Her Majesty the Queen v. Huy-Van Nguyen, 2012 ONSC 3668

COURT FILE NO.: 10922

DATE: 2012-06-21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

HUY-VAN NGUYEN

Accused

K. Johnson and J. Bielefeld, for the Crown

K. Schofield, for the Accused

HEARD: April 30 and May 1, 2012.

mcdermid, j.:

THE CHARGES:

1The accused is charged with unlawfully producing cannabis marijuana, contrary to s. 7(1) of the Controlled Drugs and Substances Act (CDSA) and with having possession of over three kilograms of cannabis marijuana for the purpose of trafficking contrary to s. 5(2) of the Act. The Crown has withdrawn the third charge of fraudulently using electricity the property of Hydro One of a value exceeding five thousand dollars and thereby committing theft contrary to s. 326(1)(a) of the Criminal Code of Canada.

THE APPLICATION:

2Ms. Schofield applies to exclude evidence obtained by the police as a result of executing a general warrant and subsequently a CDSA warrant on the ground that the accused’s rights under s. 8 of the Charter of Rights and Freedoms have been violated. In particular, it is her contention that OPP Detective Constable Chevers lacked reasonable grounds to obtain the s. 487.01 general warrant he secured on December 7, 2009 and misled the issuing judge to obtain it. Consequently, the CDSA warrant he obtained on December 16, 2009, pursuant to s. 11 of the Controlled Drugs and Substances Act, based in part on information gathered under the general warrant must also fall. As a result of executing the latter warrant, police seized 1996 marijuana plants from the residence in which the accused alleges he was living at […] V[…] G[…] C[…], Thames Centre Middlesex County. The plants are stated to be worth almost two million dollars.

STANDING:

3The accused testified on the voir dire to establish that he had an expectation of privacy in the residence. Part way through the voir dire, the Crown conceded that he did.

4A brief of photographs of the residence was entered as Exhibit 1. The accused identified photographs of the residence as the house where he was living in November and December 2009 by himself. When he was arrested at the residence, he was in possession of a key to his motor vehicle and to the house as well as a garage door opener for the right-hand garage door. He said he slept at the residence five nights a week and went to Mississauga the other two nights to visit his child. He also claimed to eat his meals at the residence during the time he lived there. He testified the home was owned by his sister-in-law to whom he paid rent of $1,300 per month. He confirmed that he alone controlled access to the house and had the only key to it.

5The indicia of occupation were minimal. What little clothing the home contained was found in bags, on a coat rack and scattered in some of the rooms. There were no dressers or other furniture to hold clothes. No documents were found in the home other than those that were contained in the accused's wallet. Beer and some juice were found on the kitchen counter. There was some food in the refrigerator. The cupboards contained plates and glasses. A frying pan was found on the stove and a microwave on the counter.

6However, as noted, the Crown conceded that the accused had an expectation of privacy in the residence.

THE INVESTIGATION:

7The following is a summary of the investigation conducted by DC Chevers as set out in the information to obtain (ITO) the general warrant.

8On November 30, 2009, Detective Sergeant Heidi Stewart advised DC Chevers that she had received information from Inspector John Stephens that a confidential source had reported to him a possible marijuana growing operation at […] V[…] G[…] C[…].

9On December 1, 2009, DC Chevers requested account holder and usage information from Hydro One Revenue Protection for the past year relating to […] V[…] G[…] C[…]. He also drove by the property at 5:53 p.m. the same day and observed the number 22 displayed on the front of the residence; that it was a newer single-story residence situated on a corner lot; and that there were two vehicles in the driveway: a dark-coloured sport utility vehicle and a white General Motors van with license plate BEWA639.

10DC Chevers conducted Police Automated Registration Information System, (PARIS), and CPIC, (Canadian Police Information Centre), searches that revealed the white van bearing license BEWA639 was registered to the accused, Huy-Van Nguyen, born July 1, 1969, whose residence was listed as 2547 Padstow Crescent, Mississauga, Ontario and that he was a licensed driver with a single Criminal Code conviction in 1996 for cheating at play.

11On December 2, 2009, DC Chevers received information from Hydro One Revenue Protection that the hydro account holder at […] V[…] G[…] C[…] was a Tho Nguyen. PARIS and CPIC searches located a licensed driver by the name of Tho Nguyen, born April 18, 1976, with a listed address of 2457 Padstow Crescent, Mississauga, Ontario, who had a single Criminal Code conviction in 2001 for theft under.

12On December 3, 2009, DC Chevers received hydro usage records from Hydro One Revenue Protection for the property between July 25, 2008 and November 23, 2009 that revealed the following:

1. Between July 25, 2008 and December 5, 2008 a different male owned the property.

2. During that period, hydro consumption ranged from 18 to 24 kwh per day. Based on his past experience obtaining hydro records, it was his opinion that this level of hydro usage was normal for a residence of its particular size.

3. Tho Nguyen took over the hydro account on December 5, 2008 and from that date to January 26, 2009, hydro usage was 17 kwh per day.

4. Hydro consumption then jumped to 84 kwh per day for the next 60 days and continued to climb.

5. The reading on November 23, 2009 showed hydro usage at 101 kwh per day.

6. Based on his experience, DC Chevers's opinion was that this level of hydro usage for a residence of that size was abnormally high.

7. Hydro usage for the residence during the same time period in 2008 under the previous resident was 21 kwh per day.

13On December 4, 2009, DC Chevers spoke directly with the confidential informant, (CI), who revealed the following:

1. The CI never observed anyone move into the residence but did see the former residents move out in September, 2008.

2. After that date, no one was observed at the residence until December, 2008.

3. The CI had never seen anyone actually living at the residence but did see a white van and a dark sport utility vehicle show up occasionally for a few hours and then leave.

4. During the summer, the grass was very long and a truck would show up with a lawnmower in the back. A male would cut the grass and leave.

5. On November 28, 2009 the CI observed heavy condensation on the windows, which were always covered up.

6. Although the windows were covered, the CI could see bright light showing around the edges.

7. The CI lives in a residence occupied by four people and their hydro bill is around $60 a month. The CI reported learning that the water usage for the suspect residence exceeded $300 a month, even though no one was observed to be living there.

