Ruling on Charter Application

Court File No.: BRAMPTON 11-2516

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Emmanuel Farrugia

Before: Justice Robert Kelly

Heard: April 10, 12, 30, May 1, 2, 4, 7 and July 5, 2012

Released: September 7, 2012

Counsel:

Mr. S. Aujla for the Crown

Mr. L. Adler for the defendant Emmanuel Farrugia

I. INTRODUCTION

[1] Emmanuel Farrugia is charged with producing marijuana and possessing the same substance for the purpose of trafficking. He seeks a stay of proceedings or exclusion of evidence on the basis that his rights under sections 8 and 9 of the Charter were infringed. He challenges validity of:

1. searches under warrant at his home and two industrial units;
2. his arrest; and
3. warrantless searches of his person and a vehicle.

[2] I have concluded that none of Mr. Farrugia's Charter rights were infringed and that the application should be dismissed.

[3] I will begin with an overview of the application and then turn to my analysis.

II. OVERVIEW

[4] On the afternoon of Sunday, January 30, 2011, during a drug investigation sparked by information from a confidential informer ("CI"), Constable Hill of the Peel Regional Police applied to the telewarrant centre for warrants under s. 11 of the Controlled Drugs and Substances Act ("CDSA") to search the following places in Mississauga:

• the dwelling house at 6290 Mulberry Crescent; and
• the industrial units at 278 Watline Avenue and 445 Admiral Boulevard, Unit 7.

[5] At 3:15 p.m., a Justice of the Peace issued the three warrants. About an hour later, police knocked on the door of the residence. There was no answer. Officers entered and began the search.

[6] Shortly before 5:00 p.m., Mr. Farrugia pulled into the driveway in a Volvo station wagon with his wife and child. He entered the home. Detective Smith arrested him for production of a controlled substance. He searched his person and seized several sets of keys from his pocket. Another officer searched the Volvo and found marijuana and Oxycodone pills. In the residence, officers found 11 grams of marijuana in the garage and 7 grams of marijuana in a cold cellar. The police also seized some vehicles in the driveway but these were later returned.

[7] Later that evening, officers entered the two industrial units using, in each case, a key seized from Mr. Farrugia on arrest. At each location, they found a marijuana grow operation. In total, the police seized:

• 20,250 marijuana plants (about 10,000 from each unit);
• 330 kilograms of wet marijuana; and
• 13 kilograms of dry marijuana.

[8] Mr. Farrugia was charged with four offences:

• two counts of producing marijuana (one each in relation to the industrial units);
• one count of possessing marijuana over 3 kilograms for the purpose of trafficking; and
• one count of possessing Oxycodone.

[9] Mr. Farrugia applied under the Charter for a stay of proceedings or exclusion of evidence, contending that:

1. the warranted seizures from the dwelling house and industrial units infringed his s. 8 right to be secure against unreasonable search or seizure;
2. the arrest violated his s. 9 right not to be arbitrarily detained; and
3. the warrantless seizures from his person and the vehicle offended s. 8.

[10] The Crown did not dispute that there was evidence on which Mr. Farrugia could meet the threshold requirement of establishing that he had a reasonable expectation of privacy in the places searched. In addition, the Crown conceded that:

1. the seizure of Oxycodone and marijuana from the Volvo infringed s. 8; and
2. as part of its onus to establish the reasonableness of the warrantless seizure of the keys from Mr. Farrugia's person on arrest, the prosecution has the burden of showing that the arrest was lawful – in other words, that it was based on reasonable grounds.

[11] The Informations to Obtain the three search warrants are identical except for the items sought and the offences alleged. More particularly, the grounds for belief in Appendices C and D are the same in each Information to Obtain ("ITO"). Since those grounds drew heavily on information from a CI, the issuing justice ordered that the documents be sealed. After the charges were laid, the sealing order was varied and the Crown vetted the ITOs to protect the CI's identity and then disclosed an edited copy of each document to the defence.

[12] On the first day of the hearing, the Crown acknowledged that the ITOs, as edited to protect the CI's identity, do not provide a basis on which a justice could have issued the search warrants. The prosecutor conceded, in other words, that based on the redacted ITOs, the warrants were invalid.

[13] Crown counsel took the position, however, that the court should follow the procedure that has come to be known as "Step 6 from Garofoli." Mr. Aujla submitted that in assessing the validity of the search warrants, I should consider the original unedited ITOs and that the defence should be apprised of the nature of the redacted information through judicial summaries. The defence did not object to the court's resorting to the Step 6 procedure.

[14] Crown counsel provided a draft judicial summary for my review. After much discussion (which, necessarily, took place without input from defence counsel, who did not receive the draft summaries), we arrived at a version of the summary document that was given to the defence. Mr. Adler raised no objection to the judicial summaries.

[15] Mr. Farrugia's challenge to the search warrants questions both their "facial validity" and "sub-facial validity." With leave of the court, Defence counsel cross-examined four police officers on the searches:

• Constable Hill, the affiant on the warrant applications;
• Constable Shadlock, the sub-affiant who smelled marijuana during surveillance at the two industrial units;
• Constable Langdon, the CI's handler; and
• Detective Smith, the arresting officer.

[16] The application raises three main issues:

1. whether the warranted seizures from the residence and industrial units infringed s. 8 – more particularly, whether the search warrants were valid;
2. whether Mr. Farrugia's arrest was unlawful and therefore arbitrary contrary to s. 9 – more particularly, whether there were reasonable grounds for the arrest; and
3. whether the warrantless seizure of the keys from Mr. Farrugia's person offended s. 8 – more particularly, whether the seizure was made during a valid search incident to arrest.

III. ANALYSIS

[17] I will first address the validity of the seizures under warrant and then consider the arrest and warrantless seizure of the keys.

A. The Warranted Seizures

[18] A search is reasonable if it is authorized by a reasonable law and carried out reasonably. The searches of the home and industrial units were authorized by warrants issued under s. 11 of the CDSA. It is the applicant's position that the search warrants were invalid because:

1. the ITO failed to disclose reasonable grounds to believe that Mr. Farrugia had committed the offences under investigation and that the evidence sought would be found at the places to be searched; and
2. there were insufficient grounds for the issuance of telewarrants as opposed to warrants based on personal attendance of the applicant.

[19] If the warrants were invalid, the searches and seizures were without legal authority and therefore unreasonable.

(1) Governing Principles

a) Reviewing Search Warrants

[20] A search warrant is presumptively valid. The issuing justice's decision must be upheld unless the applicant meets his or her burden of demonstrating the warrant's invalidity by establishing on a balance of probabilities that there was no basis for its authorization.

[21] A challenge to a search warrant may engage review for "facial validity" and/or "sub-facial validity." In determining whether a search warrant is facially valid, the reviewing judge considers the information presented to the issuing justice without regard to the evidence called on the voir dire about the reliability of that information and asks whether:

1. the warrant, by its terms, authorized the search and seizure; and
2. on the evidence contained within the four corners of the ITO, the justice, acting reasonably and judicially, could have issued the warrant.

[22] In Sanchez, Hill J. identified the following facial validity review guidelines:

1. Quality of drafting

Search warrants are statutorily authorized investigative aids issued most frequently before criminal proceedings have been instituted. Almost invariably a peace officer prepares the search warrant and information without the benefit of legal advice. The specificity and legal precision of drafting expected of pleadings at the trial stage is not the measure of quality required in a search warrant information.

