COURT FILE AND PARTIES

COURT FILE NO.: CR-13-31

DATE: 2014-08-13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Biberhofer and Thomlinson

BEFORE: E.J. Koke

COUNSEL: David Holmes, Counsel for the Crown

Jillian Carrington, Counsel for Erich Biberhofer

Elizabeth Bristow, Counsel for Stephen Thomlinson

HEARD: June 24; July 31; August 1, 2014

REasons for Rulings

Notice of An application to Exclude Evidence and to be allowed to cross-examine an affiant of an information to obtain (garofoli application)

E.J. Koke J.

Introduction

[1] Erich Biberhofer and Stephen Thomlinson are each charged with a number of offences involving the production and trafficking of marihuana under the Controlled Drugs and Substances Act (the “CDSA”). They applied for an order under s. 24(2) of the Charter to exclude evidence on the basis that a search warrant was issued in circumstances which violated their privacy rights under s. 8 of the Charter.

[2] The search warrant was issued by a justice of the peace on application under s. 11 of the CDSA. The warrant authorized the search of a residence, together with outbuildings (the “residence”).

[3] The test for the issuance of a search warrant under the CDSA requires the justice of the peace to be “satisfied by information on oath that there are reasonable grounds to believe” that the place to be searched contains, among others “anything that will afford evidence in respect of an offence under this act…” (s. 11.1 (d) of the CDSA).

[4] The accused submit that the search warrant was obtained without reasonable grounds for its issuance. They argue that the Information to Obtain (the “ITO”) sworn by the affiant police officer “contained untrue and misleading statements, and suffered from a pervasive lack of full, fair and frank disclosure”. They seek leave to cross-examine the police officer in order to demonstrate that the affiant officer knew, or ought to have known, that certain information presented to the justice of the peace was false, or at least unreliable.

[5] The application raises the following issues:

(a) Is the Crown entitled to an order summarily dismissing the application on the basis that the materials filed in support of the application do not establish a sufficient basis on which to bring the application…

or

Do the accused have standing to bring the application?

(b) Have the accused established the requisite basis for a determination by the court that cross-examination of the affiant officer is necessary to enable the accused to make full answer and defence?

(c) Did reasonable grounds exist to believe that the place which was searched contained, among other things, “anything that will afford evidence in respect of an offence under this act?”

The Test on Review of the issuance of a Search Warrant

[6] The issue of whether the rights of an accused are violated in relation to a search warrant is determined by following the approach set out by Sopinka J. at para. 56 in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, 60 C.C.C. (3d):

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, non-disclosure, 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 [emphasis added].

[7] The Supreme Court of Canada had occasion to revisit this question in R. v. Araujo, 2000 SCC 65, 2 S.C.R. 992, where LeBel J. stated at para. 46:

… So long as the affidavit meets the requisite legal norm, there is no need for it to be as lengthy as À la recherche du temps perdu, as lively as the Kama Sutra, or as detailed as an automotive repair manual. All that it must do is set out the facts fully and frankly for the authorizing judge in order that he or she can make an assessment of whether these rise to the standard required in the legal test for the authorization. Ideally, an affidavit should be not only full and frank but also clear and concise. It need not include every minute detail of the police investigation over a number of months and even of years [emphasis in original].

[8] In other words, the question for the reviewing Justice is whether there was some evidence that might reasonably be believed, on the basis of which the authorization could be issued.

Preliminary Issue: Do the accused have standing? Is the Crown entitled to an order summarily dismissing the Application?

[9] By way of a preliminary motion to the court, the Crown requests a summary dismissal of the application on the grounds that the applicants have not put forward or tendered for consideration any affidavit evidence that can or should be considered by the Court in reviewing the order.

[10] The Crown argues that in order for the accused to be able to argue that their s. 8 rights have been violated in the circumstances of this case, they must demonstrate that they were entitled to a reasonable expectation of privacy in the residence where the evidence was located. They are entitled to such an expectation of privacy if they can demonstrate that they were residents of the home, or in some other form of lawful possession, failing which they do not have standing to bring the Charter application.

[11] The Crown submits that the materials filed with the court do not include affidavit evidence or any evidence whatsoever which establishes that the applicants were residents of the premises and that they were entitled to an expectation of privacy within the residence.