8. The window at the rear of the suspect residence is always open, even during inclement weather, since the people started attending sporadically in December 2008.

9. The CI had never seen any garbage put out for pickup since the new owners took possession.

14On the basis of this information, and other information he set out in the ITO regarding his training and experience in investigating marijuana growing operations, he applied for a general warrant to enter and trespass at night on the property with a trained operator of a thermal detection device, (a Forward Looking Infrared, or, FLIR).

15Paragraph 22 of the ITO reads as follows:

The information provided by source #1 has been consistently corroborated and found to be accurate by police investigation. The information provided by source #1 is consistent with my past experience in investigating indoor marijuana growing operations. This belief is supported by the abnormally high hydro consumption at the suspect residence, as much as 5 times higher than the previous resident during the same time period. The "absentee" resident appearance at the suspect address and the sporadic attendance further shows consistency with my past experience in investigating indoor marijuana grow operations. I know from my past experience and training that condensation on the windows is also consistent with indoor marijuana grow operations, due to the high moisture level maintained in the residence from hydrating the plants coupled with the high temperatures. Source #1 further advised that he/she has never observed any garbage set out to the curb for pickup. I'm aware from my past experience in investigating the indoor marijuana growers that this is a common practice for the experienced illegal marijuana grower. XXXXXXXXXXXXXXXXXXXXXXXX. (Sentence excised). As a result I believe that the investigative techniques set out in this Criminal Code General Warrant to Search will yield significant evidence of the offence of production of Cannabis Marijuana. I further believe the information provided by confidential source #1, as well as the police investigation constitutes reasonable grounds, being a set of facts or circumstances that would lead an ordinary prudent person to have strong belief and is beyond mere suspicion. As a result, I respectfully request that a Criminal Code s. 487.01 warrant be granted.

GAROFOLI APPLICATION:

16Counsel agreed that Ms. Schofield should succeed on her Garofoli¹ application and be permitted to cross-examine DC Chevers, who was called and examined first by Ms. Johnson about his investigation.

17In addition to the information contained in the ITO, he revealed that the CI was from the community and was "very familiar with the area of the residence." The CI informed him that he/she went to the front door of the residence as a fundraiser. No one answered the door and it was then that he/she noticed condensation on the windows and the bright lights inside the residence. The CI told him he/she had checked the water bill for the residence and found it was $300 a month as opposed to the CI's $60 for a similar sized home. To DC Chevers's knowledge, the CI had never acted as a confidential source before.

18DC Chevers has been an OPP officer for 17 years and is a member of the Drug Enforcement Unit. At the time in question, he had been an officer for 14 years. His qualifications, as outlined in paragraph 1 of the ITO, were amplified during his direct examination.

19DC Chevers testified that when he drove by the residence on December 1, 2009 in addition to seeing the two vehicles in the driveway he noted that the rear yard was obstructed by several evergreens. After gathering all of this information in the course of his investigation, he consulted his immediate supervisor, Detective Sgt. Brad Durfy, about further resources that might be utilized. He added that further surveillance "was not an option because the community was so small everyone knows who is there and who is not." He added that he could not see the back of the residence because of the trees and that "stopping in front of the residence would give away my intentions if the occupant looked outside".

20As a result, he applied for a general warrant to search, which would allow him "to look in windows and sniff in vents and inspect garbage" and to use thermal imaging. The warrant was authorized by Mr. Justice Getliffe of the Ontario Court of Justice and was executed within the period specified in the warrant, which was between December 7, 2009 and January 7, 2010.

21On cross-examination, DC Chevers agreed that he did not decide to seek a general warrant until after he had spoken with Detective Sgt. Durfy.

22He also agreed that Detective Sgt. Stewart had contacted him about this matter in the spring of 2009, some eight or nine months previously, but he had been unable to act on it "because of the Victoria Stafford investigation" in which he and many other officers were involved. The CI had contacted the police again and asked Inspector Stephens what was happening. This prompted the call in November 2009 from Detective Sgt. Stewart who wanted to know what was happening with the investigation. DC Chevers agreed that he did not include this information in the ITO.

23DC Chevers also agreed that Detective Sgt. Stewart told him that the CI told Detective Sgt. Stewart the family that moved into the suspect residence was Vietnamese. There is no mention in the ITO of a Vietnamese family or person occupying the residence. He agreed that he thought the CI was an unproven source and might be racially profiling but did not include this in the ITO because he did not think it was relevant. He testified on cross-examination, "The information that the house was occupied by Vietnamese people does not mean there is a grow." In his mind, race had nothing to do with his investigation and he did not view it as an indicator that an offence was being committed.

24DC Chevers agreed that he did not take down a description of the vehicles from the CI in his notebook, but had mentioned in the ITO, in effect, that the CI had seen "a white van and a dark sport utility vehicle". He said he tried to take down in his notes everything the CI told him and could not remember whether he might have missed doing so. When asked whether he might have included in the ITO what he saw when he drove by the residence rather than what CI told him, he replied that he definitely saw the vehicles in the driveway and admitted it was possible that he might have been confused when he was typing the ITO but did recall having the conversation. When pressed, he agreed it was possible that the CI might not have given him a description other than that "a couple of vehicles showed up for a couple of hours".

25DC Chevers agreed he stated in the ITO that the CI advised him the windows on the suspect residence are always covered up, whereas his notes state, "Blinds shut all the time". When asked why there was a difference, he replied that he did not differentiate between blinds and coverings.

EFFORTS TO CORROBORATE THE CI:

26Ms. Schofield then cross-examined DC Chevers about his efforts to corroborate the information he received from the CI. He said he believed what the CI had to say and sought to corroborate it to gain access to the residence. In regard to his efforts at corroboration, he testified as follows:

1. He drove by the residence but did not stop at it.

2. He did not attempt to corroborate the CI's statement that he/she "never saw anyone move into the suspect address, only the previous residents moving out".

3. He did not attempt specifically to verify that anyone was living in the residence but assumed this to be the case when he saw the two vehicles in the driveway as he drove by.

