Court File and Parties

Court File No.: 13-00030 Central East Region-Newmarket Date: 2014-08-13 Ontario Court of Justice

Between: Her Majesty the Queen — And — Khan Le

Before: Justice Peter C. West

Evidence Heard on: January 14 and 17, 2014 and February 21, 2014 Oral Submissions heard on: June 13, 2014

Counsel:

• K.W. Dickson, for the Crown
• K. Schofield, for the accused

WEST J.:

Introduction

[1] Mr. Le was charged that on or about the 2nd of January 2013 he unlawfully did produce a substance, namely cannabis marihuana, contrary to s. 7(1) of the Controlled Drugs and Substances Act (CDSA). He elected trial in the Ontario Court of Justice and pleaded not guilty.

[2] The York Regional Police (YRP) executed a CDSA search warrant on January 2, 2013 in a detached two-story residence at 42 Blue Anchor Trail in Toronto and at 52 Via Teodoro in Vaughan. The police believed there was an illegal marihuana grow operation operating in the house at 42 Blue Anchor Trail and they believed documentation relating to the grow-op would be found at 52 Via Teodoro.

[3] At the time of the execution of the search warrant at 42 Blue Anchor Trail, Mr. Le was arrested in the garage, which is attached to the residence. Upon entry into the home, police discovered a marihuana grow operation in the basement with 1027 marihuana plants, as well as clone plants upstairs. There were holes cut into the laundry room floor and a vent went through the living room, into the fireplace and up the chimney to vent hot air from the basement. A Honda Odyssey van was found in the garage.

[4] Mr. Le testified he resided four or five days each week at 42 Blue Anchor Trail. He maintains, however, that the search of the home where he resided and where a marihuana grow operation was found amounted to a breach of his s. 8 Charter right to be secure against unreasonable search and seizure. Specifically, it was submitted that reasonable grounds did not exist upon which the justice of the peace could, acting judicially, issue the CDSA warrant. The accused seeks to exclude the entirety of the seized evidence.

[5] It is the Crown's position the search complied with s. 8 of the Charter and therefore the evidence is admissible.

[6] The Crown did not dispute that Mr. Le had standing to argue his s. 8 Charter rights were violated by the police.

The Information to Obtain (ITO) the Search Warrant

[7] Detective Constable Aaron Ladouceur of the Drugs and Vice Unit of YRP was the affiant who prepared the information to obtain the search warrants to search 42 Blue Anchor Trail and 52 Via Teodoro on January 2, 2013 for a marihuana grow-op. He had been assigned to the Drugs and Vice Unit for approximately three months.

[8] The police investigation commenced in 2012, as a result of information provided by a confidential human source (CHS1) concerning an indoor marihuana grow operation. At the outset of the Garofoli application, Crown counsel Mr. Dickson advised he was not relying on the CHS1 information to substantiate the search warrant and had redacted it from the ITO. The ITO was filed as Exhibit 1. The redacted portion of the ITO is located in Appendix D and consists of four pages, of which two pages related to information from the CHS1, one page related to observations confirming the CHS1's information and one page related to the background of CHS1.

[9] The affiant sets out the background of the police investigation in the ITO, the core of which can be summarized as follows:

1. Physical Surveillance of Blue Anchor Trail

Physical surveillance of Blue Anchor Trail was conducted on December 17, 2012 (Ladouceur); December 19, 2012 (Kubels); December 20, 2012 (Le); December 25, 2012 (Ladouceur); and December 28, 2012 (Ladouceur and Robinson). The other officers reported their observations to Ladouceur.

2. Property Records

Geowarehouse search of 42 Blue Anchor Trail revealed it was purchased by Bich Huong Bui on September 24, 2008.

3. Comparison Properties

The residences at 32 and 38 Blue Anchor Trail are of similar size to 42 Blue Anchor Trail and are detached homes.

4. Identity of Occupant of 42 Blue Anchor Trail

On December 17, 2012, a silver Honda Odyssey van, license BEVC503, driven by Khan Le was observed pulling into the driveway at 42 Blue Anchor Trail and entering the garage using a remote garage door opener. On December 20, 2012, Khan Le was observed operating the Honda Odyssey BEVC503, and using a garage door opener to enter the garage. Khan Le was identified by the police by a mug shot photo.

5. Connections Between Locations and Individuals

Since May 28, 2012, Bich Huong Bui's current residence was listed as 6049 Grey Ave, Upper Apartment, Niagara Falls, although she had a previous address of 52 Via Teodoro, Woodbridge (Vaughan) between April 19-May 28, 2012. She resided at the Niagara Falls address prior to April 19, 2012. Her son, Michael Bui, was currently registered as living at 52 Via Teodoro in Woodbridge. Previously his address was listed at 35 Windhill Cres. in Toronto. Khan Le's address was listed as 35 Windhill Cres. in Toronto. On December 19, 2012, Khan Le was observed in the garage and outside of 52 Via Teodoro with Bich Bui by D.C. Kubels. Bich Bui's car, a green Honda Accord, licence BHXB282 was parked in the driveway and a silver Honda Odyssey was observed inside the garage. On December 20, 2012, Ladouceur observed Khan Le driving the silver Honda Odyssey BEVC503 entering the garage at 52 Via Teodoro using a garage door remote. Khan Le was later observed leaving 52 Via Teodoro in the same Honda van and was followed to 42 Blue Anchor Trail where he entered the garage using a remote.

