Court Information

Ontario Court of Justice

Date: March 24, 2016

Court File No.: Toronto

Parties

Between:

Her Majesty the Queen

— AND —

Jesse Todd-Hurst

Judicial Officer and Counsel

Before: Justice Nakatsuru

Heard on: March 1, 2016

Reasons for Judgment released on: March 24, 2016

Counsel:

• A. Hauk — counsel for the Director of Public Prosecution Service
• L. Shemesh — counsel for the Accused

NAKATSURU J.:

Introduction

[1] The applicant, Mr. Todd-Hurst, challenges the validity of the search warrant under s. 8 of the Charter. He seeks to exclude evidence pertaining to a marihuana grow operation as a remedy for this alleged unreasonable search and seizure.

[2] For these reasons, I dismiss the application.

A. The Search Warrant and the Evidence on the Application

[3] D.C. Stacey McCabe swore the Information to Obtain (henceforth "ITO") for the home located at 277 Birkdale Road in the City of Toronto. On February 24, 2015, the justice of the peace issued the search warrant under the Controlled Drugs and Substances Act. The police executed the search warrant that day locating within the premise a marihuana grow operation and some other drugs. Mr. Todd-Hurst was also found inside the residence. He was arrested.

[4] The following is a brief outline of the ITO that is being challenged on this application:

i. The investigation of the applicant began with information received from a Crime Stoppers tip. This information was redacted by the prosecution in order to protect the identity of the source. The unedited portion of the tip permits an inference from the source that a grow operation was located at 277 Birkdale Road in the City of Toronto and the source identified a male known as Jesse Todd-Hurst.

ii. The ITO then lists the checks of police and government data bases done on February 17, 2015, to show that the applicant resided at 277 Birkdale Road.

iii. On February 23, 2015, D.C. McCabe and D.C. Bentley went to 277 Birkdale Road and observed that at 9:30 a.m. all the windows were covered by curtains and blinds.

iv. On the same day, D.C. Bentley spoke with the Health Canada Medical Marihuana Permit Office and was advised that Jesse Todd-Hurst had previously been authorized to produce and possess marihuana but he did not have any current authorization to do so. The Permit Office could not say when his authorization expired. D.C. Bentley further received information that no current authorization or licence to produce or possess marihuana was in existence for anyone associated with the address of 277 Birkdale Road.

v. On February 23, 2015, D.C. McCabe received an email from Toronto Hydro employee, Reg Gosling, that showed Jesse Todd-Hurst was the subscriber at 277 Birkdale Road. Attached to the email were graphs and data that showed the hourly hydro consumption for a period of time between December 1, 2014 to February 22, 2015, for the address of 277 Birkdale Road and a comparator address of 275 Birkdale Road. The graphs and data received were attached to the ITO as appendices.

vi. On February 24, 2015, at 6:45 a.m. D.C. Bentley went to 277 Birkdale Road and saw an 8' x 10' patch of roof on the home that did not have any snow on it. He also saw that all the surrounding houses had roofs that were completely snow covered.

[5] The applicant sought leave to cross-examine D.C. McCabe. I allowed the application on certain discrete areas of the ITO. I found that the applicant had met the test for leave.

[6] I do not intend to summarize all that D.C. McCabe testified to. It is enough to highlight some of her more salient testimony. Although D.C. McCabe has been a police officer since 2005, she had only started with the Clandestine Laboratory Unit in December of 2014. In the two month period before she swore this ITO, she had been involved in four other hydro search warrants. Of those she had been the affiant for one other previous ITO for a hydro search warrant. When she started with the unit, she was shown different techniques used by the unit and received on the job training. Part of her training she received involved interpretation of hydro records. She further did her own reading in relevant areas of her new work. She testified that D.C. Bentley had considerable more experience than her in the investigation of marihuana grow operations.

[7] For the address of 277 Birkdale Road, the police received hydro consumption records from Toronto Hydro. Toronto Hydro chose the nature of the graphic display for the hydro consumption of the addresses of 277 Birkdale Road and 275 Birkdale Road. The police had no input in how these records were provided. The consumption was shown by bar graphs of varying lengths for different hourly periods. However, D.C. McCabe admitted that the measure by which the hourly consumption was displayed in kilowatt hours was not always consistent between graphs. In other words, the axis that measured the kilowatt hours consumed by the houses was numbered in different values. Thus the graphic display shown by the bars between 277 Birkdale Road and 275 Birkdale Road could not be simply visually compared with each other unless one was aware that values used in the graphs were different. For instance, for similar time periods some charts had a maximum value of 4 kilowatt hours while the corresponding chart for the other home would have a maximum value of 7 kilowatt hours. D.C. McCabe testified that this would be readily apparent to anyone looking at the charts. She testified that she did not think it necessary to explain it to the justice of the peace because one could see it when one looked at the graphs.

[8] For 277 Birkdale Road, D.C. McCabe began observing a cyclical pattern of hydro consumption commencing on December 14, 2014. She testified that these patterns indicated a marihuana grow operation since they were not typical of average household hydro consumption. The pattern was consistent with the lighting cycle used to grow marihuana indoors. It was abnormal for a spike in electricity to stay up for periods such as 12 hours or 18 hours since increased consumption in electricity due to other reasons such as the use of appliances, did not usually lead to such sustained increases. She came to this view based upon her training and some of the readings she had done. She acknowledged she was not an expert. In cross, D.C. McCabe agreed that it was possible that the hydro consumption could be a result of something other than a marihuana grow operation. That it could tomatoes or something else. However, she nonetheless believed the electrical consumption was a result of a marihuana grow operation. She admitted that the police would not have requested a search warrant if all they had was the hydro records.

