Court File and Parties

Court File No.: 10 11883

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

William Klassen and Laurie Horne-Klassen

Before: Justice Gregory A. Campbell

Heard on: December 12, 2012

Reasons for Judgment released: January 22, 2013

Counsel:

• Brendan Thomas, for the Crown
• Maria Carroccia, for the accuseds William Klassen and Laurie Horne-Klassen

CAMPBELL J.:

Nature of the Proceeding

[1] Mr. and Mrs. Klassen reside in the Town of Kingsville and became the subject matter of a police investigation following a tip that they were growing marijuana at their home for their personal use.

[2] The Ontario Provincial Police obtained a warrant to search their home. A total of 17.7 grams of cannabis marijuana was located in two glass jars found within the residence and 18 plants measuring three to four feet tall were found outside and at the rear of the residence.

[3] The Klassens were charged with possession of cannabis marijuana contrary to section 4(1) of the Controlled Drugs and Substances Act, and production of cannabis marijuana contrary to section 7(1) of the Controlled Drugs and Substances Act.

[4] The Klassens moved by application pursuant to section 24(2) of the Charter of Rights and Freedoms to exclude the evidence found at the home on the basis that their right to be secure against unreasonable search and seizure had been breached.

[5] This ruling arises from a consideration of the evidence of the police officer who was in charge of the investigation, prepared the information to obtain under the search warrant and involved with the execution of the search warrant together with the exhibits found and admissions made by counsel.

Material Facts

[6] On June 11, 2010 Detective Doherty received an anonymous tip through Crime Stoppers that the Klassens were growing marijuana for personal use at their home located in the Town of Kingsville. Officer Doherty testified that he receives a variety of Crime Stopper tips and has to prioritize them. As a result, notwithstanding the tip being received on June 11, 2010 it was not until approximately one month later, on July 13, 2010 when the officer began to look into the matter.

[7] He testified that the tipster did not have first hand information but rather disclosed only what he had heard from a third party. The officer had the names of suspects, their address and a description of the nature of the offence. He consulted municipal directories and checked the Ministry of Transportation data base to satisfy himself that the Klassens did in fact reside at the address indicated. Three days later, on July 16, 2010 the Officer drove by the Klassens' home and did a garbage pull from the end of the driveway. He brought the garbage to the local detachment and found the following within the bag:

1. Identification connecting the Klassens to the home.
2. An empty package of rolling papers.
3. A plastic bag with what appeared to him to contain and unknown plant material.
4. A plastic bag containing plant material he believed was marijuana.
5. Plastic bag containing a marijuana leaf.
6. Plastic bag containing a marijuana leaf and bud.

[8] The officer used an NIK test kit to satisfy himself that the contents found within items 5 and 6 above were in fact cannabis marijuana.

[9] The officer testified that the information received from the tip, corroboration as to the individuals and their residence, together with the small amount of marijuana found within two small plastic bags from the garbage pull, formed the basis for his grounds to believe marijuana was being produced at the residence for personal consumption.

[10] The officer explained that the package of rolling papers suggested personal use but the papers together with the leaf suggested the Klassens were growers insofar as a simple purchaser of marijuana would normally have bud whereas a grower or producer would be more likely to have marijuana leaves.

[11] On July 19, 2010 the officer sat down to prepare his Information to Obtain a Search Warrant. The Warrant to Search was received and executed on July 20, 2010.

Analysis

[12] Is not in dispute that the tip amounted to little more than a reason to make a few inquiries which is what the officer did. And, while the identification of the individuals as being connected to the property identified by the tipster was verified, that too was worth little in the way of meaningful information. It is the information obtained from the investigation that followed that requires closer consideration and in particular whether there were sufficient grounds to support the issuing of the search warrant. Essentially, the only evidence of any significance that formed the basis for the grounds to obtain the search warrant were the substances found in the plastic bags from the garbage pull. I am not a big fan of the garbage pull. It's not uncommon for people to drop garbage at any location be it a neighbour or otherwise, so the findings in isolation might be helpful in furtherance of an investigation, without more should to my mind not be given too much weight. In this case it's important to appreciate that the tipster was not identified and even more importantly he provided third party information. So, in these circumstances, I would look at the evidence obtained from this garbage pull with some degree of scepticism.

[13] I don't have any doubt that the officer had a subjective belief there was sufficient evidence of an offence consistent with the tip he received. This is important and must be given appropriate weight. To this end, the officer described his credentials and the basis for his grounds to believe an offence had been committed and why he believed evidence should be available on executing a warrant to search in the following manner.

[14] I have no reason to doubt that Officer Doherty believed, based on his knowledge and experience together with the facts he gathered up with evidence from the garbage pull, that the use and production of cannabis marijuana for personal use either occurred or may be occurring at the Klassen home. Having said that, however, I can also indicate that I could only strain my eyes so far as I looked at the plastic bags. I required guidance from the officer in regard to what the contents were. At best I could conclude only that there may have been something in two of the bags that left a scant residue or film but whatever it was wasn't identifiable. In the absence of the officer's testimony, I would not have been able to determine that it was plant like material.

[15] The bags were essentially empty and had but a couple of spots or film that was limited. And, in regard to one exhibit were the officer said the bag contained a marijuana leaf, to my naked eye it appeared to be the size of a sewing thread and as I understood the officer's evidence, it may have been a very thin stem. In any event, it was quite tiny, narrow or thin. The officer went on to indicate that there may have been more than what was now contained within the bag which he used for testing or perhaps sent off to Health Canada.