[12] In support of its position the Crown submits that:

(a) there is no automatic right to a Charter voir dire in a criminal proceeding;

(b) the applicants bear the onus of establishing that they have standing to allege violations by police of their Charter rights; and,

(c) the applicants bear the onus of establishing sufficient grounds to justify the Court granting them the orders being sought in their application.

[13] The Crown relies on the decision of the British Columbia Court of Appeal in R. v. Khuc, Bui, Pham & Tran, 2000 BCCA 20, B.C.J. NO. 50. In this case, the court upheld the decision of the trial judge who refused to grant the appellants a voir dire at their trial, on the basis that they did not have standing to bring a Charter application to exclude evidence obtained by way of a search warrant. The appellants had taken the position at trial that they were merely babysitting in the house where the drugs were found, and that they did not live in the premises.

[14] At paragraph 23 of the Khuc decision, the court stated:

It is clear that there is no automatic right to standing for the purpose of challenging the admissibility of evidence. The trial judge was obliged to review the evidence and decide whether they had established a reasonable privacy interest. In this respect, it is important to remember that defence counsel relied only on their "babysitting" position.

[15] In my view, the Khuc decision can be distinguished from the case at bar. In Khuc, the applicants denied that they were residents of the house. Interestingly, if they would have accepted the position of the Crown, that they were residents of the home, they would have been granted standing to make their Charter argument. In this case, the applicants, through their counsel, admit on the record that they were residents of the house in which the search was conducted.

[16] Also, although it would have been helpful in the case at bar if the applicants had filed an affidavit in support of their application, in my view, it is not always necessary for an applicant on a Charter motion such as this one to do so. There are other ways in which grounds for an application can be put before the court. In Khuc, the court made the following suggestions at paragraphs 24 and 25:

24. When that argument was found to be insufficient, it was incumbent on the appellants to buttress their application with something more than counsel's assertion of the instructions given to him. This question was fully canvassed in R. v. Vukelich [(1996) 1996 1005 (BC CA), 108 C.C.C. (3d) 193, 37 C.R.R. (2d) 237 (B.C.C.A.)], where it was stated at para. 23:

25. My conclusions on the foregoing, briefly stated, are that counsel's statements, possibly supported by an affidavit, are a useful first step in persuading the judge to order a voir dire. If these are found to be insufficient, a more formal approach, involving affidavits and possibly an undertaking to adduce evidence (including calling the deponent as a witness), may be required. In other words, I would opt for the flexible approach recommended by the Ontario Court of Appeal in R. v. Kutynec, [(1992) 1992 12755 (ON CA), 70 C.C.C. (3d) 289, 7 O.R. (3d) 277] rather than the formal procedure described on the earlier appeal in that case...

26. In the case at bar, counsel advised the court that no further information would be presented if there were a voir dire. This meant the grounds for a voir dire would not be supported beyond the material placed before the Court by consent and the statements of counsel.

Decision on the Issues of Standing and Summary Dismissal

[17] Although the applicants have not filed an affidavit setting out a basis for the application, I am of the view that they have established a foundation for bringing the application. Their materials include a factum which sets out the basis and law in support of their application in considerable detail. Unlike the applicants in Khuc, the applicants in this case do not deny that they were residents of the house in which the evidence was seized, and through their counsel have advised the court on the record that their position at trial will be that they were residents in the house which was searched. In my view, they have established a privacy interest and have standing.

Secondary Issue: Is defence counsel entitled to cross-examine Detective Constable Andrew Kraemer, the affiant for the Information to Obtain, in order to challenge the validity of the search warrant?

[18] A second preliminary issue on this voir dire is whether defence counsel is entitled to cross-examine Detective Constable Andrew Kraemer, the affiant for the Information to Obtain, in order to challenge the validity of the search warrant.

The Test for permitting Cross-examination of the Affiant

[19] In R. v. Garofoli, the Supreme Court of Canada held at para. 88:

With respect to prolixity, I am in favour of placing reasonable limitations on the cross-examination. Leave must be obtained to cross-examine. The granting of leave must be left to the exercise of the discretion of the trial judge. Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds [emphasis added].

