ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11096
DATE: 2014/01/03

B E T W E E N:

HER MAJESTY THE QUEEN

K. Johnson & D. Ives, for the Public Prosecution Service of Canada

Crown/Respondent

• and -

THOM VAN BUI
tOAN NGOC NGUYEN
tam van bui
thoa thi pham

A. Prevost for Mr. Tam Van Bui,
K. Schofield for Mr. Toan Nguyen
P. Munn for Ms. Thoa Thi Pham,

Defendants/Applicants

HEARD: May 23, November 7, 8, 2013

REASONS FOR JUDGMENT WITH RESPECT TO SS. 8 & 24(2) OF THE CHARTER OF RIGHTS AND FREEDOMS

A.J. GOODMAN J.:

[1] The applicants are charged with various drugs offences contrary to their respective provisions of the Controlled Drugs and Substances Act (“CDSA”). All of these offences are alleged to have occurred at the City of London in or about November 2010.

[2] The applicants seek to exclude certain evidence seized by the police under a judicially authorized search warrant by virtue of an alleged breach of ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms (“Charter”). Mr. Thom Van Bui did not participate in this application.

Background

[3] The following details have been taken predominately from the Information to Obtain (“ITO”) in support of the application for a search warrant.

[4] In November 2010, Constable Andrew Mills of the Royal Canadian Mounted Police (“RCMP”) met with members of the London Police Service (“LPS”). Cst. Mills learned that D/Cst. Mike Pottruff had received a list of suspect real estate transactions from a concerned citizen and that the LPS had begun to investigate those residences.

[5] Following a joint forces investigation, Cst. Mills sought and obtained CDSA search warrants in respect of five residences including 306-88 Oakville Avenue (“Oakville”) and 366 Highview Crescent (“Highview”) in London. According to the ITO ‘overview’ the primary ‘grow operation’ was located at 186 Sunnyside Drive (“Sunnyside”). Cst. Mills relied upon the same ITO in support of his search warrant applications for all of the residences.

[6] Cst. Mills stated that he believed the confidential source was credible because the individual called LPS to report suspicious real estate activities. The source did not receive any money or benefit. Following the preliminary hearing, the source waived informer privilege. He was identified as Gerry Weir, broker of record of Sutton Group Preferred Realty Inc. Mr. Weir had become suspicious of Thu Tran, an independent realtor affiliated with his office after he noticed three of four homes added to the LPS’s Marijuana Grow-Op registry were sold by her. As a result, Mr. Weir provided LPS with a list of some 80 homes; of which Ms. Tran had been directly involved in the either the purchase or sale of those specific properties.

[7] On November 4, D/Cst. Pottruff conducted a thermal examination on the residence at Sunnyside. He observed an excessive amount of relative surface heat coming from the chimney and the peak of the roof. This heat signature was not observed on any of the residences examined in comparison. At the time, D/Cst. Pottruff also smelled a very strong odour of vegetative marijuana coming from the residence. He was able to detect the smell of marijuana from his location on the adjacent sidewalk as well as from the lot just east of the house.

[8] On November 9, police began conducting surveillance at Sunnyside. Cst. Bowskill attended Sunnyside and at the west side of the address he smelled a faint odour of vegetative marijuana. Cst. Bowskill did not smell the vegetative marijuana in front of any other address. Cst. Bowskill made other observations related to certain Asian males and noted various vehicles. A white Toyota Matrix was observed pulling into the garage. The garage had been accessed by a remote garage door opener. Fifty-six minutes later, the same vehicle left and police followed the Toyota Matrix and noted that the Asian male drove in a manner designed to establish if he was being followed or to avoid detection. The registered owner of the Toyota Matrix is Van Tam Bui of 306-88 Oakville Ave.

[9] On November 10, Cst. Mills conducted a thermal examination of the residence at Highview. The thermal image did not display excessive heat. According to the ITO, while conducting the examination, Cst. Mills identified a strong odour of vegetative marijuana coming from the residence as he checked all sides of the home to isolate the source of the odour emanating from Highview.

[10] On November 12, police conducted surveillance at Oakville. An Asian male was observed getting into the Toyota Matrix and travelling to Sunnyside. The vehicle pulled into the garage. A blue Toyota van was parked in the driveway and the driver entered the residence. Approximately four hours later, the blue Toyota van was followed to 389 Sunnyside Crescent where it entered the garage using a remote garage door opener.

[11] On November 16, Cst. Robert Palanuk attended Highview and could smell a strong odour of vegetative marijuana coming from this address. Surveillance began at Highview on November 16. The investigations in respect of both properties intersected on November 17 when a blue Toyota van pulled in to the driveway at Highview. This vehicle was also previously observed at Sunnyside. Cst. Devine learned the registered owner of the blue Toyota van was Van Thom Bui who resided at 221-1235 Huron St. CPIC checks of Thom Van Bui revealed convictions for drug related offences.

[12] On November 18, police observed a silver Toyota van pull out of the garage at Highview. The van was followed to 1235 Huron St. After leaving Huron St., the silver van was stopped by an LPS uniform officer. The driver of the silver van was identified as Toan Ngoc Nguyen. During the stop, the blue Toyota van arrived on scene. Police identified the driver of the blue van as Van Thom Bui. Both vehicles were subsequently followed to the parking lot of a variety store and then to a Toyota dealership on Oxford Street. At the Toyota dealership, Mr. Nguyen was observed getting in to a white Buick loaner vehicle. The Buick and the blue Toyota van were followed back to 1235 Huron St. Mr. Nguyen was later surveilled back to Highview.

[13] On November 19, police observed the Toyota Matrix leaving Sunnyside. The vehicle was followed to Masonville Mall where the driver parked in the parking lot facing the road. The Toyota Matrix then drove out of the parking lot and returned to Sunnyside where it travelled past house number 186. Fifteen minutes after leaving Sunnyside the Toyota Matrix arrived at Oakville.

[14] On November 19. Mr. Nguyen was seen getting in to the vehicle at 389 Sunnyside Crescent and was surveilled to 1235 Huron St. where he entered the apartment building. He later exited the same building and was followed to Highview. During the period he was under surveillance, Mr. Nguyen was observed attending the Highview residence and driving directly in to the garage. He remained in the house for extended periods of time.

[15] On November 23, 2010, Cst. Mills drove by Sunnyside and observed condensation on the upper windows of the residence. Cst. Devine also drove by Sunnyside and noted the condensation.

[16] On November 22, Cst. Mills obtained the hydro consumption records for Sunnyside, 389 Sunnyside Crescent and Highview. The respective readings were “not overly high” in relation to readings for comparable addresses.

[17] Cst. Mills conducted property checks on the London city website and identified property owners for the suspect residences. Tinh Bui is the listed owner of Sunnyside, Thi Anh Bui is the listed owner of 389 Sunnyside Cres. and Gan Thi Le is the listed owner of Highview.

[18] On November 24, 2010, the RCMP executed a CDSA search warrant at Highview. Mr. Nguyen was located within the residence and he was arrested and charged. Police seized 980 cannabis marijuana plants in various stages of growth along with marihuana grow equipment. A search and seizure from Oakville revealed marihuana and cash. Mr. Tam Van Bui was arrested at the scene. Search warrants were also executed for Sunnyside, 389 Sunnyside and 1235 Huron Street addresses. Various amounts of cash, drugs and marihuana growing equipment were seized by police.

(MDX continues exactly as in the judgment…)

Released: January 3, 2014
A.J. Goodman J.