Court File and Parties

Court File No.: Toronto Region

Ontario Court of Justice

Between:

Her Majesty the Queen Respondent

— And —

Roman Paryniuk Applicant

Before: Justice P. Harris

Heard on: November 8, 2012

Reasons for Judgment on Section 8 Charter Application released on: December 19, 2012

Counsel:

• A. Nisker, for the Public Prosecution Services of Canada
• M. Newhouse, for the Office of the Crown Attorney
• P. A. Schreck, for the Defendant/Applicant Roman Paryniuk

Judgment

Harris, P. J.:

Introduction

[1] The Applicant Roman Paryniuk is charged with five drug related offences, six firearm related offences, one charge of proceeds obtained by crime, and four charges of possession of stolen property arising from allegations of participation in a marijuana production operation, commonly known as a "grow op". The charges were laid following the execution of a search warrant at 33 Lynngrove Avenue, Toronto, on September 19, 2011.

[2] The Applicant resided at the above-named property at the time of the search. During the entry pursuant to the warrant issued, police found a number of marijuana plants growing in the basement and in other parts of the house they found dried marijuana, cash, a quantity of psilocybin, a number of credit cards and identification in different names, a loaded handgun and some ammunition.

[3] The Applicant takes the position that the search and seizures constituted a violation of his rights under s. 8 of the Canadian Charter of Rights and Freedoms and he seeks an Order excluding all evidence seized in the execution of the search warrant pursuant to s. 24(2) of the Charter.

[4] On the 8th day of November 2012, a voir dire was commenced for the purpose of hearing this application. At the outset, the "Garifoli" application to cross-examine the affiants and sub-affiants on the I.T.O. was conceded and the evidence that followed consisted of the oral testimony of the affiant D.C. Sanjay Sondhi and the sub-affiant P.C. Jennifer Cash. The I.T.O. was made Exhibit 6 on the voir dire. This is my ruling on the application to exclude the proceeds of the search.

The Grounds Set Out in the I.T.O.

[5] On September 5th, 2011, at 6:30 p.m. P.C. Cash and partner investigated a male in a vehicle on Upland Road south of Lynngrove Avenue. The male was the Director of a Hydroponics company in Ontario and he had no satisfactorily explanation as to why he was there. Then a male walked by who "did not fit into this high end residential area." The officers returned at 11:50 p.m. looking for a "possible grow operation." They attended in the area of 33 Lynngrove Avenue and made the following observations:

• Observed a bright, almost white light coming from the living room window which was completely covered.
• Front door window was covered with what appears to be a flag.
• Lights were on at the second floor.
• Older model Ford Bronco Lic. BMHJ979 backed into driveway almost up against garage door.
• R/O of vehicle was Roman Paryniuk D.O.B 1962.02.26; address is 11-2239 Bloor St. Toronto.
• All windows on main level west side are covered.
• Windows on the 2nd floor west side not covered but all lights on.
• Rear of the house in dark with one window uncovered, doesn't appear to be any furniture inside.
• 33 Lynngrove has too many lights on for that time of night, and also compare (sic) to the rest of the dimly lit neighbourhood.
• The property appeared to be unkempt for the type of area.
• Conducted CPIC checks of Roman Paryniuk, received the following hits:
  • 1999 CIPS Traffic in Controlled Subs. Sched III
  • 1999 CIPS Re: Multiple Drugs Charges
  • 1995 COPS Re: Importing Hash

[6] On September 9th, 2011, the sub-affiant, D.C. Atkinson received information from Ms. Debbie Kupcho at 'Toronto Hydro' regarding the address 33 Lynngrove Avenue. Ms. Kupcho provided information that indicated that the average daily hydro consumption of 33 Lynngrove over a period of approximately 22 months to June, 2011, was 100.7 KWH/day. Over the same period, the average reading for a "comparable" house was 44.2 KWH/day. This level of hydro consumption, being more than twice the level of the neighbouring comparable address, was said to be (in bold) abnormally very high. The dwellings in that area were said to be of the same size with a similar type of construction.

