Court File and Parties

Ontario Court of Justice

Date: November 27, 2014

Court File No.: 13-10000482-01

Between:

Her Majesty the Queen

— and —

Shu Er Li

Before: Justice K. Caldwell

Reasons for Judgment released on: November 27, 2014

Counsel:

• Mr. Christopher Leafloor, counsel for the Crown
• Ms. Kim Schofield, counsel for the defendant Mr. Li

Judgment

K. Caldwell J.:

Background

1 Mr. Li is charged with production of marihuana and a number of related charges. He has applied under section 8 of the Charter to quash the search warrants that led to the discovery of the marijuana.

2 It is crucial to note that Mr. Li has a production license allowing him to produce marihuana for personal medical purposes.

3 There were four warrants, each relating to different units in a warehouse plaza. The units are side-by-side. Units 17 and 18 had licenses ("the licensed units"); units 15 and 16 did not ("the unlicensed units").

4 A total of 294 plants were allowed in the licensed units.1

The Issues

5 It is not in issue that a grow operation existed. Instead, the issues are as follows. First, whether the excised and amplified warrants could provide a justice with reasonable grounds to believe that there was an "over grow" in the licensed units. Secondly, whether the same warrants could provide reasonable grounds to believe that the unlicensed units were operating as a grow operation.

Conclusion

6 I find that the applicant has not met his onus for the reasons outlined below thus the warrants stand.

The Law

7 The standard of review is outlined 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". 2 (Emphasis added)

8 The warrants were issued under section 11 of the Controlled Drugs and Substances Act ("CDSA"). That section provides that a justice may issue a warrant if the justice is satisfied by information on oath that there are reasonable grounds to believe that a place contains a controlled substance in contravention of the CDSA.

9 Any review must therefore bear in mind the "reasonable grounds" standard. "Reasonable grounds" does not require proof beyond a reasonable doubt or even proof on the balance of probabilities but it does rise above that of mere suspicion.3 The standard is one of credibly–based probability.4

10 The authorizing justice must make the decision about whether to issue the warrant from the whole of the evidence in the ITO, and make that assessment on a practical basis. The justice can draw reasonable inferences from the contents of the ITO.5

[11] The onus of demonstrating that the warrant is invalid falls on the party who is contesting the warrant.6

[12] In undertaking a review, the reviewing court must exclude erroneous information. Amplification, however, can correct such information if the erroneous information was provided in good faith on the part of the police.7 The amplified evidence must be evidence that was available to the police at the time the ITO was sworn, not information that was obtained later.8

[13] The affiant's belief needn't be based on personal knowledge but the ITO must, in the totality of the circumstances, disclose a substantial basis for the existence of the belief.9

Further:

"On an application for a search warrant, the informant must set out in the information the grounds for his or her belief in order that the justice may satisfy himself or herself that there are reasonable grounds for believing what is alleged: see R. v. Noble, supra, at 161. Consequently, a mere statement by the informant that he or she was told by a reliable informer that a certain person is carrying on a criminal activity or that drugs would be found at a certain place would be an insufficient basis for the granting of the warrant. The underlying circumstances disclosed by the informer for his or her conclusion must be set out, thus enabling the justice to satisfy himself or herself that there are reasonable grounds for believing what is alleged."10

Contents of the Warrants

[14] The identical ITO supported all four warrants. I granted leave for Ms. Schofield to cross-examine the affiant, Detective Constable Brett Ward. As a result of that cross-examination, it is clear that there were inaccuracies in and omissions from the ITO. I find that such omissions and inaccuracies stemmed from unnecessary haste and lack of attention to detail in the warrant preparation as opposed to any bad faith or deliberate attempt to mislead the issuing justice. I further note that the applicant did not argue that the officer was acting in bad faith.

[15] In order to understand the state of the ITO after amplification and excision, it is necessary to review the ITO page by page in conjunction with the testimony of Detective Constable Ward.[11]

Pages 1 – 3

[16] No issue is taken with the information outlined in these pages. This information simply reviews the officer's background and the purposes of his police unit.

