ONTARIO

SUPERIOR COURT OF JUSTICE

MILTON COURT FILE NO.: 25/11

DATE: 20130301

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Tedde Ballenger

Defendant / Applicant

J. Huber, for the Crown

N. Rozier for the Defendant/Applicant

HEARD: February 26, 27, 28 and March 1, 2013

ENDORSEMENT ON DEFENCE CHARTER MOTION

Ricchetti, J.:

Contents

THE CHARGES.
THE APPLICATION..
The Defence Position.
The Law..
Telewarrants.
Test on a Motion to Quash.
The Issuance of the Telewarrant
Conclusion.
The Alleged Lack of Reasonable and Probable Grounds/ Failure to make full, frank and fair disclosure
The Alleged shortcomings of the Telewarrant
Employment of Mr. Ballanger
The Green/Blue Volvo.
No Reference to Mr. Ballanger’s Surgery.
Error in description of where the item was placed.
The Tarranet Search.
The Failure to refer to other persons who attended at 978 Long Drive.
Failure to include Officer Odoari and Other officer’s belief.
The Sheds.
Hydro Consumption.
Failure to include the names of the officers.
Timing Discrepancy.
Property Purchase Dates Missing.
Use of Stock or Templates to Prepare ITO's.
Reference to Marihuana Grow operations apparatus or method of growing marihuana.
Mr. Ballanger’s Record.
Generally.
Conclusion.
S. 24(2) Charter Analysis.
Conclusion.

THE CHARGES

[1] Mr. Ballanger is charged with numerous counts involving the:

• Production of marihuana;

• Trafficking in marihuana; and

• Possession of a firearm.

THE APPLICATION

[2] The police obtained a telewarrant (a form of search warrant) on November 26, 2008 for the search of 978 Long Drive, Burlington and 286 John Street, Hamilton.

[3] The telewarrant was executed by the police on November 27, 2008, within the time specified in the telewarrant.

[4] The Defence brings this pre-trial motion to quash the telewarrant on the basis it was improperly issued and therefore, the subsequent search pursuant to that telewarrant was without authority and a violation of Mr. Ballanger’s S. 8 Charter rights.

[5] The Defence also seeks an order excluding the evidence obtained as a result of the searches conducted by the police pursuant to the telewarrant.

The Defence Position

[6] The Defence advances two grounds:

a) The police did not have a valid basis to obtain a telewarrant because they failed to show it was impracticable to get a warrant issued before the Justice of the Peace personally;

b) The information in the ITO fails to establish reasonable and probable grounds for the issue of the warrant; and

c) there was not full, frank and fair disclosure in the ITO.

The Law

[7] The telewarrant, being an authorized form of search warrant under the Criminal Code, is presumptively valid unless the Defence establishes there was no basis for its issuance. See R. v. Campbell, 2010 ONCA 588. As a result, the onus is on the Defence to establish, on a balance of probabilities, that the telewarrant should be quashed and the resulting search was a violation of Mr. Ballanger’s s. 8 Charter rights.

Telewarrants

[8] The relevant portions of S. 487.1 of the Criminal Code provide as follows:

487.1 (1) Where a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make application for a warrant in accordance with section 256 or 487, the peace officer may submit an information on oath by telephone or other means of telecommunication to a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter.

(4) An information submitted by telephone or other means of telecommunication shall include

(a) a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice;

(5) A justice referred to in subsection (1) who is satisfied that an information submitted by telephone or other means of telecommunication

(a) is in respect of an indictable offence and conforms to the requirements of subsection (4),

may issue a warrant to a peace officer conferring the same authority respecting search and seizure as may be conferred by a warrant issued by a justice before whom the peace officer appears personally pursuant to subsection 256(1) or 487(1), as the case may be, and may require that the warrant be executed within such time period as the justice may order.

[9] As a result, the materials before the issuing judge must describe why it would be impracticable to appear personally before a justice to apply for the search warrant. The issuing judge must be satisfied that this condition was met, failing which the issuing judge would be required to reject the application for a warrant.

[10] This application for a warrant stated:

The writer met with a Justice of the Peace in person and was advised that there was not enough time to review the application.

[11] In this case the issuing judge was satisfied and granted the telewarrant.

[12] The word "impracticable" has been judicially considered in R. v. Erickson, 2003 BBCA 693. The British Columbia Court of Appeal defined it as follows at para. 33:

“Impracticable” is not a word commonly used as a legal standard. More common words include reasonable, urgent, emergent, exigent, necessary, and reasonably necessary. Parliament has chosen to use the word “impracticable”, and clothed the process with extra protection for an accused through the requirement to file a transcription of the conversation. It is reasonable to conclude that “impracticable” means something less than impossible and imports a large measure of practicality, what may be termed common sense.