2. Review of the whole document

The appropriate approach for judicial review of a search warrant information is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information provides the fair and reasonable context for the assertion in question.

3. Drawing reasonable inferences

A search warrant information draftsperson or affiant is obliged to state investigative facts sufficient to establish reasonable grounds for believing that an offence has been committed, that the things to be searched for will afford evidence, and that the things in question will be discovered at a specified place. An issuing justice is entitled to draw reasonable inferences from stated facts and an informant is not obliged to underline the obvious. In this regard, some deference should be paid to the ability of a trained peace officer to draw inferences and make deductions which might well elude an untrained person. Probable cause does not arise, however, from purely conclusory narrative. A search warrant information is not a Crown brief and the affiant is not obliged to record every minute step taken in the investigation.

[23] A "sub-facial" attack goes behind the face of the ITO to challenge the reliability of its content. The reviewing judge considers the record that was before the issuing justice in light of the evidence called at the review hearing and asks whether there is a basis on which the justice could have issued the warrant. The classic statement of the test is from the Supreme Court of Canada's decision in R. v. Garofoli:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[24] An evidentiary basis that is schematic in nature may suffice to meet the test. It must, however, be a basis founded on reliable information. In Araujo, the Supreme Court framed the sub-facial review inquiry in these terms:

…[The] test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have been issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge.

[25] In Morelli, the court reiterated:

The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.

[26] The reviewing judge must excise information that is erroneous or that was obtained contrary to the Charter. There is no authority, however, for the court to exclude correct information. Instead, as the Ontario Court of Appeal said in R. v. Ebanks:

…[The] proper approach is for the reviewing judge, after excluding the erroneous information, to assess the affidavit as a whole to see whether there remains a basis for the authorization in the totality of the circumstances.

[27] Where the erroneous information results from error and not from a deliberate attempt to mislead the issuing justice, amplification may be in order. There is no need, however, to amplify the record if sufficient reliable material remains after excising the erroneous information.

[28] The court must remain mindful of the risk that amplification can become a means of circumventing the prior authorization requirement. As the court explained in Araujo:

Since a prior authorization is fundamental to the protection of everyone's privacy interests … amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorization procedure into a sham. On the other hand, to refuse amplification entirely would put form over 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 the drafting of their affidavit material.

[29] In Morelli, the court reiterated the limited scope of amplification evidence:

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

In all cases, the focus is on "the information available to the police at the time of the application" rather than information that the police acquired after the original application was made (para. 59).

[30] The application judge must also consider information that was not disclosed to the issuing justice. The ITO drafter has an obligation to make full, fair, and frank disclosure of all material facts, favourable or not. Police officers seeking search warrants are bound to act with diligence and integrity, always mindful of the special duties of professionalism, candour, and disclosure that attach in ex parte proceedings. The drafting officer must be careful not to pick and choose among the relevant facts to achieve the desired outcome and must avoid an incomplete recitation of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts had been disclosed. The affiant must not conceal or omit material facts or exaggerate the information on which he or she relies.

[31] The reviewing judge will consider the nature of the omitted information and the reasons for the non-disclosure. If the omissions were for some improper motive or were intended to mislead the justice, the non-disclosure, standing alone, may invalidate the warrant despite the existence of reasonable grounds. As the Nova Scotia Court of Appeal said in Morris, in a passage cited with approval in Araujo:

These cases stress that errors, even fraudulent errors, do not automatically invalidate the warrant.

This does not mean that errors, particularly deliberate ones, are irrelevant in the review process. While not leading to automatic vitiation of the warrant, there remains the need to protect the prior authorization process. The cases just referred to do not foreclose a reviewing judge, in appropriate circumstances, from concluding on the totality of the circumstances that the conduct of the police in seeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventive function it serves.

[32] Where the non-disclosure was not the product of an improper motive or part of an attempt to mislead, the question becomes whether the justice, acting judicially and having been apprised of the omitted information, could have issued the warrant.

[33] In Morelli, where the drafting officer had omitted facts that tended to undermine suspicions about the accused, Fish J. wrote:

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

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

[34] The distinction between facial and sub-facial validity is often inconsequential because, in many cases, a sub-facial attack on the warrant subsumes the facial challenge. In the end, it is not the labels that matter. As one commentator put it, "Facial, sub-facial: these are just words." The court must remain focused on the ultimate test:

[W]hether, on the record before the issuing justice, as amplified on the review and minus any offending portions that needed to be excised, there remained a sufficient basis upon which the issuing justice could have issued the warrant.

[35] When reviewing an ITO, the court must keep in mind that these documents are prepared by police officers, who are not legally trained draftspersons and who are sometimes forced to operate under time constraints with limited opportunity to organize and polish their writing. It is unrealistic to expect an officer to draft with the precision and clarity of counsel and it is wrong to examine an ITO as if it were a statute, pleading, or work of legal scholarship. The review should involve reasonable, common sense scrutiny of the whole of the document with a focus on its core substance, as opposed to line-by-line word-by-word dissection. As the Ontario Court of Appeal recently recognized in Nguyen, few search warrant applications are perfect; it is not surprising to find some flaws:

… [T]he review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application.

b) Reasonable Grounds to Believe

[36] Reasonable grounds to believe has both a subjective and objective component. The subjective branch is satisfied where the police officer honestly believes the suspect has committed an offence and that evidence of the offence will be found at the place to be searched. Under the objective component, the question is whether the officer's opinion is supported by objective facts. The test is met where a reasonable person in the position of the officer would be able to conclude that reasonable grounds existed. In this case, as in virtually every search warrant case, it is the objective prong of the test that is in issue.

[37] Reasonable grounds to believe sits on a continuum of standards of proof. It has been described as a reasonable probability, a reasonable belief, or the point where credibly-based probability replaces suspicion. It is less than a prima facie case for conviction, proof on a balance of probabilities, or proof beyond a reasonable doubt. It is more than a guess, a hunch based on experience, or reasonable suspicion.

c) Confidential Information

[38] An officer drafting an ITO containing information from a CI must ensure that the document provides an evidentiary basis to allow the judicial officer to reach an independent conclusion that the confidential information is reliable in the sense that it is capable of supporting a reasonable belief. It is not enough for the officer to express his or her opinion that the information is reliable; the justice must be able to make his or her own assessment of reliability based on evidence in the ITO.

[39] In assessing reliability, the court considers the totality of the circumstances. This encompasses factors relevant to both the accuracy of the CI's information and the trustworthiness of the CI as a source of information. The inquiry has come to revolve around the following questions:

• Is the information compelling?
• Is the source credible?
• Did the police corroborate the information through independent investigation?

[40] These are not discrete inquiries, each to be measured in isolation against its own standard. Rather, weaknesses in one area can be offset by strengths in another. Where, for example, information comes from an anonymous tipster, the quality of the information and the degree of corroboration will have to compensate for the inability to assess the source's trustworthiness. On the other hand, where the police receive compelling information from a known CI with a solid track record for reliability, something less in the way of verification may suffice. The police are not obliged, however, to confirm the very criminality alleged by the CI, even where the source is anonymous. In the end, the reviewing judge must consider the totality of the circumstances and determine whether the information in the ITO, taken as a whole, supports a reasonable belief and crosses the reasonable grounds threshold.

d) Step 6 in Garofoli

[41] In Garofoli, the Supreme Court of Canada clarified many aspects of the law regarding challenges to wiretap authorizations. At the end of his discussion of the principles and procedures governing the editing of the contents of the sealed packet, Sopinka J. set out a six-step summary which, he emphasized, was not intended to be exclusive or exhaustive. Steps 5 and 6 read:

5. If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.

6. If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.

[42] In his 2010 decision in Learning, Code J. characterized Step 6 from Garofoli as an innovation that appears to have been largely ignored. There was, he observed, little or no jurisprudence interpreting and applying the procedure and he recognized that it was undoubtedly controversial. Code J. continued:

The Court would end up deciding the s. 9 issue on the basis of evidence that the defence had never seen or tested, other than through the vehicle of a judicial summary. This raises the spectre of secret trials and violations of "the right to meet the case". See Charkaoui, supra at pp. 623-7.