4. He did see blinds on the front windows of the residence, which were the only windows he could see, but did not record this in his notes or state it in the ITO.

5. He did not verify seeing the bright lights described by the CI and admitted he could have driven by another evening to determine if he could see the bright lights but did not do so.

6. Although the CI described water usage, he/she made no mention of electrical consumption. He did not seek to determine what the water bills were at the suspect residence.

7. He was unable to verify the CI's information that the window at the rear of the residence was always open because it was heavily treed at the back of the property and he could not see the window without trespassing on the property. He added, "I am not in the habit of trespassing without a warrant."

8. He did not corroborate the garbage pickup. He agreed he could have determined the garbage pickup dates and then driven by the property on a pickup date but did not do so.

9. He did no investigation to explain the high consumption of electricity.

27DC Chevers agreed on cross-examination that the hydro usage information he obtained was not "indicative of a marijuana crop" by itself. He agreed further that there might be reasons for high or low hydro consumption, including a bypass, or, the presence of a small business in the basement, or, hot tubs, or, a sauna in the residence, which information was not available to him. He did no investigation to explain the high hydro readings.

28In the ITO, he stated, as part of paragraph 19, "I also know that the hydro readings will show various stages of growth as the illegal crop begins, the readings will peak and then gradually decrease as the plant reaches its final growth stage where requires less intense lighting conditions and less lighting time." He agreed on cross-examination, that this pattern of growth and hydro consumption was not established from the hydro records he obtained, which covered a 10 month period at two-month intervals. He agreed he did not put this record into the ITO but added that he had never done so before. He did not see the readings as a contradiction of his statement in paragraph 19 of the ITO; rather, he said, "It is more consistent with a multistage grow."

29He agreed he did not obtain "comparables from other residences". He testified that in his experience 30 to 50 kW per day was the average for a comparable house. He agreed that while he stated that in effect the ITO the consumption was five times that of the previous residents, he did not state that it was perhaps only twice the normal consumption rate.

30When asked by Ms. Schofield, he agreed that he believed he had reasonable grounds to obtain the general warrant because he had "somewhat high hydro" and "some information from a source" and "that's the essence of it".

REASONONABLE GROUNDS:

31Ms. Schofield also explored the issue of "reasonable grounds" with DC Chevers, which revealed the following:

1. He wanted to get a general warrant to obtain more information to corroborate the CI and agreed that he would not have applied for a CDSA warrant.

2. He agreed that the test for both warrants was the same but stated he believed he "had the evidence to get on the property to use a thermal imager" but did not believe "he had the grounds to make entry to the house at that point".

3. Later in cross-examination, he agreed he applied for a general warrant because his goal was to determine if marijuana was growing inside the house and that he did so because he did not believe he had grounds to enter the house.

4. He also agreed that he believed he had reasonable grounds to trespass to obtain evidence of a “grow op”, but "needed more to breach the door to the house" than was needed to trespass on the property.

32In the ITO to obtain the subsequent CDSA warrant, DC Fulford, a qualified FLIR officer, swore that he and other officers trespassed on the property on December 16, 2009 at 4:03 a.m. to execute the s. 487.01 general warrant and that he conducted FLIR tests on the residence. The front of the dwelling faced west. He examined all four sides of the building. He noted a large amount of heat emanating from the north part of the east side of the dwelling and "could also detect an odour of fresh growing cannabis marijuana while on the east side of the property." He also noted the window on the north part of the east side of the dwelling was open and, "I could see steam billowing out of the window with a strong odour of fresh growing cannabis marijuana". Upon approaching the rear window, "I noted the overwhelming odour of raw cannabis marijuana coming from inside the residence. I also noted there to be black plastic covering the inside of the window. While at the rear of the residence I noted a significant amount of condensation covering the other east side windows of the residence."

33The following statement is found in the ITO for each of the two warrants that DC Chevers swore, "The information provided by source #1 has been consistently corroborated and found to be accurate by police investigation."

POSITION OF THE DEFENCE:

34As I understand it, Ms. Schofield's position is as follows:

1. DC Chevers lacked "probable grounds" to obtain the s. 487.01 general warrant for the following reasons:

a. As DC Chevers testified, the "grounds" upon which he relied consisted of information he received from the CI and the hydro records he obtained for the residence.

b. He spoke to the CI only once. The CI was unknown to the police who had no previous experience with respect to his/her reliability.

c. Before applying for the warrant, DC Chevers failed to corroborate most of what the CI told him.

d. His "investigation" consisted of a single, quick "drive-by" of the residence, a single conversation with the CI, and checking the PARIS, CPIC and Hydro One records. There was nothing unusual he observed about the house, which appeared to be occupied.

e. The hydro consumption information he obtained is inconclusive on the issue of whether marijuana was being grown in the residence. This is especially so since DC Chevers failed to investigate the reasons for the level of consumption. He did not compare the readings with other adjacent residences for the relevant time period. He did not determine whether there were any other factors relating to the residence that might explain the readings, such as a large family or a sauna within the residence, or, a hot tub in the backyard.

f. DC Chevers lacked reasonable grounds and at best had information only about suspicious activity rather than actual criminal activity.

g. The ITO for the subsequent CDSA warrant relied upon the same grounds used to obtain the general warrant plus additional information obtained from executing the general warrant.

h. Because DC Chevers lacked probable grounds to obtain the general warrant, it should be quashed and the evidence obtained by the police as a result should be excluded as the fruit of an unreasonable and unlawful search under s. 8 and s. 24(2) of the Charter.

i. Because the ITO for the CDSA warrant relies on evidence unlawfully collected under the general warrant and because DC Chevers lacked probable grounds to obtain both warrants, the CDSA warrant should also be quashed and the evidence should be excluded.

2. DC Chevers misled the issuing judge by stating the information provided by the CI as set out in the ITO had been "consistently corroborated and found to be accurate by police investigation". This simply was not true because the "corroboration" involved a single, brief "drive-by" that yielded no reliable corroborative observations.

