a grow operation across the street at relevant times is material as this information should be considered by an issuing justice who is considering "smell" evidence. I agree. In conducting this review I am therefore considering this information – that a grow operation was discovered during a search warrant executed at 2742 Page Road across from 2745 Page Road on 18 January 2005 - as if it was included in the "Information to Obtain" affidavit.

[34] The search warrant discloses no surveillance having been conducted at 2745 Page Road. Mr. Floyd urges me to find that surveillance was conducted but mention of it was intentionally omitted because nothing was found, contradicting claims made by the Informants. In substance he would want me to include information in my review that surveillance occurred but confirmed none of the informant information. He bases his argument on deduction, without any affirmative information that surveillance took place. He relies primarily on the substantial likelihood that surveillance would have occurred, and on the inclusion in Appendix "C" (which is more legible in the Search Warrant than the "Information to Obtain" affidavit) of information about 2745 Page Road and its occupants that was not secured from the Informants and not sourced in the "Information to Obtain" affidavit. Specifically Appendix "C" asserts that the occupants "frequently use" a beige Ford Taurus and a black Ford Pickup truck and that "the walkway up to the front door way is covered in snow and consequently it is indicative of a rear door being used by the occupants of the house to enter the dwelling place." He claims that this betrays that surveillance did take place. Dealing first with the condition of the premises, Detective Brown testified that the evening before the search warrant was executed she went by 2745 Page Road to secure further descriptors of the property to satisfy concerns Justice of the Peace Chappelle expressed when she refused to grant a warrant relating to the inadequacy of the property description. Detective Brown's visit accounts for the description of the walkway in Appendix "C". The representations about the presence and use of "the beige Ford Taurus and the black Ford Pickup truck" could have been obtained by surveillance but it could also have come from information received that Detective Brown chose not to rely upon in the search warrant. It could also have come, for example, from the in-house checks that were referred to generally in the "Information to Obtain" affidavit. I am therefore not prepared to find on the record before me that there has been material non-disclosure about surveillance. Mr. Floyd has not discharged his onus on this point as the requisite foundation is simply not there.

[35] Having said that, the reference in Appendix "C" to the vehicles being frequently used should not have been included and authorization should not have been given for their search. This is because there is no mention of the Ford Taurus in the "Information to Obtain" affidavit. While there is mention of the Black Truck by two confidential informants, there is no mention of either vehicle being "frequently used." There is no basis offered for a reasonable belief that there would be evidence found even in the Black Truck. This warrant therefore did not provide any justification for the search of these vehicles and it was unreasonable to grant it. This point is largely moot, however, because I have no evidence before me that those vehicles were even searched, or that any evidence was found within them.

[36] Mr. Floyd also argues that there was a material intentional failure to disclose to the issuing justice that 2745 Page Road was a multi-unit residential building. He produced no evidence that 2745 Page Road is a multi-unit residential building or who resided in its units at the time but the Crown, appropriately indulgent to Mr. Floyd's unrepresented status, proceeded on the assumption that his representations this was a multi-unit residential building were true. I will therefore assume for the purpose of this application that 2745 Page Road was a multi-unit residential building at the time. Still, this concession leads nowhere. Even if the building was a multi-unit residential building at the time Mr. Floyd was unable to provide any direct evidence that Detective Brown had this knowledge. Again, Mr. Floyd wanted me to infer that she did because it is obvious to anyone paying attention. He argued that anyone viewing the premises would have seen two front doors and a side door, and he points out there is even a back door. He urged that the number of doors makes it obvious that this is a multi-unit residential building. He also urged that the fact that the registered owner of the property is Mary Carmella Floyd, that Ms. Deborah Kilpatrick is shown in Hydro Records as the account holder, and that he himself is associated with the building, all facts known to Detective Brown, would make this obvious. I disagree. The information he relies upon is too equivocal to conclude that Detective Brown probably knew that this was a multi-unit residential building. It has not been shown that she had information about the status of the residence as a multi-unit residential building that should have been added to the "Information to Obtain" affidavit and I therefore reject the invitation to consider this during my review.

Additions based on "Amplification"

[37] Additional information available to Detective Brown but not included in the "Information to Obtain" affidavit was described during her evidence. Specifically the information she referred to included that:

(1) She drove by 2745 Page Road the evening before the warrant observing the green siding on the house and the large garage. This information would confirm some descriptive details provided by police informants;

(2) She spoke to an unidentified employee at Hydro Ottawa who told her [with respect to variation in hydro readings at 2745 Page Road] "that the readings for the running of the house should be closer and there shouldn't be that much difference in the running of a regular house."

I am not prepared to amplify the record for review with this additional information. Amplification is manifestly appropriate to correct a "good faith … minor, technical error in drafting [the] affidavit material" (see Justice Lebel in R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No. 65) but there is no basis for concluding that these details were omitted by inadvertence. No evidence was provided by Detective Brown that these details were intended to have been included but where accidently omitted. Indeed, in the case of the visit it appears that she chose not to include the information about her observations in the body of the "Information to Obtain" affidavit. This is because she took the time to amend Appendix "C" but made no effort to describe her visit in the evidence portion of the application. While there may be jurisdiction to permit amplification in the interests of ensuring that warrants are available where reasonable and probable ground do exist even where information is not omitted by some "good faith … minor, technical error in drafting [the] affidavit material" (see Justice Lebel in R. v. Araujo, [2000] S.C.J. No. 65) I would not exercise my discretion to do so here. First, this information is unimportant. These characteristics of the property do no more than assist in identifying the residence – they do nothing to support the activities taking place inside. As for the comment of the unidentified hydro employee, it is a hearsay opinion expressed by someone who may not have had the competence to evaluate hydro usage. No effort was made by the Crown to furnish a factual record that could establish its utility. The addition of this evidence would not, therefore materially advance the principle that reasonable and probable grounds should not be denied on matters of form. In contrast its admission through amplification would insult the competing principle of prior authorization. Detective Brown submitted this search warrant for approval on four occasions. It would be insensitive to the "prior authorization" requirement to permit this additional information to be added after she made no effort to include it on those four earlier occasions when seeking prior authorization. Amplification with this information in this case would not represent an appropriate balancing of the competing principles the Araujo Court directed reviewing judges to keep in mind.

