ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-90000446-0000

DATE: 20140716

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Jason Mitschele, for the Crown/Respondent

Respondent

• and -

TUONG NGUYEN

Kim Schofield, for the Defendant/Applicant

Defendant/Applicant

HEARD: April 14-17, 2014,
at Toronto, Ontario

Michael G. Quigley J.

Reasons for Ruling

Re: Charter, s. 8 and 24(2)

Overview

[1] In the spring of 2012, the police received a Crime Stoppers Tip from a local resident of a possible marijuana growing operation in his/her neighbourhood. The caller reported that “a strong and potent smell of skunk” was coming from the direction of 569 or 571 Cummer Avenue. That smell is typical of freshly grown marijuana. Those two residences are located side by side, so the caller advised that it was “hard to distinguish which one is the suspicious location” from the distance of 40 feet or so that the two houses were set back from the street.

[2] 569 and 571 Cummer Avenue are located immediately east of the intersection of Cummer and Snowcrest Avenues in the North York area of Toronto. 569 Cummer occupies the corner lot and 571 Cummer occupies the next easterly lot. The two houses are separated by a narrow walkway. They are less than 15 feet apart across that walkway.

[3] The police commenced an investigation. First, Detective Constable Sondhi (sometime hereinafter called “the Affiant”) obtained information from Toronto Hydro about electricity consumption at 569 Cummer Avenue and 571 Cummer Avenue. A week or so later, he also obtained hydro information for 6 Snowcrest Avenue, a quite similar and comparable house located two doors south of the corner lot occupied by 569 Cummer.

[4] The Affiant personally attended the area to make observations about smell and the state of the two residences, 569 and 571 Cummer Avenue, on three separate occasions. He also dispatched two other officers to the area to make observations. After making his own observations and hearing of the observations of the other two officers, the Affiant determined that he had reasonable and probable grounds to obtain a warrant to search 569 Cummer Avenue, based on the hydro records and the further police surveillance. He prepared an Information to Obtain (“ITO”) and applied for a search warrant under the Controlled Drugs and Substances Act (CDSA) on May 24, 2012.

[5] On May 25, that warrant was issued by Justice of the Peace A.W. Wilson. It was stipulated to be executable for one search only between 7:00 a.m. and 9:00 p.m. to take place on any of May 25-28, 2012. The warrant was executed at 569 Cummer Avenue on May 25, 2012. Approximately 774 marijuana plants were seized, along with $1,930 in Canadian currency.

[6] The defendant was found at the premises when the warrant was executed. As a result, Tuong Nguyen (hereinafter “the Applicant”) was charged with production of marijuana, possession for the purposes of trafficking marijuana, theft of electricity, theft under $5,000, and possession of property obtained by crime, all contrary to the Criminal Code and the CDSA.

[7] On this application, the Applicant claims that the police violated his s. 8 Charter rights when they obtained and executed the search warrant at 569 Cummer Avenue. He says there were no reasonable and probable grounds to support the warrant and that a Justice of the Peace, acting judicially, could not have issued that warrant. As such, he claims the search was unconstitutional and that the evidence that arose out of the execution of that warrant ought to be excluded on his trial.

[8] Initially, the Applicant sought as well to cross-examine the Affiant on the ITO. The Crown initially vigorously opposed permitting the Applicant to cross-examine the Affiant on the ITO, bolstered with some seemingly considerable legal and factual support.[^1] Nonetheless, by the time the trial commenced, the Crown had consented, so the Applicant was permitted on consent to cross-examine the Affiant on two aspects of the investigation of 569 Cummer Avenue that resulted in information being included in the ITO. Those were first, with respect to the hydro records obtained by the Affiant from Toronto Hydro relating to the two properties located at 569 and 571 Cummer Avenue and the property located at 6 Snowcrest Avenue, and second, on the surveillance observations made by the Affiant relative to 569 and 571 Cummer Avenue.

[9] The Applicant claims that the Affiant failed to provide the issuing Justice of the Peace with full, fair and frank information, and completely mischaracterized the information he received from Toronto Hydro. He claims that no reasonable and probable grounds existed to support the lawful issuance of the search warrant, based on the evidence elicited from Detective Constable Sondhi about his observations of 569 Cummer Avenue, the alleged smell of marijuana, and the information received from Toronto Hydro. He seeks to have any evidence seized by Toronto Police Service (TPS) excluded at his trial, which was scheduled to proceed on April 14, 2014.