3. If he had made full, frank and fair disclosure, the warrants would not have been issued.

ANALYSIS:

Standard of Review:

35In paragraph 56 of Garofoli, Sopinka J. sets out the standard of review to which I should adhere as follows:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

“Reasonable Grounds”:

36I begin my analysis with a discussion of the meaning of "reasonable grounds". Whether or not an affiant has reasonable grounds to obtain a search warrant must be considered in the context of "the totality of the circumstances". The question is not whether each particular piece of evidence, examined in isolation, establishes reasonable grounds, but whether all of the information taken in its totality satisfies the test. ²

37The standard of proof is one of reasonable probability.³ As Dickson J. stated in Hunter v. Southam⁴:

The State's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly based probability replaces suspicion. History has confirmed the appropriateness of this requirement as the threshold for subordinating the expectation of privacy to the needs of law enforcement.

The “tip”:

38In R. v. Garofoli, ⁵ which involved a challenge to an authorization to intercept private communications, Sopinka J. for the majority, stated at paragraph 68:

Moreover, I conclude that the following propositions can be regarded as having been accepted by this Court in Debot and Greffe:

I. Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.

II. The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:

a. the degree of detail of the "tip";

b. the informer's source of knowledge;

c. indicia of the informer's reliability such as past performance or confirmation from other investigative sources.

III. The results of the search cannot, ex-post facto, provide evidence of reliability of the information.

39One of the primary sources DC Chevers relied upon was the information obtained from the CI. This is not a case where a "tip" was provided anonymously to Crime Stoppers, who in turn relayed the information to the police. In such a situation, there is no direct contact between the "tipster" and the police and no opportunity to assess the credibility of the person providing the information. In this case, DC Chevers spoke directly with the CI and had that opportunity. He testified he had no reason to question the accuracy of what the CI told him. He did not tell the CI what he had been told by Detective Sgt. Stewart before the CI spoke to him. He added that he believed what the CI told him, even though the CI was not previously known to the police, and sought to corroborate what was related to him.

40DC Chevers testified that he was familiar with the municipality of Thames Centre in Middlesex County, which had been known formerly as the Village of Dorchester. The CI told DC Chevers directly that he/she was from the community and was very familiar with the area of the residence. DC Chevers testified that surveillance of the area was not an option because the "community was so small everyone knows who is there and who is not." It is reasonable to infer that in such a small community the CI would not want the occupants of the residence in question to know his/her identity. In fact, paragraph 17 of the ITO states, "Source #1 is a concerned citizen from the Municipality of Thames Centre, who wishes to remain anonymous in the interest of her/his safety."

41The observations and information the CI provided to DC Chevers, a trained drug investigator with 14 years of experience as a police officer at the time and a member of the London Drug Enforcement Unit, was consistent with and indicative of an indoor marijuana growing operation. As he stated in paragraph 18 of the ITO, "The information provided by source #1 is consistent with the practice of the illegal marijuana grower who does not reside at the location, but attends to tend to the crop."

42As noted, he made PARIS and CPIC inquiries and learned that the accused was the registered owner of one of the vehicles he saw in the driveway of the subject property with a residence listed as 2547 Padstow Crescent, Mississauga, Ontario. He obtained Hydro One records from which he determined that the hydro account holder for the residence was a Tho Nguyen. A PARIS search revealed a Tho Nguyen to be a licensed driver with a residence listed as 2547 Padstow Crescent, Mississauga, Ontario, the same address listed for the accused. This information was consistent with the information from the CI that he/she "never saw anyone move into the suspect address, never saw anyone actually living there and only saw two vehicles show up occasionally for a few hours". It is also consistent with the information from the CI that the CI observed the lawn of the subject property "was very long and that a truck would show up with a lawnmower in the back; a male would cut the grass and leave." Since it was December when DC Chevers interviewed the CI, he had no opportunity to corroborate this information.

43DC Chevers had limited opportunity to corroborate what the CI told him about seeing bright light around the edges of the covered windows or about the condensation on the windows, but took into account the fact that the CI knocked on the front door of the subject property and was in a very good position from which to make these observations.

44He also obtained and took into account the hydro records that showed greatly increased consumption of electricity at the subject property after the accused took occupancy of it. It was five times the amount consumed by the previous occupants and twice what he considered, based on his experience, to be normal for a home the size of the subject property. It is true that taken in isolation, the increased consumption of electricity might be attributable to a variety of circumstances. However, DC Chevers did not rely exclusively on this factor to conclude there was a marijuana growing operation inside the subject property. He took it as one of several factors which, considered cumulatively, led him to conclude he had grounds to apply for a general warrant and that it would "yield significant evidence of the offence of production of cannabis marijuana".

45In the case at bar, DC Chevers did receive very detailed information from the CI based on the CI's personal observations. The CI lived in the community, was "very familiar with the area of the residence" and had even knocked on its front door when fundraising, thus placing himself/herself in a position to make observations in very close proximity to the residence. Also, as DC Chevers observed from his own experience, "The community was so small everyone knows who is there and who is not."

46Because the CI was unknown previously to the police, DC Chevers was unable to draw on the CI's past performance to assess his/her reliability. However, other investigative sources to which he resorted yielded additional information that strengthened his belief that the CI was telling him the truth:

1. Information from the PARIS searches that the owner of one of the vehicles he saw in the driveway and the hydro account owner both listed their residence address at the same address in Mississauga, notwithstanding the fact that the hydro records showed that Tho Nguyen took over the account on December 5, 2008, almost a year before DC Chevers contacted Hydro One. This was information from which a reasonable person might well conclude that the accused and Tho Nguyen did not reside at the subject property.

2. Hydro One records that showed consumption by the current occupant was five times that of the previous occupant and twice what DC Chevers considered, based on his experience, to be that of a normal residence of comparable size. It was also consistent with increased hydro usage necessary to provide light for an indoor marijuana growing operation.

47On the basis of R. v. Jacobson,⁶ Ms. Schofield submits that what we have in this case is a tip that “was nothing more than a suspicion of criminal activity, not an assertion of criminal activity.”⁷ Therefore, the information from the CI “was of no value in determining whether probable grounds existed for the general warrant”.⁸ However, I believe that case can be distinguished from the one before me. The tip in Jacobson was an anonymous one from Crime Stoppers and there was no way to confirm if it was credible. Here, DC Chevers spoke to the CI in person and formed the opinion that he/she was telling the truth. He took what the CI told him together with what he found as a result of his additional investigation and filtered it through his experience as a trained drug investigator familiar with marijuana cultivation operations.