Pages 4 - 7

[17] The only issue taken with the information in these pages is the following:

Page 5, lines 7-8: Detective Constable Ward acknowledged that units 15 – 18 are not the only units in the plaza with matching CCTV cameras.

Pages 8 – 11

[18] These pages contain photocopies of photographs taken of the four units. The original faxed copies of the photographs sent to the justice were obtained. The quality of the faxed copies was so poor that it is impossible to conclude or infer anything from these photographs. They needn't be excised but they are irrelevant.

Page 12

[19] No issue is taken with the information contained in this page.

Pages 13 – 14

[20] The applicant takes issue with much of the contents of pages 13 – 14. I agree with some of the applicant's arguments but not all.

(a) I do agree that the last paragraph on page 13 continuing onto page 14 should be excised. This paragraph essentially contends that there is a widespread issue with medical marihuana permit holders growing more than their allotted number of plants within their licensed facilities.

It should be excised for two reasons. First, it is a conclusory statement provided without foundation. The officer's own comment that he has executed "a minimum of 100 illegal marihuana grow operations" has no connection to the conclusion provided. Secondly, it was clear from his cross-examination that his opinion was garnered largely from hearsay comments said in the detective office. It would be impossible for the issuing justice to independently assess the accuracy of this conclusory statement given that no information was provided to substantiate it.[12]

(b) The applicant also contends that the following passage should be excised from these pages:

"It is my belief that the premise of 1145 Bellamy Rd. N. units 15, 16, 17, and 18 house way beyond the allotment of 294 plants…. The space required to grow 294 marihuana plants would be substantially less than 8000 sq./ft."

I find that this passage should remain. There is no question that the officer had a subjective belief in the accuracy of these statements and that belief was not undercut upon cross-examination. More importantly, I find that there is an objective basis for these statements as I will outline later in my analysis of the sufficiency of the ITO. Further, as I will also outline later, I find that the statements are relevant.

(c) Finally, the applicant contends that the following statement should be excised: "With the renting of each unit being $5 a sq./ft. that would equate to approximately $40,000 in rent, which I believe is an unreasonable amount of money to spend to just grow 294 marihuana plants".

I find that a portion of this statement should be excised and a portion should be amplified given the cross-examination of Detective Constable Ward.

The first part of this statement should be amplified to add $40,000 in rent "per year".

The remaining portion outlining Detective Constable Ward's belief should be excised as the officer acknowledged in cross-examination that $40,000 per year is not an excessive amount of rent in his subjective view to grow 294 plants. The officer candidly admitted in cross-examination that when he drafted the warrant he thought the monthly rent was $40,000. He agreed under cross-examination, thanks to Ms. Schofield's diligent investigation and the resultant information that she put before him, that the $40,000 was an annual amount of rent. The officer candidly agreed that $40,000 per year was not an excessive amount of rent for a space in which to grow 294 plants.

Analysis of the Warrants After Excision and Amplification

[21] The line between reasonable grounds and insufficient grounds is somewhat grey but it is beyond that of mere suspicion yet below that of balance of probabilities. Further, the issue is whether a justice could have granted the warrants keeping in mind the standard, not whether I would have issued the warrants. Reasonable people can disagree on the basis of identical facts.

[22] Further, the assessment must be made on the basis of the entirety of the ITO. This principle is of particular significance on the review in this case. The information regarding the unlicensed units impacts upon the reasonableness of the warrants regarding the licensed units and vice versa.

[23] I find that the virtually identical observations made with respect to the licensed units and the unlicensed units are highly significant. I agree with the Applicant that much of what is outlined at the outset of the ITO simply establishes the existence or possible existence of a grow operation in the licensed units which, of course, is legal given the presence of the licenses. Much of what is observed suggests concerns about security and possible clandestine operations that, as was readily admitted by the affiant, fit with a grow operation whether legal or illegal.

[24] The significance of these observations comes into play when comparing the observations of the unlicensed units with those of the licensed units and combining these observations with the comments of the property manager.