[20] In R. v. Pires; R. v. Lising, 2005 SCC 66, 3 S.C.R. 343, the Supreme Court of Canada commented that the test in Garofoli was not onerous. At para. 40 of the decision, the court stated:

As discussed earlier, the Garofoli leave requirement is simply a means of weeding out unnecessary proceedings on the basis that they are unlikely to assist in the determination of the relevant issues. The reason that the test will generally leave just a narrow window for cross-examination is not because the test is onerous – it is because there is just a narrow basis upon which an authorization can be set aside. Hence, in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictly focussed on the question to be determined on a Garofoli review – whether there is a basis upon which the authorizing judge could grant the order. If the proposed cross-examination is not likely to assist in the determination of this question, it should not be permitted. However, if the proposed cross-examination falls within the narrow confines of this review, it is not necessary for the defence to go further and demonstrate that cross-examination will be successful in discrediting one or more of the statutory preconditions for the authorization. Such a strict standard was rejected in Garofoli. A reasonable likelihood that it will assist the court to determine a material issue is all that must be shown [emphasis added].

[21] At paragraph 41 of the Pires/Lising decision, the court dealt with credibility issues and false and misleading evidence in the following words:

In some cases, the proposed cross-examination may be directed at the credibility or reliability of an informant. However, cross-examination that can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false. We must not lose sight of the fact that the wiretap authorization is an investigatory tool. At that stage, a reasonable belief in the existence of the requisite statutory grounds will suffice for the granting of an authorization. Upon further investigation, the grounds relied upon in support of the authorization may prove to be false. That fact does not retroactively invalidate what was an otherwise valid authorization.

[22] In R. v. Pham, 2009 56738, O.J. No. 4296 (ON SC), Hill J. looked at the underlying case law in an exhaustive manner and summarized the over-arching principles in this way:

(1) the authorization is presumptively a valid court order;

(2) the right of cross-examination is of fundamental significance to the criminal process;

(3) the right to cross-examine is not unlimited or absolute. With respect to cross-examination of the affiant of the sworn affidavit for an order to wiretap, leave to cross-examine is not the general rule, and I would say that the same is true for an order authorizing a search warrant;

(4) because there is no untrammeled right to cross-examine an affiant, leave to cross-examine should be given only where it is necessary to enable an accused to make full answer and defence;

(5) there is an onus, albeit not an onerous one, on an accused seeking cross-examination to show or demonstrate a basis or a reason for the cross-examination before leave is granted for an evidentiary hearing with that cross-examination;

(6) the leave question is an exercise of discretion by the trial judge, who considers whether the applicant has established "a reasonable likelihood" that cross-examination of the affiant will elicit testimony of probative value to the issue under consideration for example, whether there were reasonable grounds for the issuance of a search warrant [emphasis added].

(7) because deficiencies such as inaccurate information or omission of a material fact will not necessarily detract from the existence of the statutory preconditions for a search warrant, a mere showing of error, omission, lack of precision or overstatement will not always be sufficient to establish the case for leave to cross-examine.

[23] The application of the test requires an understanding of the factual background in which the ITO was obtained and I turn now to a summary of the facts as contained in the ITO.

Factual Background

[24] On December 5, 2012, Detective Constable Kraemer was advised by Detective Constable Turner that a fellow officer, Constable Oates, had detected the odour of freshly burnt cannabis marihuana at the Hwy 592 residence.

[25] As a result of this information, Officer Kraemer commenced an investigation into the history of the residence and its occupants, who turned out to be the applicants, Erich Biberhofer and Stephen Thomlinson.

[26] According to Officer Kraemer, he found an occurrence report that corroborated the evidence of Officer Turner. The occurrence report indicated that Constable Oates had attended at the residence to return a wallet. While at the residence, Constable Oates had detected the odour of marihuana.

[27] Officer Kraemer uncovered another occurrence report from March 6, 2012, when Constable Warman had attended the residence to investigate a collision with a parked car in Toronto. While at the residence, the officer detected the odour of burnt marihuana. Mr. Biberhofer allegedly surrendered four grams of cannabis marihuana to Constable Warman on that occasion.

[28] Officer Kraemer conducted surveillance of the property on a number of occasions: December 11, 2012; December 12, 2012; January 3, 2013; January 8, 2013; February 16, 2013; and, February 21, 2013.