[10] The Crown vigorously opposed the application to quash the search warrant of the Applicant’s residence at 569 Cummer Avenue in Toronto. The Crown says that the CDSA search warrant was lawful. It led to the seizure of over 700 marijuana plants at the Applicant’s residence and his arrest for these charges when he was found there as the warrant was executed. The Crown argues that there was no violation of the Applicant’s section 8 Charter rights. He was arrested on the basis of a detailed tip from a local resident that was corroborated in a number of material respects by the hydro records and the surveillance observations of police, so he claims the police clearly had sufficient grounds to believe that a marijuana growing operation would be located at 569 Cummer Avenue.

[11] Moreover, to the extent that the ITO contained any misleading statements with regard to the hydro readings of 569 Cummer Avenue or the observations of the residence made by the Affiant and other officers, the Crown claims they are either immaterial or illusory and could not have misled the issuing Justice.

[12] Finally, the Crown submits that even if I find that the search breached the Applicant’s Charter rights, the evidence should be admitted, given (i) no indication of bad faith on the part of the police and (ii) the significant public interest in having the case decided on its merits, given the quantum of drugs. As such, excluding the evidence in the circumstances of this case would bring the administration of justice into disrepute.

[13] Notwithstanding the vigorous efforts of counsel for the defence to attack virtually every minute detail of the facts associated with this investigation and the swearing of the ITO, and the subsequent issuance and execution of the warrant, I am not persuaded that there was any violation here of the Applicant’s rights. The warrant was presumptively valid and legally issued. Even if there was some lack of care or inaccuracy in some of the information contained in the ITO, the police had reasonable and probable grounds to obtain the warrant, and the excision or amplification of any of the ITO’s content, to the limited extent I believe it would or arguably could be necessary, would not undermine the factual foundation that supported the issuance of the warrant.

[14] Even if I am mistaken and have erred in reaching that conclusion, I would not exclude the evidence under s. 24(2). The police plainly understood the need for a warrant and took steps to obtain information in their investigation to support the warrant they sought. As noted, there was some carelessness or sloppiness, but no evidence of bad faith here. Any excisions and amplifications would be minor. Thus, if there was a Charter breach it was minor, and even though the Applicant may have had some privacy interest in the residence at 569 Cummer Avenue, even if he did not own it, that interest is outweighed by the low-level seriousness of any breach and the public’s interest in having matters such as this proceed to trial on their merits. The application is dismissed.

Background Facts

The Investigation:

[15] After receiving the Crime Stoppers tip from a local resident in April 2012, members of TPS commenced an investigation into a possible marijuana grow operation at either 569 or 571 Cummer Avenue, in the City of Toronto. The two houses are next to one another. As a result of the Crime Stoppers tip received from the anonymous informer, D.C. Sondhi made his request to Toronto Hydro for the hydro information for 569 and 571 Cummer Avenue, Toronto, on April 12, 2012.

[16] He received a response from Toronto Hydro later the same day. They provided subscriber and consumption information for 569 and 571 Cummer Avenue. The Affiant was also provided with graphs showing hourly usage recorded on the meter from March 11, 2012 to April 11, 2012 for 569 and 571 Cummer Avenue in Toronto.

[17] Specifically, these graphs showed that the hydro consumption over the previous three-day period preceding the request for information was substantially higher at 569 Cummer. The graphs showed that the consumption for 569 Cummer was more than double the hydro used at 571 Cummer for this same time period.

[18] In addition, Toronto Hydro provided a graph displaying the daily hydro consumption for 569 Cummer from April 27, 2010 to April 28, 2011 for the subscriber Ida Lee, who purchased the home on March 1, 2010. The average reading between April 27, 2010 and April 28, 2011 for 569 Cummer Avenue was 28.68 kWh/D.

[19] Ms. Kupcho from Toronto Hydro also provided D.C. Sondhi with an hourly hydro consumption graph for 569 Cummer Avenue. That data commenced from March 11, 2011 at 1:00 a.m. and ended on April 11, 2012 at 12:00 a.m.