[9] D.C. Bentley told D.C. McCabe about his observations of the roof of the target home. She did not have a distinct recollection of whether D.C. Bentley did or did not tell her that he did not smell marihuana when he went to the house but she said she was sure he did. She admitted that looking back she should have put it in her affidavit. She further testified that she could not recall word for word what D.C. Bentley told her about the observations he made about the roof. D.C. Bentley's notes were admitted as evidence on the application. In his notes, D.C. Bentley observed on February 24th that the patch of roof at 277 Birkdale Road had "little to no snow" on the roof. The officer further noted there was a wind blowing from the rear. D.C. McCabe admitted that the phrases were different. However, she testified she did not maliciously change what she was told in drafting her affidavit. D.C. McCabe further testified that while she believed the extra heat from a grow operation resulted in the bare patch on the roof, she agreed that there were numerous other possibilities for it including a lack of insulation in the roof area.

[10] D.C. McCabe testified that she took into account all the various factors into coming to her belief that a grow operation existed at 277 Birkdale Road. This included the tip, the hydro records, the observations made and the fact that the applicant had a previous authorization to produce and possess marihuana. The latter led her to believe that the applicant had some prior knowledge with respect to how to grow marihuana.

[11] D.C. McCabe was not aware of any judicial injunctions that permitted people to grow marihuana. She recalled some talk about injunctions but she did not have any deeper awareness. For her, the applicant had no licence so she went with that.

[12] D.C. McCabe was not aware of the average household consumption of electricity but testified that the pattern as shown by the 275 Birkdale Road address was more typical of electricity consumption with various spikes. A cyclical pattern of high usage and a lull was not usual. She did not know more particulars or details of the nature of the residences at either location.

[13] In terms of credibility, I accept the evidence of D.C. McCabe. She testified candidly and in a straightforward manner. The cross-examination did not impeach her credibility. Indeed, the applicant does not really suggest otherwise.

B. Position of the Parties

[14] The applicant submits that D.C. McCabe did not possess the requisite reasonable and probable grounds for the issuance of the search warrant. He argues that the grounds in the ITO amount to essentially the hydro records. He submits that the Crime Stoppers tip was so vague and devoid of detail that it could not be relied upon. About the hydro records themselves, it is argued they were misleading and not sufficiently explained or interpreted for the issuing justice of the peace.

[15] In addition, the applicant argues that the affiant was not at all experienced and had no basis to interpret the hydro records or offer any of the opinions about the hydro records being consistent with a marihuana grow operation. Indeed, he goes so far as to suggest her affidavit was misleading in the manner it stated her experience. D.C. McCabe further could not explain why the hydro graphs given to the police by Toronto Hydro came in the format that it did. She could not explain what the average consumption of electricity was in Toronto. The hydro records provided little information about the nature of the comparator home and the occupancy of either address.

[16] The applicant further argued that there were many different reasons for the consumption of hydro that were innocent and could account for the pattern of consumption. In conclusion, he submits no search warrant could have issued based on these hydro records.

[17] It is also contended that the police investigation to confirm the existence of a marihuana grow operation was totally inadequate. The surveillance done by the police was only done on two days. Only one day led to any relevant observations. D.C. Bentley did not detect an odor of marihuana on February 24th but this did not make it into the ITO. D.C. McCabe admitted she should have included it. Further, the patch of snow observed by D.C. Bentley was not accurately described nor was it noted there was a wind blowing from the rear. Finally, the information from Health Canada about a prior authorization held by the applicant did not advance the grounds in the ITO.

[18] The Crown responds that the search warrant was validly issued. The affiant had the requisite experience and presented her affidavit in a full, frank, and fair manner. The Crown submits that the hydro data alone provided reasonable and probable grounds to issue the search warrant. Regardless whether I accept this argument, she submits there were other reasonable grounds to support the belief that a marihuana grow operation existed, including a compelling tip that was corroborated by the police.

[19] The Crown submits that on the amplified record, D.C. McCabe had the requisite training and experience to make the conclusions that she did. While she did not have extensive training, she had on the job training and some experience. It was sufficient for her to come to her conclusions.

[20] With respect to observations made by D.C. Bentley, any differences between those and what D.C. McCabe deposed to were minor, not misleading, and was merely a matter of drafting or semantics. Any omissions like the lack of odor of marihuana or information about the comparison address did not amount to material non-disclosure that would undermine the issuance of the search warrant.

[21] The Crown takes the position that the hydro data is extremely compelling and alone could have supported the issuance of the search warrant. In this ITO, the hydro records indicate the cycle of increased hydro usage followed by a lull that demonstrated the growing cycle of a marihuana grow operation. A strong inference could be drawn from this data regarding the existence of such an illegal enterprise.

[22] With respect to the Crime Stoppers tip, the Crown submits that this was a compelling one since it named the applicant and specifically identified 277 Birkdale Road as the location of the grow operation. The tip was corroborated in several ways by the police including the hydro records which confirmed the existence of the crime itself. In conclusion, it is submitted that the s. 8 application should be dismissed.

C. Standard of Review

[23] Before a search warrant can issue under s. 11 of the Controlled Drugs and Substances Act, there must be reasonable and probable grounds to believe that there will be a controlled substance present in the place to be searched. In the absence of such grounds, the search is not legally authorized and becomes an unreasonable one in violation of the applicant's right under s. 8 of the Charter.

[24] Justice Fish in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 40 stated the test for setting aside a search warrant issued by a judicial officer:

In reviewing the sufficiency of a warrant application, however, "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.

[25] In conducting this review, the fact that a search warrant is an investigative tool must not be lost sight of. The police require reasonable and probable grounds and nothing more. That said, given the nature of the privacy right at stake, there must be appropriate scrutiny of those grounds in order to make sure that the right balance is struck between this constitutional right and the needs of law enforcement. The essential challenge to this search warrant is that such reasonable and probable grounds were objectively lacking.