[7] In addition, the officers obtained bar graph information based on "smart meter recordings" of hourly hydro consumption for a one-month period ending September 11th, 2011, at 33 Lynngrove. What is constant in the graph information is the regular jump in hourly hydro usage overnight from about 2 KWH to about 8 KWH in a uniform 12 hour "tall building" pattern. The I.T.O states that "the hydro presents 12 hours cycles which is (sic) used to grow the plants in the budding stage of the Marihuana (Cannabis Sativa)." The hourly hydro consumption for the comparable home over the same month discloses a much more variable hourly load that generally increases a few KWH for 5 or 6 hours a night from approximately 10:00 p.m. to 4:00 a.m.

[8] The following additional information is provided in the I.T.O.:

• Frank Kozak, the listed tenant and current hydro account-holder for 33 Lynngrove had provided Hydro with a false or incorrect driver's license number.
• On an occurrence involving an investigation of Kozak on 2008.07.10 he used the same contact telephone number as Roman Paryniuk who was investigated on 2007.05.01 for producing false "ID" and being a prohibited driver.
• On September 9th, 2011, License plate and CPIC checks yielded an address for Roman Paryniuk of 11-2239 Bloor Street West, Toronto. An ECOPS check revealed that Paryniuk was stopped on July 16, 2011 "for multiple HTA violations" and at that time he provided the following address: 2898 Lakeshore Blvd., Unit 95 in Toronto.
• The ECOPS check revealed "total 14 hits." Two pages of "hits" are listed with numerous charges dating from 1994 to 2011, including HTA violations, drug charges, and firearm-related offences.
• D.C. Sanjay Sondhi attended 33 Lynngrove 10:47 a.m. on September 9, 2011, and made observations:
  • Two storey detached house
  • Ford Bronco in driveway lic. plate BMHJ979 backed all the way up against closed garage door
  • Large window main floor covered with what appeared to be a white plastic sheet offering no interior view
  • 2 windows located on top floor facing south both closed covered with white venetian blinds
  • Grass is cut in front yard but approximately 3 – 4 feet (sic) high plants left in front of large window
  • House small in size compared to others in immediate vicinity
  • The shingles on the roof is (sic) poor condition, peeling off
  • No one and no movements were observed in the house; 11:29 a.m. left the area
• On September 9, 2011, at 11:55 a.m. D.C. Sondhi observed that the address Mr. Paryniuk had provided on Bloor Street was a printing business and the address was a rental mail box
• On September 9, 2011, at 12:42 p.m. D.C. Sondhi returned to 33 Lynngrove and noted that all observations were the same as earlier that day and left at 1:30 p.m.
• On September 12th, 2011, D.C. Sondhi spoke to the officer who had stopped Mr. Paryniuk while driving a red Ford pickup lic. plate AVWC158 and address 2898 Lakeshore Blvd. No. 95 on July 16, 2011; he provided a description of the male and said he was very nervous
• On September 13, 2011, D.C. Sondhi requested updated hydro records for 33 Lynngrove and was sent two days of daily consumption totals and hourly usage bar graphs from September 7th to September 13th, 2011; charts were produced and included in the I.T.O.; D.C. Sondhi stated: "looking at the hydro consumption it's clear that 33 Lynngrove Avenue continue (sic) to use more than double amount of hydro compare to the neighbouring address at Lynngrove Avenue." "The comparison between the two address' hydro graphs clearly shows that hydro at 33 Lynngrove Avenue is still being used in a 12 hour cycle." The bar graphs disclose the use of a timing device on a 12 hour cycle during which the hourly use jumps from approximately .5 KWH to 8 KWH in a uniform "tall building" style of presentation.
• On September 15th, 2011, D.C. Sondhi checked Health Canada records and determined that neither Mr. Paryniuk nor Mr. Kozak were licensed to possess or grow marihuana
• On September 15th, 2011, at 6:45 p.m., D.C. Sondhi attended at the residence and observed a male who met the description of Roman Paryniuk exit the residence, enter the Ford Bronco truck, drive to a Wendy's Restaurant, eat and drive westbound on the 401 highway
• On September 16th, 2011, D.C. Sondhi checked the Lakeshore Blvd. address given by Mr. Paryniuk on July 16, 2011 and found it to be a rental mail box at a Money Mart shop
• On September 16th, between the hours 2:05 and 2:35 pm, D.C. Sondhi checked the residence once more and found "all observations were the same as on September 9th, 2011"
• On September 16th, at 4:06 p.m., D.C. Sondhi ran a CPIC check and determined that Mr. Paryniuk had given a mail box as his address and that his Ford Bronco had two different licence plate numbers at different times
• On September 16th, at 8:16 p.m., D.C. Sondhi checked the residence once more and found "all observations were the same as on September 9th, 2011 and earlier today". All windows on both levels were closed and covered. Main and top level had lights on. At 8:23 p.m. he observed a male who met the description of Roman Paryniuk leave the residence and walk to the Ford bronco in the driveway. At 8:45 p.m. D.C. Sondhi left the area.
• On September 17th, at 3:05 p.m., D.C. Crooker checked the residence once more and found "all observations were the same as on September 9th and 16th 2011". The Ford bronco was parked front up against the garage door. No one and no movements were observed
• On September 19, 2011, D.C. Sondhi requested updated hydro records for 33 Lynngrove and was sent two days of daily consumption totals and hourly usage bar graphs between August 18th and September 19th, 2011; charts were produced and included in the I.T.O.; D.C. Sondhi stated: "looking at the hydro consumption it's clear that 33 Lynngrove Avenue continue (sic) to use almost four times of hydro (sic) compare to the neighbouring address at Lynngrove Avenue." "The comparison between the two address' hydro graphs clearly shows that hydro at 33 Lynngrove Avenue is still being used in a 12 hour cycle." The bar graphs disclose the use of a timing device on a 12 hour cycle during which the hourly use jumps from approximately .5 KWH to 8 KWH in a rigid "tall building" style of presentation. The hourly hydro consumption for the comparable home over the same month has a much more ragged appearance on a bar graph and discloses a more variable hourly load that generally increases a few KWH for 5 or 6 hours a night during the evening and early morning hours.