On the other hand, the Supreme court of Canada has recently suggested that these "full answer and defence" are more attenuated at Charter admissibility hearings than they are at the trial on the merits, where "the guilt or innocence of the accused is at stake". See R. v. Pires and Lising, 2005 SCC 66, 201 C.C.C. (3d) 449 at 463-6 (S.C.C.). The resolution of these conflicting values will likely depend on how useful the judicial summary turns out to be. If it proves to be an adequate substitute for full disclosure, the defence will not have been prejudiced. We need to develop experience with the use of judicial summaries in actual cases in order to determine whether Sopinka J.'s innovative "step six" in Garofoli is a workable solution.

It is unfortunate that "step six" in Garofoli is the only legal mechanism available, to resolve the conflict between the competing demands of Debot and Leipert, and yet it is simply not being tried or tested. The result is that we encourage officers like D.C. O'Connor to carefully prepare detailed and thorough grounds to arrest and search, that will meet the Debot criteria, and then we reward him with a declaration that he violated s. 9 of the Charter because Leipert prevents the court from relying on those grounds. This does not seem right.

[43] In recent years, Ontario trial courts have begun to show a willingness to use the Step 6 procedure, some drawing confidence, perhaps, from the Ontario Court of Appeal's decision in Blake, in which Doherty J.A., after citing Garofoli, noted that the Crown at trial

… did not ask the trial judge to consider the unreadacted version of the information to obtain before determining the merits of the appellant's s. 8 claim. Crown counsel was content to have the validity of the warrant and, hence, the reasonableness of the search determined on the contents of the redacts information.

[44] In Brown, for example, O'Marra J., recognizing the "condundrum" in these cases, said this:

The ITO has to be heavily edited in order to fulfill their obligation to maintain the informer privilege, yet in the process of doing so, redact the very information before the issuing justice that supported the statutory requirement of reasonable and probable grounds – the informer's means of knowledge. In my view, it would be an absurd proposition for the Court not to take into account the specific information that was before the issuing justice and that the applicant has been provided by way of a general characterization in the summary, which I approved on review.

In this instance, the Crown is asking the Court to consider only a portion of the redacted information. Where a warrant cannot be supported on the basis of the redacted information to obtain, it would lead to the perverse result of finding a Charter breach and the warrant unlawful even thought there may have been ample reasonable grounds provided to the issuing justice. I am prepared to accede to the Crown's request to review the specific redacted information to assess whether the Debot criteria have been met.

(2) Application to this Case

[45] I will review the validity of the search warrants in six sections:

• First, I will set out my findings with respect to the testimony of the police officers;
• Second, I will excise erroneous information from the ITO and make necessary corrections based on the evidence at the hearing;
• Third, I will make findings about Constable Hill's conduct in applying for the search warrants;
• Fourth, I will explain my decision to review the warrants using Step 6 from Garofoli;
• Fifth, I will apply the Garofoli test by examining the unredacted ITO without regard to the excised assertions and with the necessary corrections in mind;
• Sixth, I will address the applicant's submission that the use of the telewarrant procedure was unjustified.

a) Testimony of the Police Officers

[46] I begin with Constable Hill. While this officer had previously been involved one way or another in the execution of a number of search warrants in drug investigations, this case was only the third or fourth time he had drafted an ITO. He had never testified at a Garofoli hearing. In my assessment, Constable Hill's voir dire testimony was, for the most part, straightforward, forthright, and consistent with the evidence of other officers. But there were times when his relative lack of experience showed, and there is one area of his evidence that gave me some pause. I will explain.

[47] During cross-examination on Appendix C of the ITO, Mr. Adler questioned Constable Hill about the striking similarities between paragraphs 12 and 13, which summarize police surveillance on January 28 and 30, 2011, respectively – in particular, Constable Shadlock's observations of an odour of marijuana at the industrial units. Defence counsel probed the fact that some of the content of these two paragraphs is identical, word-for-word.

[48] Constable Hill initially testified that Constable Shadlock had told him that, on January 30th, he had duplicated in minute detail the steps he had taken on January 28th. He then softened his position somewhat by suggesting that the reason he decided to copy-and-paste the information from paragraph 12 into paragraph 13 was because on January 30th, his colleague had conveyed the "exact same scenario" he had described two days earlier.

[49] Mr. Adler next pointed out that paragraph 13(e) was identical to paragraph 12(i), which, the officer had earlier testified, contained an observation by Constable Robinson, not Constable Shadlock. When pressed, Constable Hill went some way towards maintaining that he had drafted paragraph 13(e) in terms identical to paragraph 12(i) because on January 30th, Constable Shadlock used the same terminology as Constable Robinson had on January 28th.

[50] I do not accept Constable Hill's evidence on these points. The claim that on January 30th Constable Shadlock repeated verbatim what he had told the affiant two days earlier about smelling marijuana at the units strains plausibility and common sense. It is also contradicted by the evidence of Constable Shadlock, who testified that while there were substantial similarities between his activities and observations on the two surveillance days, there were also differences. For example, Constable Shadlock testified that on January 30th, he left the area of each unit after smelling marijuana and did not walk back and forth to see if the odour dissipated and then returned, as he had done on January 28th; and he did not believe he told Constable Hill how many times he had approached the units on January 30th because he did not see this as "pertinent" information.

[51] I also cannot accept Constable Hill's evidence that on January 30th, Constable Shadlock told him the exact same thing (in the same words) as Constable Robinson had told him two days earlier about the absence of vehicles related to unit 7 at 445 Admiral. Again, he is contradicted by Constable Shadlock who testified that before execution of the search warrants, he was never in front of 445 Admiral and did not know which unit was #7.

[52] It is more plausible to think that on January 30th Constable Shadlock conveyed to Constable Hill, in a general way, that his surveillance activities and observations that day were the same as on January 28th. This is essentially what Constable Shadlock testified he said to the affiant. It is obvious that when he drafted paragraph 13 of Appendix C, Constable Hill did little more than copy-and-paste the relevant portions of paragraph 12. To the extent that he resisted this during cross-examination, I find his evidence to be unreliable.

[53] To be clear, my concerns about this area of Constable Hill's evidence are more about reliability than credibility. I do not think he was trying to mislead the court. Rather, what happened here, in my assessment, was that a relatively inexperienced officer began struggling under an effective cross-examination and became increasingly confused and unsure of himself. As a result, he gave a series of answers that are unreliable, but this is different than saying he was being untruthful.