[16] A similar observation was made in regard to another item described as a leaf and bud. Now there was something tiny in that bag that appeared to be a small portion of a leaf or I suppose bud and again some of it may have been missing for the same reason owing testing and in this case, as a result of that testing, it was verified that both of these bags contained cannabis marijuana.

[17] So, notwithstanding the officer's own experience and confirmation through his testing that the contents of these last two bags did contain cannabis marijuana, the substances found were by any objective account meagre and would be of no consequence to any observer without the benefit of a highly trained eye.

[18] All of this is important because the description provided in the Information to Obtain a Warrant left me with the overall impression that what was found in the garbage bag taken from the property would certainly have been something more than what was presented to me in court.

[19] I don't hold the opinion or belief that was by design. I have no doubt that Officer Doherty described what he found fairly based on his training and experience but on the whole, it reads differently from what I have had an opportunity to observe.

[20] There is with this as well the reference in the Information to obtain a search warrant that Mr. Klassen works in the greenhouse industry and this would give him knowledge about growing marijuana at home. There is no disclosure in regard to the source of that information.

[21] As Ms. Carroccia quite properly points out, if that were in fact true, and I have no knowledge because the source of that information is not disclosed, it might very well be that Mr. Klassen is a bookkeeper or a custodian for that matter. He would not have any specific knowledge about growing plants.

[22] Finally, I would make this observation. the Information to Obtain a Warrant indicates that the officer has reasonable grounds to believe that marijuana "was being produced at the location to be searched". The only evidence suggesting there might be a grow operation came from the tipster and a small portion of a marijuana leaf found within a bag of garbage. There was nothing additional to support that conclusion. There was nothing found in the garbage that would suggest growing. Ms. Carroccia suggested this might include plant food or chemicals or other related equipment. And, there was no effort to look behind or around the house to see if plants were growing. And there was no inquiry made of the local hydro authority which is often done to determine if there had been an increase in energy use.

[23] So, as I indicated, while the officer may have had a subjective belief, there is little here objectively to connect what was found to growing marijuana.

[24] Finally, it is noteworthy that the scant amount of marijuana found, representing somewhere between residue and substance, was found in the garbage four days previous. To my mind, there was nothing from and an objective view of this evidence to suggest that the Klassens were probably producing marijuana either inside or outside of the home.

[25] In the end, the information provided from the tipster was lacking, and the investigation conducted to verify the tip resulted in little more than a probable cause to believe that an occupier of the Klassen home threw out a minuscule amount of marijuana at least four days prior to the search and I should note that during the intervening time, no additional evidence was found to support the issuance of a warrant to conduct the search of the home. To conclude, when viewed objectively, there were insufficient grounds to believe the Klassens were growing marijuana at their home.

[26] In the circumstances, the warrant ought not to have been issued and as such the subsequent search was a violation of the Klassens' Section 8 rights under the Charter.

Effect of the Breach and Section 24(2)

[27] The Klassens seek an Order to exclude the evidence as a result of the breach of their section 8 rights under the Charter.

[28] In R. v. Grant, 2009 SCC 32 and R. v. Harrison, 2009 SCC 34 the Supreme Court of Canada directed trial judges to consider the seriousness of the Charter infringing state conduct.

[29] Officer Doherty discharged his duties as an officer professionally and responsibly throughout. He explained the delay for getting to this matter due to priorities in the office and took steps to verify information from the tip by making inquiries in regard to the identification of the Klassens, their property and then conducting the garbage pull. He relied on his experience to make certain observations and when he believed he had grounds to obtain a search warrant, he completed the application and placed it before a Justice of the Peace for consideration.

[30] When the Warrant to Search was issued, the officer attended with assistance to execute the warrant which was done in a routine manner by knocking at the door, disclosing the warrant and then entering to affect the arrest and conduct the search, all of which was completed without the necessity of a dynamic entry. From the officer's account the Klassens were co-operative and the police were in and out of the house in approximately one hour and twenty minutes.

[31] The evidence that was found was real. It was not the product of any unlawful investigative technique or compulsion or derivative of any other thing.

[32] However, it would appear that the marijuana that was found was being grown for personal use. This was not a "Grow Op" in the normal sense. Marijuana grow operations in residential neighbourhoods have been an ongoing problem. This is in addition to being connected to the drug culture which brings with it a host of related criminal activity and consequences to the community. And there are further effects on property standards, values, cost to utilities and insurers and the risk of harm or injury.

[33] All of the foregoing, points to inclusion insofar as society has an interest in the adjudication of such cases.

[34] However, the facts reveal that a modest amount of marijuana was found that was clearly for personal use. There isn't a shred of evidence to suggest otherwise. I'm not dealing with a prohibited weapon or heroin or as I said, a typical grow operation that brings with it a variety of risks and consequences to the greater community. And with that, it is important to note that a search of one's home, even pursuant to a warrant, is nevertheless intrusive.

[35] I have given careful consideration to the seriousness of the charter infringing, the conduct, the impact of the breach on the charter protected interest of the accused persons and society's interest in the adjudication of this case on the merits.

[36] In the circumstances of this case, I am of the opinion that the evidence seized during the search of the Klassen home should be excluded. The application to exclude the evidence is allowed.

Released: January 22, 2013

Gregory A. Campbell, OCJ