D. Analysis

[26] It is trite that the totality of the circumstances as set out in the ITO must be considered. In addition, the cross-examination of D.C. McCabe must also be taken into account before determining whether this search warrant could have properly issued.

[27] In my analysis, I will assess the various parts of the ITO that is said to constitute those reasonable and probable grounds separately. Although I structure my reasons in this way, I have not lost sight of the fact it is the totality of the circumstances, the collective whole of the alleged grounds, that is important on this review.

The Crime Stoppers Tip

[28] First of all, let me deal with the anonymous tip. In my view, the Crime Stoppers tip as edited, in and of itself, provides little basis for the issuance of the search warrant. In assessing the reliability of a tip given by an informant, whether known or anonymous, the totality of the circumstances is assessed with three areas of concern identified: a) is the information predicting the offence compelling; b) is the source credible and; c) is the information corroborated by police investigation? In this case, the information is anonymous and completely lacking in any detail. There is no way to gauge the credibility of the source. There is nothing in the edited ITO that indicates the exact nature of the information imparted by the source or to support the reliability or currency of the information provided (except that the information was received by the police in 2015): see R. v. Jacobson (2006), 207 C.C.C. (3d) 270 (Ont. C.A.) at paras. 15 to 19; R. v. Rocha, 2012 ONCA 707, [2012] O.J. No. 4991 (C.A.) at para. 26. Indeed, the tip does not specifically tie together the grow operation at 277 Birkdale Road to the male known as Jesse Todd-Hurst. That said, looking at the whole of the affidavit, a reasonable inference could be made that the source had advised it was the applicant who was growing marihuana at the address. However, at its highest, this information from the confidential source was conclusory. Clearly further police investigation was required. Such investigation was conducted. Of course, the issue in this case, as it is in many, is whether sufficient investigation was conducted: see R. v. Debot (1989), 52 C.C.C. (3d) 193 (S.C.C.) at p. 215.

[29] I disagree with the Crown when she characterized this tip as "compelling" if what she means is that this tip adds substantially to the reasonable and probable grounds for the issuance of the warrant. In her submissions, the Crown argues that the tip here was no less compelling than the tip in R. v. Plant, [1993] 3 S.C.R. 281. In Plant a search warrant was granted based upon a Crime Stoppers tip and some hydro data. The Supreme Court of Canada concluded that this was sufficient reasonable and probable grounds for the warrant to issue. In discussing the anonymous tip, the Court did characterize the tip as "compelling". The Crown in a very thorough fashion has provided me for my own review a copy of the ITO at issue in Plant. I must admit that the tip as set out in the ITO in Plant was extremely brief and a mere conclusion. However, importantly, that tip was amplified by evidence from the affiant at Plant's trial. It is that amplified record that was considered by the Court. That tip as amplified indicated that marihuana was being grown in the basement of a "cute house" beside a house with a lot of windows on 26th Street between two consecutive cross avenues in Calgary. The police found that address.

In the case at bar, the Crown argues that if this tip in Plant was considered to be "compelling", then the edited tip in this case that named the applicant and specifically identified the address is even more "compelling."

[30] In assessing this submission, the references in Plant must be given a contextual reading. This is what Sopinka J. said about the tip (at para. 29):

While that case related to the decision of the police to conduct a warrantless search pursuant to the tip of a known informant, the factors enunciated demonstrate principled concerns with the use of informants in general and are equally applicable to the anonymous tip in the case at bar. The information given by the anonymous informant was compelling in that it identified the location of the cultivation operation and located the appellant's house in a fairly specific geographic region, albeit without specifying an exact street address. It is impossible to determine whether the source was credible except by reference to the fact that the information was subsequently corroborated by a police reconnaissance which resulted in identification of the exact address of the residence described by the informant. The tip itself, therefore, was compelling enough in its specification of the place in which the offence was occurring for the police to readily locate the exact address of the appellant's residence and corroborate the report of the informant. I conclude that the anonymous tip, although made by an unknown informant, was sufficiently reliable to have formed part of the reasonable grounds asserted in the information to obtain the warrant. Therefore, I would not excise that piece of evidence from the warrant. [Emphasis added]

[31] In my reading, Sopinka J. uses the term "compelling" to mean it was significant in a certain fashion or way; that way being that it identified the location and with enough details that the police could find it. He was not saying that this tip was per se a compelling tip. Indeed, this is made clear when Sopinka J. concludes that it was sufficiently reliable to be considered a part of the reasonable grounds for the warrant and that it need not be excised. In other words, it was just compelling enough to be considered a part of the reasonable and probable grounds. This is far from an acknowledgement that this type of tip was "compelling" enough to largely sustain a valid search warrant.

[32] At the end of the day, it does not really matter how one characterizes the information provided. The description, "compelling" is simply a matter of degree. Some tips are so "compelling" that less corroboration or credibility of the source is required. Others are "compelling" enough to form a part of the grounds but may require considerable confirmation. Weakness in one area, as the Debot holds, can be compensated by strength in another.

[33] I acknowledge that D.C. McCabe testified that she did rely upon the tip. However, when the Crown has for what is conceded legitimate purposes heavily edited the information received, absent an application to use judicially vetted summaries of that information, the Crown cannot rely upon that edited information to support the search warrant. The best I can say about this Crime Stoppers tip is like in Plant, it can be considered as a part of the reasonable and probable grounds for the issuance of this search warrant. However, in my finding it does not have much probative value: see R. v. Nguyen (2011), 2011 ONCA 465, 273 C.C.C. (3d) 37 (Ont. C.A.) at para. 45.