[9] Officer Sondhi, the Affiant, then proceeds to summarize the grounds, as follows: "the information I received from Toronto Hydro … supports the fact that a Marihuana Grow Operation is taking place at 33 Lynngrove Avenue." He then explains the purpose of using high powered light bulbs on a timer to simulate sunlight in the nighttime hours to grow plants in the budding stage. He states that 1000 watt light bulbs are set up on ballasts linked to timers to simulate daylight in the night time / dark hours. He says that "normal dwellings do not use timers" except for decoration and security lights which consume very little energy. He comments that normal dwellings have their peak consumption in the morning, at lunch time and in the evening hours when "people do laundry, dinner and watch T.V." "The consumption would never be constantly as high as the consumption at 33 Lynngrove Avenue." Comparing this house with a neighbouring dwelling, he points out that the usage of electricity is very inconsistent with a normal dwelling. He concludes that there is no other explanation for more than twice the daily hydro consumption in consistent daily 12 hour cycles, than "the hydro is being used to power a marihuana grow operation at 33 Lynngrove Avenue."

[10] D.C. Sondhi then provides further grounds to believe an offence was being committed on the premises:

• He refers to windows and doors being "all covered up" and concludes that "By keeping the windows covered or barricaded, it also prevents the very bright light from being seen by people such as neighbours."
• He states that "After several physical surveillance of the premise police have not observed any movement in the house. Police have only observed Roman Paryniuk leaving the premise. Officers have not observed any furniture at the premise. I believe no one actually lives at 33 Lynngrove Avenue." It is my experience…that people involved in Marihuana grow operation don't reside at the same location."
• He states that "I believe that... [a] filter is being used at 33 Lynngrove to suppress the smell of marihuana."
• He contends that people involved "in marihuana operation" most likely register their vehicles at some other address or is some other name to hide their identity. The Ford Bronco parked at the residence has been proven to be registered to Roman Paryniuk at a mail box address at 2239 Bloor Street. As well, the address on the ownership of the red Ford pickup truck he was driving on July 16th, 2011 was a mail box at 2898 lakeshore Blvd. D.C. Sondhi stated that he believed the fact Roman Paryniuk had been charged with providing fake I.D numerous times in the past was for "the sole purpose" of hiding his "identity / address in order to avoid prosecution."
• The final grounds relate to Roman Paryniuk's association with Frank Kozak. It has been shown that Frank Kozak's driver's licence number on the hydro account for 33 Lynngrove is "false". "Frank Kozak's vehicle was linked to Roman Parynuik who was … investigated in May, 2007 for producing false ID and being a prohibited driver." Both Kozak and Paryniuk were found to have been using the same telephone number. Paryniuk was seen leaving 33 Lynngrove Avenue on two occasions. The Affiant states: I believe with no doubt that Roman Paryniuk and Frank Kozak both are running this Marihuana grow operation at 33 Lynngrove Avenue."
• His conclusion is that the "high hydro consumption" and the "observations made at the premise" are consistent with the Marihuana Grow Operation.