[13] This requirement to establish "impracticability" has been interpreted as a relatively low threshold to meet. See R. v. Lemiski, [2011] O.J. No 78 (S.C.J.) at para. 44.

[14] The onus is on the accused to establish on a balance of probabilities, that the standard of impracticability was not achieved. See R. v. Nguyen, [2009] B.C.J. No. 341 (C.A.) at para. 18.

[15] The issuing judge having been satisfied that the police officer had “reasonable grounds and does believe that it is impracticable to appear before a Justice of the Peace in person to request the warrant” for the stated reason, it is not my role to second guess or substitute my views for the issuing judge on this issue. In determining whether a warrant has been properly issued, the question for determination is whether the judicial officer, acting reasonably and judicially, could have issued the warrant on the basis of the information provided: Regina v. Garofoli (1990), 1990 52 (SCC), 60 C.C.C. (3d) 161 (S.C.C.); Regina v. Grant, (1999), 1999 3694 (ON CA), 132 C.C.C. (3d) 531 (Ont. C.A.).

[16] It is important to note that the Court of Appeal in Erickson, supra found "impracticability" simply from the fact there was no justice of the peace in the local town and it was "some distance from the community to the nearest source of a search warrant".

[17] In R. v. Smith, 2005 BCCA 334, the British Columbia Court of Appeal upheld a telewarrant despite the fact the officer made no enquiries as to the availability of other justices because he believed none were available. The Court of Appeal found the words "local justice not available" as adequate.

[18] In R. v. Phillips, 2011 ONSC 1881, the judge, faced with a similar challenge as in this case, where the officer simply stated there were no justices currently sitting in the jurisdiction, upheld the validity of the telewarrant. The court stated at para 26:

Traditionally, a search warrant has been issued upon the informant appearing personally before a justice and satisfying the statutory requirements. The telewarrant provisions dispense with that personal appearance when it is impracticable. The finding of impracticability is to be assessed at the time the warrant is applied for. There may be many reasons for that impracticability, one of which may be the unavailability of a justice before whom a personal appearance can be made. Such was the case in this instance. The warrant was being applied for at just after 1:00 a.m. in a small town in northern Ontario. The informant advised that there were no justices currently sitting in the jurisdiction but did not explain why that was the case. In my view, and notwithstanding the lack of explanation, the reasonableness of the statement may be, and in fact was, apparent given the other circumstances of time and location of the officer. I am satisfied that the grounds for the use of the telewarrant procedure were adequately stated in the ITO.

Test on a Motion to Quash

[19] The test where the accused attacks the validity of a search warrant is set out in R. v. Morelli, 2010 SCC 8 at the following paragraphs:

[39]Under the Charter, before a search can be conducted, the police must provide “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search” (Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 168). These distinct and cumulative requirements together form part of the “minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure”(p. 168).

[40]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” (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54 (emphasis in original)). 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.

[41]The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, “the reviewing court must exclude erroneous information included in the original ITO (Araujo, at para. 58). Furthermore, the reviewing court may have reference to “amplification” evidence — that is, additional evidence presented at the voir dire to correct minor errors in the ITO — so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice.

[58] In failing to provide these details, the informant failed to respect his obligation as a police officer to make full and frank disclosure to the justice. When seeking an ex parte authorization such as a search warrant, a police officer -- indeed, any informant -- must be particularly careful not to "pick and choose" among the relevant facts in order to achieve the desired outcome. The informant's obligation is to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed.

[20] The standard of disclosure by the police officer is high. The legal obligation on anyone seeking a search warrant, an ex parte procedure, must make full and frank disclosure of all material facts. See. R. v. Araujo, 2000 SCC 65 at para. 46. The disclosure obligation does not require the police officer to include all facts, only those that are material or relevant, be they favourable or unfavourable to the belief held by the police officer that an offence is being committed and the search will provide evidence of the offence. However, the police have no obligation to set out every detail of their investigation. See Araujo supra at para 46.

[21] To determine whether there are reasonable and probable grounds for the search warrant to issue:

a) the officer must, on a subjective basis, believe there are reasonable grounds to believe an offence is occurring and that what is being sought is evidence that will be found at the place to be searched; and

b) The second part of the inquiry is the “objective” component which requires that the affiant’s belief of the existence of reasonable probable grounds must be supported by enough information to enable a reasonable person to come to the same conclusion. (R. v. Storrey 1990 125 (SCC), [1990] 1 SCR 241 at 250)

[22] The affiant's reasonable belief does not have to be based on personal knowledge, but the Information to obtain must, in the totality of circumstances, disclose a substantial basis for the existence of the affiant's belief. R. v. Yorke 1993 83 (SCC), [1993] 3 S.C.R. 647.