6. Criminal Record and Previous Involvement with Grow-ops

Khan Le was placed on a weapons prohibition on October 23, 2002, in British Columbia, for a conviction for production of a controlled substance (marihuana). On July 8, 2004, he was placed on a second weapons prohibition for production of a controlled substance (marihuana) and breach of a conditional sentence order. Both of these convictions were on CPIC. Further information obtained from LEIP (Law Enforcement Information Portal) revealed Khan Le was arrested on August 3, 2001, while leaving an indoor grow-op at 165 Revell Road, Newmarket with 36 grams of dried cultivated marihuana. A search warrant revealed 266 marihuana plants inside the residence with a hydro bypass. On June 13, 2003, Khan Le was arrested with Bich Huong Bui inside a marihuana grow-op at 7 Tiers Gate in Markham. Bich Bui's son, Michael, was also present in the house.

7. Odour of Marihuana

On December 19, 2012, Ladouceur checked for odour of vegetative marihuana from the sidewalk outside 42 Blue Anchor Trail and could not detect an odour. On December 20, 2012, Ladouceur observed Khan Le exiting the garage at 42 Blue Anchor Trail and observed a faint odour of vegetative marihuana as the garage door opened and closed. On December 25, 2012, Ladouceur observed a strong odour of vegetative marihuana coming from 42 Blue Anchor Trail where there was an upper floor window slightly ajar. There was a light breeze blowing towards D.C. Ladouceur from the direction of the house.

8. Condition of Windows

On December 17, 2012, D.C. Ladouceur noted all the blinds and curtains were closed in 42 Blue Anchor Trail and a photograph of the blinds and curtains at the front of the house was provided. On December 20, 2012, Kubels observed the top right upper window slightly ajar, consistent with the draw of fresh air into the residence necessary for cultivation of marihuana. On December 25, 2012, Ladouceur observed the same upper window ajar. On December 28, 2012, Ladouceur observed the same window ajar despite the outside temperature being -11 degrees Celsius. Photographs of the opened upper right window were included in the ITO for each of the three days it was observed to be ajar.

9. FLIR (Thermal Imaging)

On December 28, 2012, D.C. Robinson, a certified Thermographer in the use of thermal imaging systems (FLIR) conducted a hand held FLIR of 42 Blue Anchor Trail for heat anomalies. He detected a positive heat anomaly coming from the area of the chimney, the entire length. There was no smoke coming from the chimney at the time of his observation. Comparisons with other homes were also conducted with no anomalies similar to 42 Blue Anchor Trail. Two thermal image photographs were included in the ITO.

10. Hydro Consumption

The affiant reports obtaining hydro records for 42 Blue Anchor Trail and 32 and 38 Blue Anchor Trail to conduct a comparison of hydro usage from November 17, 2012 to December 17, 2012. An aerial photograph of the three houses was included in the ITO. Further, one page of the charted results for each of the three addresses was also included in the ITO. The affiant reported that D.C. Trevor Byard of the YRP Drugs and Vice Unit reviewed the Toronto Hydro records and advised that the hourly consumption indicated a significant increase in usage between the approximate hours of 4:00 p.m. and 8 a.m. for 42 Blue Anchor Trail and this is consistent with a light cycle used for marihuana plants in the vegetative growth stage.

11. Roof Vents

On December 28, 2012, Ladouceur observed the roof vents on 42 Blue Anchor Trail had no snow on them despite a recent snow fall, yet the neighbouring homes facing the same direction had snow on top of the vents. Ladouceur advised in the ITO this was consistent with the temperature required for a suitable growing environment for cultivation of marihuana. Photographs of the roof vents for 42 Blue Anchor Trail and a neighbouring home were included in the ITO.

Evidence of Khan Le

[10] Mr. Le initially testified the house at 42 Blue Anchor Trail belonged to his girlfriend, Ms. Bui, but he later clarified he meant his friend who is a girl. He lived at this address and paid Ms. Bui $300.00 rent per month. He stayed at this address four to five times a week. If he was not staying at 42 Blue Anchor Trail he would be staying at his older brother's house at 52 Via Teodoro in Woodbridge. He would stay at 52 Via Teodoro to look after his brother's house when he was away or he was at work. His brother would ask him to look after the house.

[11] Ms. Bui lives in Niagara Falls. She would sometimes visit Mr. Le's brother's house and stay over. Mr. Le was not in a personal relationship with Ms. Bui as she is married. In cross he denied living anywhere with Ms. Bui, except his brother's house when she would visit. When he was asked about 35 Windhill he agreed he lived there when Ms. Bui and her son Michael lived there. He rented a room from Ms. Bui.

[12] Ms. Bui owns 42 Blue Anchor Trail in Toronto. His brother owns 52 Via Teodoro. Ms. Bui never came to 42 Blue Anchor Trail.

[13] No one else lived at 42 Blue Anchor Trail. There was a mattress in the bedroom upstairs but it was leaning against a wall when the police executed the search warrant because Mr. Le was cleaning the floor. The two boxes against the mattress were for the garbage he was cleaning up. He maintained he slept most of the time in the bedroom. Mr. Le testified he sometimes slept on the couch in the living room where there was a blanket. He would watch Chinese martial arts movies on the TV, which was not hooked up to cable. He would watch movies every day.