Examination of the Confidential Informants

[38] When an affiant receives information from another person and relies upon it in an "Information to Obtain" affidavit the issuing justice is being presented with hearsay. It is appropriate for affiants to rely upon hearsay, including hearsay information provided by confidential informants, provided that, in the totality of the circumstances, it is reasonable to rely upon those informants. Factors that should be considered were described in R. v. Debot, 52 C.C.C. (3d) 197 at 215:

"First, was the information ... compelling? Second, where that information was based on a "tip" originating from a source outside the police, was the source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search?"

The extent to which information is "compelling" turns on the amount of precision offered. The credibility of the source is based on what is known of the tipster. And corroboration, while ordinarily secured through observations by the affiant or other police officers, can be any independent information that reasonably enhances confidence the information is true. It need not satisfy more formal conceptions of corroboration and it need not confirm the illegal activity directly; the ultimate question is whether the confirming information can reasonably enhance confidence in that the information is true. Corroboration between Informants can also, in appropriate cases, be provided by confidential informants, a point I will return to below.

Informant "A" – the Crime Stoppers Tip

[39] The first confidential informer, whose information is provided for in paragraph 3.01 of the "Information to Obtain" affidavit and who is identified therein as "Informant 'A'", provided seven points of information:

(1) That a male named Mike owned 2745 Page Road (2) That Mike was approximately 50 years old (3) That Mike had white hair (4) That Mike was unemployed (5) That Mike drove a black truck (6) That there was much activity at the house between 3 a.m. and 5 a.m.; and (7) Mike was "growing and selling."

[40] This information was furnished as a "Crime Stoppers" tip. The date on which the tip came forward is not made clear. The "Information to Obtain" affidavit describes the "Crime Stopper Tip" being assigned from Sergeant S. Kerr to Detective Brown on 19 January 2005. It does not disclose when the tip was initially provided to the police by the Crime Stoppers informer. I find that it would be reasonable, however, for an issuing Justice to infer that Crime Stoppers tips are assigned in a reasonably prompt fashion after being received. It would therefore be appropriate to treat the information contained in the tip as reasonably current - less than two months old when the warrant was issued.

[41] The identity of the Crime Stoppers informer appears to be unknown to the affiant Detective Brown as there is no information provided about the Informant. Nothing is therefore known about how reliable this person is. Indeed, the "Information to Obtain" affidavit does not state that Informant "A" personally made the observations in question. Informant "A" could therefore be presenting hearsay information he or she obtained from others. In other words, the Crime Stoppers information may be "double-hearsay" consisting of unsworn claims from Informant "A" about what he or she in turn was told. This raises acute issues as to the credibility of the source of this information.

[42] Even where an informant purports to provide personal information where the informant is unknown the level of verification required is higher before it is reasonable to rely upon the information: R. v. Hosie, [1996] O.J. No. 2175 at para. 14. The same holds true with emphasis when it may be double hearsay that is being offered by an unknown informant. These concerns alone do not absolutely preclude reliance on Crime Stopper's information from an anonymous informer. A Crime Stopper's tip from an anonymous informant can be relied upon if it is sufficiently specific and/or sufficiently corroborated. In R. v. Plant, [1993] 3 S.C.R. 281 a highly specific Crime Stopper's tip that was corroborated by hydro records was ultimately used to support a valid warrant. By contrast, in R. v. Jacobsen, [2006] O.J. No. 1527 the Ontario Court of Appeal overturned a trial judge for relying upon a Crime Stoppers tip that was not compelling and "police were able only to confirm some of the details of the tip" (at par 16).

[43] What of this Crime Stopper's tip? The information furnished by Informant "A" here could not, in my view, be found to be compelling by a reasonable issuing justice. Quite to the contrary. The information indicating a marijuana grow operation is located at 2745 Page Road is sparse. The first five pieces of information are purely biographical. They tell nothing of any illicit activity and provide no foundation for believing the illicit activity described is occurring. At no point does Informant "A" purport to have direct information about illegal activity. He or she offers only their "thought" that Mike is "growing and selling." To highlight the lack of precision in the tip, Informant "A" does not even mention what was grown or sold. The only detail that is provided as to what Informant "A's" conclusion is based on is the entirely equivocal observation that "there was much activity at the house between 3 a.m. and 5 a.m." On the scale of things this tip amounts to little more than a deduction without any demonstrated foundation.

[44] Is the tip corroborated? As indicated very little investigation was done by the police. The "Information to Obtain" affidavit discloses no attempt to confirm the description or employment status of "Mike," no effort to confirm that "Mike" drove a black truck, and no surveillance to confirm the night-time activity. The "corroboration" that did occur is paltry. Paragraph 3.07 reveals that "in-house checks" revealed that the owner of 2745 Page Road was Michael David Floyd and that he was born November 17, 1958. This would corroborate points (1) and (2) above. Even with this paragraph 3.17 appears to contradict the "ownership" claim made in both the Informant "A's" report and the claim made in paragraph 3.07. Paragraph 3.17 shows that Mary Carmella Floyd is the owner, not Mr. Floyd. Meanwhile Informant "A" claims that Mike had "white hair." Based on my observations of him in Court Mr. Floyd does not now have white hair. His hair is short and while clearly greying still appears to contain enough brown hair to make the description "white hair" unlikely. The Crown did not take issue with his representation that even then he did not have "white hair."

[45] What should be made of the largely uncorroborated and unsupported, conclusory belief provided by an Informant of unknown reliability that may not even rest on information he knows personally? In my opinion this "Crime Stoppers" tip is unsettlingly comparable in quality to the one that was found in Jacobson to be incapable of forming part of the grounds that an issuing justice can reasonably rely upon: R. v. Jacobson, [2006] O.J. No. 1527 at para. 16. In that case the Court found the tip to be "not compelling" because, like the tip from Informant "A" in this case, there was nothing to indicate the informer's source of knowledge and, as in this case, that Informer's tip was "tentative."