[23] The Information to obtain as a whole must be considered and peace officers, who generally will prepare these documents without legal assistance, are not held to the "specificity and legal precision expected of pleadings at the trial stage." R. v. Sanchez, (1994), 1994 5271 (ON SC), 93 C.C.C. (3d) 357 at 364.

The Issuance of the Telewarrant

[24] Officer Perron had information from a confidential informant that certain events were happening or about to happen involving a larger investigation which included Mr. Ballanger and wanted to proceed to search Mr. Ballanger's two properties referred to above. The ITO states the telewarrant was to be executed in conjunction with two other warrants as part of a larger scale investigation. Arrangements had been made to execute the warrant the police hoped to get.

[25] Officer Perron testified at the voir dire that, after he completed preparing the application for a warrant, he attended at the Justice of the Peace’s office in Milton, the appropriate judicial center for Burlington, in the middle of the afternoon on November 26, 2008 to present the application for a warrant to a justice of the peace.

[26] The application for a warrant was filed with the justice of the peace. A short while later, the justice of the peace told the officer that he couldn’t get to his application for a warrant and suggested the officer obtain a telewarrant.

[27] As a result of what the justice of the peace told the officer, Officer Perron returned and redrafted the application for a warrant. Officer Perro stated in the application that he believe it was “impracticable” to appear before a Justice of the Peace in person since he had done so and was advised that there was not enough time to review the application. He did not say in the ITO that he had been directed by the Justice of the Peace to obtain a telewarrant.

[28] Officer Perron submitted the revised application for a warrant at around 6 pm. Officer Perron received the executed telewarrant back at 8 pm on November 26, 2008 from Justice of the Peace A. Forfar. Obviously, Justice of the Peace A. Forfar was satisfied as to the officer’s belief as to the “impracticality” of getting the warrant issued in person based on the another justice of the peace advising the officer he didn’t have sufficient time to get to the application. Justice of the Peace A. Forfar granted the telewarrant.

[29] The next day Officer Perron prepared, along with the other officers, for the execution of the search warrant. The telewarrant was executed - within the time frame set out in the telewarrant – at approximately 8 pm.

[30] When asked repeatedly why Officer Perron didn’t get another search warrant in the morning of November 27, 2008, Officer Perron replied that, since he now had a valid search warrant, there was no need to consider whether to obtain a second search warrant before a justice of the peace. I agree with Officer Perron. There was no reason to go before a justice of the peace and get another search warrant when he already had a valid search warrant.

[31] I accept the evidence of Officer Perron. He testified at the voir dire that he wanted to have the warrant issued on November 26, 2008. Preparations were made for the execution of the search warrant if issued. Officer Perron tried to obtain the search warrant by appearing personally before a justice of the peace. Having been unable to do so, a telewarrant was properly available to him.

[32] The Defence submits that it was not open to the justice of the peace to determine whether the officer truly believed it was impracticable. To some extent, the Defence was suggesting that Officer Perron's evidence at the voir dire was simply made up to justify what he did. I do not accept this submission. Officer Perron had prepared the application for a warrant for issuance before a justice of the peace. He tried to get the application for a warrant considered by the justice of the peace personally. Officer Perron was told the justice of the peace told him he couldn’t get to it. This information was before the issuing judge and was sufficient to satisfy the issuing judge so that he could go on to consider the application for a warrant and decide whether to grant the telewarrant.

Conclusion

[33] I am satisfied that the officer’s statement in the application for a warrant amounted to it being impracticable to obtain a warrant in person, given the low threshold for compliance with this requirement.

[34] More importantly, there is no reason to disturb the issuing judge’s decision that a telewarrant was available to Officer Perron that evening. The issuing judge could have reasonably come to the decision that he did that the telewarrant was available to Officer Perron that evening.

[35] The telewarrant was properly obtained.

The Alleged Lack of Reasonable and Probable Grounds/ Failure to make full, frank and fair disclosure

[36] Let me review the material facts and belief set out in the ITO.

[37] Officer Perron had been with the police for approximately 8 years at the time of obtaining the telewarrant. He had been assigned to the Regional Drug and Morality Bureau to investigate drug and criminal offences.

[38] On April 3, 2008 the police received a Crime Stoppers tip that Mr. Ballanger was trafficking and producing marihuana and was using his silver pick up. Further details of this tip were before the issuing judge but were sealed. The police did not act on the Crime Stopper’s tip.

[39] On September 5, 2008, the police received a tip from a confidential informant that Mr. Ballanger was trafficking and producing marihuana. Again, further details of this tip were before the issuing judge but were sealed.