[14] He kept his clothing at 42 Blue Anchor Trail. He also kept some clothes at Via Teodoro. There was food in the fridge; he cooked fish or meat and rice. He took showers in the master bathroom and he had his toothpaste and toothbrush there as well. When he was shown a photograph of the master bathroom with a jug of chemicals in the sink and other chemicals on the toilet he testified he was mistaken as he used the powder room on the main floor and the main bathroom.

[15] He entered the garage door with a remote garage door opener. The door into the house was not locked and was always left open. He did not have a key to the house.

[16] In cross he testified he washed his clothes by hand or he took his laundry outside or to his brother's house. He agreed the washing machine was unplugged and there were items on top of where the lid opened to put in the clothes.

[17] I did not find Mr. Le to be a credible or reliable witness. It was my view that he was evasive in giving his answers and, on a number of occasions, gave contradictory evidence. On a number of occasions he was caught in a lie and immediately changed his evidence, as reflected above respecting use of the master bathroom or whether Ms. Bui was his girlfriend or just a friend who is a girl. His explanation for how he did his laundry did not make sense given there was a washing machine and his explanation for where he slept and why the mattress was leaning against the wall with two boxes of items against it was not believable.

[18] No questions were asked of Mr. Le concerning his involvement with the marihuana grow operation, which in my view he could have been questioned about given his evidence that he was living in the house, paying rent and could not use certain rooms; for example, the washing machine was unplugged and had items relating to the grow-operation on top of it and the master bathroom had grow-operation items in the bathtub and was not able to be used.

[19] The Crown argues that Mr. Le was not residing at 42 Blue Anchor Trail but rather was operating the location as a marihuana production facility. Consequently, it is the Crown's position that should I find the search warrant respecting 42 Blue Anchor Trail cannot stand, the evidence should not be excluded because the Applicant would have a considerably lower expectation of privacy at this location, given the seriousness of the offence and the reliability of the evidence. It was Mr. Dickson's submission the exclusion of the evidence would bring the administration of justice into disrepute. I have already indicated I did not find Mr. Le to be a credible or reliable witness and I agree with the Crown's submission that Mr. Le was not residing at 42 Blue Anchor Trail but rather was operating it as a marihuana production facility. I will not deal with the second part of Mr. Dickson's submission until I complete my review of the ITO.

Analysis

General Principles Relating to Review of ITO

[20] The defence brought an application under ss. 8 and 24(2) of the Charter alleging Mr. Le's rights were violated as the grounds in the ITO were insufficient to justify the issuance of the search warrant. D.C. Ladouceur, the affiant and D.C. Robinson, a sub-affiant on the ITO were cross-examined by Ms. Schofield, with the consent of Mr. Dickson concerning specific areas. As with any s. 8/24(2) application, the reviewing court is not to stand in place of the justice of the peace who issued the warrant. The properly circumscribed limits of review were summarized in R. v. Mahmood et al.:

A reviewing judge does not substitute his or her view for that of the justice who issued the warrant. Rather, the reviewing judge considers the record before the issuing justice, the ITO, trimmed of any extraneous or unconstitutionally obtained information, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 40-42; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 8 and 30; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 54 and 59; R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452; and R. v. Wiley, [1993] 3 S.C.R. 263, at pp. 273-274.

[21] Justice Hill, in R. v. Ngo, has summarized various instructive guidelines to be applied by courts engaged in reviewing the constitutionality of an ITO:

(1) Presumption of Validity

The warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance: R. v. Campbell, 2010 ONCA 588, at para. 45 (aff'd, 2011 SCC 32).

(2) Not a Fine-Toothed Comb Review

"[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 acts 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": R. v. Nguyen, 2011 ONCA 465, at para. 57.

(3) Holistic Review

As noted in R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.) (QL), at para. 135:

The appropriate approach for judicial review of the facial validity of a search warrant and related ITO 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, a common sense review not line-by-line word-by-word dissection, provides the fair and reasonable context for the assertions in question: R. v. Grant (1999), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No. 168 (Q.L.), 150 C.C.C. (3d) vi); R. v. Chan, [1998] O.J. No. 4536 (Q.L.) at para. 4, 40 W.C.B. (2d) 143 (C.A.); R. v. Melenchuk and Rahemtulla, [1993] B.C.J. No. 558 (Q.L.) at para. 15-18, 19 W.C.B. (2d) 194 (C.A.); Simonyi Gindele et al. v. British Columbia (Attorney General) (1991), 2 B.C.A.C. 73 (C.A.) at 79.

(4) Police Not Legal Draftspersons

Police officers are not legal draftspersons and cannot, in an ITO, be expected to "spell out things with the same particularity of counsel": Re Lubell and the Queen (1973), 11 C.C.C. (2d) 188 (Ont. H.C.), at p.190; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 19; R. v. Sanchez (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at p. 364; Re Chapman and the Queen (1983), 6 C.C.C. (3d) 296 (Ont. H.C.), at p. 297.

(5) Few Applications Are Perfect

It will not be surprising that an ITO will have some flaws - "[f]ew applications are perfect": R. v. Nguyen, at para. 58. The question remains whether the core substance of the ITO could support the justice of the peace's exercise of discretion to issue the warrant.