[34] Moving further on in the analysis let me say that it is uncontested that there were ample grounds for the authorizing justice of the peace to believe that Jesse Todd-Hurst resided at 277 Birkdale Road. The information regarding this came from reliable sources including the Ministry of Transportation, and was current. In addition, the car registered to a woman sharing a part of the applicant's last name, "Hurst", was seen parked at the dwelling unit on February 24, 2015.

[35] I note that this evidence has the effect of somewhat corroborating the Crime Stoppers tip in that it confirms the fact that the applicant resided at the named address.

The Experience and Knowledge of the Affiant

[36] A significant portion of the applicant's submissions focuses on the lack of experience and training of the affiant. On the amplified review, it is the applicant's position that ITO was misleading about her experience. Further, he argues that the amplified record should lead me to conclude that D.C. McCabe neither had the experience or knowledge to make the assertions she did in the ITO. The Crown takes the opposing view of her background.

[37] It is certainly true that D.C. McCabe did not have much experience in the Clandestine Laboratory Unit. However, I find that the ITO was not misleading in this regard. There is nothing inaccurate about what she deposed to. Even keeping in mind the obligation of an affiant to make full, fair and frank disclosure, the omission of her full work background with the unit in the ITO did not breach this obligation. With that said, the evidence obtained regarding her experience must be considered on the review.

[38] D.C. McCabe is not an expert in marihuana grow operations. She admits she is not. However, in my opinion, it is not necessary for an affiant to be an expert or to have an expert provide information to the affiant before it is sufficiently reliable for the issuing justice of the peace to rely upon such material depositions: see R. v. Ngo, 2011 ONSC 6676, [2011] O.J. No. 5023 (S.C.J.); R. v. Suter, [2003] O.J. No. 5026 (S.C.J.). Much depends upon the nature of what is being averred to. It is worth emphasizing that what gets into an ITO in constituting reasonable and probable grounds is not governed by the evidentiary rules of admissibility at trial.

[39] Certainly speculation about the nature of marihuana grow operations from an unknowledgeable affiant cannot support the issuance of a search warrant. Equally, conclusory statements about the affiant's belief that a grow operation exists in the dwelling house stands on the same footing.

[40] While D.C. McCabe's lack of experience is acknowledged, what I have found to be important is that her knowledge and competence at the time she swore this ITO were not undermined in cross-examination. Her time on the Clandestine Laboratory Unit had been short. But cross-examination revealed she had been trained, she was involved in four other investigations with the unit involving hydro search warrants. She had been the affiant in one of those previous search warrants with the unit. She was taught by a coach officer about the relevance of hydro data and specifically, the significance of the cyclical pattern in hydro consumption and its relevance to a marihuana grow operation. She testified that for an average home, the graphs would show levels of electrical outputs that are marked by periodic spikes in electrical usage reflective of certain human activities that would call for an increase in electrical power. This was different from the cyclical pattern of a marihuana grow operation. Further, she had the assistance of D.C. Bentley who was more experienced than she was. In addition, she had been a member of the police force for ten years. When transferred to the unit, she did her own reading in relevant areas. In the ITO, D.C. McCabe gave her belief why she felt certain observations or items of evidence were consistent with a marihuana grow operation. The cross-examination did not impeach or undermine these beliefs either directly or indirectly due to any lack of experience or knowledge. I find this overall background to be sufficient. To put it bluntly, even a veteran has to start as a rookie. Every affiant of an ITO has to have a first time in preparing and swearing one. Although her background and experience must be considered, on this record, I cannot find that any of the statements made by her should be excised or deleted on the basis of this consideration: see R. v. Nguyen (2011), 2011 ONCA 465, 273 C.C.C. (3d) 37 (Ont. C.A.) at paras. 12–13, 40.

The Hydro Records

[41] So what did D.C. McCabe actually depose to in this case? One very important part has to do with the hydro records. I find it useful to set this out in full. In this case, D.C. McCabe states the following at paragraph (f) of the ITO:

On February 23, 2015, I received an email from Detective Constable Bentley, badge 8328, which he had previously received from Reg Gosling of Toronto Hydro. This email stated that Jesse Todd-Hurst was the current Toronto Hydro subscriber for 277 Birkdale Road and that it was a residential account that had been set up on May 11, 2012. Also attached to this email were graphs depicting the hourly hydro consumption for 277 Birkdale Road in Toronto for the period of December 1, 2014, to February 22, 2015 (attached at Appendix E), as well as hydro graphs for the same period of time for 275 Birkdale Road (the latter to be used as a comparison, which can be viewed in Appendix F).

Upon viewing the above mentioned graphs from Toronto Hydro, I observed that there was a cyclical pattern of hydro consumption depicted in the graphs from 277 Birkdale Road which began on December 14, 2014. These cyclical patterns are indicative of a marihuana grow operation as they are not typical of an average households (sic) hydro consumption.

The hydro graph shows wattage readings for every 60 minutes, which is translated into a graph that shows a buildings (sic) electricity usage over a period of time. A suspected marihuana grow operation will display electricity usage that increases at a specific time each day and then decreases at a specific time each day. This pattern is seen on the hydro graphs for 277 Birkdale Road in Toronto beginning on December 17, 2014 at which time there was a drastic increase in power usage from 1:00 p.m. to 5:00 a.m. the next morning. This pattern, which is indicative of a timer being used to control the lights of the marihuana grow operation, continues through February 22, 2015 (which was the most recent date requested and provided by Toronto Hydro).

This pattern of increased electricity usage shows that lighting cycle that is used in an indoor marihuana grow operation and mimics the typical 12 or 18 hour outdoor sunlit environment. Depending on the growth stage of the plants, the lights operate on a 12 or 18 hour cycle, as is seen on the hydro graphs for 277 Birkdale Road. This cycle is consistent with marihuana that is in its final development "budding" stage.