[54] Another area in which I cannot rely on Constable Hill's evidence concerns the issue of whether the police saw Mr. Farrugia use a key on the front door of 278 Watline on January 28, 2011. In-chief, the officer referred to surveillance notes from 11:18 a.m. that describe Mr. Farrugia locking the front door when he left the unit. In cross-examination, he seemed to become confused on this issue. At one point in his evidence, he acknowledged that his notes contain no mention of a key and that paragraph 12(g) of Appendix C, which makes no reference to a key being used, was accurate. It is clear, however, from Constable Shadlock's testimony, that the surveillance notes from 11:18 a.m. on January 28th refer to the target locking the front door at 278 Watline. Again, this is an issue of reliability, not credibility. Obviously, Constable Hill's testimony on this point was favourable to the defence.

[55] In summary, I had no significant credibility concerns about Constable Hill's evidence, but there are a couple of points on which I found his evidence to be unreliable. Aside from these areas, I accept his evidence.

[56] The voir dire testimony of the other police officers – Constable Shadlock, Constable Langdon, and Detective Smith – left me with no concerns about credibility or reliability. Each testified in a straightforward and professional manner based largely on reasonably contemporaneous notes. Constable Langdon's testimony was rich in detail and he made a number of reasonable concessions during cross-examination on the central issue of his observations of an odour of marijuana at the industrial units. Constable Langdon was precise, fair, and appropriately cautious, given that he was testifying about his dealings with a CI. I reject any suggestion that his account of the CI's background and track record was anything less than candid and accurate. Detective Smith, a seasoned officer, was confident, direct, and detailed when describing his relatively limited involvement as arresting officer. None of these witnesses were shaken in cross-examination. I accept their evidence.

b) Excision and Amplification

[57] In this section, I will examine the ITO in light of the voir dire evidence, excising erroneous information and making necessary corrections. I will work through Appendix C chronologically, grouping the paragraphs to be considered under headings.

(i) Experience of Police Officers [paras. 1 & 2]

[58] Based on the testimony of the police witnesses, Mr. Adler submitted that in paragraphs 1 and 2 of the ITO, Constable Hill overstated his experience and that of his colleagues in the investigation of drug offences.

[59] I do not agree. The voir dire evidence did not reveal that anything the affiant said about any officer's experience was inaccurate or that he made any material omissions on this topic. While he could have gone into more detail, he was not obliged to do so; he was entitled to deal with these introductory matters succinctly. The brevity of these portions of the ITO could not have misled the justice. I would not excise or add anything to these paragraphs.

(ii) Basic Indoor Marijuana Cultivation Information [pages 3-4]

[60] Pages 3 to 4 of the ITO contain, under the heading "Basic Indoor Marijuana Cultivation Information", a primer of sorts on residential grow operations. For this section, it appears the drafter copied part of an ITO from another investigation. Aside from the reference to the "intense smell of cannabis marihuana" and the general information about cultivation at subparagraphs (f) and (g), none of the information has any application to this particular investigation, which involved grow operations in industrial units, not residences, and where the police had no evidence of a hydro bypass, elevated electricity consumption, sealing of windows, or venting high above ground.

[61] In addition, none of the information in this section is sourced. Instead, subparagraphs (a) to (g) are preceded by the following sentence: "For the purpose of familiarizing the reader with this type of operation I submit the following for review[.]" It is possible that a justice, reading this portion of the ITO in light of the affiant's earlier account of his own experience, could assume that the affiant is the source of this information and, as a result, attribute to him greater expertise in drug investigations than he actually had. Given, however, the irrelevancy of most of the information in the grow-op primer to this case, the risk of the justice's being misled in any significant way is reduced. This portion of the document is, however, one example of Constable Hill's cut-and-paste approach to drafting and illustrates the risks associated with that technique.

(iii) Overview [para. 3]

[62] Paragraph 3, entitled "Overview", begins with the assertion that the CI provided information that a person by the name of "Emmanuel Farrugia" is selling Oxycodone and growing marijuana.

[63] The reference to the target's full name is incorrect. The CI knew the person only as "Manny"; it was the police who discovered the proper name through investigation. The issuing justice would not have been misled, however, because Appendix D correctly sets out the name used by the CI to identify the target and, at page 5 of Appendix C, the affiant made clear that the information from the CI appears in Appendix D. In addition, paragraph 18 of Appendix C accurately states that the CI gave information about a man named "Manny" whom the police confirmed was Emmanuel Farrugia. Nevertheless, it is appropriate, for purposes of the review, to replace "Emmanuel Farrugia" with "Manny" at paragraph 3.

[64] Paragraph 3 also says that the CI told police the target operates "more than one fully functioning industrial grow operation." The affiant repeats this assertion at paragraph 18. It is unclear, however, whether the CI actually told police about more than one grow operation, as opposed to only one. Appendix D refers to information from the CI about the target's being involved in "an industrial grow lab s" and "a industrial grow lab s" and says the CI has heard that Manny keeps his bulk dried marijuana at "his industrial grow lab s." From the balance of the appendix, it is not entirely clear whether the CI was giving information about one or more than one cultivation operation.

[65] The reference to "more than one" grow lab would not, however, have misled the justice. Paragraph 3 is, as its heading indicates, simply an overview while paragraph 18 contains a summary of the CI's information that the police had confirmed through investigation. As already mentioned, the affiant made clear, at paragraph 4, that the information the CI had actually provided appears in Appendix D. The justice would have read this appendix and reached his own understanding of what the CI had told the police. Still, it is appropriate to replace the phrase "more than one" in paragraphs 3 and 18 with "one or more" for purposes of the review.

[66] While issues like these may seem minor and technical – and, again, the justice had access to the correct information in Appendix D – they do reflect, in my assessment, a lack of appreciation by the affiant of the care required when drafting an ITO.

(iv) Prior Arrest [paras. 8, 9, 22]

[67] At paragraph 9 (page 5), Constable Hill asserts that inquires using the Police Query Tool revealed that in 2003, Mr. Farrugia "was arrested because he was operating an industrial marihuana grow operation." Six pages later, at paragraph 22, the affiant refers again to the 2003 arrest and says the "charges were discharged" in 2005. Paragraph 8(a) (page 6) asserts that Mr. Farrugia "has a record but no convictions for drugs."

[68] These paragraphs give rise to two problems. First, paragraph 8(a) (page 6) is misleading. Any reasonable judicial officer reading the words "has a record but no convictions for drugs" would understand that Mr. Farrugia has a record of criminal convictions with no entries for drug offences. This is not correct. Mr. Farrugia had no criminal record whatsoever.

[69] In his testimony at the hearing, Constable Hill suggested that "record" means the police had maintained a record regarding Mr. Farrugia's arrest in 2003. While that may be technically correct, no reasonable judicial reader would understand the assertion that way. The sentence is misleading and must be modified for purposes of the review to read "He has no criminal record."

[70] Second, while the affiant made clear that Mr. Farrugia had no convictions for drugs and also mentioned that his 2003 arrest resulted in a discharge, it would be more accurate to say that he was arrested for "allegedly" operating a grow operation. I would make this modification (which, admittedly, is minor and technical) for purposes of the Garofoli review.

(v) Mug Shot [para. 10]

[71] Paragraph 10 says that in January 2003, the CI identified Mr. Farrugia from a mug shot. This is not accurate. What Constable Hill meant to say was that during the investigation, the CI identified Mr. Farrugia from a mug shot taken in 2003. In fact, paragraph 3 (page 2) of Appendix D suggests that this is exactly what happened. The parties are in agreement that this error can be corrected based on the evidence led on the voir dire.