(6) Need Not Include Every Minute Detail

While it is expected that an ITO will present reliable, balanced and material facts supporting the asserted grounds of belief, an ITO affiant need not attempt to replicate a Crown disclosure brief - the document should be clear, concise, legally and factually sufficient, and "need not include every minute detail of the police investigation": C.B.C. v. A.-G. for New Brunswick (1991), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562; R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.), at p. 470; R. v. Ling (2009), 2009 BCCA 70, 241 C.C.C. (3d) 409 (B.C.C.A.), at para. 43 (leave to appeal refused, [2009] S.C.C.A. No. 165).

[22] Justice Hill provides a further helpful summary of the overarching principles to be applied when assessing and reviewing whether there were reasonable grounds to believe set out in the search warrant's ITO:

(1) Reasonable Grounds Standard

The application must disclose reasonable grounds or credibly-based probability regarding the essential statutory prerequisites. This standard of reasonable probability does not equate to proof beyond a reasonable doubt or to a prima facie case (R. v. Debot (1989), 52 C.C.C. (3d) 193 (S.C.C.), at p. 213) "or even on a balance of probabilities": R. v. Jacobson (2006), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22. Accordingly, reasonable grounds "are not proof absolute" though they must be more than mere suspicion: R. v. Smith (1998), 1998 ABCA 418, 126 C.C.C. (3d) 62 (Alta. C.A.), at p. 77.

(2) Fact-Specific Determination

Whether an ITO affiant subjectively had grounds of belief, and whether those grounds reasonably existed in an objective sense, is a fact-specific determination in each case.

(3) Cumulative Effect

Grounds of belief are to be considered in their totality, not isolated out for independent evaluation. The point was made in R. v. Campbell, at para. 57:

Considered independently each of these grounds may not have justified the authorization. However, a justice of the peace could have found from their cumulative effect that there were reasonable grounds to issue the warrant.

See also R. v. Nguyen, 2007 ONCA 24, at para. 4: ("The cumulative effect of the information demonstrated the existence of reasonable and probable grounds to believe that a grow operation would be found inside the house").

(4) Full, Frank and Fair Disclosure

"It is trite law that an applicant for a search warrant has a duty to make full, frank and fair disclosure of all material facts in the ITO supporting the request" for a search warrant: R. v. Nguyen (2011), at para. 48. In R. v. N.N.M. (2007), 223 C.C.C. (3d) 417 (Ont. S.C.J.), at para. 320, the court stated:

Because a search warrant application is generally an ex parte application, there is a "legal obligation" to provide "full and frank disclosure of material facts" with the relevant facts set out "truthfully, fully and plainly": R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at 469-470 (emphasis of original). A justice can only perform the judicial function of issuing a warrant if "provided with accurate and candid information": R. v. Hosie (1996), 107 C.C.C. (3d) 385 (Ont. C.A.) at 399; R. v. Agensys International Inc. (2004), 187 C.C.C. (3d) 481 (Ont. C.A.) at 491. The "requirement of candour is not difficult to understand; there is nothing technical about it": R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.) at 551. An affiant for a warranted search is under a duty to avoid drafting which attempts to trick the reader, for example by the use of boiler-plate language, or which could mislead the court "by language used or strategic omissions": R. v. Araujo, at 470. Careless language in an ITO "deprives the judicial officer of the opportunity to fairly assess whether the requirements of a warrant have been met" and "strikes at the core of the administration of justice": R. v. Hosie, at 398-400.

(5) Affiant's Experience

The affiant's experience is relevant to the assembly of investigative facts and their promotion as affording reasonable grounds of belief. This principle was described at para. 68(6) of the R. v. Cunsolo case in these terms:

Because a trained officer is entitled to draw inferences and make deductions drawing on experience (R. v. Jacques and Mitchell (1996), 110 C.C.C. (3d) 1 (SCC) at 12), a reviewing court must take these factors into account: R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50 (C.A.) at para. 4; R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.) at 501; R. v. Juan (2007), 2007 BCCA 351, 222 C.C.C. (3d) 289 (BCCA) at para. 19; R. v. Tran, 2007 BCCA 491, [2007] B.C.J. No. 2341 (C.A.) at para. 12; R. v. Mouland, 2007 SKCA 105, [2007] S.J. No. 532 (C.A.) at paras. 26-27; R. v. Ingle, [2007] B.C.J. No. 2024 (C.A.) at para. 53; R. v. Rajaratnam (2006), 2006 ABCA 333, 214 C.C.C. (3d) 547 (Alta. C.A.) at 559; R. v. Grotheim, 2001 SKCA 116, [2001] S.J. No. 694 (C.A.) at para. 30; R. v. Quillian, [1991] A.J. No. 1211 (Q.B.) at para. 56.

The soundness of this approach has been specifically recognized in the context of marihuana grow-op investigations: "The officer's observations, filtered through his experience with marijuana cultivation operations, provided sufficient information upon which the justice could have issued the warrant": R. v. Jacobson, at para. 22.

(6) Reasonable Inferences

An issuing justice is entitled to draw reasonable inferences from stated facts and an informant is not obliged to underline the obvious: Re Lubell, at p. 190.