Vive Voce Evidence

[11] P.C. Jennifer Cash testified that he had been a member of the Toronto Police Services for 8 years and was aware that her observations formed part of the grounds for the search warrant. On the basis of a map filed, (Exhibit 1) it was apparent that the contact with the director of a hydroponics firm was about half a block away from 33 Lynngrove Avenue. She indicated that she investigated 33 Lynngrove Avenue by walking "two to three feet" into a neighbours back yard and attempted to see in a window at the back of 33 Lynngrove from an angle and could only see about "2 feet into the house." She saw no furniture ─ but did not intend to suggest the house was unfurnished.

[12] D.C. Sanjay Sondhi gave evidence as the Affiant who prepared the I.T.O for the warrant. He agreed that the pre-search video recording of the residence indicated that the premises looked lived in; there was food in the "fridge", the house was furnished and there were personal effects present. He pointed out a vent designed to supress the smell of marihuana. Also noteworthy was a timer system installed to set the timing for the 1000 watt light bulbs used in the grow operation. The D.V.D. of the premises at the time of the search was marked Exhibit 5. D.C. Sondhi stated that he had worked with the Clandestine Lab Team for about 20 months and in that time he had prepared 20 to 25 search warrants for various locations in Toronto. He testified that he believed his search warrant responsibilities extended to putting all the information he received before the reviewing justice even if he thought the information was false. "I don't leave anything out."

[13] D.C. Sanjay Sondhi agreed that the sighting of Mr. Pindus was about one/half block from 33 Lynngrove Avenue and that by itself, this information was irrelevant as was the information about the white male who did not fit into the neighbourhood. As to the comment in the I.T.O. that "all the windows were covered", he agreed that at 11:50 p.m. most windows in the neighbourhood were covered. He stated that he did not know what P.C. Cash meant when she advised that there were too many lights on for the neighbourhood at that time of night. Additionally, he never questioned P.C. Cash about her observations ─ "one window uncovered at back, doesn't appear to be furniture inside." He didn't ask whether she had made an illegal perimeter search or what her vantage point was – to make that statement. Nevertheless, he agreed he was content to conclude from this note that the house was unfurnished and unoccupied. He was asked: "What else led you to believe it was unfurnished?" He replied that: "I went 8 to 9 times to the place and there was no change. Based on my experience, people who run grow ops don't reside there."

[14] D.C. Sondhi was asked about his ECOPS search of Mr. Paryniuk's name that yielded 14 hits: did he find out what happened to all the criminal and HTA charges? He said: "I believe I did ….he was not convicted of anything." D.C. Sondhi the apologized to the Court for not including the results of the charges: "that was not in my I.T.O." He agreed that the long list of charges without the disposition could lead to the wrong impression. He agreed that what he had described as a white plastic sheet over a window was actually a roller blind. He was asked about his observations of the property and he acknowledged that even if an untended property was a sign of a "grow op", that was not the case here. It was pointed out that the I.T.O. page 10, stated that the property was unkempt for the area, and he replied: "those were the other officers observations. I put it there because this was the information provided to me." He agreed there could be other reasons for the high use 12 hour cycles of hydro consumption and commented that the hydro records were not enough to rely on for grounds for a warrant.

[15] In his "Grounds" on page 42, he stated that "by keeping the windows covered or barricaded it also prevents the very bright light from being seen …by neighbours." D.C. Sondhi agreed that no windows were barricaded, people cover windows for privacy and in any event P.C. Cash saw a bright white light on the main level in spite of the window covering and there was no evidence that bright light was being hidden. D.C. Sondhi testified that in "99% of grow ops … the car is registered at a different location." He stated that his conclusion it was a "grow op" was based on the fact he had been there more than 8 times but only saw one person there, there was no change in activity and the pattern of hydro consumption was the same ─ over 100 KWh/day. He said there was no logical explanation for this hydro use, no heavy construction or big family. "Larger houses were not using this level of hydro." D.C. Sondhi stated that all his warrants (20 – 25) were at least double hydro consumption with cyclical daily graphs and all proved to be "grow ops." Of the 40 more where he was not the affiant, only two were not "grow ops" (one was a dialysis machine and the other was a fish and reptile aquarium).

