R. v. Robert James Campbell, 2015 ONSC 1583

CITATION: R. v. Robert James Campbell, 2015 ONSC 1583

COURT FILE NO.: 13-4207

DATE: 2015-03-11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

S. Antoniani, for the Respondent

Respondent

• and -

ROBERT JAMES CAMPBELL

G. Read, for the Applicant

Applicant

HEARD: February 20, 2015 in Hamilton

REASONS FOR JUDGMENT

LOFCHIK, J.

1The accused is charged with possession of a controlled substance, one count related to hydromorphone and one related to oxycodone, one count of possession of proceeds of crime under $5,000 from possession for the purposes of trafficking in hydromorphone and oxycodone and one count of theft of Hydro over $5,000.

2This is an application by the accused to have excluded evidence of any observations made and things seized by the police in the execution of a search warrant on May 3, 2012 at 1141 Main Street East in the City of Hamilton.

3On May 3^rd, 2012, members of the Hamilton Police Service Vice and Drug Unit executed CDSA search warrants at the addresses of 1141 and 1139 Main Street East in the City of Hamilton. The warrants were authorized by Justice of the Peace Devellano.

41141 Main Street East is a business named “RJ Deals” on the main floor and an apartment on the upper level. Robert Campbell, the accused in this matter, is the owner of the business and occupant of the apartment. He was arrested for offences under the Controlled Drugs and Substances Act, s. 7(1), and 5(2) marijuana.

5He was searched incident to arrest and $120 Canadian currency was located on his person. He was advised that he was also being charged with proceeds of crime.

6Police conducted a search of Robert Campbell’s apartment above the business and located 36 oxycodone pills, 46 hydromorphone pills, for which Campbell did not have prescriptions. Police also located documents in Campbell’s name, a digital scale and $1,460 in Canadian currency in the apartment.

7Upon a search of the basement of the premises, police located a Hydro bypass which indicated electricity was being stolen for the premise at 1141 Main Street East. Campbell was also advised that he was being charged with theft of electricity.

8Police also attended at 1139 Main Street East and conducted a search of the apartment on the second floor and located 346 grams of processed marijuana, a digital scale, several documents as well as $1,200 in Canadian currency and $607 in US currency and arrested one Dragomir Bilic and Svetlana Jeremic under the Controlled Drugs and Substances Act, s. 7(1) and 5(2) marijuana.

9There was no access to the main floor or basement of the apartment inside. Access to the basement was via a door from the outside of the building at 1139 Main Street East. Dragomir was in possession of a key in his apartment which unlocked the door to the main floor and basement to 1139 Main Street East.

10Police gained entry to the main floor of 1139 Main Street East and located 20.5 grams of processed marijuana on the main floor. Police then located a sophisticated indoor marijuana grow operation in the basement. There was a total of 140 marijuana plants with 10 hydroponic lights and 10 ballasts.

11Police estimated the approximate street value of the marijuana seized at 1139 Main Street East at $176,770 and the approximate street value of the prescription drugs seized at the apartment at 1141 Main Street at $1,700.

12The above process resulted from an anonymous tip to Crime Stoppers. The information provided by the anonymous tipster was as follows:

• Robert James Campbell has an alias “RJ” and operates “RJ Deals” at 1141 Main Street East;
• a second suspect, Dan, has short hair and his address is 1139 Main Street East, Hamilton, Ontario;
• RJ Deals is a business;
• the business sells stolen property including GPS, cell phones and laptops;
• there is a marijuana, oxycodone, Percocet and Native Reserve cigarettes being sold from behind the counter of the business;
• sometimes RJ will go upstairs to his apartment to retrieve drugs;
• there is an illegal Hydro hookup;
• the address at 1139 Main Street East is a grow house;
• there is another one which is just finishing soon. It was started in December, 2011 or January, 2012;
• the grow is in the basement through the back door in the alley;
• there are two doors in the back on the lower level;
• the smell is overwhelming;
• the premises are conjoined and under video camera surveillance;
• cameras are located on the front and back of both addresses.

13The results of subsequent investigation by police are contained in the “Information to Obtain a Search Warrant” and were to the effect that the accused had an old and minor criminal record, that there was significantly high Hydro consumption for apartment 1 and the office space quadrants of 1139 Main Street East on a 12 hour cyclical pattern, a criminal record for one of the occupants of an apartment at 1139 Main Street East, a strong odour of vegetative marijuana when two undercover officers attended the store at 1141 Main Street East on May 2, 2012 and the absence of any reason for the observed large amount of electricity consumption at 1139 Main Street East.

14It is noted that an officer who attended at 1141 Main Street East on April 27, 2012 did not note the smell of marijuana.

15Defence counsel argues that the search warrant for 1141 Main Street East was invalid and the evidence obtained in executing the warrant should be excluded pursuant to s. 24(2) of the Canadian Charter of Rights of Freedoms. In R. v. Debot (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 at p. 215, Wilson J. discussed how a court should evaluate the weight to be attached to an informer’s tip about criminal activity. She held that there are three concerns with an informer’s tip:

First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.’s view that the “totality of the circumstances” must meet the standard of reasonableness. Weaknesses in one area may to some extent, be compensated by strengths in the other two.

16The tip in this case could not form part of the grounds for obtaining a warrant with respect to 1141 Main Street East because it was not compelling, the anonymous informer was not known to be credible and the police were able only to confirm some of the details of the tip as it related to 1141.

17In the circumstances of this case, the sufficiency of the information to obtain a warrant in respect of the premises at 1141 Main Street East, in the City of Hamilton, must stand or fall on the basis of the police investigation. The investigation does not provide reasonable grounds to believe that there is specific criminal activity being carried on at 1141 Main Street East.

18The information obtained does not establish reasonable grounds for a warrantless search nor for the issuance of a search warrant.

19So far as whether the evidence should be excluded under s. 24(2) of the Charter, the police cannot seek comfort from the fact that they thought they were acting pursuant to a valid search warrant. If that were the case, evidence obtained on a search pursuant to an invalid search warrant could never be excluded. In fact what they attempted to do was to “piggyback” a request for a search warrant with respect to 1141 on meagre evidence on a request for a warrant for 1139 which request had more substantiating evidence.

20Here the search of the accused’s residence and the nonpublic part of his business premises was a serious invasion of his privacy interest. While the evidence obtained is real evidence and crucial to the Crown’s case, it should be remembered that the search warrant was obtained pursuant to a belief that a grow-op was being carried on in the premises and that the evidence which was obtained in the search was evidence collateral to that intended to be uncovered by the search.

21Applying the considerations set out in R. v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353, I find that the admission of the evidence obtained as a result of the invalid search would bring the administration of justice into disrepute and that all evidence obtained as a result of this search should be excluded at trial.