[20] In the ITO and his evidence, D.C Sondhi explained that the electrical usage for 569 Cummer Avenue shows the kind of lighting cycle and power consumption that is used in an illegal marijuana growing operation. This cycle mimics a 12‑ or 18‑hour outdoor sunlit environment.

[21] He further explained his belief that the timer could be set on a 12‑ or 18‑hour cycle with a splitter. Every 12 or 18 hours, the timer is programed to change or “split” from powering the high‑intensity lights used in one section/room of the premise to lighting another room/section of the same premise. The purpose of doing this is to prevent detection by the hydro provider by avoiding an obvious 12‑ or 18‑hour power jump. Most importantly, such a range produces a graph that has a somewhat “straight line” appearance. It also indicates that within the premise there are a minimum of two rooms being used to grow marijuana.

[22] More importantly, D.C. Sondhi further supported his belief that there was a marijuana growing operation at 569 Cummer Avenue rather than at 571 Cummer Avenue in his statement that the hydro consumption graph for 569 Cummer demonstrated constant and high draws of electricity for 24‑hour periods. That constant draw of electricity was approximately 1.2 kWh during the period of 24 hours every day. In contrast, the readings at 571 Cummer were much lower than those recorded at 569 Cummer. In his view, as explained in the ITO, D.C. Sondhi noted that the comparison between the hydro graphs for the two addresses clearly showed a constant and high 24‑hour draw of hydro at 569 Cummer, which suggested that a marijuana grow operation was present.

[23] On Tuesday, May 15, 2012, at approximately 10:50 a.m., D.C Sondhi attended 569 and 571 Cummer Avenue and made the following observations, as recorded in the ITO:

• 571 Cummer Avenue:

• Observed it was a light brown brick side‑split bungalow.
• Observed that the front of the house faced north, with a driveway and a garage located on the east side of the main entrance.
• Observed two large windows located above the garage, both windows partially open, and with no curtains drawn. Interior views were partially available.
• Observed the glass portion of the main entrance not covered, offering interior view.
• A large window on the west side of the main entrance, curtain partially drawn but interior view available.
• Two basement windows at the front closed, curtain /drapes partially drawn.
• Front lawn is well maintained.
• Side entrance on the east side, wooden door with glass on top closed but not covered.
• Three windows on the east side closed not covered. Chimney located at the Northwest side.
• An older model 4 door Honda sedan with Ont. Lic. ASWZ166 parked in the driveway.

• 569 Cummer Avenue:

• Observed it’s a light brown brick back‑split bungalow. Observed it was a corner house located at the southeast corner of Cummer Ave. and Snowcrest Ave.
• Observed front of the house faces north with a garage located on the east side of the main entrance.
• Observed house has a driveway with access to and from the west side, ie from Snowcrest Avenue.
• The access to the main entrance and garage is only from Snowcrest Avenue via the driveway.
• Observed it’s a drive in garage with access to and from within the house.
• It appeared the exterior of the house was not taken care of for very long time.
• Observed almost the whole house is covered with large plants, trees, dandelions, and tall uncut grass.
• Observed a large window facing north, located just west of the main entrance.
• Observed the window is closed and covered with white curtain, offering no interior view of the house.
• Observed basement window just below the large window at the front is completely hidden behind grass and plants.
• Observed both garage and main entrance door closed, #569 written on top of the garage door.
• Observed overhead hydro connection located on the Northwest corner of the house.
• Observed grass, small plants growth on the driveway.[^2]

[24] At approximately 11:05 a.m. on May 15, D.C. Sondhi stepped out of his vehicle and walked northbound on the sidewalk, just west of 569 Cummer. He made the following observations, which he recorded in the ITO:

• Observed the whole west side of the house is covered with tall trees, plants, dandelions, and tall uncut grass. No view of the backyard or rear of the house.
• A wooden fence running from south to halfway to the north on the west side of the house.
• Observed the growth of the plants, trees blocking the majority portion of the west side sidewalk.
• Observed a chimney located on the southeast side of the house. Observed both windows (main and top level) of back split portion of the house closed and covered with thick white drapes, blocking interior view.
• Observed two basement windows on the west side of the house, both closed, covered with thick white drapes or cloth. No interior view. Observed both basement windows barricaded with iron bars welded on the outer side of the window frame.[^3]