Legal Test: The Existence of Reasonable Grounds

[16] The legal framework for the review of a search warrant is outlined in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 39:

[39] Under the Charter, before a search can be conducted, the police must provide "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search" (Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 168). These distinct and cumulative requirements together form part of the "minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure" (p. 168).

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

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

[59] 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 material information available to him at the time.

[17] The task of redacting erroneous and tendentious assertions requires a forensic determination as to whether erroneous assertions may be corrected by evidence on review that constitutes appropriate amplification. A fuller discussion of what that entails is found in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at para. 58:

58 Thus, in looking for evidence that might reasonably be believed on the basis of which the authorization could have issued, the reviewing court must exclude erroneous information. However, if it was erroneous despite good faith on the part of the police, then amplification may correct this information.

59 When using amplification, courts must strike a balance between two fundamental principles of search and seizure law that come into a rather unique tension in these kinds of situations: see Morris, supra, at pp. 567-68. As a result of this tension, the cases disclose divergent attitudes to incomplete or incorrect affidavits and amplification thereof: see Morris, at pp. 560-67; cf. R. v. Madrid (1994), 48 B.C.A.C. 271, at pp. 285-90, and R. v. Harris, (1987), 35 C.C.C. (3d) 1 (Ont. C.A.), at pp. 23 and 27 (leave to appeal refused, [1987] 2 S.C.R. vii). The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement. Since a prior authorization is fundamental to the protection of everyone's privacy interests (Hunter v. Southam Inc., supra, at p. 160), amplification cannot 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 entirely 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 the drafting of their affidavit material. Courts must recognize (along with investigative necessity) the two principles of prior authorization and probable grounds, the verification of which may require a close examination of the information available to the police at the time of the application for a wiretap, in considering the jurisprudence on amplification. The approach set out earlier to erroneous information in an affidavit on a wiretap application attempts to reconcile these principles. Courts should take a similar approach to amplification.

[18] Finally, no discussion of reasonable grounds would be complete without reference to applicable case authorities on the question of whether analytical scrutiny must focus on reasonable grounds from a subjective or objective perspective. R. v. Storrey, [1990] 1 S.C.R. 241 at p. 251 is the leading authority for the proposition that the reasonable grounds of belief be both subjectively and objectively established: (per Cory J.):

It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest. See R. v. Brown, (1987), 33 C.C.C. (3d) 54 (N.S.C.A.), at p. 66; Liversidge v. Anderson, [1942] A.C. 206 (H.L.), at p. 228.

In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

Analysis

[19] The first question is whether the search and seizure were unreasonable, within the meaning of s. 8 of the Charter; the second is whether admission of the evidence thereby obtained would bring the administration of justice into disrepute, and should therefore be excluded pursuant to s. 24(2). The second question is only reached, of course, if the first is resolved in the Applicant's favour. And that depends on whether the ITO, stripped of its irrelevancies as well as its erroneous and misleading assertions, and amplified as necessary, provides sufficient credible and reliable evidence to have permitted the Justice of the Peace to find reasonable and probable grounds to believe that the Applicant was producing a controlled substance at the subject residence.

[20] To put it succinctly, "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": R. v. Morelli, supra, at para. 40. As the Ontario Court of Appeal stated in R. v. Jacobson, [2006] O.J. No. 1527: "The standard of reasonable grounds does not require proof beyond a reasonable doubt or even proof on a balance of probabilities. If the inference of criminal intent is a reasonable inference from the facts, the warrant should be issued."

[21] On the basis of a careful review of the I.T.O and the evidence heard on the voir dire, I am satisfied that the Affiant D.C. Sondhi believed that reasonable grounds existed for the belief that Roman Paryniuk was a party to the production of a controlled drug and that evidence of that offence would be found on the premises at 33 Lynngrove Avenue. He was of the view that he did not have the necessary reasonable grounds to obtain a search warrant with nothing more than the hydro consumption and cyclical use pattern evidence. It was the circumstantial evidence in addition to the hydro consumption information that constituted reasonable grounds, according to the Affiant. Consequently, analytical review must centre upon the objective forms of reasonable grounds for the Affiant's stated beliefs ─ and the sufficiency of the I.T.O must stand or fall on the basis of the combined weight of both the fruits of the police investigation and the hydro information. In order to answer the question of whether the hydro information was corroborated by police investigation prior to making the decision to conduct a search, it is noteworthy that the case authorities suggest that none of these factors forms a separate test. It is the "totality of the circumstances" that must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other: R. v. Debot (1989), 52 C.C.C. (3d) 193 at p. 215.