(vi) Odour of Marijuana at 278 Watline Avenue [paras. 12(f) & 13(c)]

[72] At paragraphs 12(f) and 13(c), the affiant describes the observations of Constable Shadlock during surveillance at 278 Watline Avenue on January 28 and 30, 2011.

[73] Paragraph 12(f) relates to January 28th. It reads:

While Constable Shadlock #2824 was in the area of 278 Watline Avenue, there was an odour of vegetative marihuana emanating from the southeast corner of the building. As he walked away from the building the smell disappeared. The smell returned as he walked back to the building.

At the hearing, Constable Shadlock testified that when he was in the area behind 278 Watline, he walked towards the southwest corner of the unit, not the southeast corner. In his notes, he referred to the southeast corner. This was a mistake. It was, he explained, his first time in the area. The diagram he drew in his notes correctly depicts the path he followed; it was simply the word "southeast" that is wrong. Constable Shadlock told the Crown about this error when he discovered it on April 10, 2012, the first day of the hearing.

[74] I accept Constable Shadlock's evidence on this point. I am satisfied his reference to "southwest" was an inadvertent technical error that can be corrected on the review.

[75] Regardless of which corner of the building Constable Shadlock approached, his testimony at the hearing reveals that it is not accurate to say he detected an odour of marijuana "emanating from" the "corner of the building." He testified that while he was at the back of 278 Watline and its neighbouring units, he smelled marijuana as he walked towards the southwest corner of the building. He never went right up to #278; instead, he stayed on the property of the unit next door to it and stopped walking when he was about 75 feet from the target building.

[76] Given Constable Shadlock's testimony, to say there was an odour of marijuana "emanating from" the "corner" of 278 Watline is to overstate the officer's observations. These assertions are inaccurate and misleading. They permit an incriminatory inference that is stronger than the one that Constable Shadlock's observations could reasonably have supported. The incorrect assertions must be excised and paragraph 12(f) should be modified for purposes of the review to read:

While Constable Shadlock #2824 was in the area behind 278 Watline Avenue and its neighbouring units, there was an odour of vegetative marihuana as he walked towards the southwest corner of the building. As he walked away from the building the smell disappeared. The smell returned as he walked back towards the building.

[77] These post-excision alterations are necessary to ensure the paragraph's accuracy. Excising the erroneous information without making these additions in accordance with the voir dire evidence could leave the paragraph in a state where it invites an inference that is more compelling than the one that was available based on the information known to the police at the time of the application.

[78] Paragraph 13(c), which relates to January 30th, is identical to paragraph 12(f) – another example of the affiant's copy-and-paste approach to drafting. Based on Constable Shadlock's voir dire testimony that he walked the same path and detected the smell in roughly the same area on January 30th as he had two days earlier, the modifications to paragraph 13(c) should be the same as those made to paragraph 12(f).

[79] Paragraph 13(c) requires an additional excision. Constable Shadlock testified that on January 30th, he only made one approach to the building. Once he picked up the odour, he left the area. He did not walk away and then double-back to see if the smell dissipated and then returned, as he had done on January 28th. The last sentence of paragraph 13(c) ("The smell returned as he walked back to the building") is wrong and must be excised.

[80] Constable Shadlock testified that he did not believe he told Constable Hill how many times he walked back and forth because he did not see this detail as pertinent. He would have simply said that the circumstances on January 30th were the same as on January 28th. It may be that, based on this information, Constable Hill assumed his colleague had made a second approach on January 30th, just as he had done the first time. Seen in this light, the inclusion of the last sentence in paragraph 13(c) may be understandable. Still, it is inaccurate and must be removed.

(vii) Odour of Marijuana at 445 Admiral Boulevard [paras. 12(j) & 13(f)]

[81] Paragraphs 12(j) and 13(f) set out Constable Shadlock's observations during surveillance at 445 Admiral Boulevard on January 28 and 30, 2011. The paragraphs, which are worded identically, read:

While Constable Shadlock #2824 was in the area of the rear doors of unit #7 of 445 Admiral Boulevard, there was an odour of vegetative marihuana emanating from the rear cargo door of unit #7. As he walked away from the unit the smell disappeared. The smell returned as he walked back to the unit.

[82] Constable Shadlock's testimony on the voir dire included the following:

1. On January 28th and 30th, he walked behind 445 Admiral. When he reached a point around the middle of the multi-unit complex, he smelled marijuana;
2. At the time he made the observations and passed them on to the affiant, Constable Shadlock did not know which unit was #7 or which cargo door was attached to that unit. He could not have "pinpointed" the odour to a particular unit; he could only have said he had detected it in the general area where he had been walking and standing;
3. Constable Shadlock would not have told Constable Hill the smell was coming from unit 7; rather, he would have said it was in the area around the middle at the back of the complex;
4. On January 28th, Constable Shadlock walked back and forth and noticed that the odour seemed to be contained in an area in the middle of the complex. On January 30th, he walked away after detecting the odour; he did not walk back and forth.

[83] Constable Shadlock's testimony reveals that the following assertions in paragraphs 12(j) and 13(f) are inaccurate:

1. the officer was "in the area of the rear doors of unit #7"; and
2. there was an odour of marijuana "emanating from the rear cargo door of unit #7."

[84] Both assertions are incorrect. Constable Shadlock did not tell Constable Hill he was in the area of the rear doors of unit 7 or that the smell of marijuana was emanating from the cargo door of that unit. By making a direct link to unit 7, these statements exaggerate the significance of Constable Shadlock's observations and invite an inference that is more compelling than the one that was available based on the observations the officer actually made. The assertions are misleading and must be excised. For purposes of applying the Garofoli test, paragraph 12(j) should be modified read:

While Constable Shadlock #2824 was at the rear of 445 Admiral Boulevard, there was an odour of vegetative marihuana around the middle of the multi-unit complex. As he walked away from the area the smell disappeared. The smell returned as he walked back to the area.

[85] As with the alterations to the paragraphs relating to 278 Watline, these post-excision modifications are necessary to make the paragraph accurate. Again, if one were to excise the erroneous information without using the voir dire evidence to fill in gaps, the paragraph could allow for an inference that is stronger than the one that was sustainable based on the information known to the police at the time of the application.

[86] Paragraph 13(f) should be corrected in the same ways, based on Constable Shadlock's evidence that he walked the same path on January 30th as he had two days earlier. Additionally, the last sentence of the paragraph ("The smell returned as he walked back to the area") must be excised because Constable Shadlock testified that on January 30th, he walked away after detecting the odour and did not double-back.

[87] Finally, paragraph 13(e) ("There were no vehicles that appeared to be related to unit #7 or Emmanuel at this building") must be excised. As discussed earlier, Constable Shadlock did not make this observation on January 30th; this is something Constable Robinson observed two days earlier. Its inclusion in paragraph 13 is yet another illustration of the dangers of the copy-and-paste method of drafting.

(viii) Addresses of Industrial Units [paras. 15(d) & 15(f)]

[88] Paragraph 15 summarizes the information from the CI that the police were able to corroborate through investigation. Paragraphs 15(d) and 15(f) are ambiguous but could be read as saying that the CI gave the police the addresses of the industrial units, namely, 278 Watline Avenue and 445 Admiral Boulevard, Unit 7. This is not correct. Constable Hill testified that the CI did not give specific addresses and that the police discovered the locations by following Mr. Farrugia. The issuing justice would not, however, have been misled. First, paragraph 18 accurately conveys that officers "isolated" the addresses through "investigative techniques." Second, Appendix D sets out what the CI actually told the police. Nevertheless, the references to the street addresses are inaccurate and should be excised.