A marihuana grow operation poses a significant safety concern due to the heat from the high-powered lights, as well as the ballasts that are used to increase the amperage of electricity. A ballast consists of electrical components and operates as a battery that maintains a constant charge of electricity to allow the high wattage lights to operate at their optimal output. When used in legal operations, ballasts are supposed to be mounted in well vented areas that are cooled by external sources. In additions (sic), these ballasts are installed on a timer and only intended for use when the level of electricity is reduced to a point that it requires a charge. In illegal marihuana grow operations, the ballasts are often mounted in areas that are not well vented (closets) and are often times placed on bare wood, resulting in a substantial risk of fire.

[42] Nothing testified to by D.C. McCabe in cross-examination undermined what she averred to about her interpretation of the hydro records. The interpretation she averred to in the ITO is consistent with the attached appendices. These appendices comprised of numerous pages including the graphs of power consumption. This permitted the justice of the peace to independently assess the affiant's interpretation of the hydro consumption at 277 Birkdale Road. Additionally, the hydro consumption of a neighboring property was provided for the same time periods so that the justice of the peace could independently assess how a neighboring home's power consumption compared. I have attached samples of the graphs to my reasons in order to illustrate the nature of the records that were made available to the justice of the peace. In Appendix A is a graph of the electricity consumption at 277 Birkdale Road for a discrete period of time. In Appendix B is a graph of the electricity consumption of the comparator home 275 Birkdale Road for the same time period.

[43] The depositions are plainly not conclusory. They provide to the issuing justice of the peace reasons for why the power consumption of the graphs have led the affiant to believe that a marihuana grow operation existed. The justice of the peace was advised that the cyclical pattern as shown was not typical of the average household hydro consumption. Further, the basis for why the pattern led the affiant to her belief is explained by the use of a timer and the needs of growing marihuana. The explanation provided to the authorizing justice of the peace is short and simple, unlike some other ITO's relating to grow operations (see for example the ITO in R. v. Luong, unreported, January 11, 2011, (Ont. C.J.)). While this explanation may have suffered from a lack of detail, it was not inaccurate or misleading and had the benefit of precision and clarity. I cannot say they were so incomplete that the justice of the peace was not entitled to rely upon them.

[44] I am mindful of the fact that only one comparator residence was used in this case. In some of the case law, there is a greater number of comparator residences used by an affiant. In addition nothing was said or known about the residence at 275 Birkdale Road in order for the justice of the peace to appreciate whether the comparator was similar or different from the target home. No doubt it would have been better to have used more comparator homes and have provided more information about them. However, the issue is whether the use of only one comparator home should lead me to decide that the justice of the peace could not have issued this search warrant. Each case and each ITO must turn on its facts.

[45] In this case, the affiant was not relying solely on increased consumption of electricity. In such an ITO, a greater resort to comparators or further investigation may be necessary to conclude this provided some grounds for the search warrant. In other words, one cannot know whether there was an excessive use of electricity without knowing more about what the typical use of electricity was for similar homes in the neighbourhood at the relevant period of times. Furthermore, given the myriad of potential reasons for increased electricity consumption, the inference that a marihuana grow operation is the probable reason for the increase may be tenuous without more data: see R. v. Erickson, [2006] O.J. No. 3099.

[46] In the case before me, the reliance is different. D.C. McCabe relied upon the pattern of electricity consumption more than overall electricity consumption. As she testified to, the maximum level of electricity consumption in a marihuana grow operation can depend on a number of factors including the number of plants being grown.

[47] I have also carefully looked at these graphs. The reliability of this data is unchallenged. I find that these graphs support the interpretation offered by the affiant. Indeed, the difference in power consumption between the two homes is stark. From this, it was open for the authorizing justice of the peace to draw reasonable inferences from the contents of the ITO: see R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657 at para. 16; R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 (C.A.) at para. 82. The graphs show that power is being consumed at an elevated and consistent level of a duration lasting a number of hours on relatively regular cycles for an extended number of days. This pattern is not discrete or irregular. The increase in power was for periods of 18 hours. The increases started at about the same time each day. And it ended about the same time. Some of the times in which this plateau of electrical power was being used occurred when an occupant would normally be expected to be asleep. Looking at Appendix A, this cyclical pattern is readily apparent. Looking at Appendix B, the comparator home, the difference is startling.

[48] It is a reasonable inference for a justice of the peace to conclude independently given that the graphs and data were attached to the ITO, that a timer or some device was being used to regulate this power consumption. It is a further reasonable inference that such a pattern of power consumption is consistent with the use of lights to grow plants of some type. At some point a certain amount of common sense should be injected into the interpretation of hydro consumption. All of us live in the real world where the consumption of electricity by different appliances and means is familiar to us. All of us appreciate that power consumption varies depending on many factors. In our own household, we know as we live our daily lives how we might typically consume electricity. The justice of the peace should be able to resort to this common knowledge to aid in the interpretation of hydro data. Reasonable inferences can only be drawn by resorting to our own life experience: see Plant and Suter para. 26. The degree an authorizing justice of the peace can do this without assistance from the affiant, will depend upon what the affiant states can be interpreted from the hydro data in issue. Some inferences from the data will require interpretation by someone experienced with marihuana grow operations. Others will not: see R. v. Gomboc 2010 SCC 55, [2010] 3 S.C.R. 211 at para. 15.