[46] The fact that the tip from Informant "A" proves on critical examination to be virtually incapable of having any weight arguably supports an approach in which the tip from Informant "A" would be excised from the record before examining whether the balance of the information could be accepted by an issuing justice as providing reasonable and probable grounds. There is much to be said for this. While, as explained below, confidential informants can mutually corroborate each other, there is a risk of "double-counting" or boot-strapping if informant information having value is treated as corroborating informant information that has none. In effect, and in the context of this case, permitting mutual corroboration to operate would involve assigning weight to Informant "A's" otherwise valueless tip by borrowing from what other informants have said, and then adding Informant "A's" tip to the scale to supplement the weight of the very information it depends upon for its own weight. While it may therefore be appropriate to simply excise Informant "A's" tip from further consideration, the law requires that the "reasonable and probable grounds" review by undertaken of the case as a whole. It is therefore prudent ultimately to consider the entirety of the evidence, including Informant "A's" tip, always bearing in mind that Informant "A's" tip has the deficiencies identified.

Informant "B"

[47] Informant "B" provides the following information:

(1) That a man named Mike "Pinkie" Floyd from 2745 Page Road in Ottawa was growing marijuana in his garage; (2) That he was a former police officer; (3) That the house has green siding; (4) That "Mike" drives a black Ford pick-up truck; (5) That there are a lot of people coming and going from the house; (6) That people can be seen bringing large screen televisions to and from the house; (7) That the garage has a ventilation system attached; (8) That all through the summer marijuana could be smelled coming from the ventilation system; (9) That the owner "shut down his operation" when a warrant was issued at 2742 Page Road, across the street; (10) That since the execution of that warrant improvements have been made to the rear of the garage where the cannabis marijuana grow operation is located; (11) As part of this improvement vents were said to have been moved from the top of the building to vent out the rear; (12) As part of this improvement additional insulation was added to the substructure surrounding the garage; (13) That motion sensitive lights have been added at several locations surrounding the garage to give warning of anyone near the garage; (14) The garage was approximately 100 feet in length; (15) Snow is melted from one section of the garage roof only; (16) A blower can be heard when it clicks on at which point the odour of marijuana can be detected; and (17) There is a view of the back of 2745 Page Road from a property at the rear of the house. It is a bushy area where there are power lines. It is accessible to people to walk their dogs.

[48] For reasons that will become clear it is convenient to begin the evaluation of Informant "B" by examining how compelling this information is. In this regard his information appears to be timely even though it is not clearly stated when Informant "B" furnished the information to the police. It came in two emails, one that was forwarded to Detective Brown on 21 January 2005 and "a further email" on an unspecified date. Again, with respect to the first email it may be reasonable to assume that it was forwarded reasonably promptly after it was received by Detective Carey. In any event, it is clear from the contents of the second email that it was sent some time after the 2742 Page Road raid on 19 January 2005. Since the 2745 Page Road warrant at issue here was secured on 10 March 2005, it is evident that the information was not stale when relied upon.

[49] It is obvious that the information provided from Informant "B" is highly specific and given this and its timeliness it is, on its face, tremendously compelling. While Informant "B" does not purport to have directly witnessed marijuana production or sale, Informant "B" provides extensive circumstantial identifiers highly indicative of a marijuana grow operation. The information provides more than a snap shot. It furnishes particular observations about the behaviour of the suspect, suggesting ongoing information. The informer even supplies the smell of growing marijuana and links it to the blowing system in the garage. Informant "B" also describes surveillance conscious actions by Mr. Floyd, including shutting down his business after the raid across the street, and moving the vents to the back. The record relating to Informant "B" also verifies the experience of Informant "B" with the odour of marijuana, which would assist him in knowing what it was that he smelled. A reasonable issuing justice could find the information identified in the "Information to Obtain" affidavit from Informant "B" to be highly compelling.

[50] As indicated, I have to conduct this review of what a reasonable issuing justice could conclude about this specific information by taking into account additional information that is now part of the record. Of relevance is that until 19 January 2005 a grow operation had been operating across the street at 2742 Page Road, providing an alternative source of marijuana. This, Mr. Floyd argues, makes the smell information from Informant "B" less compelling. I disagree. This new information does not significantly diminish the utility an issuing judge could find in Informant "B's" information about the smell of marijuana. First, in the initial 21 January 2005 email Informant "B" specified the direction from which the marijuana smell was coming – from the garage ventilation system at 2742 Page Road. I appreciate that Informant "B" could be mistaken about the location but this is information with some precision. Second, the "Information to Obtain" affidavit represents that even after 2742 Page Road had been shut down, Informant "B" continued to smell marijuana from 2745 Page Road. A reasonable issuing justice, even in light of the information I have added here about 2742 Page Road, could reasonably find the information form Informant B to be compelling.

[51] The fact that information is compelling, however, speaks primarily to the sufficiency inquiry. While impressive detail can reasonably make information appear more credible than a bald assertion, any reasonable issuing justice would have to consider that there are limits to the extent to which detail verifies credibility – false information can be elaborate. The primary indicia of credibility are therefore the reliability of the source and the extent to which the information finds independent support.

[52] Who then is the source of this timely information? Even though the "Information to Obtain" affidavit does not verify that Informant "B" personally made the observations he purports to report, it would be reasonable for an issuing justice to conclude that Informant "B" is the source of the observations. Documents, including "Information to Obtain" affidavits, should be read sensibly and in context. With that in mind, Informant "B" does not relay generalities. He offers a highly specific description of the activities coupled with observations that would have been ongoing – "a lot of people coming and going from this house," "Large screen televisions have also been seen being brought and leaving the house" - "when a search warrant was executed across the street at 2742 Page Road in January, the owner responded by shutting down his operation at 2745 Page Road Ottawa for approximately a week or so." In R. v. Hosie, [1996] O.J. No. 2175 at para. 14 the Ontario Court of Appeal, when commenting how the failure to specify whether the Crime Stoppers "informer" in that case had personal knowledge, commented, "Had the informer provided information as to the type of equipment and similar details then the justice might have been able to infer that the informer had obtained the information first hand." In this case, it would be an entirely reasonable inference for an issuing justice to make that Informant "B" was purporting to describe things he had personally observed.