(ix) Odour of Marijuana [para. 16(b)]

[89] Paragraph 16 comes under the heading "Grounds to Believe Things to be Seized Will Afford Evidence of the Offence." Paragraph 16(b) says the police conducted surveillance "on 3 separate days and there was a marihuana vegetative odour" emanating from both 278 Watline Avenue and 445 Admiral Boulevard, Unit 7.

[90] There are two problems with this statement. First, it is ambiguous. It could be read as an assertion that there was an odour of marijuana on each of the three surveillance days. This would be wrong. As paragraphs 11 to 13 make clear, Constable Shadlock smelled marijuana on only two of the three days. While these two paragraphs would have prevented the justice from being misled, the parties agreed that, for purposes of the review, paragraph 16(b) should be read as asserting that the officer detected the odour twice, not three times.

[91] Second, for reasons expressed above, it is not accurate to say the odour of vegetative marijuana was "emanating from" 278 Watline or 445 Admiral, Unit 7. The words "emanating from" and the reference to Unit 7 must be excised and the paragraph should be modified, for purposes of applying the test on review, to read:

Police conducted surveillance on 3 separate days. On two of those days, there was a marihuana vegetative odour in the area of the rear of both 278 Watline Avenue, Mississauga, and 445 Admiral Boulevard, Mississauga.

[92] Once again, these post-excision adjustments ensure that the information in the paragraph is correct based on the information available to the police at the time of the application.

(x) Paragraph 23 – Employment, Vehicles, Residences

[93] At paragraph 23, Constable Hill says that Mr. Farrugia does not have employment, has no vehicles or residences in his name, and "is currently in the market to purchase multi-million dollar residence." The Crown conceded these assertions are without factual foundation and that the paragraph must be excised.

[94] This paragraph is troubling. Drawing, apparently, on snippets of information from elsewhere in the ITO, the affiant injects innuendo into the application based on speculation. Crown counsel's concession is well-founded. I excise paragraph 23 for review purposes.

c) Constable Hill's Conduct as Affiant

[95] Recalling the Court of Appeal's comments in Nguyen, few search warrant applications are perfect. This case is no exception. Constable Hill's ITO contains a number of errors. Some of these are relatively minor and would not have misled the justice because they were corrected elsewhere in the document, either in Appendix C or by reference to the actual information from the CI in Appendix D.

[96] Other mistakes are more significant and would have misled the justice. The most problematic of these relate to Constable Shadlock's observation of an odour of marijuana at the industrial units on January 28 and 30, 2011. These errors go to the heart of the application. The affiant's choice of language and use of the copy-and-paste method of drafting produced paragraphs that were inaccurate and misleading on a central issue and that put the case for reasonable grounds higher than the information available to the police at the time of the application could reasonably have supported.

[97] Having considered the whole of the evidence on this application, I do not find that Constable Hill intended to mislead the issuing justice. In my assessment, his errors were the result of carelessness and hastiness and a lack of attention to the accuracy and precision required in an ITO. He relied too much on the cut-and-paste technique; he was at times sloppy with his language; and he did not take enough care in proof-reading and editing the document. These shortcomings, I find, were not borne out of dishonesty or even a reckless disregard for the truth, but rather, out of inexperience and a lack of training and supervision. This is not a case, therefore, where I would invalidate the warrants based on the conduct of the affiant in making the applications. Instead, I will apply the Garofoli test and determine whether the ITO, excised and corrected based on the hearing evidence, provides a basis on which the justice, acting reasonably and judicially, could have issued the warrants.

d) Step 6 from Garofoli

[98] Guided by the recent Ontario authorities referred to above, I find that this is an appropriate case for resort to Step 6 from Garofoli. First, the defence received disclosure of the edited ITO together with all relevant non-privileged information in the Crown's possession. Second, during a lengthy dialogue with Crown counsel, I reviewed the initial redactions to the ITO to ensure that the defence was aware of as much information as possible while still respecting informer privilege. As a result of this process, certain information that was initially blacked-out was revealed to the defence.

[99] Third, working with the prosecutor, I oversaw the preparation of judicial summaries that made the defence aware of the nature of the redacted information and the reason for each redaction – again, without risking disclosure of the CI's identity. It is worth observing that the defence did not object to the use of the Step 6 procedure, the redactions to the ITO, or the quality of the judicial summaries. I am satisfied that the summaries were an adequate substitute for full disclosure in that they made the defence sufficiently aware of the excised material to challenge it in argument or by evidence.

[100] Fourth, defence counsel was given leave to cross-examine the affiant, the principal sub-affiant, the CI's handler, and the arresting officer on the issue of grounds for belief.

[101] Fifth, when considering the applicant's right to make full answer and defence, one must not lose sight of the context of this proceeding. As the courts emphasized in Learning and Brown, drawing on the Supreme Court's comments in Pires, this is an admissibility hearing, not a trial on the merits where guilt or innocence is at stake. And it is a hearing in which the doctrine of informer privilege bars disclosure of any information that could reveal the CI's identity. In this context, the controlling question must be this: given the disclosure of the redacted ITO, the provision of the judicial summaries, the cross-examination of the various witnesses, and the submissions of counsel, has the applicant had a fair opportunity to challenge the validity of the warrants?

[102] In my view, the answer is yes. Despite the fact that some privileged information remains undisclosed, I am satisfied that the procedure used in this case has allowed the defence a fair chance to raise issues through evidence and in argument about the validity of the search warrants. I will therefore review the warrants by considering the unredacted ITO that was before the issuing justice.

e) Application of the Garofoli Test

[103] Since the information from the CI is central to the validity of the warrants, I will assess the ITO within the "3 Cs framework" and consider whether the information is compelling, credible, and corroborated.

[104] At times, my ability to explain my findings will be limited by the fact that some of the information I have considered remains redacted. This is especially so with respect to the first inquiry – whether the information is compelling.

(i) Is the Information Compelling?

[105] Questions that inform a justice's consideration of this issue include the following:

• Is the CI's information based on first-hand knowledge or is it hearsay from another source? If it is hearsay, has the CI identified the original source and to what extent can that source be independently assessed as reliable?
• Is the information commonplace and therefore widely known and easily ascertainable, or does the information, by its very nature, suggest that the original source has knowledge of criminal activity by the target?
• Is the information specific and precise or is it limited to conclusory allegations of criminal conduct? Has the CI provided details of the type that, from a common sense perspective, lend confidence that the information is based on more than rumour, coincidence, error, or falsehood?
• How often and over what period of time has the CI had the opportunity to acquire information (whether personally or through other sources) about the target?
• Is the information current? Has the CI given information about recent criminal activity by the suspect or does the CI only described conduct in the past?

[106] In my view, the justice could have found that the information from the CI, taken as a whole, was reasonably compelling.

(ii) Is the Source Credible?

[107] Questions that assist a justice on this issue include the following:

• Has the CI previously given information to the police that proved to be reliable? How often and over what period time? In what types of cases? Have there been any instances where the CI's information was shown to be unreliable?
• Does the CI have a criminal record and, if so, are there entries for offences of dishonesty or against the administration of justice, such as fraud, attempt to obstruct justice, or perjury?
• Does the CI have an interest in the outcome of the investigation? Is there any apparent motive to fabricate? Is the CI receiving any benefit in exchange for the information?