[49] I am alive to the fact that there are always other possibilities other than the existence of a marihuana grow operation that could account for this pattern. For instance, as admitted by the affiant, the resident could be growing tomatoes or some other form of legal horticulture. In my review, the jurisprudence would appear to resist the issuance of a search warrant based upon hydro records alone. As stated by my learned colleague Justice Green in R. v. Li, [2010] O.J. No. 4692 (C.J.) at para. 41:

Hydro records are undoubtedly technologically impressive but, in the end, they alone cannot draw the essential nexus between evidence of elevated and/or cyclical hydro consumption and the cultivation of marihuana - as opposed, for example, to the timer-governed production of any other energy absorbent enterprise, be it egg-hatching, mushroom-growing or orchid cultivation or, for that matter, even the pattern of hydro consumption associated with the use of a hot-tub or swimming pool. The Saskatchewan Court of Appeal made a similar point in R. v. Cheung (2007), 2007 SKCA 51, 219 C.C.C. (3d) 414, a case in which a grow-op warrant was granted on the basis of information provided by a confidential informant respecting plants and cultivation equipment being moved into a house as supplemented by hydro consumption and cyclical use data for that house gathered through the application of sophisticated digital recording ammeter (DRA) technology. The Court, at para. 22, noted that,

[I]t is inconceivable that a search warrant could be issued in relation to a marihuana grow operation on the basis of DRA data alone. This is so because there could be legitimate bases for both the amount of power consumption and the consumption pattern shown in this case. Again, in that respect, this case is like Tessling (2004), 2004 SCC 67, 189 C.C.C. (3d) 129 (S.C.C.) where it was decided that no warrant could ever properly be granted on the basis of a FLIR [Forward Looking Infra-Red] heat profile alone. [Emphasis added.]

See also R. v. Philpott, [2002] O.J. No. 4872 (S.C.J.).

[50] The practical effect of this approach makes sense to me. Otherwise, a simple computer algorithm analyzing the data resulting from smart meters at a hydro company would be all that is needed to obtain search warrants on a person's home. The police could simply troll through all the hydro data of a neighborhood looking for this pattern of electricity consumption and obtain a search warrant for each hit that came up. This would not be an appropriate balance between society's interest in law enforcement and an individual's reasonable expectation of privacy.

[51] I therefore cannot agree with the Crown that these hydro records alone could provide a basis for the issuance of a search warrant. I note that while her evidence is not dispositive of this issue, D.C. McCabe herself admitted under cross-examination that in her view the hydro records alone would not have permitted her to seek a search warrant. She admitted that further investigation would be required.

[52] The Crown relies on two Supreme Court of Canada cases to support her position that hydro records alone could support the issuance of a search warrant in cases like this. The first is Plant. I agree in some ways the hydro data in Plant which only measured an excessive amount of electricity consumption compared to same sized homes on the same block is less compelling than the data here. However, Plant does not stand for the proposition that a search warrant could issue on the hydro data alone. There was the tip that the data confirmed. It was the totality of the circumstances that warranted the search warrant.

[53] The Crown also relies on Gomboc. That case involved the police attaching a digital recording ammeter ("DRA") to a power line to measure electricity consumption in a target home. A DRA is a small electrical meter that measures electrical power flowing into a home in one-ampere increments. It is installed by the utility company usually for about five days. After the period, a graph is produced by the company showing electrical usage. Since marihuana is typically grown in a 12 or 18 hour light cycle, the pattern indicating such cyclical, high usage of electricity was said to be indicative of a marihuana operation within the home. That home was later searched pursuant to a search warrant and a marihuana grow operation was found.

[54] The core issue in Gomboc is different from the case at bar. In that case, the constitutional issue was whether there was a reasonable expectation of privacy in hydro records held by the electrical company. The majority held there was not. However, although the issue is different, there was much discussion amongst the members of the Court about the value of the DRA records when it came to such records constituting reasonable and probable grounds for a search warrant. From the factual record, it was clear that DRA data was only used to supplement traditional police investigative techniques. It was never used alone. Indeed, the practice was that the police usually resorted to it at the end of the investigation as much to rule out the existence of a grow operation as to confirm it. Generally, amongst the justices there was agreement about the utility of such hydro records. Deschamp J. speaking for the plurality of the Court had the following to say that in my opinion undercuts the Crown's submission to me that electrical records alone could lead to the issuance of a search warrant (at para. 6):

A critical factual consideration, on which much of the disagreement in this case turns, is the degree to which the use of DRA technology reveals private information. It is common ground that the distinctive electricity use patterns disclosed by the DRA data support a strong inference that a grow operation is on the premises. Such grow operations often involve marijuana. However, the existence of these distinctive electricity use patterns, though strongly correlated with a marijuana grow operation, does not establish that marijuana is the crop being grown. [Emphasis added]

(See also the comments of the dissent at para. 130 to same effect).

[55] While I disagree with the bright-line Crown submission on this, it is my opinion that the probative value of electricity consumption data can be high but can differ from case to case. In this case, this pattern exists for a residential home in a residential neighbourhood. The context of the consumption is a factor. The pattern does not exist in a vacuum. The fact that a residential home has this pattern attracts greater weight than if the pattern was observed in a business premise or industrial area where the likelihood of other possible explanations is increased. The pattern observed was for an extended period of time, nearly two months. It was not just for a few days which may open the door for other potential innocent explanations. Also the cycle pattern was clear and persistent throughout this period. There was an 18 hour cycle of high usage followed by a lull of hydro use. The peak power usage was a plateau of electricity used with little variation. The amount of increased power used during these cycles was significant compared to previous usage by the same address and the comparator residence. A significant portion of the times of consistently high electricity use was overnight when it was unlikely the occupants were awake and using large amounts of power. Finally, D.C. McCabe testified that the pattern of consumption over this period of time commencing on December 14, 2015, when previously the pattern was different at the residence, was consistent with a marihuana grow operation. This testimony was not impeached in cross-examination. In my view, these hydro records and D.C. McCabe's interpretation of them significantly advanced the reasonable and probable grounds for the issuance of this search warrant.