48In my opinion, the tip from the CI was compelling and added to the information DC Chevers obtained from his other investigation provided him with reasonable grounds to obtain a general warrant.

49Ms. Schofield raises two further issues:

1. That the general warrant should be quashed because DC Chevers acted in bad faith by lying in the ITO and making innocuous circumstances appear sinister.

2. That DC Chevers acted improperly and unlawfully in obtaining a general warrant in order to provide additional information to obtain reasonable grounds to apply for a warrant pursuant to s. 11 of the CDSA.

Bad Faith:

50Ms. Schofield complains that DC Chevers lied to and misled the issuing judge and exaggerated innocent circumstances to cast a sinister pale over the information he presented to obtain the general warrant. In addition, she submits he failed to make full, frank and fair disclosure and that if he had done so the warrant would not have issued.

51It is my opinion that DC Chevers acted in good faith in applying for the general warrant and did not attempt deliberately to mislead the issuing judge. Therefore, any erroneous information he supplied in the ITO may be amplified by reference to the testimony he gave on this application.

52It is true, as noted, that DC Chevers was not entirely accurate in all respects regarding the information he provided in the ITO. The following are some of the statements and omissions to which Ms. Schofield objects and my opinion respecting her objections:

1. Paragraph 11 of the ITO states that Detective Sgt. Stewart contacted DC Chevers on December 30, 2009. In paragraph 12, he states she contacted him on November 30, 2009, which is the correct date, as verified from DC Chevers's notes.

I view this as a typographical error and of no consequence.

2. He failed to reveal that she had contacted him about this matter several months earlier and was calling on November 30, 2009 to find out what was happening.

I do not believe that the inclusion of this statement would have caused the issuing judge to refuse the warrant.

3. DC Chevers testified that Detective Sgt. Stewart told him that Inspector Stephens had told her the CI mentioned a Vietnamese family had moved in to the subject property and that the CI provided some information about water consumption. DC Chevers did not include this information in the ITO.

He said he included in the ITO only information he obtained directly from the CI and that he did not mention the Vietnamese family because he did not believe it was relevant and might be construed as racial profiling on the part of the CI. He did not consider the race of the occupant to be relevant to whether or not a growing operation was under way inside the subject residence. Similarly, he did not mention the CI's reference to water consumption because he had never checked water consumption in his previous investigations. Instead, he was more concerned with the consumption of electrical power.

I suspect that if DC Chevers had included mention of a Vietnamese family, Ms. Schofield would have cited R. v. Mac ⁹, where Weekes, J. stated in paragraphs 4 and 5:

[4] The problem with the references to Asians and Vietnamese is that they distract the reader from the sufficiency of the hard evidence and may seduce him or her to issue the warrant on the stereotypical assumption that, because many grow operations springing up in Simcoe County have been run by East Asians, this must be yet another East Asian grow operation …

[5] Unless it is essential for the race of an individual to be referred to for the purposes of explaining the evidence it should not be done because of the risk of colouring the approach of the judicial officer reading the Information To Obtain.

In my opinion, DC Chevers took the appropriate course by deleting any reference to race.

4. DC Chevers investigation was almost nonexistent. He could have and should have done more to investigate the information he obtained from the CI. For example:

a. He could have determined what dates the garbage was collected and driven by the property on those dates to see if any garbage was placed outside for removal.

b. He could have driven by the property at night to determine whether bright lights were visible inside the residence.

In my opinion, DC Chevers, through his investigation when viewed in its totality, gathered sufficient information, as noted above, to provide the reasonable grounds necessary to obtain the general warrant, bearing in mind that the test is one of "reasonable probability" rather than "proof beyond a reasonable doubt" or "prima facie case".¹⁰

5. He stated incorrectly in paragraph 22 that, "The information provided by Source #1 has been consistently corroborated and found to be accurate by police investigation." Ms. Schofield characterizes this statement as, "Nothing but a bald misstatement."

I agree that the statement is not entirely accurate and can be viewed as misleading. However, the ITO sets out what the CI told DC Chevers and what steps he took to corroborate what he was told together with the additional investigative steps he followed. Based on my assessment of DC Chevers, I do not believe it was his intention to deceive the issuing judge but rather that he simply overstated the situation. I do not believe that the issuing judge was compelled as a result of the inclusion of that statement to grant the warrant. Nor do I believe that the warrant would not have issued had that statement been absent from the ITO.

6. Ms. Schofield also objects to the statement, "The ‘absentee’ resident appearance at the suspect address and the sporadic attendance further shows consistency with my past experience in investigating indoor marijuana grow operations", as "a misstatement to a gross degree" in light of DC Chevers’s testimony during cross-examination that the residence did not appear to be abandoned when he drove by it.

Although it is true that the residence did not appear to DC Chevers to be abandoned when he drove by it, he obtained other information, as noted above, from which a reasonable person might conclude, as he obviously did, that the accused and Tho Nguyen lived at another residence for which each of them listed the identical address and, therefore, were “absentees” from the subject property. This coincided with the observations made by the CI and was consistent with DC Chevers’s experience with “the practice of an illegal marijuana grower who does not reside at the grow location, but attends to tend to the crop”.

7. Ms. Schofield complains that the evidence of electricity consumption is not determinative of the presence of a marijuana growing operation within the residence and that DC Chevers failed to provide "proper comparables". In this regard, she relies upon R. v. Philpot ¹¹.

In my opinion, the information obtained by DC Chevers about electrical consumption, when considered cumulatively with the other information he obtained and his experience as a police officer with 14 years of service and as a member of the London Drug Enforcement Unit, was a proper and relevant factor for him to consider and to include in the ITO. The CI told that him in effect that the occupants of the subject property were rarely there. DC Chevers confirmed another address listed by the accused and the hydro account owner, which happened to be the same address at another location in another city. Although he did not know particulars of their lifestyle that might explain the high level of consumption at the subject property, he had information from which it was reasonable to conclude that it was five times as high as that of the previous owners and double what his experience told him was average for a home of that size at a time when the accused and the hydro account holder were “absentees”. I note in passing that in Philpott the “tipster”, who was unknown previously to the police, was in custody charged with criminal offences, and that this fact was not included in the ITO and was obviously relevant to the assessment of his credibility and the reliability of the information he provided to the police.