(7) Court May Draw Reasonable Inferences

A court considering the issuance of a search warrant is entitled to draw "reasonable inferences:" R. v. Schiers, 2003 NSCA 138, [2003] N.S.J. No. 453 (C.A.), at para. 15; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 20, 27; R. v. Jackson (1984), 9 C.C.C. (3d) 125 (B.C.C.A.) at p. 131; Re Lubell, at p. 190; R. v. Sanchez (2004), 93 C.C.C. (3d) 357 (Ont. Ct.-Gen. Div.), at pp. 365, 370; R. v. Church of Scientology (No. 6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.), at pp. 514-5 (leave to appeal refused, [1989] S.C.C.A. No. 87, [1989] 1 S.C.R. vii).

(8) No Obligation to Explain Away Every Conceivable Indicia

Only infrequently is an ITO affiant required to discuss things not observed at the suspected site of a marihuana grow-op: R. v. Nguyen (2011), at para. 50. It is implicit that the surveillance did not observe other indicia of the existence of a grow-op: R. v. Nguyen (2011), at para. 50. "There is no obligation" on a warrant applicant "to explain away in advance, every conceivable indicia of crime they did not see or sense": R. v. Nguyen (2011), at para. 51.

(9) No Investigative Necessity Prerequisite

While a dwelling-house attracts a high level of expectation of privacy, there is no investigative necessity pre-requisite to the issuance of a warrant to search a house in the way there might be for a law office, media premises or a church. As noted in R. v. Nguyen (2011), at para. 51, "[t]here is no obligation" on the police in applying for a search warrant to explain "every conceivable investigative step they did not take at the time in order to counter the creative arguments of able defence counsel on a review hearing many months or years after the event".

I adopt these principles in conducting my review of the ITO.

Principles Applied to this Case

[23] Ms. Schofield, in both written and oral submissions, went through each of the paragraphs contained in the ITO in detail, pointing out what she identified and submitted were deficiencies, misleading information, and material omissions. As indicated in the cases, Ms. Schofield is entitled to examine each observation in detail; however, at the end of the day I must review the "substantive core" of the information contained in the ITO to determine whether "the challenging party has demonstrated the absence of any reasonable basis for the issuance of the warrant."

[24] The question to be determined is whether after excising any offending portions of the ITO there remains a sufficient basis on the record for the issuing justice of the peace, as amplified by the review, to issue the search warrant.

[25] The investigation into 42 Blue Anchor Trail commenced as a result of information provided by a confidential human source. At the commencement of the Garofoli application, Mr. Dickson decided he would not rely on the CHS1 information to substantiate the issuance of the search warrant and redacted those portions of the search warrant. It was Mr. Dickson's position the remaining grounds set out in the ITO would provide a sufficient basis for a justice of the peace, acting judicially, to issue the search warrant.

[26] Ms. Schofield points to the first day of observation of 42 Blue Anchor Trail as containing inaccurate information dealing with D.C. Ladouceur's assertion "I noted that all the blinds and curtains were closed at the address." It is her submission this was inaccurate as D.C. Ladouceur was only present for a minute and did not observe the rear of the house. It is my view this was an inadvertent error on the part of the affiant. He included a photograph of the front of the residence, which clearly shows that the blinds and curtains at the front of the house were closed. D.C. Ladouceur did not draw any conclusion from the fact the blinds and curtains were closed and it is my view the justice reviewing the ITO would have concluded from D.C. Ladouceur's observation of Mr. Le entering the garage of the house in a Honda Odyssey by using a remote, and the photograph provided, that the officer was making his observations from the front of the residence. It is my view this purported error is inconsequential in terms of materially misleading the issuing justice.

[27] Ms. Schofield points to the affiant not including in the ITO the entirety of the hydro consumption records as between 42 Blue Anchor Trail and the two comparison residences, 32 and 38 Blue Anchor Trail. D.C. Ladouceur testified he did not include all of the pages of the hydro records because of space restrictions. The ITO indicates one page of the charted results from the three addresses is included in the ITO. The portion included provides an example of the hydro records. It is clear the time period for the three addresses is the same. D.C. Ladouceur referred to information provided by D.C. Byard of the YRP Drugs and Vice Unit who reviewed the entire hydro records for all three residences and advised of the anomaly between the approximate hours of 4 p.m. and 8 a.m. that demonstrated increased hydro consumption at 42 Blue Anchor Trail "consistent with a light cycle used for marihuana plants in vegetative growth stage."

[28] Exhibits 11A-11C are the entire hydro consumption records provided to D.C. Ladouceur, which were reviewed by D.C. Byard. In my view, the information contained in the ITO was sufficiently detailed and accurate for consideration by the issuing court. The hydro charts included in the ITO reflect the information provided by D.C. Byard to the affiant and recorded in the ITO. The conclusion drawn by D.C. Byard and related to the affiant is readily identifiable from a review of those records. It is my opinion D.C. Ladouceur was not attempting to mislead the issuing justice. There is no complaint made respecting the comparison houses; such as, they were not of a similar size or of alternative explanations for the hydro consumption pattern. The comparison residences were very proximate to 42 Blue Anchor Trail and the affiant opined they were chosen because of their similar size. D.C. Ladouceur testified on the voir dire he was not familiar with how to read hydro records as he was only in the YRP Drugs and Vice Unit for 3 months, which was why he gave them to D.C. Byard and asked for his interpretation.

[29] Ms. Schofield submits the affiant should have contacted Toronto Hydro directly and "discussed the results with a representative who could have provided more meaningful information about the results." The affiant identified the source of the information and the issuing justice could certainly assess the probative value of this information in respect of all of the information in the ITO to determine whether there were reasonable grounds to issue the search warrant.