[53] Having said that, how reliable is Informant "B" shown to be in the "Information to Obtain" affidavit? There is no basis for concluding that he is a credible person. Informant "B" is not a tested informant. This is the first time he has furnished information to the Ottawa Police Service. Only three things are known of him. The first is that at some unknown time Detective Carey questioned him. The details and results of that questioning are not shared in the "Information to Obtain" affidavit and are therefore unhelpful in showing him to be credible. Second, the "Information to Obtain" affidavit discloses that he is familiar with marijuana and how it is transacted, including the paraphernalia required. This raises questions about whether he has had illicit involvement in narcotics. Third, Informant "B" probably has a criminal record. This conclusion necessarily emerges because of the way his criminal history is presented. The "Information to Obtain" affidavit states "to the best of Detective Carey's knowledge" Informant "B" does not have any criminal convictions 'for offences of dishonesty pertaining to the administration of justice,'" and then it records that a search verified that "he has none of the above convictions," meaning convictions for offences of dishonesty." If he had no record at all it is unlikely this qualified description of his record would have been offered. By implication the only reasonable conclusion is that he probably has a criminal record for other offences. This is relevant to the credibility of Informant "B." Under the Canada Evidence Act, R.S.C. 1985, c. C-5, s. 12 any criminal conviction, whether for an offence of dishonesty or not, is considered to be relevant to the credibility of witnesses. Not only is Informant "B" not shown to be reliable, an issuing justice would therefore have to bear in mind that there may well be indicia of unreliability present for Informant "B" in the form of undisclosed criminal antecedents.

[54] To what extent is the information from Informant "B" corroborated? I have already shared my conclusion that most of the information from Informant "B" was not corroborated and that efforts at doing so were cursory and half-hearted. Here are the details. As recounted above, Informant "B" offered 17 different pieces of information. Only three received any confirmation from independent investigation with one of those being only partially confirmed. The first two things conformed are no more than biographical information - that (1) Mike "Pinkie" Floyd was confirmed as having been linked to the address supplied by Informant "B" and (2) that he was a former police officer. The third point, point (8) is partially confirmed. It is known that that a search warrant was executed across the street at 2742 Page Road in January. The most telling part of point (8) however - that the owner of 2745 Page Road responded by "shutting down operation" - is not confirmed at all.

[55] To be sure, some of the information was transient and could not easily be confirmed, specifically point (5) that a lot of people are coming and going from the house and (6) that large screen televisions have been seen being brought and leaving the house (the relevance of which is unclear) (7) that marijuana could be smelled throughout the summer (it now being the winter) and (8) that insulation had been added to the interior. Yet the balance of the information described things that could have easily been confirmed to be true if reliable, including (4) that "Mike" drives a black Ford pickup truck, (7) that the garage has a ventilation system attached, (10) that improvements have been made to the rear of the garage, (11) that vents were moved from their former location on top of the building to the rear of the building, (13) that motion sensitive lights were added at several locations for the apparent purpose of detecting movement near the garage, (14) that the garage was approximately 100 feet in length, (15) that snow is melted from one section of the garage roof only, (16) that a blower can be heard when it clicks on at which point the odour of marijuana can be detected, and (17) there is a view of the back of 2745 Page from a property at the rear of the house where there are power lines. The "Information to Obtain" affidavit disclosed no efforts to confirm any of this information as reliable, in spite of the bald assertions made in the "Information to Obtain" affidavit that Informant "B" has proven to be reliable to the extent possible. The fact remains that there is almost no confirmation from any police investigation of what Informant "B" says, even though a number of the things listed- a ventilation system, vents, motion sensitive lights at several locations to detect movement near the garage, the uneven melting of snow, a blower and the smell of marijuana – together are the most material indicia of a grow operation. The extent to which Informant "B" is corroborated by hydro records and mutual corroboration between Informants is canvassed below.

Informant "C"

[56] After receiving the information from Informants "A" and "B" a police check uncovered a third tip from Informant "C" who said that:

(1) A "grow house" was located in the rear yard of 2745 Page Road; (2) There were grow lights inside; (3) There was a security code on the garage; (4) At times he could really smell marijuana coming from the garage, and (5) Unknown persons come at all hours of the night.

[57] On its face the information supplied by Informant "C" is moderately compelling. He offers more than a bald assertion. The smell of marijuana coming from the garage that he describes is strong indicia, even allowing for the operation at 2742 Page Road that may have been operating at the time this tip was furnished. By contrast the security code is of little utility as security codes are common in residential buildings, but the "grow lights" inside are significant. Someone would have to be in proximity to the garage to identify these. While the heavy night-time traffic is consistent with many lifestyles, taken with other information it gives some modest support to the inference that a marijuana grow operation was being operated at 2745 Page Road.

[58] The degree to which the information is compelling would nonetheless be compromised in the eyes of a reasonable issuing justice, however, by the age of this information. This report was received on February 27, 2004, more than a year before the warrant was secured. This information is stale enough to reduce how compelling the information is even bearing in mind that what is being described here is likely to be an ongoing enterprise.

[59] Once again, it is not clear whose information is being conveyed. There is no indication that Informant "C" personally observed what he describes. This information does not have the specificity that would make it reasonable to infer that these are probably things Informant "C" observed. This tip could well be communicating double-hearsay.

[60] Moreover, nothing is known of Informant "C's" credibility. He is evidently an anonymous informant as no biographical information is provided other than the informer's sex. There is therefore no foundation for finding him to be reliable.

[61] Once again there is no meaningful corroboration of this tip through investigation. No attempt was made to confirm any of this information, that (2) there were grow lights inside; (3) there was a security code on the garage; that (4) at times marijuana could "really" be smelled coming from the garage, and that (5) unknown persons come at all hours of the night. Again, leaving mutual corroboration and the hydro information aside for the moment, there is no meaningful corroboration disclosed in the "Information to Obtain" affidavit arising from any effort by the police to confirm what Informant "C" reported.

Examination of the Hydro Information

[62] Hydro information can provide in important foundation for a search warrant. The "Information to Obtain" affidavit sworn by Detective Brown includes the claims (1) that the hydro consumption at the residence was excessive (para 5.06), the "kind of large amount of electricity" often present in indoor hydroponic grow operations; and (2) that the hydro consumption at the residence (the home and the garage which are separately metered) reflect the kind of dramatic fluctuation (para.3.12 for the garage) or very substantial increase in usage (para. 3.13) consistent the high peaks generated with marijuana grow operations (para.3.12 and "F. GROUNDS TO BELIEVE AN OFFENCE HAS BEEN COMMITTED"). Taken at face value these claims, if true, would be highly probative of a grow operation, even though excessive consumption and high fluctuations can be caused innocently. The sufficiency standard is "reasonable and probable grounds to believe" and not proof positive. There are however troubling issues about these hydro readings relating to the credibility inquiry required by the reasonable and probable grounds standard.