[56] Comments made by the Supreme Court of Canada in Gomboc confirm the strong probative value of such evidence: (see paras. 38, 40, 80, 124, 129, 130) The applicant argues that Gomboc is of limited precedent given the difference in the DRA device from the hydro data before me. Alternatively, he argues that there is no way for me to make a meaningful comparison. In my opinion, regardless of the exact technological similarities or differences, it seems this much is clear: that both sets of data examine the cyclical pattern of electrical consumption and reflect its consistency with the existence of a marihuana grow operation. I do not believe that the comments made by the justices in Gomboc about the strong inferences that can be drawn by such data can be distinguished in the manner suggested by the applicant. Furthermore, I find that those inferences are not particularly controversial. They simply reflect the application of common sense to a large degree.

[57] Additionally, the fact that there are other possible explanations for this pattern of consumption does not detract from the pattern being relied upon as reasonable and probable grounds for the existence of a marihuana grow operation. The test is not whether there might be an innocent explanation for this fact but rather whether the presence of this fact enhances or makes more likely the existence of the crime: see R. v. Lao, [2013] O.J. No. 1995 (Ont. C.A.) at paras. 56-59.

[58] Some additional points raised by the applicant regarding the hydro data can be quickly dispensed with. The applicant has argued some alleged deficiencies in the hydro records and how they compared to the nearby residence. I find these minor. They are not material. I find they would have had no effect on the issuance of the search warrant. Most would have been plainly obvious to the justice of the peace in reviewing the affidavit and appendices.

[59] With respect to D.C. McCabe's testimony, the applicant again argues that the affiant had no real experience to give the opinion that the hydro consumption was consistent with a marihuana grow operation. Again, I find that based upon her own training and knowledge, whether by other officers or on her own initiative and experience within the unit, she was competent enough to make these averments in paragraph (f). D.C. McCabe was not guessing or speculating about these aspects of a marihuana grow operation. While her cross-examination revealed she was new to the unit, it did not reveal that she was wrong about her averments or that she was making statements she had no knowledge about. There was nothing in the cross-examination that undermined this portion of the ITO. This fact makes this case distinguishable from the case of R. v. Floyd, [2012] O.J. No. 3133 (C.J.) relied upon by the applicant where the credibility of the affiant in that case on the issue of hydro records interpretation along with other issues, was significantly impeached by cross-examination.

[60] A final matter is the alleged misleading hydro graphs.

[61] The fact of the matter is that the graphs are not misleading. It is plain and obvious to anyone reviewing them that the value measures on the axis relating to kilowatt hours are different between 277 and 275 Birkdale Road. Looking at Appendix A and Appendix B, a quick review of the graphs reveal this. The affiant did nothing to change or alter the graphs. She simply attached what she was given from Toronto Hydro. It is speculative to suggest that the justice of the peace did not properly review the graphs. Like D.C. McCabe, I do not know why different measures were used by Toronto Hydro for the different depictions of electricity consumption. Like D.C. McCabe, I would postulate that it was possibly because the values on the axis were chosen depending on the highest bar graph shown in the relevant time period in order to provide the largest graphic display of hydro consumption. Regardless of the specific reason for this difference, I see no basis to conclude the justice of the peace would or could have been misled without some averment or explanation by D.C. McCabe in the body of the affidavit pointing this out: see Re Church of Scientology and the Queen (No. 6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.) at pp. 524-25.

[62] So in conclusion about the use of the hydro data and D.C. McCabe's interpretation of them, paragraph (f) has two effects relevant to reasonable and probable grounds. First, it can act as independent grounds for the issuance of the search warrant. In other words, looking at the averments alone, they support the reasonable grounds to believe that a marihuana grow operation existed at this address. Secondly, this paragraph has the effect of corroborating the Crime Stoppers tip. It does so in a direct fashion unlike the other police investigation that confirmed the fact that the applicant lived at this address. It is evidence that confirms the existence of the crime itself. Thus, while this Crime Stoppers tip standing alone has little probative value, when it is confirmed by the hydro records, its reliability is enhanced.

Other Grounds Found in the ITO

[63] The observations made during police surveillance must be considered. They were brief. They were conducted only on two days, February 23 and 24th. On February 23, the police officers simply observed that the windows to the home were covered. However, given the time of day, 9:30 a.m., this observation adds little. The police investigation did not involve observations of the house over an extended period of time that could reasonably support an opinion that the house was being used as a grow operation. That said, the observations were not entirely immaterial.

[64] It is true that the affiant did not note down that D.C. Bentley did not smell any marihuana on February 24th. D.C. McCabe acknowledged she should have put it into her ITO. However, I find this was not a deliberate attempt to mislead the justice of the peace. It seems to me it was an inadvertent omission that would not have affected the decision whether to grant the search warrant or not. As D.C. McCabe explained, there is not always a smell of marihuana in the vicinity of grow operations since filters are sometimes used. This omission is not of much significance since on this amplified review its omission is readily explained and does not affect the grounds for the warrant's issuance: see Nguyen at paras. 52 – 53 where the Ontario Court of Appeal came to the same conclusion on this type of omission.

[65] The observation made by D.C. Bentley of the roof of 277 Birkdale Road must also be considered. If that disclosure was misleading then it has to be excised upon this review. An affiant has an obligation to be full and frank, clear and concise. D.C. McCabe stated in the ITO that D.C. Bentley advised her that he saw "no snow" on the roof of house. D.C. Bentley had written in his notes "little to no" snow. In addition, D.C. McCabe did not state in her affidavit that D.C. Bentley had noted that there was a wind.

