Court File and Parties

Court File No.: 13-3897 Newmarket Date: 15 July 2014 Ontario Court of Justice

Between: Her Majesty the Queen — and — Adrian Mohamed

Ruling on Garofoli Application

Counsel: Ms. Frances Monardo for the Crown Mr. Peter Lam for Mr. Mohamed

KENKEL J.:

Introduction

[1] The accused was arrested after leaving a house that police believed contained a marijuana grow operation. The lead investigator obtained a warrant to search the premises and a grow operation was found inside.

[2] The defence challenges the validity of the search warrant and submits that the resulting search breached s. 8 of the Charter. This application has become known as a Garofoli application following the Supreme Court case that consolidated the procedure: R. v. Garofoli, [1990] SCJ No. 115. Garofoli was a wiretap case but the review procedure outlined therein applies to search warrants. R. v. Breton, [1994] O.J. No. 2097 (CA).

The Garofoli Review

[3] "In reviewing the sufficiency of a warrant application the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued. 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, 2010 SCC 8, at para. 40.

[4] In this case the court must determine whether on the record as amplified on review the justice of the peace could have granted the authorization. Section 11 of the Controlled Drugs and Substances Act (CDSA) requires that a justice must be satisfied there are reasonable grounds to believe that evidence with respect to an offence will be found in the place to be searched.

[5] "In carrying out that analysis it is important to keep in mind throughout the analysis that the warrant is presumed to be valid and the correct question is whether the respondent has established that there was no basis for its authorization. This point cannot be stressed too much. The presumption means that the decision of the issuing justice must be upheld unless the applicant meets the burden of demonstrating its invalidity." R. v. Campbell, 2010 ONCA 588, at para. 45.

Review of this Warrant

[6] Defence submissions focused on the 9 day gap between the last observation and the day of arrest. The defence submits that the justice of the peace could not have lawfully issued the warrant to search given the gap with no further evidence confirming that the grow operation was still at that location.

[7] The Crown submits that the Information to Obtain meets the statutory requirements. The 9 day gap between the last day of observation and the day of arrest is of no significance and is otherwise answered by the officer's observations at the time of arrest referred to in the ITO.

[8] The grounds listed by the affiant cover 16 days of investigation including direct observations by more than one officer of an odour of vegetative marijuana coming from the residence but not from adjacent homes on two different dates, a FLIR audit showing warm heat spots around the base of the home and at the top vents, hydro records showing identical daily hydro consumption in 12 hour cycles over 14 days, and the fact that there was no signs of occupancy and no garbage or recycling put out from that residence when the other houses in that area put their garbage out. The affiant explained in the ITO the significance of each observation in relation to suspected marijuana production. The officers confirmed with Health Canada that this was not an address licensed to produce medical marijuana. When police observed the registered owner at the house for two hours then stopped him upon exit officers detected the odour of vegetative marijuana coming from him.

[9] With respect to the FLIR audit the affiant was challenged in cross-examination as to his credentials to make the statements contained in that paragraph of his affidavit. It turned out that the officer had taken a thermography course in another province and was trained to both operate those devices and interpret the images. The images in this case were obtained by another officer onboard the police helicopter as noted in the affidavit.

[10] The officer's use of the word "anomaly" was clarified in cross-examination. The officer used the word "anomalies" to refer to any heat image picked up by FLIR that displayed as white areas indicating spots towards the warmer end of the heat spectrum. He agreed there could be many reasons for such heat sources and although more than 95% of grow operations show such "anomalies" the presence of such heat indications is not a sufficient basis alone to form a belief that a grow operation is present.

[11] The affiant's evidence regarding FLIR as amplified on review clarifies certain details but does not detract from the affiant's original statements in the ITO nor were there any errors revealed that would need to be excised.

[12] Considering the ITO as a whole I find that the learned justice of the peace had sufficient credible and reliable evidence to reasonably conclude that there were reasonable and probable grounds to believe that there was a marijuana grow operation on the premises and that evidence of that offence would be obtained at that location.

[13] Although 9 days had passed from the day of the last observation to the day of the final observations and arrest, I find that there was sufficient evidence in the ITO on which the learned justice of the peace could find there were reasonable and probable grounds to believe that the evidence of the offence would be found on the date of the search. A marijuana grow operation as described in the ITO is not a transient enterprise. A 9 day gap is not significant in this context given the fixtures described and the life cycle of an agricultural product. The fact that officers smelled an odour of vegetative marijuana coming from the accused at the time of arrest was further evidence that the grow operation was still in business.

Conclusion

[14] I find that the warrant was lawfully issued. The applicant has failed to prove the s. 8 breach alleged. The application is dismissed.

Delivered July 15, 2014.

Justice Joseph F. Kenkel