8. There is nothing in the ITO to indicate the CI's means of knowledge.

To the contrary, DC Chevers testified that the Municipality of Thames Centre was a small community "where everyone knows who is there and who is not". He also testified that the CI told him of personal observations she made when she attended the front door of the subject residence to conduct fundraising. The CI also stated that he/she was "very familiar with the area of the residence" and wanted to remain anonymous “in the interest of her/his safety”. She related to DC Chevers her personal observations about the absenteeism of the occupants, the failure to put out garbage for collection, the length of the grass and the manner and frequency of cutting it, that the windows were covered and that she saw bright lights. Also, the window at the rear of the residence was always open, even in inclement weather. Although he was unable to corroborate this information as a result of his investigation, he found the tip in its entirety compelling because he believed what he/she told him, which coincided with his experience in investigating other marijuana growing operations and other information he obtained through his own investigation.

9. He misstated the evidence about the vehicles he observed in the driveway of the subject residence in order to mislead the issuing judge and to enhance the credibility of the CI. In the ITO he described the vehicles as "a white van and a dark sport utility vehicle" but the CI did not provide these particulars to him. He admitted it was possible that he obtained those particulars as a result of seeing the two vehicles in the driveway when he drove by the property.

Again, I do not believe it was DC Chevers's intention to mislead the issuing judge. He testified he tried to put everything the CI told him in his notes but added, "I can't take down everything they say." He conceded that he may have taken down the particulars as a result of driving by the property and that the CI might not have given any description "other than a couple of vehicles show up for a couple of hours". In fact, his notes state, "Never seen anyone there but couple of motor vehicle show up every once in a while".

The officer ought not to be held to a standard of perfection. The CI told him there were "a couple of vehicles" and when he drove by he saw two vehicles. In my opinion, the significant evidence that flows from the identity of the vehicles, determined almost a year after the accused and the hydro account owner took possession of the premises, is that in all that time they did not change the home address shown on their drivers' licenses, as required by law. A reasonable inference to be drawn from this fact is that the subject property was not the primary address of either the accused or the hydro account owner. The testimony given by the accused on the voir dire, as noted above, is that he resided at the address five days per week. However, this fact was not known to DC Chevers at the time he applied for the general warrant. It is not a factor that can be taken into account in determining whether he believed he had reasonable grounds to obtain a warrant at the time he applied for it.

I note that, "An issuing justice is entitled to draw reasonable inferences from stated facts and an informant is not obliged to underline the obvious".¹² This is particularly so where the issuing justice is a judge of the Ontario Court of Justice.

Moreover, "A search warrant information is not a Crown brief and the affiant is not obliged to record every minute step taken in the course of the investigation." ¹³

10. The narrative provided by the CI is not compelling because it is based only on a suspicion of criminal activity and not on actual criminal activity.

Again, I note that the test is one of "reasonable probability" rather than "proof beyond a reasonable doubt" or "prima facie case". Much of what the CI told DC Chevers was based on his/her personal observation and coincided in many respects with the indicia of a marijuana growing op that were familiar to him as a member of the Drug Enforcement Unit. As a result, he found the information he/she provided sufficiently compelling to believe the CI and found no reason not to believe him/her.

Grounds to Obtain a General Warrant but not a CDSA Warrant:

53It is true that DC Chevers agreed during cross-examination that he believed he had reasonable grounds to obtain a general warrant but did not have sufficient evidence to obtain a warrant that would permit him to enter the residence. He testified that he wanted the general warrant in order to secure sufficient additional evidence to permit him to obtain a CDSA warrant that would permit him to enter the building and search inside it.

54Section 487, under which the CDSA warrant was issued, deals with the information necessary to obtain a search warrant. Section 487.01 deals with the information necessary to obtain a general warrant. The relevant part of section 487 as it applies to this case is as follows:

487. (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place

a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed,

b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, …

c.1) any offence-related property … [Emphasis added.]

55The relevant part of section 487.01 (1) as it applies to this case is as follows:

487.01(1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do anything described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or property if [Emphasis added.]

a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;

b) the judge is satisfied that it is the best interest of the administration objections to issue the warrant; and

c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used over the thing to be done. [Emphasis added.]

56With respect to s. 487.01, I refer to the following passages in R. v. Noseworthy¹⁴:

[11] The following aspects of s. 487.01 are noteworthy:

(a) The power to issue warrants under the section is limited to provincial court judges and superior court judges. It is not extended to justices of the peace;

(b) An issuing judge is not bound by the strictures of other warrant provisions, but rather is governed by "the best interests of the administration of justice."

(c) Whereas s. 487 is limited to searching a building, receptacle or a place for a specified thing and to bringing that thing or reporting with respect to it to the court, s. 487.01 authorizes a court to issue a warrant to "use any device or investigative technique or procedure or do any thing described in the warrant." Thus, s. 487.01 is both more specific and more general than s. 487.

(d) The section authorizes warrants relating to offences not yet committed.

(e) Apart from its location in proximity to "device or investigative technique or procedure," there is nothing in the context to suggest that "any thing" should be read ejusdem generis. More specifically, "any thing" is not modified by the word "similar" or the phrase "of the same nature" or anything resembling them.

(f) Unlike s. 487, s. 487.01(3) and (4) provide that the judge may make the issuance of the warrant conditional upon such terms and conditions as she or he considers advisable.

(g) Section 487.01 does not provide simply for seizing things which are evidence, contraband or instrumentalities, but rather it provides for the doing of any thing which will yield information concerning an offence, thus paralleling the breadth of the informational privacy interests protected by s. 8 of the Charter. See R. v. Plant, [1993] 3 S.C.R. 281 at 296-297. [Emphasis added.]