[108] In this case, looking only at the redacted ITO, together with the judicial summaries, we know the following:

1. The CI had been giving information to the police over almost two decades;
2. The CI had provided information in numerous investigations involving homicide, firearms, stolen property, and drugs. In particular, information from the CI had previously led to the execution of several search warrants and the seizure of drugs, including marijuana, and firearms;
3. The CI had never been charged with perjury or any "obstruction related offences";
4. The affiant made the justice aware of whether or not the CI had a criminal record and whether or not the CI had received any consideration for the information;
5. The CI was well entrenched in the criminal sub-culture.

[109] The evidence on the voir dire did not reveal any material inaccuracies or omissions in the affiant's account of the reliability of the CI. In my view, based on the information in Appendix D, it was open to the justice to find that the CI was at least reasonably credible.

(iii) Was the Information Corroborated?

[110] Questions relevant to this branch of the analysis include the following:

• Have the police verified only commonplace details or innocent conduct of which almost anyone could be aware, or have they acquired information that tends to confirm behaviour with enough distinctive features to remove it from the realm of the ordinary or everyday?
• Does the information gathered by the police conform sufficiently to what one would have anticipated based on the CI's information, such that the possibility of coincidence, mistake, or falsehood is reduced to a degree that is tolerable in the context of the reasonable grounds standard?

[111] In this case, it is apparent, even from the redacted ITO, read with the judicial summaries, that the police acquired a fair amount of confirmatory information. First, they verified virtually all of the biographical information given by the CI (e.g., name, physical appearance, residence, marital status), although I recognize that, on its own, this type of corroboration is of limited value.

[112] Second, the police followed-up on the CI's assertion that Mr. Farrugia was at one time the owner of a car detailing company on the corner of Battleford Road and Erin Mills Parkway, and they learned that a business called Auto Salon used to exist at 2310 Battleford Road in Mississauga but that it relocated to 7091 Hurontario Street.

[113] Third, while investigating the CI's claim that the suspect operated "industrial" grow labs in Mississauga, the police followed Mr. Farrugia on January 28, 2011 (the second day of surveillance) and observed the following:

• Leaving his home in the Volvo, Mr. Farrugia drove to 278 Watline Avenue, which is located in an "industrial zoned area." He parked out front, entered the building, and remained inside for about 30 minutes. When he left, he walked to the rear of the building before getting in his car and driving away. There was a white GMC cargo van backed into one of the rear cargo doors of 278 Watline;
• Leaving 278 Watline, Mr. Farrugia drove to 445 Admiral Boulevard, another building in an "industrial zoned area." He entered unit 7 using a key. He stayed for about 55 minutes. When he left, he locked the door with a key.

[114] Police conducted vehicle checks and learned that both the Volvo (which Mr. Farrugia drove on two of the surveillance days and which was parked at his home) and the white GMC cargo van (which was backed-up to a cargo door at 278 Watline) were registered to the same company, namely, 1533078 Ontario Limited at 3-2310 Battleford Road, Mississauga. This is significant. The registration information about the Volvo tends to confirm the CI's assertion that Mr. Farrugia had a car detailing business on the corner of Battleford Road and Erin Mills Parkway, especially when it is seen in light of the police's discovery that a company called Auto Salon formerly existed at 2310 Battleford Road. In addition, the fact that the Volvo and the GMC van were registered to the same company is a piece of evidence that links Mr. Farrugia to 278 Watline, particularly given the evidence of his association with a business at 2310 Battleford Road. While the affiant did not make these points explicitly in the ITO, it was open to the justice to consider them.

[115] And then there is the odour of marijuana. On January 28, 2011 (the second day of surveillance and the day Mr. Farrugia visited the units), and again two days later, Constable Shadlock detected an odour of "vegetative marijuana" when he was behind 278 Watline and 445 Admiral. This evidence has a fair measure of corroborative force, even when it seen in light of all of the voir dire evidence about the circumstances of the officer's observations. A judicial officer, considering the smell of marijuana in light of all of the information from the CI and all of the confirmatory information gathered by the police, could reasonably ask: "What are the chances that there would be an odour of vegetative marijuana behind two industrial units in Mississauga on the same day and the same odour behind the same units two days later?" The odour evidence, when seen in the context of the ITO as a whole, has some tendency to reduce the possibility of coincidence, mistake, or falsehood.

[116] Finally, the original unedited ITO reveals other information that the police were able to confirm but to which I cannot refer because it remains redacted.

[117] In my view, the police corroborated the CI's information to a degree that is at least reasonable in the circumstances.

[118] I appreciate that Constable Hill acknowledged in his evidence that the police did not corroborate the presence of drugs in Mr. Farrugia's residence. While this is a factor, it is not fatal to the validity of the warrant to search the dwelling house at 6290 Mulberry Crescent. First, there is no legal requirement that the police confirm the very criminality described by the CI. Second, the justice would not have considered the application for the dwelling house warrant based solely on information referable to that location. Rather, he would have assessed the information in the ITO cumulatively and as a whole. The fact, for example, that Constable Shadlock smelled marijuana at the industrial units was not without value on the application to search the home because it tended to support the view that the CI's information about Mr. Farrugia was reliable. Provided the justice could have been satisfied, based on the whole of the ITO, that there were reasonable grounds to believe there were drugs in the residence, the absence of evidence confirming the actual presence of drugs at that location does not undermine the validity of the warrant.

f) The Telewarrant Issue

[119] As Mr. Adler candidly acknowledged, the Charter application does not stand or fall on this issue.

[120] Constable Hill applied for the warrants on the afternoon of Sunday, January 30, 2011. He testified that while there was a Justice of the Peace working at the Brampton Courthouse on Sundays, he believed the justice was there only for bail court and that he or she would not accept a search warrant application.

[121] The officer's belief was reasonable. It also happens to be correct according to the Affidavit of Tania Tanti, a senior paralegal at the federal Crown's office in Brampton.

[122] In my view, Constable Hill's decision to use the telewarrant procedure was justified. He believed it would be impracticable to appear personally before a justice and he set out the basis for his belief in the ITO.

g) Summary and Conclusion on the Garofoli Review

[123] The ITO contained reasonably compelling information from a source that was at least reasonably credible, and the police, through independent investigation, confirmed the CI's information to a degree that was at least reasonable, bearing in mind the nature of the information and the relative credibility of the source.

[124] I find that the issuing justice, acting judicially and considering the grounds set out in the ITO cumulatively and as a whole, could have found that the CI's information was reliable in the sense that it supported a reasonable belief, and that there were reasonable grounds to believe that:

1. Mr. Farrugia was producing marijuana at 278 Watline Avenue and 445 Admiral Boulevard, Unit 7, and that evidence of this offence would be found at both places; and
2. Mr. Farrugia was in possession of marijuana for the purpose of trafficking and that evidence of this offence would be found at his residence.

[125] I also find that the officer's decision to submit the applications by fax as opposed to personal attendance has no effect on the validity of the warrants.

[126] I conclude that the warrants were validly issued.

B. Arrest and Warrantless Seizure of the Keys

[127] While it is the applicant's onus to demonstrate that his or her arrest was unlawful and therefore arbitrary contrary to s. 9 of the Charter, it is the Crown who carries the burden of establishing that a presumptively unreasonable search without warrant was authorized by law and carried out reasonably. In this case, Mr. Aujla conceded that the Crown has the burden of establishing the lawfulness of Mr. Farrugia's arrest.