[40] This time the police decided to investigate Mr. Ballanger.

[41] On September 5, 2008 the police commenced surveillance on Mr. Ballanger. He was found to be driving a silver pickup (as had been described in the Crime Stopper’s tip).

[42] The police observed that Mr. Ballanger’s home at 978 Long Drive was next to a strip plaza. The strip plaza had a rear parking lot which abutted Mr. Ballanger’s home. There was a row of bushes in between the parking lot and Mr. Ballanger’s home. There were two sheds in the backyard of Mr. Ballanger’s home. Over the course of the police surveillance, Mr. Ballanger and others who attended at his home would inevitably park at the parking lot and “cut” through the bushes into the rear of Mr. Ballanger’s home. The front entrance was never observed to be used.

[43] The police surveillance uncovered that the license plates on Mr. Ballanger’s pick up truck changed from September 5, 2008 to October 7, 2008. The police discovered that Mr. Ballanger had reported his plates stolen and obtained new plates. This observation is significant because Mr. Ballanger was subsequently overheard discussing switching stolen license plates with another male and that it should be done in the parking lot next to his home because it was dark there.

[44] On October 8, 2008 Mr. Ballanger was followed in his vehicle and surveillance was lost in downtown Hamilton. On October 9, 2008 Mr. Ballanger was followed in his vehicle and surveillance was again lost in downtown Hamilton. In each case, Mr. Ballanger returned to his home at 978 Long Drive for a short time later and remained at his home for some time.

[45] On October 10, 2008 a Volvo vehicle pulled into the parking lot and parked next to Mr. Ballanger’s pick up truck. The driver of the Volvo got out of his vehicle, went through the bushes to the rear of 978 Long Drive. The driver of the Volvo returned to his vehicle a short time later, left, went shopping and purchased multiple furnace filters. The driver of the Volvo returned to 978 Long Drive with the filters. Officer Perron stated that, in addition to legitimate uses, marihuana grow operations need to circulate the air and typically use filters to circulate and clean the air.

[46] On the same day, the driver of the Volvo left Mr. Ballanger’s home through the bushes and went to his vehicle carrying two large black garbage bags, full but not heavy and a cardboard box. Mr. Ballanger spoke to this person. Officer Perron stated that marihuana is often transported in black garbage bags – it is bulky but light. As a result Officer Perron stated he believed the black garbage bags might contain marihuana.

[47] Later on October 10, 2008 Mr. Ballanger drove to an alleyway behind 287 Catharine Street in Hamilton. Upon police investigation, this was directly behind 286 John Street N. This is in the same area where Mr. Ballanger’s vehicle was lost by the police surveillance on October 8 and 9, 2008.

[48] Mr. Ballanger was followed leaving 286 John Street N. and met with an unknown male. They went to a restaurant. The two men were followed by an undercover officer who overhead Mr. Ballanger talk about switching stolen license plates in the parking lot near 978 Long Drive because it was dark there.

[49] On October 16, 2008 the police observed a truck pull into the parking lot next to Mr. Ballanger’s home. The driver left the truck, through the bushes and into Mr. Ballanger’s home through the rear. A short time later, the same male returned to his pick up carrying a grey and blue storage bin and placed the bin into his vehicle. The person left and returned to the residence of a person known to the police. Officer Perron stated that these observations were consistent with drug trafficking and consistent with information from the Confidential Informant.

[50] On October 23, 2008 Officer Perron chose several homes in the area of 978 Long Drive which were similar in design and size to 978 Long Drive. He obtained the hydro usage information for the properties. The information Officer Perron received on October 24, 2008 was that the hydro consumption at 978 Long Drive is consistently higher than neighbouring residences and was frequently between two to three times higher. Officer Perron stated, through his training and experience, he was aware that marihuana grow operations consume large amounts of electricity. This led Officer Perron to believe that Mr. Ballanger might be growing marihuana at 978 Long Drive.

[51] On November 5, 2008 Officer Perron made a similar hydro consumption enquiry regarding 286 John St. N. and two similar residences. On November 6, 2008 Officer Perron was given results which showed that the hydro electricity consumption at 286 John Street N. was consistently higher than both neighbouring residences and was frequently between two to four times higher. Again this led Officer Perrom to believe that Mr. Ballanger was growing marihuana in 286 John St. N.

[52] Officer Perron also discovered that the mailing address for the hydro bill at 286 John St. N. was Mr. Ballanger’s home at 978 Long Drive. This led Officer Perron to believe there were no tenants or occupants at 286 John Street North.