[25] D.C. Sondhi then walked to the front of 569 Cummer on the sidewalk, and observed the following:

• Observed large trees, plants blocking view of the east side of the house.
• As I approached the northeast side of the house I immediately smelled the odor of fresh grown marihuana coming from the 569 Cummer Avenue.
• I observed the light wind was blowing northbound from the house towards me.
• Observed as I walked in westbound direction the smell faded away.
  I stopped, turned around and walked back in eastbound direction, at northeast corner of 569 Cummer Avenue I again immediately smelled the odour of fresh grown marihuana coming from 569 Cummer Avenue.
• Observed, as I walked in eastbound direction away from the 569 Cummer Ave. the smell began to dissipate. I turned around and walked back westbound towards 569 Cummer Ave., the smell of fresh grown marihuana became stronger.
• Observed the shingles on the roof on the east side backsplit portion of the house is in poor condition, appears to be peeling off.
• Observed the condition of the shingle on the rest of the roof of 569 Cummer Avenue is in far better condition.
• Observed two windows on the east side back split portion of the house, both closed and covered with white/grey drapes. No interior view.
• Observed a side entrance located on the east side of the house.
• Observed the wooden door with glass portion on top for the side entrance closed and covered with white paper from inside blocking interior view.
• Another window on the east side closed and covered with white drapes/cloth blocking interior view.
• No movement in or around the house observed.[^4]

[26] D.C. Sondhi returned to the area on May 17 and 18, 2012, to conduct further investigation and surveillance. On May 17, he observed no change in his observations of 571 Cummer and reported the following in the ITO regarding 569 Cummer:

• At approximately 10:56 a.m. I again smelled the odour of fresh grown marihuana at the northeast corner of 569 Cummer Avenue.
• I performed the procedure twice to reconfirm the source of the smell.
• I also observed the heat wafting from the chimney and the roof area on the east side back split portion of the house.
• I checked the roof of 571 Cummer Avenue and the other houses in the area. I did not observe any heat waft.[^5]

[27] Later in the affidavit, D.C. Sondhi explained his belief that this heat waft was caused due to the excess heat produced by 1,000‑watt bulbs typically used in a marijuana growing operation.

[28] When D.C. Sondhi once again attended the area on May 18, 2012, at approximately 11 a.m., he observed no change at 571 Cummer but noted the following in relation to 569 Cummer:

• I again smelled the odor of fresh grown marihuana.
• I performed the procedure twice to reconfirm the source of the smell. I again observed the heat wafting from the chimney and the roof area on the east side back split portion of the house.
• No heat wafting was observed on from any other house in the area.[^6]

[29] After making these observations of 569 Cummer Avenue, D.C. Sondhi then obtained the most recent hourly hydro consumption readings for a comparable neighbouring residence located at 6 Snowcrest Avenue, two doors south of the property at 569 Cummer. He compared the recent readings of 6 Snowcrest with recent readings from 569 Cummer Avenue.

[30] It was important to him that this comparable residence did not display the constant consumption of power in a 24‑hour cycle as compared to 569 Cummer. The comparison of the hydro consumption readings between 569 Cummer Avenue and 6 Snowcrest, and in particular the different level of electricity consumption, led D.C. Sondhi to conclude that 569 Cummer Avenue was constantly drawing power for 24 hours with jumps in the usage of electricity, but not at a level that was consistent with normal dwelling usage.

[31] D.C. Sondhi stated in the ITO, “Looking at the comparison graph for 6 Snowcrest Avenue it is evident that the two graphs are quite different from each other. The graph for 6 Snowcrest Avenue clearly shows that hydro is used at different times of day but peak during the morning, lunch time and at night when it is expected to be higher. The graph has no repetition or patterns like 569 Cummer Avenue.”[^7]

[32] On May 24, 2012 at approximately 6:00 p.m., two other officers, D.C. Atkinson and D.C. Charron, attended 569 Cummer Avenue. When they returned, they reported to the Affiant that while standing at the northwest corner of 569 Cummer Avenue, i.e., the corner of Cummer and Snowcrest well to the west of 571 Cummer, both of them had smelled the odour of fresh‑grown marijuana coming from 569 Cummer Avenue and that the windows of the house were covered and they had no interior view.