Excessive Hydro Consumption

[63] As I have already ruled above, the claim made by Detective Brown in paragraph 5.06 that the hydro consumption in this case is excessive is worthless. It is a bald claim unsupported by any information. The hydro information in this case is nothing like the evidence offered in R. v. Plant, [1993] 2 S.C.R 281 and R. v. Kesserling, [2000] O.J. No. 1436. As indicated, absolutely no attempt was made to confirm usual hydro consumption patterns for similar properties or to otherwise determine how much electricity might ordinarily be consumed by properties of the kind in question. In R. v. Hosie, [1996] O.J. No. 2175 (Ont.C.A.) the Court found that an opinion that was not sufficiently detailed and whose source is not sufficiently identified cannot support an allegation that marijuana is being grown. Although the Ontario Court of Appeal did not expressly endorse the ruling, in R. v. Jacobsen, [2006] O.J. No. 1527 at para 10 it did not take issue with the decision of the trial judge to strike inaccurate hydro evidence from the "Information to Obtain" affidavit. With respect to the "excessive consumption" claim, I have done the same here.

Fluctuating Usage

[64] As indicated, Detective Brown represents in the "Information to Obtain" affidavit that Hydro Ottawa records show high peaks in the hydro usage for both the garage and the house at 2745 Page Road, consistent with the operation of Cannabis marijuana grow operation. Specifically paragraph 3.12 speaks of two hydrometers on the property, including a small commercial metre for the garage.

[65] With reference to the small commercial meter in the garage that paragraph describes a "dramatic fluctuation" in usage between December 2003 and February 2004, showing an "increase of usage" of 2067 KW. There is also said to be a "substantial difference" between December 2004 and February 2005" showing an increased usage of 1310 KW.

[66] Paragraph 3.13 speaks of the hydrometer for the house showing a "very substantial increase in usage as well." An increase from October 2004 to December 2005 of 4381 KW is described while an "increase of usage" from "December 2005 (which I interpret to be December 2004) to February 2005" is described as 10631 KW.

[67] This information about readings in the garage and house are offered to support her opinions at 3.11 that the "high peaks in hydro usage" at the property "is consistent with a cannabis marijuana grow operation" and at "F. GROUNDS TO BELIEVE AN OFFENCE HAS BEEN COMMITTED" that "billing … shows high peaks in usage which is consistent with marijuana usage."

[68] Although no claim is made in the "Information to Obtain" affidavit that Detective Brown is an expert hydro witness, in its totality the document represents by obvious implication that Detective Brown has the experience to present the opinions being offered here, including the interpretation of hydro readings. She is represented in the "Information to Obtain" affidavit as a 5 year member of the Ottawa Drug Unit who has studied a Drug Investigator's Techniques Course. The "Information to Obtain" affidavit specifies that hydroponic grow operations require a large amount of electricity and she offers the opinion that "The Hydro Ottawa billing for the residence located at 2745 Page Road, in Ottawa, shows high peaks of usage, which is consistent with a cannabis marijuana grow operation." And she explained, albeit using boiler-plate passages, how exhaust blowers and fans are used in grow operations.

[69] Mr. Floyd took extensive issue with the Hydro Ottawa information provided in the "Information to Obtain" affidavit. He was able to demonstrate during the cross-examination of Detective Brown that the presentation of the reading information is misleading. The figures Detective Brown presents show the actual hydro usage in the relevant building over the designated period. They do not show the "increase in usage" during that period as represented. To determine the "increase in usage" one would have to subtract the actual usage in that period from the usage it is being compared to. The "increased usage" between December 2003 and February 2004 for the garage, for example, is not 2067 KW as shown. Figures contained in the Hydro Records filed as Exhibit 13 show that the increased usage is actually 1,376 KW (2067 KW which is the usage from 12/12/2003 to 02/16/2004, minus 691 which is the usage during the prior two month period). Given that the hydro usage for the following two month period as shown in Exhibit 13 was 1,404 KW, the hydro consumption during that winter period was actually quite consistent. The imprecise presentation of this data paints a distorting picture. Indeed, during cross-examination Detective Brown agreed that the readings for the garage (the building using the small commercial meter referred to in Exhibit 13) during the entire period after the meters were installed and when the usage began in December 2003 are in fact quite consistent. That this is so can be seen in Exhibit 16.

[70] I have no reason to believe this information was intentionally misleading. As indicated below, I find that this misleading presentation of information occurred because Detective Brown knows relatively little about hydro consumption. It is therefore necessary to delete the misleading information from the "Information to Obtain" affidavit. In this context I would delete as materially misleading the references to "increase in usage" and amplify paragraphs 3.12 and 3.13 so that they refer to "usage."

[71] The foundation for the "very substantial increase in usage" and "high peaks and fluctuations" for the house is also problematic. Detective Brown repeats her error in describing actual usage as "increases," again creating a misleading impression. Then, as with the garage, the rate of consumption is provided for only two periods, October to December 2004 and December 2004 to February 2005. Two periods can show an increase but not fluctuations, particularly where no baseline is provided. Yet no attempt to offer comparators over time that would enable the claims about dramatic fluctuations and high peaks in usage to be objectively verified. To be sure the kilowatts used in the first period were 4381, and during the second, 10631 showing a marked change, but the two periods represent different seasons, the fall of one year and the winter of another. It is common knowledge that hydro usage can vary tremendously seasonally. With respect to the house, these two readings on the face of the "Information to Obtain" affidavit offer little reasonable basis for the high peaks and dramatic fluctuation inferences she invites.