[22] The hydro information utilyzed in the I.T.O is clear and unassailable. The only questionable aspect of the data collection process was the use of unidentified comparables. Being mindful of the privacy interests of neighbourhood families, I will choose to ignore this concern in the absence of an application to disclose. In order to determine whether the issuance of the warrant was legally justified and reasonable in the circumstances, the task at hand is to distill the police investigation grounds to reasonable inferences, if any, that the house was being used to grow marihuana. To do that, one must extract a plethora of irrelevancies, as well as erroneous, misleading information (and include amplifications where appropriate). This question is best addressed by considering various aspects of the I.T.O. in turn:

(A) Information supplied by P.C. Cash

The information supplied by P.C. Cash is mostly irrelevant and misleading. D.C. Sondhi agreed that the contacts with males on Uplands Road were irrelevant. P.C. Cash testified that she did not mean to imply that the residence was unfurnished, having been able to see no further than two feet inside the house. Any inference the home was unfurnished and unoccupied is deleted as inaccurate and unsupportable. The detail about drug charges supplied by P.C. Cash that did not result in convictions was not only misleading, but seriously prejudicial. The information supplied by P.C. Cash to the effect "the property appeared to be unkempt" was contradicted by D.C. Sondhi, yet he "put it there because the information was provided to me". Given the fact D.C. Sondhi was on scene more often than P.C. Cash and he agreed it was not an untended property, that information will be deleted as inaccurate. Much of the additional information does not rise above the innocuous. The only possible relevant indicia that could be included in the I.T.O would be: (1) bright almost white light coming from living room window which was completely covered; (2) Ford Bronco in driveway registered to Roman Paryniuk, address 11-2239 Bloor Street, Toronto; (3) all windows on main level west side are covered.

(B) Information supplied by D.C. Sondhi

Reviewing D.C. Sondhi's information, there is much to be excised. There is some marginal relevance to the assertion that the hydro customer for 33 Lynngrove (Frank Kozak) submitted a driver's license number that does not appear valid in any CPIC or MTO searches. However there is no relevance to the fact that Mr. Paryniuk had two different license plates on his vehicle within the space of a few months in the absence of any evidence of a finding of guilt for using fake license plates. Still, it is relevant that Mr. Kozak and Mr. Paryniuk appear to be using the same telephone number. However, the extensive reporting of HTA, Criminal Code and drug charges in the I.T.O. is highly misleading, prejudicial and offensive. There are two pages of charges under the heading: "Total 14 Hits." D.C. Sondhi reproduced an entire ECOPS search without any justification or explanation.

It is common ground that Mr. Paryniuk has no criminal record.

Most appalling is the reference to 1999.03.18 [Involved, CHARGED], followed by 16 serious drug and firearm offences, all capitalized ─ none of which resulted in a conviction. The most prejudicial references (that one can only assume were included to encourage proclivity reasoning) are the following: "POSSESSION FOR THE PURPOSE CANNABIS (OVER); POSSESSION FOR THE PURPOSE CONTROLLED SUBSTANCE (OVER) SCHED III; POSSESSION FOR THE PURPOSE HASHISH (OVER); POSSESSION OF FIREARM KNOWING UNAUTHORIZED; POSSESSION OF PROHIBITED FIREARM WITH AMMUNITION; TRAFFIC IN CONTROLLED SUBSTANCE SCHED. III; POSS PSILOCYBIN FTP; 1995.11.18 [Involved, CHARGED] IMPORTING COCAINE N.C.A.; 1994.08.01 [Involved, CHARGED] CONSPIRACY TO COMMIT INDICTABLE OFFENCE; IMPORTING HASHISH."

Even more troubling was the testimony of D.C. Sondhi to the effect that he knew that the Applicant was not convicted of any of the charges. He apologized to the Court that the outcome of all of the above charges was never included in his I.T.O., thereby tacitly admitting that he believed any prejudice flowing from these historical allegations could be purged by including a reference to the fact that no charges resulted in a conviction. He did not seem to understand his responsibility to maintain the integrity of information he has provided in a sworn affidavit. The impropriety of tendering mere allegations in an I.T.O with their potential to jeopardize fairness and justice seems to have been lost in the rush to obtain judicial authority to search the subject residence. Rather than an ex parte exercise in fairness and balance, D.C. Sondhi saw his role as a funnel through which all available information could be deposited into the I.T.O. He was asked: "you try to put in everything that is relevant?" He answered: "no, any information. I do my best to put it in." Question: "it all goes in?" Answer: yes." He was then asked: "if you think it is false, you put it in?" He answered: "yes." All of the ECOPS entries will be redacted as wholly misleading with the potential for serious prejudice.