[66] On this issue, first of all I find that D.C. McCabe did not intentionally mislead the justice of the peace. I accept her testimony. With respect to the fact D.C. Bentley having observed a wind, D.C. McCabe was not asked any questions regarding this on cross-examination. Secondly, I agree there is a difference between "no snow" and "little to no snow". That much is clear. However, I find that the difference is not significantly material enough to excise this observation. It has not been shown that D.C. Bentley's observation was false or inaccurate. The evidence is that he did observe this bare patch on the roof. Further, while there is a difference, whether there was absolutely "no snow" or "little to no snow" is simply a matter of degree. Additionally, different people describe things differently in observing the same thing in circumstances such as this. What was material was that the justice of the peace was being advised that in comparison to surrounding roofs of the other houses which were completely snow covered, there was this very dissimilar patch of roof. On this point, there was no material misleading or inaccuracy.

[67] Furthermore, the value of the observation is that it was heat from a marihuana grow operation that caused the bare patch. This is not touched by whether there was absolutely no snow or little to no snow. That D.C. McCabe chose words slightly different from what D.C. Bentley used is not of much moment in these circumstances.

[68] The same can be said with respect to the omission of an observation of a wind. If it could be suggested that it was a wind that could have been the possible explanation for the bare patch, something which was never suggested in cross-examination, it was highly unlikely given that there was only a portion of the roof of 277 Birkdale Road affected and none of the surrounding roofs were affected. The omission of this observation would have had no effect upon the issuance of this search warrant.

[69] The final attack made by the applicant on this observation is the argument that there are many different reasons for such a bare patch of roof. It is argued that there was no way for the affiant to conclude that this was caused by excessive heat or heat from a marihuana grow operation. Again, the fact that there are other potential explanations does not necessarily detract from using this observation as a part of the reasonable and probable grounds for the warrant. Further, I agree with the Crown that D.C. McCabe had sufficient experience about the heat produced by such operations to make the connection between the heat produced and a marihuana grow operation. I also agree that no special training is required to draw the conclusion that heat from within the house can cause snow on a rooftop to melt.

[70] It is not every inaccuracy or omission that renders a search warrant vulnerable. Even if excised, the remainder of the ITO has to be considered. I will simply reference a quote from the Ontario Court of Appeal in Nguyen that is apropos on this point (at para. 25):

In addition, even if the statements and omissions could be said to be materially misleading, that was not the end of the matter. The trial judge still had to ask herself the foregoing question i.e., whether there remained a sufficient basis on which to issue the warrant. As Charron J. said in R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30:

Even if it is established that information contained within the affidavit is inaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions. The likelihood that the proposed challenge will have an impact on the admissibility of the evidence will depend on the particular factual context. In the end analysis, the admissibility of the wiretap evidence will not be impacted under s. 8 if there remains a sufficient basis for issuance of the authorization. [Emphasis added.]

[71] On this review, if I consider the actual observations made by D.C. Bentley as described by him in his notes, I find that the justice of the peace would not have refused to issue the search warrant.

[72] There is then the issue of the applicant having previously received a licence to grow and possess marihuana. For D.C. McCabe, it showed that the applicant would have had the knowledge and experience to set up a grow operation by having grown marihuana in the past. In her mind, this supported her reasonable and probable grounds. Viewed objectively, I would not go as far as D.C. McCabe. As I understand it, the owner of such a licence does not always have to resort to growing their own marihuana plants in order to lawfully possess it. It permits an individual to simply possess it as much as to cultivate their own plants. I do accept that this fact does raise the possibility that Jesse Todd-Hurst could have grown such plants given that it shows for medical reasons, he previously needed and wanted to use marihuana. However, all the licence truly shows is that he had an interest in possessing and/or cultivating marihuana that someone else may not have had. Given the changing societal attitude towards marihuana use, it seems to me that this is an interest that is probably shared by many others who may never previously have had such an authorization. In my view, to contend that the prior possession of such a licence alone shows experience at cultivating marihuana is a stretch.

[73] The applicant made one final submission that can be briefly disposed of. D.C. McCabe admitted that she was not aware of the case R. v. Allard where the applicant asserts there was a judicial injunction allowing some individuals to continue to produce medical marihuana without a licence. I cannot see the materiality of the evidence that D.C. McCabe was not aware of this case. There is no evidence that the applicant would have fallen within the terms of that injunction. The fact D.C. McCabe was not aware of the then current status of medical marihuana litigation across the country is of no consequence. She relied upon the information she received from Health Canada that the applicant did not have a licence to possess and produce marihuana. This was not undermined by cross-examination or argument.

Conclusion

[74] In deciding this application, the question is not what I would have done if this application for a search warrant came before me. Rather, on this review record, I must decide whether there is any evidence remaining after disregarding false allegations and considering any omitted facts, upon which the justice could be satisfied that the warrant should issue.

[75] In this case, looking at the totality of the circumstances and looking at the ITO as a whole, I find that the justice of the peace could be properly satisfied that there were reasonable and probable grounds for this warrant to issue. I have concluded this based upon my analysis as set out above. In sum, the reasonable and probable grounds in this ITO as expanded by the cross-examination consist in part of a tip that was not in itself reliable but did identify the crime, the location, and the target. That tip was confirmed in part by some police investigation into the applicant and his current residence using other sources. That tip was further confirmed by the hydro records and some police observations. Those observations made on two days of surveillance did not significantly advance the grounds or confirm the tip but were consistent with a marihuana grow operation. The fact that the applicant had a prior licence to possess and produce marihuana was essentially neutral. The hydro records themselves and the affiant's interpretation of them even though she had limited experience provided strong grounds for the existence of a marihuana grow operation. At the same time, this was the strongest confirmation of the anonymous tip. I do not disagree that this ITO could have been improved by the use of more comparators for the hydro records, a more experienced affiant, greater police surveillance, and more investigation such as the interview of neighbours or other potential witnesses. However, that is not the fundamental issue for me to decide on this application.

[76] As a result, I find there to be no violation of the applicant's right under s. 8 of the Charter to be free from an unreasonable search and seizure. This application is dismissed.

Released: March 24, 2016

Signed: "Justice S. Nakatsuru"