[25] The observations of the unlicensed units standing alone amount to mere suspicion. Similarly, the observations of the property manager with respect to these units also amount to mere suspicion standing alone. It is the combination of these sets of observations when further combined with the observations of the licensed units that would allow a justice to find reasonable grounds.

[26] Under cross-examination the affiant agreed that the observations of the licensed units fit with both an illegal and a legal grow operation.[13] The issue for the applicant is that all of these observations minus the smell of marihuana and the modified Hydro box fit with the observations of the unlicensed units. Given the obvious significance of the smell of marihuana and a modified Hydro set up, these observations standing alone would not amount to more than mere suspicion with respect to the unlicensed units.

[27] It is at this point that the observations of the unlicensed units by the property manager become significant. The property manager's observations that the unlicensed units were being set up 6 to 8 weeks prior combined with the similarities in the observations of the licensed units and those of the unlicensed units would allow a justice to have reasonable grounds to believe that a grow operation was in effect in the unlicensed units.

[28] These factors alone give a basis for the warrants for the unlicensed units.

[29] I turn now to the licensed units. The property manager's conclusion that there were plants covering the floor from front to back raises certain questions. Once again, this statement is somewhat conclusory. It would be difficult for a justice to determine the import of this statement standing alone. The licensed units account for 4000 ft.². Through simple mathematics, Ms. Schofield established that 294 plants covering 4000 ft.² would account for 13.6 ft.² per plant. As noted above, the justice can draw reasonable inferences from the contents of the ITO. Common sense would suggest that this is a fairly large area for each plant. This observation standing alone, however, may not go beyond mere suspicion. It is at this juncture that the observations of the unlicensed units become significant. The fact that there are reasonable grounds to believe that there exists an illegal grow operation in the unlicensed units combined with the suspiciously large area per plant in the licensed units could provide a justice with reasonable grounds to believe that there may be an "overgrow" in the licensed units. It is necessary to remember at this point that the entirety of the ITO must be considered.

[30] I now turn back to paragraph 20(b) of this judgment. It is for these combined reasons that I find the officers' statements in that paragraph both objectively justified and relevant.

[31] For all of these reasons, I find that the applicant has not met his onus in demonstrating that the amplified and excised warrants violate section 8 of the Charter thus the application is dismissed.

[32] I thank all counsel for the great deal of time and attention that they devoted to both the preparation of the application and the ensuing arguments.

Released: November 27, 2014

Signed: "Justice K. Caldwell"

Footnotes

1 Units 17 and 18 had been converted into one large unit. Mr. Li had a license for 98 plants in unit 18. Another individual had an identical license – 98 plants in unit 18. Ms. Zhuang, Mr. Li's co-accused, had a license for 98 plants in unit 17. Ms. Zhuang is not a party to this application as she has not sought standing. What is of significance on this application is that the two units were licensed for a combined total of 294 plants; the specifics of the individual licenses are not relevant.

2 , [1990] S.C.J. No. 115

3 Ibid., at para. 56

4 S.C. 1996, c. 19, s. 11

5 Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, 197 C.C.C. (3d) 233 (S.C.C.) at para. 114

6 R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 at para. 81 (Ont. C.A.)

7 Ibid., at para. 82

8 Ibid., at para. 83

9 R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at para. 58

10 R. v. Morelli, 2010 SCC 8, 2010 S.C.C. 8 at para. 43 as cited in R. v. Sadikov, supra Note 6 above at para. 85

[11] R. v. Yorke, 115 N.S.R. (2d) 426 (N.S.C.A.), aff'd , [1993] 3 S.C.R. 647 as cited in R. v. Morris, 1998 NSCA 229, [1998] N.S.J. No. 492 (N.S.C.A.) at para. 30

[12] R. v. DeBot, 30 C.C.C. (3d) 207 (Ont. C.A.)

[13] The ITO is Appendix C of the Warrants

[14] See R. v. DeBot cited above, Note 12

[15] Smell of marijuana, blinds covering windows, black plastic on plywood on window areas not covered by blinds, electric humidifiers, CCTV cameras, intense bright light from the respective garages, modified hydro box between units 17 and 18.