Search Warrant and Arrest:

[33] The Affiant sought a warrant pursuant to section 11 of the CDSA on the basis of all of this information. That warrant was issued and then executed by police on May 25, 2012, when they searched 569 Cummer Avenue in Toronto. While it does not determine the validity of the warrant, plainly they had been correct in their belief that a marijuana growing operation was being carried on at that address. Inside the residence, they found a three‑stage, soil‑based marijuana operation. Upon entry into the residence, the officers noted that there was a very strong smell of fresh growing marijuana.

[34] The house at 569 Cummer was a multi‑level back‑split house. The accused was found on the main floor. There were documents and identification found in the house bearing his name.

[35] The marijuana growing operation itself was a significant one. The house contained five marijuana growing rooms that were all in operation, as well as a large crawl space area that was being set up, possibly for drying. The officers observed that the plants inside the growing rooms were all healthy. However, they also determined that alterations had been made to the foundation of the house. A hydro bypass for electricity was located in the basement and there was also a water bypass located at the water meter.

[36] The property seized in the course of that search consisted of (i) 774 marijuana plants, having a bulk weight of 47.95 kilograms, i.e., about 105 pounds; (ii) 37 light fixture ballasts; (iii) 31 1,000‑watt bulbs; and $1,930 in Canadian currency that was located in the possession of the Applicant and seized as proceeds.

Analytical framework

[37] The police sought and obtained a judicially authorized CDSA warrant to search the premises at 569 Cummer Avenue, but the Applicant challenges the admissibility of all of the evidence that arose out of that search on the basis (i) that they did not have reasonable and probable grounds to obtain the warrant, or (ii) that the Affiant was not full, frank and fair in the statements made in the ITO to the issuing Justice. As such, the Applicant claims the warrant ought not to have been issued and that the search and seizure violated his constitutional rights.

[38] Prior to issuing a warrant, whether under s. 487 of the Criminal Code or s. 11 of the CDSA, the issuing Justice must be satisfied that there are reasonable grounds to believe that the object of the search will afford evidence with respect to the commission of an offence. If the ITO submitted in support of the request for the warrant does not set out facts which provide adequate grounds to support it, and upon which a Justice could have been satisfied, then the warrant is invalid and a search or seizure carried out under its authority is necessarily unreasonable.[^8]

[39] Mere suspicion does not amount to reasonable and probable grounds. Further, the fact that evidence may be found at a location that could substantiate charges is an inadequate basis to justify issuing a search warrant, in the absence of a reasonable belief or probability of obtaining material evidence of the commission of a criminal offence. There must be more than mere possibility or hope.[^10]

[40] In the seminal decision of the Supreme Court in Hunter v. Southam, Dickson J. explains that the interest of the police in detecting and preventing crime will only start to legally supersede the interest of individuals in being left alone at the point where “credibly‑based probability replaces suspicion.”

[41] The “totality of the circumstances” must be considered in determining whether reasonable grounds exist to support the authorization of a search warrant.[^12] The test is not synonymous with proof beyond a reasonable doubt, or even a prima facie case.[^13]

[42] In conducting the Garofoli review of the ITO, after taking account of the evidence of D.C. Sondhi on the cross‑examination that was conducted on consent, I am required to excise any errors from the affidavit and to amplify the record if I find that there are material facts that ought to have been included.

Conclusion

[122] For the foregoing reasons, the application is dismissed.

Michael G. Quigley J.

Released: July 16, 2014

Footnotes

[^1]: See Response to Notice of Application, April 4, 2014, at paras. 34‑56.
[^2]: Information to Obtain at page 19.
[^3]: ITO at paras. 19‑21.
[^4]: Ibid.
[^5]: Ibid at pg. 21.
[^6]: Ibid.
[^7]: Information to Obtain, supra.
[^8]: Subject to discussion below in the context of the s. 24(2) analysis.