[30] Upon reviewing Exhibits 11A-11C, there is a consistent pattern of usage respecting 42 Blue Anchor Trail between the approximate hours of 4 p.m. and 8 a.m., as was related by D.C. Byard and can be seen in the one page included in the ITO for that residence, as well as in the remaining four pages respecting that residence. The two comparison hydro charts for 32 and 38 Blue Anchor Trail do not reflect a similar pattern of usage. The first page of the three hydro records provided in the ITO was what was provided by Toronto Hydro. There was no evidence that D.C. Ladouceur "modified the unit of measurement in the hydro graphs" that were included in the ITO as submitted by Ms. Schofield. I find there was no deliberate attempt to mislead the issuing justice by the affiant. It is my view, having regard to the fact that the information concerning excessive hydro consumption is one factor for the issuing justice to consider in the totality of the circumstances, it was not necessary for D.C. Ladouceur to include all five pages of hydro consumption charts for each residence. Further, it was the opinion of D.C. Byard set out in the ITO, which is confirmed by reviewing the hydro consumption records, that is of importance in assessing reasonable grounds.

[31] During D.C. Ladouceur's testimony on the voir dire he indicated D.C. Byard advised him that the "readings on the hydro were extremely low for a marihuana grow operation." Ms. Schofield argued the affiant's failure to include this in the ITO is a significant material nondisclosure. D.C. Ladouceur testified D.C. Byard advised this did not alter Byard's opinion concerning the pattern of hydro usage being increased between the approximate hours of 4 p.m. and 8 a.m. in respect of 42 Blue Anchor Trail, which could not be observed in the hydro records for 32 and 38 Blue Anchor Trail for the same time period. D.C. Byard also advised the affiant he believed there was probably a hydro by-pass but he was not an electrician and therefore could not provide that as an explanation with any certainty. It was for this reason D.C. Ladouceur testified he did not include this information in the ITO as he believed it was inconclusive. I accept D.C. Ladouceur evidence and find he was not deliberately attempting to mislead the issuing justice. Any potential alternative explanations for low usage at the comparison residences or for higher usage at 42 Blue Anchor Trail does not detract from the probative value of the reported information or the conclusions drawn in the ITO.

[32] On December 19, 2012, D.C. Ladouceur advised in the ITO he attended 42 Blue Anchor Trail to check for the odour of vegetative marihuana from the sidewalk outside the address but was unable to detect any odour. Ms. Schofield criticizes the affiant for not disclosing wind direction or wind speed and for not walking on the other side of the street to see whether he could smell marihuana from any neighbouring houses. In R. v. Nguyen, the Ontario Court of Appeal held "[t]here is no obligation on applicants to anticipate, and to explain away in advance, every conceivable indicia of crime they did not see or sense and every conceivable investigative step they did not take at the time in order to counter the creative arguments of able defence counsel on a review hearing many months or years after the event." It is my view this reasoning is applicable in the instant case.

[33] Further, Ms. Schofield criticizes the affiant for not including his observations on December 19, 2012 respecting lights inside the residence turning on at 5:30 p.m. and Christmas lights, outside the residence, turning on at 6:00 p.m. as indicative of residential use, which contrasted with the assertion that the residence was used exclusively to cultivate marihuana. In my view this is another example of what Nguyen is referring to above. The timing of the lights coming on could also reflect the lights were on timers as asserted by the affiant under "Conclusion". The failure of the affiant to include this observation is not, in my view, a failure to comply with his obligation to provide full and frank disclosure of material facts in the ITO. This information, as amplified by the cross-examination of the affiant, was not, in my view, material as to the whether the justice could have issued the warrant: See R. v. Colbourne.

[34] I have previously referred to the Applicant's submission concerning the affiant failing to include material facts concerning wind speed and direction respecting the affiant's observation he could not detect the odour of marihuana when he was standing on the sidewalk in front of 42 Blue Anchor Trail on December 19, 2012. During surveillance of 42 Blue Anchor Trail on December 20, 2012, at 18:49 hours, the affiant advised the garage door opened and Mr. Le exited, driving the Honda Odyssey, and he smelled "a faint odour of vegetative marihuana as the garage door opened." Ms. Schofield submits that material facts were omitted in the ITO surrounding the affiant's observations concerning the odour or smell of vegetative marihuana; namely, that it was "really windy" that evening and the direction of the wind. Ms. Schofield further argues the affiant failed to note material facts; namely, that he was standing behind a six foot fence, 20-30 metres away from the house, when he advised in the ITO he observed an upper right window ajar and, as a result of a light breeze blowing towards him from the direction of the house, he smelled "a strong odour" of vegetative marihuana on December 25, 2012.