[12] The date of the addition of s. 487.01 to the Code is also of significance. Crown counsel points out that, as well as s. 487.01, certain other amendments to the Code made at the same time have the effect of:

(a) authorizing agents of the state to intercept private communications with consent, and without judicial approval, to prevent bodily harm (s. 184.1 — in response to R. v. Duarte, [1990] 1 S.C.R. 30);

(b) creating a scheme for judicial authorization of consent interceptions by agents of the state for evidence gathering purposes (s. 184.2 and 184.3 — in response to R. v. Duarte, supra);

(c) authorizing interceptions without judicial approval in urgent circumstances (s. 184.4);

(d) codifying a procedure for opening, reviewing and editing wiretap affidavits (s. 187 — in response to R. v. Garofoli, [1990] 2 S.C.R. 1421);

(e) eliminating the former exclusionary rule for unlawful interceptions of private communications (in response to the discretionary exclusion created by s. 24(2) of the Charter);

(f) providing for the judicial authorization of the use of tracking devices (s. 492.1 — in response to R. v. Wise, [1992] 1 S.C.R. 527); and

(g) providing for the judicial authorization of dial number recorders (s. 492.2 in response to R. v. Fegan, (1993), 80 C.C.C. (3d) 356 (Ont. C.A.).)

[13] It is argued that s. 487.01 plays an integral role in the legislative scheme intended to grant the courts the power to authorize a flexible range of investigative procedures conforming to the Charter. In R. v. Wong, supra, and R. v. Wise, supra, video surveillance and a tracking device respectively were found offensive, but would have been found appropriate had they been approved by a judge. In each case, the court noted that there was no legal mechanism for judicial approval. It is argued that s. 487.01 was enacted to meet these shortcomings and that it should be interpreted broadly in order to do so, particularly in view of the Supreme Court of Canada's holdings that the Charter mandates judicial control of intrusive police practices.

[14] It is also argued that instead of the identification of investigative procedures being followed by enabling legislation on a piecemeal basis, Parliament intended in s. 487.01 to create a flexible power that would be available in a broad range of investigative circumstances provided:

(a) the Hunter v. Southam reasonableness criteria is met;

(b) granting an order is in the best interests of the administration of justice;

(c) interference with bodily integrity is not permitted; and

(d) no other provision can be used to authorize the order.

57I note also paragraph 51 of the decision in R. v. Ford¹⁵:

That the police are in a position to obtain a search warrant does not prevent them from continuing to investigate using all other lawful means at their disposal. Having regard to the requirements of s. 487.01 (1) (a), I expect that in many cases the information the police present in support of an application for a general warrant would also support an application for a search warrant. I see nothing wrong in utilizing a general warrant to obtain information with a view to gathering additional and possibly better evidence than that which could be seized immediately through the execution of a search warrant. In addition, I expect there will be some cases in which investigative action taken under a general warrant will result in an investigation, or an aspect of it, being abandoned; e.g., where a covert entry reveals that a property does not contain a marijuana grow operation.

58Section 487.01 is designed to permit officers to gather information by investigative techniques that, without the warrant, would or might be deemed to constitute an unreasonable search. A precondition of obtaining the warrants is that the issuing judge be satisfied "that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing".

59It is my opinion that DC Chevers honestly believed and in fact had reasonable grounds to obtain a general warrant. He did not believe he had reasonable grounds to obtain a s. 487 warrant. However, he was not applying for a s. 487 warrant because he believed he did not have sufficient grounds to obtain a warrant that would permit him to enter the building, a word that is specifically used in s. 487 but is absent from s. 487.01. He took the less intrusive course of action and sought the general warrant to obtain more information through the use of investigative techniques that would otherwise infringe the accused's s. 8 rights. Having considered the totality of the circumstances, I see nothing wrong with this approach. He had reasonable grounds to believe that the offence of growing marijuana was being committed in the premises and that information concerning the offence would be obtained through the use of the investigative techniques and procedures he proposed and used. There was no other provision that "would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done".

60I find that:

1. DC Chevers had reasonable grounds to obtain the general warrant at the time he applied for it.

2. The general warrant ought not to be quashed for any of the reasons suggested by Ms. Schofield.

3. The search conducted pursuant to the general warrant was a reasonable search and it was conducted in a reasonable manner.

4. There was no breach of the accused's rights under s. 8 of the Charter of Rights and Freedoms.

SECTION 24(2) OF THE CHARTER:

61If I am wrong in coming to the conclusion that there was no breach of the accused’s s. 8 rights, I go on to consider whether the evidence should be excluded pursuant to s. 24 (2) of the Charter.

The Position of the Defence:

62The s. 24 (2) analysis mandated by R. v. Grant¹⁶, should result in exclusion of the evidence for the following reasons:

1. The Charter infringing state conduct was serious because:

i. DC Chevers acted in bad faith in that he deliberately misled the issuing judge by failing to make full, frank and fair disclosure in the ITO. The information upon which he relied to obtain the general warrant was either uncorroborated, misstated, or irrelevant. For example, he made no mention that:

1. The original tip had been made in the spring of 2009 and the call from Detective Sergeant Stewart on November 30, 2009 was the second call from her about this matter.

2. The CI told DC Chevers that a Vietnamese family had moved into the property. He made no mention of this in the IPO because he knew the issuing judge might infer that the complaint was racially motivated and unreliable.

3. Detective Sergeant Stewart told DC Chevers that the CI told her he/she had checked the hydro and it was very high. When he talked to the CI, he/she told him the water consumption was high, i.e., $300 per month as opposed to $60 for the CI's similar sized house. This inconsistency goes to the credibility and reliability of the CI.

4. He agreed in cross-examination that when he drove by the house he saw two vehicles in the driveway and "did not have any reason to believe people were not living there". In fact, he added, "The cars in the driveway made me think someone was living there." However, as part of paragraph 22 in the ITO he swore, "The ‘absentee’ resident appearance at the suspect address and the sporadic attendance further shows consistency with my past experience investigating indoor marijuana grow operations." One of these two statements is not truthful.

ii. The police had never dealt previously with the CI and he made no effort to determine whether he/she was a reliable source.

iii. He admitted he did not believe he had grounds to obtain a warrant to enter the building but also admitted that the test for obtaining the general warrant was the same as the test for obtaining the CDSA warrant. He sought to circumvent the process by applying for a general warrant in order to obtain additional information sufficient to provide probable grounds to obtain a CDSA warrant that would permit him to enter the premises. Therefore, if he lacked probable grounds to obtain the CDSA warrant, he also lacked probable grounds to obtain the general warrant.