[53] On November 13, 2008 Officer Perron confirmed that Mr. Ballanger was the owner of 286 John Street N. This led Officer Perron to believe that when Mr. Ballanger attended at the alleyway on the three occasions Mr. Ballanger behind 286 John St. N., Mr. Ballanger was entering 286 John St. N. despite the fact the police had not specifically seen Mr. Ballanger go into that residence. These attendances at 286 John St. N. also led Officer Perron to believe no one else lived at 286 John St. N.

[54] Officer Perron stated that in his training and experience, marihuana grow operations require regular attention. Mr. Ballanger’s attendance at 286 John St. N. on three continuous days for approximately one hour led Officer Perron to believe Mr. Ballanger was attending at 286 John St. N. to maintain marihuana grow operations. On one occasion Officer Perron was seen bringing an unknown item when he returned from 286 John St. N. Officer Perron stated that, based on his training and experience, marihuana grow operators usually keep log books or the marihuana at their home rather than leave such items at vacant marihuana grow operation sites.

[55] There are two sheds at the back of 978 Long Drive. Officer Perron had received information from one of the confidential informants that Mr. Ballanger lived alone. Officer Perron didn’t believe these sheds were used as residence (by a third party) but might contain marihuana or related items being stored there. At the voir dire Officer Perron stated that when Mr. Ballanger or others attended at 978 Long Drive he couldn’t see if they went into the back of 978 Long Drive or to the sheds.

[56] On November 14, 2008 hydro personnel were asked about installing a digital recording device which would record the amount of power used at 286 John St. N. in a detailed manner. A smart meter was installed at 286 John Street N. On November 24, 2008 Officer Perron received the results from the smart meter which showed there was an influx of hydro between 9 pm and 9 am for two consecutive days. This led Officer Perron to believe this night time usage was consistent with a light cycle for growing marihuana plants in the flowering/budding stage. As a result, Officer Perron believed there was marihuana growing inside 286 John Street N.

[57] On November 25, 2008 Mr. Ballanger was observed leaving his home. After going to a fitness center, he drove to 286 John Street N. He was there for 35 minutes. Just prior to Mr. Ballanger leaving, a male driving a Volvo was seen leaving 286 John Street N. This was the same male observed delivering the filters to 978 Long Drive. Then Mr. Ballanger left and drove back to 978 Long Drive. This short attendance again led Officer Perron to believe Mr. Ballanger was there to care for a marihuana grow operation.

[58] On November 26, 2008 Officer Perron was able to confirm that neither the addresses in question nor Mr. Ballanger were authorized to grow marihuana under the Medical Marihuana Access Regulations.

[59] Throughout the police observations of Mr. Ballanger and the activities they observed on the surveillance days, he did not appear to work at a place of employment but the records showed Mr. Ballanger owned 978 Long Drive, Burlington, 260 Plains Road W. Burlington, 266 Plains Road W. Burlington and 286 John Street North, Hamilton.

[60] Officer Perron then summarized the above information and belief and concluded that he believed Mr. Ballanger was unlawfully producing marihuana and that the search of the two residences would produce evidence of this offense.

The Alleged shortcomings of the Telewarrant

[61] There are numerous issues raised regarding the sufficiency of telewarrant or the failure of Officer Perron to make full, frank and fair disclosure in the Telewarrant.

[62] Let me deal with issues raised by the Defence.

Employment of Mr. Ballanger

[63] Officer Perron states in the telewarrant that it is his belief Mr. Ballanger was unemployed. The basis for this belief was that, on the days which surveillance was conducted, over the two and a half month period, there was no indication Mr. Ballanger was attending any place of employment.

[64] The Defence submits it was an omission that there was no reference in the ITO to employment evidence from a Consumer Credit Report. Officer Perron had obtained a credit check for Mr. Ballanger during the investigation. The difficulty the Defence has is the credit report does NOT say that Mr. Ballanger is employed. It shows one historical employment in October 1978 and then two employments on “00000” and no confirmation of either employment. In my view, this is not credible evidence of Mr. Ballanger's employment during the period in question.

[65] The Defence suggests that as a result of the information in the credit check, Officer Perron could not have had an objectively reasonable belief that Mr. Ballanger was unemployed. I disagree. Officer Perron had credible evidence based on the surveillance that Mr. Ballanger did not attend a place of employment over the months. On the other hand, there is a credit report with undated and incomplete information regarding employment. Officer Perron's believe was reasonably based on credible evidence.

The Green/Blue Volvo

[66] There is one reference in the ITO to a green Volvo. Then there is a reference to a blue Volvo but it is followed by a reference by Officer Perron that it was the same male driver in both vehicles. In evidence at the voir dire, Officer Perron admitted the two colour references might be a typographical error or simply a colour which one officer might consider green and another officer consider blue. However, Officer Perron remembered it was the same vehicle and same male driver.