[128] Under s. 495(1)(a) of the Criminal Code, a police officer may arrest without warrant a person he or she believes on reasonable grounds has committed an indictable offence. As stated earlier, the reasonable grounds requirement has two branches: the officer must subjectively believe the suspect has committed an offence and his or her belief must be objectively sustainable on the standard of credibly-based or reasonable probability.

[129] There is no legal requirement that the arresting officer formulate the requisite grounds based on an independent evaluation of the underlying evidence, provided those grounds exist both subjectively and objectively. For example, as Hill J. explained in Cunsolo:

On occasion, a peace officer may properly undertake no independent assessment as to whether a suspect should be arrested relying on an order or direction from another officer.

[130] I am satisfied on a balance of probabilities that Detective Smith had reasonable grounds to arrest Mr. Farrugia for production of marijuana. I say this because:

1. about 30 minutes before the arrest, Detective Smith saw the three signed search warrants. Based on these presumptively valid court orders, he formed the reasonable belief that Mr. Farrugia had committed the offence of producing marijuana;
2. before making the arrest, Detective Smith searched a main floor office in the residence and found bills for 278 Watline, a place he believed contained a marijuana grow lab; and
3. during the pre-execution briefing, Detective Smith learned that the target, Emmanuel Farrugia, lived in the house with his wife and child. Before Mr. Farrugia entered the home, the officer did not hear a doorbell or the sound of knocking on the door. When he heard a noise, he looked over and saw Mr. Farrugia at the front door with a woman and a child.

[131] Detective Smith seized the keys while searching Mr. Farrugia's person for weapons and evidence of the offence of production of marijuana. As the officer testified, if the keys unlocked the doors at the grow labs, they would help establish knowledge and control.

[132] The seizure of the keys from Mr. Farrugia's pocket was a valid exercise of the power of search incident to arrest.

C. Section 24(2) of the Charter

[133] I will briefly set out my views on admissibility under s. 24(2) in case I have erred on the Charter issues.

[134] It is Mr. Farrugia's burden to establish that, having regard to all the circumstances, admission of the evidence seized from his home, the industrial units, and his person would bring the administration of justice into disrepute.

[135] In R. v. Grant, the Supreme Court of Canada emphasized s. 24(2)'s long-term, forward-looking, societal perspective and reformulated the balancing analysis under three lines of inquiry that are now well-known: the seriousness of the Charter-infringing state conduct, the impact of the breach on the individual's Charter-protected interests, and society's interest in adjudication on the merits.

(1) Seriousness of the Charter-infringing State Conduct

[136] The police searched the residence and industrial units under the authority of presumptively valid warrants. In my view, if the ITO fell below the reasonable grounds threshold, it did not miss the mark by much.

[137] On the other hand, Constable Hill's conduct in drafting the ITO raises concerns. While he did not intend to mislead the justice, his careless, hasty, cut-and-paste approach had that effect, most notably on the important issue of Constable Shadlock's detection of an odour of marijuana at the industrial units. While likely the result of inexperience and a lack of training and supervision, Constable Hill's preparation of the ITO reflects a lack of understanding of the care and precision required in making these ex parte applications and, concomitantly, an inattention to Charter-protected privacy rights. This must be regarded as serious. The comments of Simmons J.A. in Dhillon come to mind:

… [T]he level of police carelessness can only be characterized as significant. Although not at the extreme end of the spectrum of state misconduct, significant carelessness on the part of the police that leads to the issuance of an invalid search warrant must nonetheless be placed on the serious side of that spectrum.

[138] Given Constable Hill's carelessness in drafting the ITO, I would assess the Charter-infringing state conduct as relatively serious for s.24(2) purposes. This line of inquiry points towards exclusion of the evidence seized under the warrants.

[139] I see Detective Smith's conduct differently. Even if the arrest and warrantless seizure of the keys were unlawful, this officer was acting under a reasonable belief that there were grounds to arrest based on the existence of the search warrants. His search of Mr. Farrugia's person fell well within the scope of the search incident to arrest power. This branch of the analysis does not suggest exclusion of the keys.

(2) Impact on Charter-protected Interests

[140] The search of the home had a significant impact on Mr. Farrugia's Charter-protected interests. People have a high expectation of privacy in their homes and the search of a home without legal authority constitutes a serious breach of the right to be secure against unreasonable search or seizure. I also observe that when the police executed the warrant on the residence, they arrested Mr. Farrugia's wife, seized some vehicles that were in the driveway, and conducted a warrantless search of the Volvo which, the Crown conceded, was unconstitutional. This avenue of inquiry militates in favour of exclusion of the evidence seized from the home.

[141] The impact of the searches of the industrial units is lower. These are not dwelling houses; they are business premises located in industrial complexes. On the evidence before me, the units were being used solely as marijuana factories and not for any other lawful purpose.

[142] Mr. Farrugia has not claimed a subjective expectation of privacy in these units. While the Crown did not dispute that he had a reasonable expectation of privacy sufficient to advance a s. 8 challenge to the searches at these places, there is no evidence to suggest that his expectation of privacy in the units was significant.

[143] In my assessment, any expectation Mr. Farrugia had in these units is considerably reduced and this branch of the analysis does not point towards exclusion of the evidence seized from these locations.

[144] Detective Smith seized the keys from Mr. Farrugia's pocket immediately after arrest. There is no evidence that the officer did anything more intrusive than a pat-down search. While an unlawful arrest and search of the person should never be seen as trivial, this line of inquiry has no significant tendency to suggest exclusion of the keys.

(3) Society's Interest in an Adjudication on the Merits

[145] All of the evidence seized, both with and without warrant, is reliable. The marijuana is the linchpin of the Crown's case and the keys are no doubt important to the prosecution. While the seriousness of the alleged offences should not take on disproportionate significance, the societal interest in the adjudication of these drug charges on their merits would be seriously undercut by excluding reliable and essential evidence.

[146] This avenue of inquiry favours admission of all of the seized evidence.

(4) Balancing

[147] I would exclude the evidence seized under the dwelling house warrant. The police conduct is relatively serious and led to a significant violation of Mr. Farrugia's constitutionally-protected privacy rights. In my assessment, these two factors, taken together, tilt the balance in favour of exclusion, despite society's interest in an adjudication on the merits.

[148] I would take a different view of the evidence seized from the industrial units. Despite my findings about the state conduct and the need for the court to dissociate itself from police carelessness on search warrant applications, the searches of these locations had a reduced impact on Mr. Farrugia's Charter-protected interests. Factoring-in society's interest in a trial on the merits, the final balance would lead to admission. In my view, excluding reliable and critical evidence based on an unreasonable search that had no significant impact on the applicant's rights would exact too great a tool on the repute of the justice system, even recognizing the relative seriousness of the police conduct. I would not be satisfied that, having regard to all the circumstances, and taking the long-term perspective, admission of this evidence would bring the administration of justice into disrepute.

[149] Finally, I would admit the keys seized from Mr. Farrugia's person on arrest. None of Grant's three avenues of analysis tend towards exclusion in any meaningful way.

IV. CONCLUSION

[150] I conclude that neither the arrest nor any of the seizures infringed Mr. Farrugia's Charter rights.

[151] The application is dismissed.

Released: September 7, 2012

Justice Robert Kelly