[29] Officer Kraemer also retrieved consumption data from Hydro One for the property, as well as a neighbouring property at #646 Highway 592. A comparison of the data revealed that the consumption of hydro at the residence in question was substantially higher than the consumption at the neighbouring property, notwithstanding the fact that the primary heat sources for the two properties appeared to be similar and the properties were of similar size.

[30] On January 3, 2013, and February 16, 2013, Officer Kraemer arranged to conduct thermal detection tests of both the residence and outbuildings. The tests indicated high heat sources in both the residence and the outbuilding.

[31] On February 26, 2013, Officer Kraemer applied for and obtained a search warrant for #541 Highway 542 and all outbuildings, vehicles or other structures or containers on said property. The items to be searched for were:

• Evidence of a Cannabis Marihuana Grow including Cannabis Marihuana plants;

• Grow equipment including lights, ballasts, fans, and fertilizer;

• Evidence in the way of correspondence, phone calls, texts messages; and,

• Any documents connecting Michael QUIGLEY to the address of #541 Hwy 592, Perry Township and/or connecting him to Stephen Thomlinson and/or Erich Biberhofer.

[32] On February 27, 2013, a search warrant was executed by members of the Ontario Provincial Police Drug Enforcement Unit, at the address of #541 Highway 592, Perry Township.

[33] The applicant, Stephen Thomlinson, was arrested in the kitchen of the residence. Shortly thereafter, the co-applicant, Erich Biberhofer was arrested nearby on Highway 592.

[34] The search uncovered a multi-stage marihuana grow operation in the detached garage. Dried cannabis marihuana and resin were found in the home, as well as an amount of Canadian currency.

Proposed areas of Cross-Examination and Response thereto

(a) Description of Property by Officer Kraemer

[35] The applicants argue that in describing the property Officer Kraemer provides misleading and unfounded conclusory statements. In particular, they object to his description of a “large fence located in what would appear to be an unusual location” and his suggestion that “the only purpose this fence appears to serve is to obstruct/block the view from the roadway of the entries of both the house and the garage”.

[36] The applicants submit that there are a plethora of innocuous explanations for the fence; for instance it could have been built prior to the applicants’ occupancy of the residence and its purpose could be consistent with blocking noise or wind. They also object to Officer Kraemer’s use of the word “tactic” to describe the location of the fence.

[37] I do not believe the applicants have met the required test with respect to this proposed area of cross-examination. The information about the fence was intended to underscore the assertion by the affiant that growers of marihuana prefer to conduct their operations in secluded areas. The reference to the fence was just one of a number of facts and observations relied on by the affiant to illustrate that the residence was in a remote and private location. The affiant also referred to the fact that the residence was surrounded by a swamp, trees, fencing, and had no immediate neighbours. The affiant qualified his reference to the fence by saying that it appeared to be in an unusual location.

[38] In my view, even if the applicants could demonstrate in cross-examination that there could have been some other purpose for the fence, this would not assist me in determining that there was a reasonable basis upon which the authorizing judge could grant the order granting the search warrant.

(b) Previous Grow-Operation at the Residence

[39] One of the grounds on which Officer Kraemer relied was that the property was subject to a previous CDSA warrant in 2004, at which time a grow-op was found on the premises. Michael Quigley owned the property at the time and continued to own the property at the time of the investigation. The applicants argue that this fact is irrelevant because they did not reside in the premises until 2007, and Mr. Quigley was not charged in relation to this earlier grow-op.

[40] In my view, the continuity of ownership by the same person is relevant for the purpose of establishing reasonable and probable grounds, particularly in view of the fact that Mr. Quigley was one of the persons who was under investigation in relation to this suspected grow-op. The fact that the property had previously been used as a grow-op is also evidence which strengthens the position of the Crown that the premises were suitable for housing a grow-op.

(c) Site of Grow Operation

[41] The applicants take issue with the fact that the affiant states that he believes marihuana is grown on the premises and in both the residence and in the outbuilding. They point out that the evidence of Constable Warman when he attended at the residence on March 6, 2012 was that he detected the odour of “burnt marihuana” and the evidence of Constable Oates was that he detected the odour of “freshly burnt marihuana coming from within the residence”. They argue that burnt marihuana smells different than marihuana which is in the growing stages, and that there is no evidence that both buildings were used for growing purposes.