[72] I have asked myself whether a reasonable issuing justice could credit Detective Brown's opinions about the presence of material fluctuations indicative of a grow operation based on inferences about her expertise and competence to supply such opinions. On the record before me this would not be reasonable. As intimated above, Detective Brown was shown during the Garofoli hearing to have no real competence in interpreting hydro readings. Her confident testimony in the affidavit about how to determine whether hydro usage in grow operations is consistent with a grow operation and what the information signifies here broke down in cross-examination. As indicated, she erroneously confused the amount used over a period with an "increase in usage." She admitted when asked about her comprehension of hydro readings that she does not even know how to read a hydro meter or how a hydro supplier goes about determining what people are billed for. She explained that her husband looks after the meter at home. Although this case did not require her to read meters or even raise issues as to how they are read, her evidence in this regard shows that she is manifestly a person with little knowledge about issues relating to hydro. Indeed, during re-examination she recounted how she was told by an unknown employee of unspecified competence at Hydro Ottawa that "there shouldn't be that much difference in the regular running of the house." Anyone with their own competence to identify material alterations in hydro usage and relate them to indicia of criminality would not require such confirmation or relate it as a basis for the opinion being offered. While hydro information can be relied upon reasonably without expert evidence, (R. v. Kesserling, [2000] O.J. No. 1436) and while it is not necessary for the affiant in a search warrant information to be an expert the point is that in this is a case Detective Brown has insufficient expertise to interpret hydro consumption patterns, identify material fluctuations in hydro usage, and give them competent interpretation. She should have disclosed this in the "Information to Obtain" affidavit given that she was expressing interpretive opinions about the significance of fluctuating usage and purporting to educate the issuing justice about hydro issues. Fairness requires that for the purposes of review, this be added to the record for review. With that intelligence in hand, and given the absence of sufficient detail from which the dramatic fluctuation conclusions could be sustained, this hydro information has virtually no utility, again, something that needs to be borne in mind when undertaking the evaluation of the warrant information, as a whole.

Evaluating the Amended "Information to Obtain" Affidavit Record as a Whole

[73] The task, given this specific information about each source of information, is to determine whether looking at the information as a whole an issuing justice could have reasonably been satisfied that there were reasonable and probable grounds to issue this search warrant.

[74] Manifestly, there is enough detailed information to satisfy the sufficiency component of the reasonable and probable grounds inquiry. If the information in the "Information to Obtain" affidavit from Informants "A," "B" and "C" and the dramatic fluctuation opinion relating to hydro consumption is assumed to be true there is a reasonable probability as opposed to a mere suspicion that a marijuana grow operation was being operated at 2745 Page Road in the City of Ottawa.

[75] But is there a sufficient foundation for an issuing justice to conclude reasonably that this probability is "credibly based?" Bearing in mind that the sum can be greater than its parts given the confirming impact that overlapping evidence can have, it is still important to appreciate the strengths and weaknesses of the constituent parts. To summarize the foregoing:

a. What Informant "A" offers is arguably not even evidence. Informant "A," whose reliability is completely unknown, offers his belief based on no evident foundation other than night-time traffic that Mr. Floyd may be "growing and selling." It is not even clear that Informant "A" has personal knowledge of the things that have been reported;

b. There is no basis for finding the key informant, Informant "B," to be a reliable person – he is an untried informant who probably has a criminal past. His account finds no material confirmation in the investigation. None of the salient information he provides is confirmed by independent evidence, even where it could have been if it was true. While the detail and precision of information has some logical tendency to buttress confidence in his credibility, taking the evidence of Informant "B" alone no reasonable justice could be satisfied that his allegations are probably credibly based.

c. Similarly there is no basis for finding Informant "C" to be a reliable person. It is not even known if he is the source of his information, which is more than a year old in any event. None of the details he gives are corroborated by investigation. Nor is it compelling enough information given its modest particularization and its staleness to find it to be probably credible because of the quality of the information.

d. The "Information to Obtain" affidavit provides little objective support for the fluctuation claims relating to hydro consumption. With respect to the garage, the Garofoli cross-examination confirmed that the values depicted were for actual usage in the period in question, not an increase in usage, and that fairly interpreted the figures show the usage to be largely consistent. With respect to the house, only two values are provided. Logically a fluctuation cannot be confirmed by two values. Moreover the two values that are shown depict usage and not increases in usage as represented and those figures reflect usage during different seasons, the fall and winter respectively. The Garofoli cross-examination showed that the interpretation of the significance of the variations was done by someone with no expertise and little understanding of hydro matters.

The material question is whether this information, together, could reasonably support a finding that a conclusion about the probability of a marijuana grow operation operating at 2745 Page Road is credibly-based.

[76] The law does allow for mutual corroboration between different sources of evidence, including between confidential informants in appropriate cases. R. v. Saunders, 2003 NLCA 63, [2003] N.J. No. 309 is the case of highest authority. The Newfoundland Court of Appeal ruled that while it may be true that no one confidential informant provided sufficient evidence to support a warrant the "totality of the circumstances" inquiry imposed on a reviewing judge required the reviewing judge to recognize that "the information from three [confidential] sources is corroborative inter se: because of this, the whole of their information is greater than the sum of its parts". This decision was affirmed in a brief endorsement in R. v. Saunders, [2004] S.C.J. No. 66, with the Court commenting that "there was sufficient material before the Justice of the Peace to support the issuance of the search warrant." In R. v. McElroy, 2009 SKCA 77, [2009] S.J. No. 416 (Sask C.A.) the Court used mutual corroboration. Similarly, in R. v. Gianforte, [2003] O.J. No. 5711 (Ont. C.J.) a "factor" supporting the reviewing justice in upholding the warrant was that "all four main sources corroborated each other." In R. v. Jorge, [2010] O.J. No. 3847 at para. 33 (Ont.S.C.J.) the evidence of one confidential informant was found to "contribute to the strength of other informant's evidence."

[77] While mutual corroboration is therefore entirely appropriate it bears notice that in each of these cases one or more of the informants were a person of demonstrated reliability. Here, taking things at their highest, the issue is whether three untried informants and largely unsubstantiated conclusions about hydro consumption can provide sufficient mutual support to make the grade.

[78] If one looks solely at the ultimate allegation and the points of intersection between Informants "A," "B" and "C," there are points of mutual support that appears to have significance. All three informants speak of night-time activity at 2745 Page Road. Two of the three, Informant's "A" and "B," place the alleged grow operation in the garage at 2745 Page Road and describe the smell of marijuana from the garage. Informants "A" and "B" both speak of a black truck and both speak about a "Mike" linked to the residence. Informants "B" and "C" both report grow-op equipment, albeit different equipment.