[67] I am not persuaded that there is any significance to whether it was one vehicle or two separate vehicles. The Defence suggests it makes an improper connection between 978 Long Dr. and 286 John St. N. if the vehicles are different. First, I am satisfied that Officer Perron's evidence is that it was the same vehicle and the different colour could be a typographical error. The connection between 978 Long Dr. and 286 John St. N. is very clearly established by Mr. Ballanger’s attendance.

[68] The Defence also suggests that this reference to the same male at 978 Long Dr. and 286 John St. N. was to establish a “nefarious” connection. I accept Officer Perron’s evidence he believed it was the same male that had purchased the furnace filters for 978 Long Dr. This was not a misstatement by Officer Perron. More importantly, the connection between the two properties is made, not through this male, but by Mr. Ballanger's attendance at both properties.

No Reference to Mr. Ballanger’s Surgery

[69] During Mr. Ballanger’s visit to a restaurant with an unknown male, the undercover officer overheard, in addition to the discussion regarding the exchange of stolen plates, that Mr. Ballanger had had hernia surgery and that he had a large bill for a 3 day stay. The Defence takes issue that this is not in the ITO as it gives a possible reason for Mr. Ballanger not going to a place of employment. There is no evidence as to when the surgery took place. There is no evidence as to how long it was other than a 3 or 4 night bill. It would be pure speculation to conclude that this was credible evidence inconsistent with Officer Perron's belief, based on actual observations over several months, that Mr. Ballanger was not employed at the time.

[70] I agree with Officer Perron, this reference to the hernia surgery was irrelevant or not material.

Error in description of where the item was placed

[71] The ITO states that on October 9, 2008 Mr. Ballanger removed an unknown object from the “cab” of his truck. The Defence suggested that the item was really removed from the rear of the pick up truck and not the cab. Officer Perron believed, at the time he prepared the search warrant, that the cab included the rear but admitted he now knows he was wrong.

[72] The Defence submits that Officer Perron’s initial refusal to concede that the item was removed from the rear of the truck affects his credibility and that he is fabricating a story.

[73] In my view, whether the item was removed from the cab or the rear of the truck makes no difference whatsoever to the facts set out in the ITO or Officer Perron's belief. It does not, as the Defence suggest, somehow prejudice the issuing judge in favour of granting the warrant.

[74] I also disagree with counsel that Officer Perron's credibility was shaken when he refused to admit that the item was in the rear of the truck. This point was so immaterial, it would not make any sense to draw any conclusions regarding the credibility of Officer Perron based on this point. I do not do so.

The Tarranet Search

[75] The Defence alleges that the ITO is wrong when it states Officer Perron conducted the Terranet search. In fact, Officer Perron had his administrative assistance conduct the Terranet search. I don't believe that the wording is wrong just because he assistant got him the information but, in any event, I hardly think this wording would prejudice the issuing judge to grant the warrant.

The Failure to refer to other persons who attended at 978 Long Drive

[76] It is clear that a few other persons attended at 978 Long Drive during the surveillance. However, they are not mentioned in the ITO.

[77] In one case a woman attended at 978 Long Drive on two occasions. This woman is not referred to in the ITO. Officer Perron explained at the voir dire he believed this woman was Mr. Ballanger’s girl friend and did not believe she had any relevance to the suspected marihuana grow operation investigation. In other words, Officer Perron believed the fact she attended was not relevant or material.

[78] The Defence submits this omission is significant because it shows innocent use of the property. I disagree. The fact other persons, who the police believed had nothing to do with the investigation attended at the home, does not add to issue whether there is credible evidence that there is a reasonable basis for believing an offence is being committed. It is simply irrelevant information. Officer Perron testified to this effect. I agree with him.

[79] The Defence also takes issue that Darcy Ballenger was seen at one of the homes and this was not included in the ITO. The Defence suggests this might be another person who might have financially contributed to the maintenance and costs of Mr. Ballenger’s homes even if Mr. Ballanger was unemployed. This is mere speculation. The suggestion Officer Perron should have included this speculative piece of information is simply wrong. I agree with Officer Perron that this was irrelevant or immaterial information that did not need to be contained in the ITO.

Failure to include Officer Odoari and Other officer’s belief

[80] The Defence submitted Officer Perron failed to include Officer Odoari’s belief regarding Officer Odoari's observations when he conducted the surveillance alone. In my view, it would have been inappropriate to include in the ITO the belief of other officers. The ITO may rely on observed facts from other officers but must come to his own belief that an offence was being committed. The other officer's belief, is not appropriately included in Officer Perron's ITO.