[42] Officer Kraemer relies on more than just the observations of Constables Warman and Oates in concluding that marihuana is grown in the residence. He refers to Constable Warman’s comment that the heat from inside the residence was like a “sauna”, with the odour of marihuana mixed in. He refers to the fact that neither Constable Oates nor Constable Warman were invited inside the residence, but were left standing on the porch. He also relies on the fact that one evening he drove by the premises with another officer and he detected the odour of marihuana emanating from the property and he relies on thermography readings which establish that both the house and the outbuilding were the source of high heat readings.

[43] In my view, there is no benefit to ordering cross-examination in relation to these concerns. The relevant facts are before the court, and it is not necessary for them to cross-examine the affiant in order for them to make full answer and defence.

(d) Hydro One Readings

[44] The applicants take issue with the fact that Officer Kraemer relied on the fact that the Hydro One readings for the residence were consistently five to seven times higher than the neighbouring residence with which he compared the readings. They argue that the officer did not provide more detailed information about the neighbouring residence.

[45] In my view, the cross-examination of Officer Kraemer in relation to this issue would not assist the court in determining the ultimate question. The material facts are not in dispute and contain sufficient details to provide a valid comparison. They include the fact that the neighbouring property is of similar size, located in the same vicinity and appears to have the same primary source of heat. Officer Kraemer also referred to the fact that the comparison property had both an attached garage and a detached garage/outbuilding. Furthermore, he referred to the comparison property as a “residence” and stated that there did not appear to be any commercial activity at the subject residence which could explain the extraordinary high Hydro usage.

(e) Lack of Experience of the Affiant

[46] The applicants complain that although Officer Kraemer has been a police officer since August of 2008, he did not become a member of the Drug enforcement unit until May 2012, which is a mere 6 months prior to the issuance of the search warrant. Furthermore, there is no indication that Officer Kraemer had applied for CDSA search warrants in the past or that he had ever been qualified as an expert in any drug related areas. They question his qualifications, and suggest that his apparent lack of qualifications calls into question the veracity of his statements.

[47] The onus on a Garofoli application is on the applicants. I note that they did not provide any substantive challenge to any of the purported expert opinions expressed by Officer Kraemer in his affidavit. Furthermore, the areas in which Officer Kraemer provided opinion evidence, such as the type of site preferred by growers of marihuana and other indicia that pointed to the existence of drug cultivation were areas that do not require a high or sophisticated level of expertise about illicit drug cultivation. They would be within the realm of expertise of any police officer with even a limited amount of experience in enforcing drug laws. I am satisfied that Officer Kraemer had sufficient experience and knowledge to make the statements and draw the conclusions contained in his affidavit and cross-examining him on his experience and qualifications would not assist the court in determining the ultimate question before the court.

(f) Misleading information about Stephen Thomlinson’s Criminal History

[48] The applicants complain that although Officer Kraemer reports that Mr. Thomlinson was arrested in 2002, for drug related offences, and that he has many occurrences on RMS in various Ontario police jurisdictions, including arrests, he did not fairly balance out his report by stating that all of Mr. Thomlinson’s charges were ultimately disposed of in such a way that there were no convictions or conditional discharges entered on his record.

[49] The applicants argue that in the absence of a criminal conviction, this information is irrelevant and suggestive of bad faith.

[50] A review of the ITO reveals that Officer Kraemer reported that Mr. Biberhofer did not have a criminal record. It also reveals that although Officer Kraemer referred to Mr. Thomlinson’s numerous interactions with the law and the police, he pointed out in capital letters that in relation to an arrest for trafficking marihuana in July 2007, NO CHARGES were laid in relation to this arrest. Also, there is nothing in his affidavit that suggests Mr. Thomlinson was convicted of any of the offences with which he was arrested and charged.

[51] In my view, the information in relation to the criminal history of the two accused was fair, balanced and relevant in relation to the issue before the justice of the peace. It does not require cross-examination.

(g) Inaccurate Description of other Officer’s observations

[52] Of concern to me is the fact that the applicants allege that although Officer Kraemer relies on information contained in an Occurrence Report prepared by Officer Warman, the information in the Occurrence Report does not support the information contained in Officer Kraemer’s affidavit, and is inconsistent with the information in the Occurrence Report.