[79] It cannot be forgotten when deciding how useful these commonalities are in providing mutual corroboration to consider their source. One of the key things required for meaningful confirmation is that the information must come from different sources and must truly be independent. With respect to Informants "A and "C" there is no basis for concluding that they are reporting their own observations. This and their anonymity would deprive a reasonable issuing justice of any confidence they may have in the independence of the information from these informants. Moreover, Informant "A" offers a "belief" in "buying and selling," betraying that he does not even purport to have direct knowledge that this is so. Given this and the residual uncertainty of whether he is reporting personal information or about whether this is information is independent of the other informant information, the only reasonable conclusion is that the corroborative force of Informant "A's" information is virtually non-existent. It would be dangerous to treat it as rehabilitating or supporting other evidence in a material way. The same is true of Informant "C's" information. Again, the inability to infer its independence, uncertainty about whether this information represents the personal knowledge of Informant "C," and the age of the information together denudes it of real corroborative force. This is not a case, in my opinion, where mutual corroboration from these Informants can be used to support the claims of Informant "B," even bearing in mind their detail He remains an untried informant, who there is reason to believe may have criminal antecedents, and whose information rests without meaningful corroboration.

[80] The Ottawa Hydro information does nothing to confirm these informants nor does the independent police investigation. With respect to the Ottawa Hydro information, the excessive consumption claim is a bald assertion and the fluctuation, high peak conclusion is offered by a non-expert witness with inadequate experience with hydro information to support results presented in the absence of a supportive foundation. The hydro information is virtually worthless. The investigative corroboration proves no more than Mr. Floyd, an ex police officer, is associated with the residence and apparently lives there.

[81] I understand that the standard is "reasonable and probable grounds," not proof, and that the law should not frustrate but should instead support responsible investigative initiatives. A search pursuant to a warrant is nonetheless a significant intrusion into the privacy of individuals and the standard of credibly-based probability has to have sufficient substance to achieve an appropriate balance. It would be unjust in applying this standard, in my opinion, to rehabilitate empty information using problematic information. An issuing justice could not, in my view, when viewing the information available in this case in its totality, be satisfied that the credibly-based probability standard required for a valid search warrant under section 11 of the Controlled Drugs and Substances Act has been met. Section 8 of the Charter was therefore violated by the issuance of this warrant on this foundation.

Complaint 3 – Intentional Misconduct in Securing the Warrant

[82] There may be cases where material non-disclosure and misrepresentations are egregious enough that, independently of the question of reasonable and probable grounds they may violate the Charter. This is not one of those cases.

[83] Mr. Floyd urged that Detective Brown engaged in what can only be described as systematic misrepresentation and withholding of information. His arguments broached conspiracy theory. He cited her misleading use of the Hydro Records, his theory of buried surveillance, his theory that she hid from the issuing justice that the building was a multi-unit residential building, and he intimated that there may have been changes to the document after it was issued by the Justice of the Peace to alter the dates on the warrant. He claimed that she failed to disclose adequately the history of her efforts to secure the warrant on three occasions and did not adequately disclose the concerns that Justice of the Peace Chappelle had when she rejected a telewarrant application. He also claimed that Detective Brown intended to mislead when she left paragraph 3.07 in the warrant disclosing that in-house police records had Mr. Floyd as the owner of the property even after she discovered, as reflected in paragraph 3.17, that Ms. Mary Carmella Floyd is the real registered owner.

[84] I reject each of these assertions and therefore any bad faith-based Charter challenge. I have already found that Detective Brown did not intend to mislead when providing the Hydro Ottawa information. That error was the product of her lack of expertise and not of malice. Mr. Floyd's surveillance claim and multi-unit residential building claim are not supported by evidence. As for the date changes in the documents, Detective Brown gave a credible explanation for them – the typed sheet did not reflect the correct date and Justice of the Peace Sculthorpe was comfortable simply having them changed by pen. I am not troubled that this was done instead of inserting a typed corrected signing page that Detective Brown prepared. Moreover, contrary to Mr. Floyd's submissions there was no need for the Justice of the Peace to initial the date changes he had Detective Brown make. Those changes were already entered by Detective Brown before the information was sworn. They were her changes, not Justice of the Peace Sculthorpe's. I also find that there was adequate disclosure of the failed attempt to secure the telewarrant. And finally, while the information in paragraph 3.07 is of qualified utility in light of the information in paragraph 3.17, paragraph 3.07 is not misleading. Given that in-house Ottawa Police Service records mistakenly show Mr. Floyd to be the registered owner of 2745 Page Road, the identical error made by Informant "A" does not seem outrageous. Something caused both he and the Ottawa Police Service to have that same mistaken impression. Had Detective Brown left paragraph 3.07 in without paragraph 3.17 that would have been misleading. This was not.

Complaint 4 - Authorization and Execution in the Evening Hours

[85] Mr. Floyd argues that it was inappropriate and contrary to the Charter for Detective Brown to secure a warrant authorizing a search of 2745 Page Road in the evening hours. The warrant she obtained authorized that search between 6:00 p.m. and 11:59 p.m. He pointed out that the "Information to Obtain" affidavit used to secure this authority was misleading in that it sought justification for the warrant on the basis that "persons responsible for grow operations are seldom in attendance at the location for extended periods of time ... and ... typically at night." In this case Detective Brown used that recital even though she was aware that this was an inhabited residential building and she believed he resided there. He also complained that the police breached the Charter by maintaining control of the property into the next day.

[86] I agree with Mr. Floyd that the insertion of the boilerplate recital about the practices of grow operators found in paragraph 9.01 ought not to have been used without modification. It was misleading given the facts known to Detective Brown. Again, I do not find this to have been intentionally so. Heavy reliance on boiler-plate clauses was used in preparing this warrant. That it is a "cut and paste" job is evident from the fact that the paragraph numbering does not sequence properly. The inclusion of paragraph 9.01 was the result of inattention.

[87] What matters ultimately is that no evidential foundation was in fact required to secure authority for an evening search. Unlike the Criminal Code of Canada warrant provision in section 487, there is no requirement under the Controlled Drugs and Substances Act that night-time searches need to be specifically justified. Subsection 11(1) authorizes searches at "any time" and it has been held that nothing need be shown by an applicant to secure this authority: R. v. Dueck, 2005 BCCA 448, 200 C.C.C. (3d) 378 (B.C.C.A.). Even though paragraph 9.01 should not have been included "as is" in the "Information to Obtain" affidavit its inclusion does not amount to a Charter violation.