Further, D.C. Sondhi's observations about a white plastic sheet covering a large window on the main floor were conceded to be incorrect after he was shown a photograph depicting a white roller blind. This evidence will therefore be redacted. The relevant evidence from September 9, 2011, was the reference to shingles on the roof peeling off; "observed the address (42 minutes to 11:29 am), no one seen, no movements observed." He then found that the address the Ford Bronco was registered to on Bloor Street was a rental mail box. He then observed the address (for 47 minutes to 1:30 pm) and noted that all observations were the same as earlier that day.

The relevant police observations from September 15 were that a male matching the description for Roman Paryniuk, left the address in the Ford Bronco, and later drove west on the 401 highway. On September 16th, the Affiant found that the address the Ford Bronco was registered to on July 16th, 2011, was a rental mail box on Lakeshore Blvd. He then observed the subject address (30 minutes to 2:35 pm) and noted that all observations were the same as before – no change. Later the same day he attended the subject address (8:16 to 8:45 pm) and reported all observations were the same as before: all windows closed and covered with lights on main and top floors. At 8:23 p.m. Roman Paryniuk was seen walking to the Ford bronco in the driveway. On September 17th, D.C. Crooker attended the subject property (3:05 to 4:15 p.m.) and reported that all observations were the same – no movements.

[22] After excising all irrelevant, improper, inaccurate and misleading references in the I.T.O. the evidence the relevant information can be distilled to the following indicia of a marihuana grow operation:

(1) Bright almost white light coming from living room window which was completely covered. (2) Ford Bronco in driveway registered to Roman Paryniuk; address 11-2239 Bloor Street, Toronto. (3) All windows on main level west side are covered. (4) There is some relevance to the assertion that the hydro customer for 33 Lynngrove Avenue (Frank Kozak) submitted a driver's license number that does not appear valid in any CPIC or MTO searches. (5) And it is relevant that Mr. Kozak and Mr. Paryniuk appear to be using the same telephone number. (6) The relevant evidence from September 9, 2011, was the reference to shingles on the roof peeling off. (7) On Sept. 9 the address was observed (42 minutes to 11:29 am), no one seen, no movements observed. (8) The Affiant found that the address the Ford Bronco was registered to on Bloor Street was a rental mail box. (9) He then observed the address (47 minutes to 1:30 pm) and noted that all observations were the same as earlier that day. (10) The relevant police observations from September 15 were that a male matching the description for Roman Paryniuk, left the address in the Ford Bronco. (11) On September 16th, the Affiant found that the address the Ford Bronco was registered to on July 16th, 2011, was a rental mail box on Lakeshore Blvd. (12) On Sept. 16, he then observed the subject address (30 minutes to 2:35 pm) and noted that all observations were the same as before – no change. (13) Later the same day he attended the subject address (8:16 to 8:45 pm) and reported all observations were the same as before: all windows closed and covered with lights on main and top floors. At 8:23 p.m. Roman Paryniuk was seen walking to the Ford bronco in the driveway. (14) On September 17th, D.C. Crooker attended the subject property (3:05 to 4:15 p.m.) and reported that all observations were the same – no movements.

(I have ignored all references to allegations that Mr. Paryniuk has used fake identification ─ in the absence of any finding of guilt. The reference to a belief that a filter was being used to supress the smell of marihuana is nothing more than speculation).

[23] I am prepared to consider all of the above observations as circumstantial indicia of the existence in the subject residence of a marijuana grow operation. Just as slurred speech does not prove impaired driving, there is no suggestion here that these individual indicium raise a reasonable inference on their own. But considered together along with the hydro data and illuminated by the observations of police investigators, filtered through their experience with marihuana cultivation operations, they could provide sufficient information upon which, a warrant could issue. These grounds amount to the following: a bright white light in the living room that seems unusual; window coverings on most windows that are never opened and the appearance of the house never changes; Mr. Paryniuk is in breach of the HTA by registering his vehicle's address at two rental mail boxes; Paryniuk and Kozak appear connected through the same telephone number and Kozak has provided what appears to be an invalid driver's license number on the Hydro account for 33 Lynngrove; the shingles on the roof appear to be peeling off; Mr. Paryniuk is seen coming from the residence twice in an 11 day period and he is seen using the Ford Bronco that is always parked in the driveway on two occasions.