[81] Similarly, the Defence submits Officer Perron erred in setting out his belief based on observations which he did not personally make and the lack of an opinion from the police officer who did make the observations. In my view, the same reasoning set out above applies. Officer Perron was entitled to rely on the facts observed by the other police officer and was required to come to his own conclusions and belief on those facts.

[82] The Defence submits that if the other officer didn’t state they believed it was “nefarious” then there is no basis for Officer Perron to believe it was nefarious. The first problem is that there is nothing in the record as to what the other officer believed. Secondly, what the other office believed is not relevant.

[83] It would be highly improper for Officer Perron to refer to other police officers involved in the surveillance and set out their opinions or belief on the relevance of the observations. It is Officer Perron's subjective belief that is relevant on the first inquiry not the belief of other officers.

The Sheds

[84] Officer Perron was criticized for not having checked the sheds at the back of 978 Long Drive. However, as Officer Perron stated, he would have been committing a trespass. I would add, perhaps, also committing an unlawful search. Officer Perron was entitled to come to his beliefs based on all of the facts available to him that the sheds might reasonably be involved in the marihuana grow operation given that Mr. Ballanger and others were seen going to the backyard of 978 Long Drive and could have been going into the house or the sheds.

Hydro Consumption

[85] The Defence takes issue that Officer Perron did not state other possible reasons why the subject properties could have had unusually high hydro consumption. This would have involved speculation by Officer Perron. He stated that he believed, based on all the evidence, that the hydro consumption was consistent with a marihuana grow operation based on his experience, training and the observations made. I am not persuaded that the police officer is required to speculate on other reasons for the high hydro consumption and include them in the ITO, unless he has some credible basis to believe there were other reasons for the high hydro consumption. He did not have any such credible information in this case.

Failure to include the names of the officers

[86] Paragraph 3 of the ITO was a paragraph to state which officers had been involved in the surveillance. The narrative is there but there is no list of names. The ITO does refer to specific observations made by Officer ODOARDI because these occurred on dates when Officer Perron was not present. On all other days, Officer Perron was part of the surveillance team. Paragraph 3 of the ITO makes it very clear that Officer Perron is relying on the observations and notes made by other officers during the course of this investigation and he believes those observations to be credible.

[87] The only thing missing is the names of the other officers involved in the surveillance. Knowing their precise names does not add or detract from the grounds for Officer Perron's belief. I reject the Defence submission that the failure to include the names of the other officers somehow detracts from the information Officer was entitled to rely on and the belief he held.

[88] I am satisfied that this was a typographical omission which is not significant and would not have had any effect on the issuing judge's decision.

Timing Discrepancy

[89] Officer Perron refers in the ITO that on October 10, 2008 the Volvo arrived at 10:07 am, the driver exited and went into Mr. Ballanger's home, returned to his vehicle and left. The ITO states the driver left at 10:07 am. Clearly, this was a typographical error. Officer Perron testified that the arrival time should have been 10:00 am as set out in his notes.

[90] I am not persuaded that this typographical was deliberate or material in any way.

Property Purchase Dates Missing

[91] When Officer Perron obtained the Terranet search results on Mr. Ballanger, the dates the properties were purchased were also obtained. 978 Long Drive had been acquired early in the 1980's by Mr. Ballanger. The date the properties were acquired were not in the ITO. The Defence criticized the officer and submits this was misleading because the date of the purchase offsets the implication that Mr. Ballanger had a number of properties but appeared unemployed. When cross examined on this point, Officer Perron stated that his belief was based on Mr. Ballanger having these properties but no apparent means to maintain or pay ongoing expenses for these properties. This was a reasonable inference for Officer Perron to come to.

Use of Stock or Templates to Prepare ITO's

[92] The Defence submits that Officer Perron's belief should be suspect because he started with a template for obtaining ITO's.

[93] All one has to do is read the ITO to see that it is not a template document. It is a highly focused and extensive document dealing with this case.

[94] Further, Officer Perron’s belief that the offence of production of marihuana had been committed and that a search of the two properties would provide evidence of the offence, was unshaken through a lengthy cross examination on the ITO.

Reference to Marihuana Grow operations apparatus or method of growing marihuana

[95] The Defence takes issue with the inclusion of references to the items set out in paragraph 20 of the ITO where Officer Perron refers to pumps, fans, ballasts, electrical times and high intensity bulbs. The Defence correctly points out that there was no evidence of any of these items at either of the properties. However, Officer Perron does not suggest or imply that any of these items were seen at either of the properties. Officer Perron simply refers to the type of equipment in typical marihuana grow operations to explain why marihuana grow operations require a considerable amount of electricity as the basis for his belief that the high hydro consumption might be attributable to growing marihuana at 978 Long Dr.