2. The impact on the accused's Charter-protected interests was serious and profound. The extent to which an accused's reasonable expectation of privacy was infringed is an important consideration in evaluating this impact where there has been a breach of his s. 8 rights. There is a high expectation of privacy in one's dwelling house and, therefore, where an unreasonable and unlawful search of it occurs, it is viewed as a serious infringement.

3. After considering all the circumstances and weighing the competing interests, the truth seeking function would be served better by excluding the evidence obtained as a result of the unlawful and unreasonable search that occurred in this case. Also, to admit the evidence would bring the administration of justice into disrepute.

Ruling re s. 24(2):

63With respect to the general warrant, I turn to consider the three prong test mandated by Grant:

1. With regard to the seriousness of the Charter-infringing state conduct, I find the following:

a. “This is not a case where police, acting on mere suspicion, chose to invade the accused's private dwelling without a warrant. To the contrary, the police took steps to obtain a warrant based on information which, at most, fell minimally short of satisfying the reasonable grounds threshold."¹⁷

b. DC Chevers acted in good faith. As he indicated, it was not his habit to trespass on property without a warrant and he applied for and obtained judicial authorization for it. In executing the general warrant, he did not enter the accused's residence and conducted the search in a reasonable manner.

c. It is true that there were certain inaccuracies contained in the ITO and information he did not include in it, but I find that these defects were not motivated by a desire to mislead the issuing judge. The additional information and explanations provided by the testimony of DC Chevers to amplify the ITO lead me to this conclusion.

d. DC Chevers made reasonable efforts to corroborate what the CI told them.

e. In all the circumstances, he was entitled to apply for a general warrant. His apparent confusion about the probable grounds required for a general warrant and a s. 487 warrant did not prevent him as part of his continuing investigation from applying for and obtaining the general warrant. He believed, reasonably, that he had probable grounds to do so.

2. With respect to the impact of the breach of the Charter-protected interests of the accused in relation to the general warrant, I find it was minimal for the following reasons:

a. DC Chevers sought the less intrusive general warrant and did not enter any building on the accused's property while executing it.

b. The thermal imaging conducted in relation to the external surface of the house was not intrusive and disclosed no personal information about the accused. As noted in R. v. Tessling¹⁸:

External patterns of heat distribution on the external surface of a house is not information in which the applicant would have an expectation of privacy. The information offers no insight into a person's private life and reveals nothing of a person's biographical core of information.

c. The accused had no expectation of privacy in the hydro records. Moreover, the holder of the hydro account and the owner of the property was Tho Nguyen, who claims no breach of her s. 8 rights.

d. The accused was not present when the general warrant was executed and there was no contact between him and the police and, therefore, no affront to his dignity, integrity or autonomy. Therefore, there was no invasion of the accused's bodily or informational privacy; only of his territorial privacy, which was minimal in nature.

3. With respect to society's interest in the adjudication of the case on its merits, I note the following:

a. This was a commercial marijuana production factory located in a residential neighbourhood.

b. The 1999 marijuana plants that were seized constitute non-conscriptive, real evidence that is highly probative and that existed apart from the Charter breach.

c. Both the size of the operation and the value of the marijuana that was being produced are significant. This is not a situation where a resident homeowner is growing a few marijuana plants solely for his or her own consumption.

d. While the actions of DC Chevers were deliberate, I find they were committed in good faith.

e. In my opinion, the admission of the evidence would not render the trial unfair.

4. There is a societal interest in ensuring that those who engage in serious criminal activity are brought to trial and dealt with according to law. Given the nature of the offence, the reliability of the evidence, and its importance to the Crown's case, I find in the circumstances of this case that the truth seeking function of a criminal trial would be served better by the admission of the evidence.

ORDER:

64I find that the evidence obtained from the execution of the general warrant is admissible and that the description of that evidence was properly included in the ITO for the CDSA warrant. Ms. Schofield made no other challenge to the CDSA warrant. Therefore, the evidence is admissible.

65Therefore, I rule the evidence obtained as a result of the execution of both warrants admissible, including evidence of the seizure of the marijuana plants in the residence located at […] V[…] G[…] C[…], Thames Centre, Middlesex County, and dismiss the application.

“Justice D. R. McDermid”

Mr. Justice D. R. McDermid

Released: June 21, 2012.

Footnotes

1. 1R. v. Garofoli, [1990] 2 S.C.R. 1421
2. 2R. v. Debot, [1986] O.J. No. 994 at p. 6 (O.C.A.)
3. 3R. v. Debot (1989), 52 C.C.C. (3d) 193 at 213 (S.C.C.)
4. 4[1984] 2 S.C.R. 145 at p. 167-168 (S.C.C.)
5. 5See above.
6. 6[2006] O.J. No 1527 (O.C.A.)
7. 7Ibid at paragraph 12.
8. 8Ibid at paragraph 13.
9. 9[2005] O.J. No. 527 (S.C.J.)
10. 10R. v. Debot (1989), 52 C.C.C. (3d) 193 at p. 213 (S.C.C.).
11. 11[2002] O.J. No. 4872 at paras. 168 to 175. (S.C.J.)
12. 12Lubell v. R. (1973), 11 C.C.C. (2d) 188 at pp. 190-191(Ontario. H.C.)
13. 13Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459 at p. 483.
14. 14[1997] O.J. No. 1946 (O.C.A.)
15. 15[2008] BCCA 94
16. 162009 SCC 32, [2009] 2 SCR 353
17. 17R. v. Puskas, [1997] O.J. No. 4665 at para. 16 (O.C.A.)
18. 182004 SCC 67, [2004] 3 S.C.R. 432 at para. 63 (S.C.C.)