[24] There is some significance to these indicia. The fact that nothing about the appearance of the house ever changed is particularly significant in light of the very high hydro consumption. D.C. Sondhi's experience is that 99% of grow operators do not register their vehicle at the grow op; the mail box evidence therefore represents some evidence of involvement because those who cultivate in a residence likely do not want to be officially associated with the address any more than necessary. Paryniuk is associated with Kozak and Kozak appears to be providing false identification information to Hydro. The shingles on the roof appear to be peeling off which could be caused by moisture from cultivation. In terms of identifying who is involved, Roman Paryniuk can be identified as working at the property in some capacity and the owner and driver of the vehicle that is parked in the driveway every day. These are the objectively significant police investigation indicia that in combination with the hydro consumption information must be assessed to determine whether sufficient articulable facts have been set forth by the Affiant to establish reasonable grounds for believing that the subject address was being used to grow marihuana.

[25] The hydro consumption information is fairly compelling. D.C. Sondhi testified that he has authored 20 to 25 I.T.O.'s, all of which resulted in the discovery of a marihuana grow operation. The two years of energy consumption data demonstrates that the hydro consumption at the subject property was on average 100.7 KWH/day. Over the same period, the average reading for a "comparable" house was 44.2 KWH/day. This level of hydro consumption was more than twice the level of the neighbouring comparable address. The officers obtained bar graph information based on "smart meter recordings" of hourly hydro consumption for a one-month period ending September 11th, 2011 and the graph indicated a regular jump in hourly hydro usage overnight from about 2 KWH to about 8 KWH in a uniform 12 hour "tall building" pattern. The I.T.O states that this rigid overnight cyclical pattern of 12 hours cycles is used to grow the plants in the budding stage of the marihuana plant. The hourly hydro consumption for the comparable home over the same month discloses a much more variable hourly load that generally increases a few KWH for 5 or 6 hours a night from approximately 10:00 p.m. to 4:00 a.m. Smart meter records were obtained for two other periods ending September 19th, and consumption and cyclical patterns were essentially the same as earlier data collection. In my view the distinctive electricity use patterns disclosed by the Smart meter data support a strong inference that a grow operation was on the premises. The high consumption and 12 hour nightly cycles that were obviously operated on a timer, leave little room for the possibility that there is any other project underway in the residence beside plant growth.

Conclusion

[26] While a marihuana crop is strongly correlated with the likelihood that some plant growth is taking place on a large scale on the premises, the relationship between the two is not absolute. In practice, the police use the hydro information, along with the results of their investigation as filtered through their experience, to show that there are reasonable and probable grounds to justify the issuance of a warrant to search the house for evidence of a grow operation producing marihuana. In the instant case there was no question the hydro data reliably supported an inference that a grow operation was present in the home. In my view, the police investigation in combination with officer experience was enough to raise a reasonable inference that the house was being used to grow marihuana. As the Court emphasized in Debot, supra, it is the "totality of the circumstances that must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other." The continually covered windows, the appearance of the house that never changed notwithstanding a massive, nightly use of energy, the peeling roof shingles, the fact that Mr. Paryniuk appeared to be living and working at this address while registered elsewhere all indicated that the tenant(s) were keeping a very low profile. Even though the hydro information indicated that some type of plant growth operation was taking place, the police observations as noted above, coloured by experience, together with the hydro data were sufficient to provide reasonable grounds a marijuana grow operation was present ― to obtain a warrant to search the residence.

[27] As a result of these findings the Application under section 8 of the Charter will be dismissed. Having found the search and seizure was reasonable, it is not necessary to consider the usual issues of exclusion under s. 24(2). Notwithstanding this decision I am prepared to hear further submissions from counsel as to whether the concerns expressed about "the impropriety of tendering criminal allegations in an I.T.O with their potential to jeopardize fairness and justice" (see para. 22, above) should be addressed in some manner.

Released: December 19, 2012

Justice Peter Harris