[35] Ms. Schofield argues the police must provide details of wind direction and speed when they are relating observations concerning the odour of marihuana. It is her submission these are material facts that should be included and, if not, should lead to the observations being excised from the ITO. She provided me with R. v. Polashek, a decision of Justice Rosenberg in the Ontario Court of Appeal, which raises concerns regarding the precarious reliability of "smell" evidence given that the sense of smell is highly subjective and largely incapable of objective verification. She also provided me with R. v. Erickson, where Mossip J. applied Polashek to the facts of her case. While the Court of Appeal has cautioned against placing undue weight upon evidence of smell, it has also confirmed that "there is no legal barrier to the use of such evidence:" R. v. Morris; see also R. v. Hoang. Polashek expresses concern over arresting an individual solely on the presence of the odour of burnt or vegetative marihuana. However, in the ITO the affiant is not relying solely on the odour of vegetative marihuana to support his reasonable and probable grounds to believe there was a marihuana grow-op in the residence. It is but one of the factors for the issuing justice to consider in the totality of the circumstances. The criticisms raised by Ms. Schofield do not mean D.C. Ladouceur did not smell the odour of vegetative marihuana on the two occasions he described in the ITO. Further, it is my view D.C. Ladouceur provided details surrounding his observations of the odour of vegetative marihuana, unlike Justice Mossip's finding in Erickson.

[36] On December 20, 2012, D.C. Ladouceur described in the ITO being outside 42 Blue Anchor Trail when the garage door opened and closed and he smelled a "faint odour" of marihuana. He testified on the voir dire he was approximately a car length away from the garage when it opened and closed and he believed the wind was blowing towards him. Although he did not include in the ITO it was "really windy", or provide the wind direction, one of the reasonable inferences to be drawn from the observation he recorded is that the marihuana odour came from the opening and closing of the garage door. On December 25, 2012, the affiant did describe the wind direction and the wind strength when he observed the "strong odour" of marihuana at the back of the residence. D.C. Ladouceur described a light breeze blowing towards him and the marihuana odour did not dissipate. He further described the upper right window of the residence as being ajar as it had been on previous occasions. In my view his failure to indicate he was standing behind a fence did not materially affect the observations he included. The issuing justice of the peace had sufficient information respecting the two occasions the officer observed an odour of vegetative marihuana to assess its probative value in respect of the totality of the information in terms of determining whether there were reasonable grounds. Consequently, the observations of the odour of marihuana on both occasions will not be excised from the ITO as urged by Ms. Schofield.

[37] Ms. Schofield submitted there was no basis for the affiant to draw the conclusion that leaving a window slightly open is necessary ventilation required for an indoor marihuana grow operation. This was certainly one conclusion that could be drawn from the observation that on each occasion the police officers viewed the rear of the residence this same window was slightly ajar or open. Support for their observation was provided in the ITO by including a photograph showing this upper right window slightly ajar. I do not accept the Applicant's submission that this conclusion was an "attempt by the affiant to make a relatively mundane observation appear sinister."

[38] Further, Ms. Schofield submits the failure of D.C. Ladouceur or D.C. Kubels to note they did not smell marihuana on two of the occasions this upper right window was observed to be ajar is a material non-disclosure and should have been included in the ITO. In my view the passage from Nguyen, referred to in paragraph 30 above, addresses Ms. Schofield's submission and I do not find omitting in the ITO that two officers did not smell the odour of marihuana when they observed this window to be ajar as being material. The issuing justice would have drawn the reasonable common sense inference from the description in the ITO in paragraphs 4.26 and 4.29 that the officers did not observe the odour of vegetative marihuana on those two occasions because they did not describe such an observation. In my view the circumstances surrounding the two occasions D.C. Ladouceur smelled an odour of vegetative marihuana provided a legitimate basis for the affiant to include in the ITO his observations of an odour of vegetative marihuana. The issuing justice was in no way misled as there was sufficient information included in the ITO for the justice to consider these observations in light of the totality of information in the ITO in order to determine whether reasonable grounds existed to issue the search warrant.

[39] Ms. Schofield submits D.C. Ladouceur did not include every FLIR photograph taken by D.C. Robinson, on the evening of December 28, 2012, in the ITO, which she argues is further material non-disclosure by the affiant. It is argued the affiant displayed a degree of carelessness completely inconsistent with the standard of care expected from a police officer applying for a search warrant. Ms. Schofield alleges the non-disclosure by D.C. Ladouceur was deliberate because the missing photographs would demonstrate to any issuing justice "There was absolutely nothing unusual about the heat signature of this residence." D.C. Ladouceur testified he included an email he received from Det. Robinson in the ITO, which indicated the only positive heat anomaly observed through FLIR was the chimney of 42 Blue Anchor Trail; no other house had a similar anomaly. He did not recall speaking to Det. Robinson personally about his findings; rather he relied on the email Det. Robinson sent to him, which he put into the ITO. D.C. Ladouceur testified he only received the two photographs with the email and he included them in the ITO as well. He was not aware when he prepared the ITO that there were other FLIR photographs taken by Det. Robinson of different angles of the house. Det. Robinson testified he sent an email to D.C. Ladouceur concerning his findings after conducting the FLIR.

[40] D.C. Ladouceur observed on December 28, 2012, at 10:30 a.m., there was no snow on top of the vents leading to the attic of 42 Blue Anchor Trail despite a recent snow fall. He observed all of the neighbouring houses facing the same direction had snow on the vents. He included two photographs which supported this observation. D.C. Ladouceur indicated in the ITO the lack of snow was consistent with the temperature required for a suitable environment for the cultivation of marihuana. D.C. Ladouceur could not recall when he requested Det. Robinson to conduct the FLIR analysis, whether it was before or after he observed the vents on the roof of 42 Blue Anchor Trail with no snow.