[96] The Defence makes the same submission with respect to paragraphs 22, 23, 24 and 28. In each case, Officer Perron was entitled and obligated to set out factual information, based on his expertise, to provide the factual underpinning for his belief. Not only is that proper, without such factual information, there would be no basis for Officer Perron’s belief set out in the ITO. As such, not only is the inclusion proper, it is necessary.

Mr. Ballanger’s Record

[97] Mr. Ballanger’s dated criminal record of 1971 was included in the ITO. The Defence takes issue with its inclusion. Officer Perron candidly admitted it is irrelevant and he would, if he did the ITO again, not include it. I agree the record is irrelevant. It should be excised.

Generally

[98] Officer Perron made no material misstatements. Officer Perron did not speculate but provided his belief based on his and other officer’s observations and based on his training and expertise which he laid out in the ITO.

[99] There was no lack of bona fides.

[100] The only part of the ITO which should be excised relates to Mr. Ballanger’s prior criminal record, which was an outdated record for an unrelated matter. This reference would not have misled or affected the issuing judge’s decision whether to grant the telewarrant.

[101] The Defence suggests that the totality of the points raised above amounted to a distortion of the facts to inevitably lead the issuing judge to grant the warrant. I disagree. All of the issues raised by the Defence, except the issue involving Mr. Ballanger’s criminal record, have no merit. This is not the situation where there are many minor errors or false statements or unsupported statements in an ITO which cumulatively have impacted the issuing judge’s determination. The areas where the Defence suggested should have been included were properly omitted. The areas where the Defence suggested should have been excluded were properly included.

[102] I agree with Defence counsel that relevant or material facts, favourable or not, should be fully, fairly and frankly included in the ITO. However, the areas of attack by the Defence were irrelevant or minor typographical errors which made absolutely no difference to the overall consideration of the application for a warrant by the issuing judge.

Conclusion

[103] The question is whether there was sufficient credible and reliable evidence upon which the issuing judge could have granted the telewarrant. To do so the information in the ITO must be examined as a whole. See Araujo supra at para. 51.

[104] It is not my place to substitute my views for that of the issuing judge. See Araujo supra at para 51.

[105] In this case the issuing judge had the following fundamental facts before him:

i.Officer Perron was trained and had experience in drug related matters and was part of the Morality and Drug task force;

ii.the unusual circumstances of using a parking lot and going through bushes to get to the back of the house – not just by Mr. Ballanger but others attending his home;

iii.owning a number of properties but not appearing to have employment;

iv.attending at another one of his properties, 286 John St. N. for short periods of time each day;

v.the furnace filters;

vi.the pick up of the box by a third party from 978 Long Dr.;

vii.the higher than normal hydro consumption at 978 Long Drive, Mr. Ballanger’s home, where he apparently lived alone;

viii.the higher than normal hydro consumption at 286 John St. N. a home owned by Mr. Ballanger and where no one appeared to reside;

ix.The high hydro consumption met a pattern of night usage at 286 John St. N. a pattern common with marihuana grow operations; and

x.The dealing in stolen license plates.

[106] Taking into account the officer’s training and experience and the entire facts that Officer Perron had and set out in the ITO, I am satisfied there was sufficient credible and reliable information upon which the issuing judge could have come to the conclusion that there were reasonable and probable grounds for believing that the offence of marihuana production was going on in both properties and that a search of the two properties would disclose evidence of the offences.

[107] The Defendant has failed to discharge the onus on him.

S. 24(2) Charter Analysis

[108] Even if I am wrong about the breach of Mr. Ballanger’s Charter rights, this is not a case where the evidence would be excluded under the Grant test.

[109] The seriousness of the Charter infringing conduct is not high in this case. The police believed they had a valid search warrant and executed it. On the spectrum of seriousness, this would be at the lowest end and would favour inclusion of the evidence.

[110] As to the impact of the Charter protected interest of Mr. Ballanger, the sanctity of his home deserves is a very important interests to be protected. This would favour exclusion of the evidence.

[111] Society’s interest in the adjudication on the merits in this case would strongly favour the inclusion of the evidence. In this case, it would appear to gut the prosecution’s case.

[112] Balancing all of the factors, this is not even a close call. The evidence would be admissible.

Conclusion

[113] The Defence motion is dismissed.

Ricchetti, J.

Released: March 1, 2013

MILTON COURT FILE NO.: 25/11

DATE: 20130301

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN

– and –

Tedde Ballenger

BEFORE: Ricchetti J.

COUNSEL: J. Huber for the Crown

N. Rozier, for the Defendant/Applicant

ENDORSEMENT ON DEFENCE CHARTER MOTION

Ricchetti J.

DATE: March 1, 2013