[53] The applicants tendered into evidence a document purporting to be the Occurrence Report and pointed out the following discrepancies.

(a) Officer Kraemer reported that Constable Warman described Mr. Biberhofer as being anxious in his presence but there is nothing in the Occurrence Report which suggests that Mr. Biberhofer was anxious. Also, at the preliminary hearing Officer Warman testified that he believed that Mr. Biberhofer was calm and that he had not made any notations suggesting conflicts or poor behaviour by either of the accused.

(b) Secondly, Officer Kraemer’s affidavit states that Mr. Biberhofer agreed to hand over marihuana to Officer Warman but informed the officer that he “must wait outside while he went to retrieve it”, suggesting that the applicants had something to hide. The applicants argue that Mr. Biberhofer’s refusal to allow Officer Warman into the house was not mentioned by Officer Warman in his Occurrence Report.

(c) Thirdly, Officer Kraemer wrote that Officer Warman noted in his report that air inside the house was “humid with a strong odour of cannabis marihuana” and further that the heat from inside the residence [was] like a “sauna” with the odour of marihuana mixed in. The applicants point out that Constable Warman did not provide anything in his occurrence report or in his notes about humidity, heat or a sauna-like feel.

[54] The applicants argue that this unsupported information contained in Officer Kraemer’s affidavit is simply an attempt by the officer to strengthen the grounds for obtaining a search warrant. They ascribe terms such as “ deliberate lie”, “misrepresented the facts”, “inflame”, “exaggerate” “fabricate” and “mislead” to describe Officer Kraemer’s conduct.

[55] The applicant’s allegations about Officer Kraemer’s conduct in describing the interactions of other officers with the two accused bring into question his personal credibility and good faith. In my view, they are of such a serious nature that if proven to be true they could discredit the entire contents of his affidavit and would raise a serious issue as to whether reasonable and probable grounds existed. In the circumstances, I am permitting the accused to cross-examine Officer Kraemer in relation to the interactions of Officer Warman with the accused.

Third and Central Issue: Did reasonable grounds exist to believe that the place which was searched contained “anything that will afford evidence in respect of an offence under this act?”

Examination of Officer Kraemer

[56] During this examination in chief of Officer Kraemer, it was revealed that the document which the applicants had referred to as the Occurrence Report was not in fact the Occurrence Report which was relied on by Officer Kraemer’s in describing Officer Warman’s encounter with the two accused. The document tendered into evidence by the applicants was entitled “Subject Profile” and contained a summary of information about Mr. Thomlinson. It was dated February 28, 2013, the same date as the search warrant was executed and it had been provided to the defence as part of the Police disclosure to the accused.

[57] The Crown produced the actual Occurrence Report which was relied on by Officer Kraemer. The contents of the Occurrence Report substantially mirrored the information in Officer Kraemer’s affidavit. The defence responded to this revelation by choosing not to cross-examine Officer Kraemer.

Determination of main issue

[58] A review of Officer Kraemer’s affidavit reveals that it contained overwhelming evidence and information on which the justice of peace could base his decision that reasonable and probable grounds existed for the issuance of a search warrant. This evidence included:

(a) the suspicious conduct on the part of the applicants when the police officers visited the property;

(b) the results of the two thermography reports;

(c) the extraordinarily high hydro consumption at the property, when compared with the neighbouring residence;

(d) the observation of Officer Warman that there was excessive heat emanating from the premises;

(e) the evidence of four police officers, on several different dates, that they detected the odour of cannabis marihuana emanating from inside the residence or from the property.

(f) evidence that the property had previously been used as a marihuana grow-op;

(g) the secluded setting of the property;

(h) the previous interactions between Mr. Thomlinson and the police; and,

(i) the totality of the circumstances.

[59] In my view, Officer Kraemer’s affidavit in support of the application for a search warrant was comprehensive, balanced and fair; furthermore, there was nothing in the ITO to suggest that Officer Kraemer did not have the requisite experience and knowledge to express the opinions contained therein.

Decision

[60] On the basis of the above reasons, I find that the Warrant to Search that was issued on February 26, 2013, was lawfully issued and valid. I am making a determination that the evidence sought to be excluded in this application is admissible and the applicants’ Charter application is hereby dismissed.

E.J. Koke

Date: August 13, 2014