[88] Finally, Mr. Floyd argued during the hearing that his rights were violated when the police remained in charge of his residence past 11:59 p.m. on 10 March 2005. This was no violation. The warrant authorized entry by that time. It did not require exit by that time. See R. v. Woodall, [1993] O.J. No. 4001 (Ont.C.A.).

[89] Mr. Floyd also urged that there was over-holding – that there was no reasonable basis for the police to remain in charge of the premises. He challenged the claim by the police that there were real concerns about the safety of entering the premises given the way it was wired. He urged in argument that the police used this is a pretence to delay completing the seizure. The real reason for the delayed execution was so that officers could leave to execute another warrant. There has been no satisfactory factual record to sustain these concerns and I reject them.

Remedy

[90] Having found that the search warrant was secured without reasonable and probable grounds, I must consider the appropriate remedy. Mr. Floyd seeks the exclusion of all evidence obtained pursuant to the warrant, under section 24(2) of the Charter. If I conclude after examining the 3 factors identified by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 that the admission of this evidence in the proceedings would bring the administration of justice into disrepute I am required by law to exclude all of that evidence as it as clearly obtained in a manner that contravened the Charter.

[91] R. v. Grant essentially requires that I consider whether (1) the breach is serious enough and (2) the impact on the Charter-protected interests of Mr. Floyd is significant enough to (3) outweigh society's interest in the adjudication of the case on the merits. I am to ask given that examination whether a reasonable person, fully informed of the all of the circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute. When asking this question the focus is on the damage that condoning the Charter violation could do to the long-term interest in maintaining the integrity and public confidence in the justice system. This is not a mathematical exercise. I am to make a determination applying the correct principles of law and achieve a result that is appropriate in the circumstances.

[92] First, I gauge this breach to be serious, albeit not flagrant. I am persuaded that at no point did Detective Brown understand that she was violating Mr. Floyd's Charter rights. I also bear in mind that whether reasonable and probable ground exist calls for the exercise of judgment. A misjudgement about whether the threshold has been met may simply be an error of judgment, not a flagrant violation.

[93] Still, in all of the circumstances Detective Brown fell far below the level of care that should have been exercised in preparing this warrant application. She should have used far more care in interpreting and relaying the Hydro data. She should have been alert to and candid with the Justice of the Peace in disclosing the deficiencies in her own understanding instead of presenting a series of authoritative statements that would create the impression she could speak with authority in interpreting hydro data. She should have appreciated that she needed to support her opinions with a credible foundation and she should not have accepted that the existence of multiple Informants obviates the need for a critical exploration of the credibility of the information. She should have appreciated that Informant "A" provided almost nothing by way of support for the belief there was a grow operation and that the information from Informant "C" could well have been double hearsay. More care should have been exercised in proclaiming these Informants to be confirmed reliable. Detective Brown also, in my opinion, failed to attend to her obligation to make full, frank and fair disclosure when reporting the police record of Informant "B." The decision to disclose only that the had no record for offences of dishonesty against the administration of justice, without disclosing what he did have, was almost certainly nothing less than a tactical way of creating the impression that Informant "B" was reliable by spinning his criminal record information and presenting in a way that would appear favourable. Most significantly, it was nothing short of grossly negligent on her part to assert that the information of the informants has been corroborated to the extent possible when it had not been. It appears that undue and careless reliance on standard recitals resulted in the inclusion of these claims, which did not fit the facts, just as the expressed foundation for a night-time search did not fit the facts yet was included nonetheless. Mr. Floyd submitted with some effect that the fact that Detective Brown would submit an application for a search warrant of a residential premise without taking obvious and simple steps to ensure that the warrant information was reliable is near bad faith. I agree to this extent. In its totality the lack of care reflected here signals a blameworthy failure to respect and attend to the importance of ensuring that privacy interest are not interfered with on the basis of what might well be inaccurate information.

[94] I also find that the nature of this breach was serious. This is not a technical contravention. One of the key safeguards for privacy – reasonable and probable grounds – was absent. I understand that facially the information gathered in the "Information to Obtain" affidavit showed that there was probably a grow operation present at 2745 Page Road but there was no demonstration of probable credibility, and credibility is not some incidental feature. It is a condition precedent to reasonable and probable grounds.

[95] In sum, I find the breaches here to be serious, even if they are not flagrant.

[96] Second, as conceded by the Crown, the impact on Mr. Floyd's Charter protected privacy rights was significant. He had a high expectation of privacy in his home. The search of home not only involves the compelled loss of control over one's place of refuge and exposes occupants to the stigma of a police operation, the entry of a home exposes extensive information about one's lifestyle. When the home is a family home the stress of the event is compounded by the impact such an event has on other family members. Not only was Mr. Floyd's home entered. It was secured for a protracted period of time by a team of officers. While I reject any suggestion that the search was conducted in an abusive fashion, the impact of the breach on Mr. Floyd's Charter protected interest was considerable.

[97] Third, and on the other side of the equation, the evidence sought to be excluded is crucial to the Crown's case and its reliability cannot be denied. Exclusion will undercut this prosecution and undermine the societal interest in adjudicating this case on its merits. While I do note the seriousness of the offence against Mr. Floyd, particularly given the quantity of marijuana and the sophistication of the grow operation, the Supreme Court of Canada has cautioned that the seriousness of the offence is a factor that cuts both ways (at para. 84). It supports admission given the higher public interest in ensuring serious cases are tried on their merits, but that factor is largely offset by the elevated interest the accused has in enjoying his Charter interests when the stakes for him are particularly high given the seriousness of the offence alleged. Courts must be cognizant not to send the mistaken message to the public that the Charter is suspended if an alleged crime is serious enough. Accordingly what is to be of concern is not how people might view the decision to gut a serious case in isolation. The measure is whether the long-term interests of the administration of justice are better served, in the long run, by remedying the Charter violation by exclusion or by admitting the evidence in spite of the breach.

[98] Having considered these factors I am granting the remedy requested and hereby exclude all of the evidence secured pursuant to the unconstitutional search. The admission of the evidence in these circumstances would send the message that the serious Charter breach in this case is being condoned, and suggest that the Charter interests at play are not important enough to warrant protection. I recognize the price of exclusion is a heavy one but on balance, I judge the costs to the reputation of the administration of justice of admitting the evidence and feeding these impressions to be greater in the circumstances of this case than the costs of its exclusion.

Released: June 15, 2012

The Honourable Justice D.M. Paciocco