[41] Det. Robinson also testified on the voir dire concerning his attendance at 42 Blue Anchor Trail to conduct a FLIR analysis with a handheld FLIR device. He testified the only anomaly he detected was in the chimney, which was uniformly white hot. There was no smoke coming from the top of the chimney. The photographs entered of the residence reflected the chimney was for a wood fireplace and not a gas fireplace. Det. Robinson testified the chimney was uniformly white hot, which indicated heat escaping from the house consistent with an indoor marihuana grow operation. The email provided by Det. Robinson and reproduced in the ITO discussed the use of High Intensity Discharge lights that create a significant amount of heat, which must escape from the house. He testified the uniform white hot anomaly in the chimney was consistent with heat being vented from the grow operation up the chimney. He agreed there could be other explanations for the heat anomaly he observed. I do not agree with Ms. Schofield's submission that there was "nothing unique about heat emanating from a chimney" as this was not the evidence of Det. Robinson who referred to the uniform white hot anomaly as being unique and unusual. Robinson did not see any heat anomalies in the roof of the residence, which indicated to him there was no venting into the attic.

[42] I do not agree with Ms. Schofield's characterization of D.C. Ladouceur's failure to include all FLIR photographs in the ITO as a deliberate act done to mislead the issuing justice. I accept D.C. Ladouceur's evidence he was unaware of the other FLIR photographs when he prepared the ITO. It is clear from an examination of the ITO that Det. Robinson's email, which included only two photographs, was cut and pasted by D.C. Ladouceur into the ITO. There was no deliberate misleading by the affiant as he was unaware there were additional FLIR photos when he prepared the ITO and submitted it. Further, I do not believe the observations of D.C. Ladouceur at 10:30 a.m. on December 28, 2012 are inconsistent and "diametrically opposed" with Det. Robinson's FLIR analysis at 6 p.m. First, D.C. Ladouceur was not aware of Det. Robinson's additional photographs concerning there being no heat anomaly detected in the roof of the residence. Second, Det. Robinson testified that very often marihuana grow operators vent the heat from the grow lamps into the attic of the house. Consequently, D.C. Ladouceur's conclusion, expressed in the ITO at paragraph 4.30, is a reasonable inference based on his observations.

[43] It is the Applicant's position that the ITO failed to disclose reasonable grounds to believe the specified offences in Appendix B of the ITO were being committed and that evidence would be discovered at the residence. I do not accept this submission. In my view the ITO provided a basis which a justice, acting judicially, could have issued the warrant.

[44] Could the ITO have contained more detail? Of course it could have. Justice Hill in dealing with this issue made this comment, which I adopt:

But the real issue is whether the level of detail which was provided was so lacking in substance and precision, or susceptible of being materially misleading, such that it would have negatively impacted upon a discriminating and independent exercise of discretion on the part of the justice of the peace. That is not this case. For example, the officers' observations relating to marihuana odour as described by the affiant were sufficiently related to the subject residence.

[45] On a number of occasions during cross-examination Ms. Schofield got D.C. Ladouceur to agree that he "should've put [something] in [the ITO]", referring to many of the areas I have dealt with above. In my view, as I have already indicated, the types of information D.C. Ladouceur admitted he should have included in the ITO are best dealt with by referring to the guidelines expressed by Justice Hill in Ngo, which I reproduced in paragraph 19 above, particularly items 2, 4, 5 and 6, which I adopt:

(2) Not a Fine-Toothed Comb Review

"[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 acts 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".

(4) Police Not Legal Draftspersons

Police officers are not legal draftspersons and cannot, in an ITO, be expected to "spell out things with the same particularity of counsel".

(5) Few Applications Are Perfect

It will not be surprising that an ITO will have some flaws - "[f]ew applications are perfect": R. v. Nguyen, at para. 58. The question remains whether the core substance of the ITO could support the justice of the peace's exercise of discretion to issue the warrant.

(6) Need Not Include Every Minute Detail

While it is expected that an ITO will present reliable, balanced and material facts supporting the asserted grounds of belief, an ITO affiant need not attempt to replicate a Crown disclosure brief - the document should be clear, concise, legally and factually sufficient, and "need not include every minute detail of the police investigation".

[46] As I have found, none of the deficiencies in the ITO were deliberate. The affiant was not attempting to deliberately mislead the issuing justice and was neither reckless nor careless in the drafting of the ITO. There was no evidence of an improper motive on the part of the affiant relating to any information the Applicant submits was omitted and should have been included. As I found, the omissions were relatively minor and certainly cannot be described as material. It is my view, on the evidence I heard from D.C. Ladouceur and Det. Robinson and the information contained in the ITO, a justice acting judicially and having been aware of these minor omissions could have nonetheless issued the search warrant.

[47] D.C. Ladouceur was not acting in bad faith in his preparation of the ITO or in his seeking a search warrant. I found the officer to be a credible witness despite being subjected to a very thorough and detailed cross-examination by experienced counsel and his answers were responsive, forthright and believable. He testified he was aware of his obligation to be full, frank and fair in providing information in the ITO to the issuing justice. I accept his evidence on this issue.

[48] None of the information included in the ITO should be excised as I found none of the information in the ITO to be erroneous and the Applicant is not alleging any information was obtained by the police in violation of the Charter.

[49] Consequently, the application is dismissed and there is no breach of the defendant's s. 8 Charter rights. Given my findings on the review of the ITO it is not necessary for me to address s. 24(2) of the Charter.

Released: August 13, 2014

Signed: "Justice Peter C. West"