SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-15-002

DATE: 2015-10-16

RE: R. v. Blackwood

BEFORE: E.J. Koke

COUNSEL:
David Holmes, Counsel for the Crown

John Raftery, Counsel for Arthur John Blackwood

HEARD: October 14, 2016

REasons for Rulings

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] Arthur John Blackwood is charged with a number of offences involving the production, possession and trafficking of marijuana under the Controlled Drugs and Substances Act (the “CDSA”). He applies for an order under s. 24(2) of the Charter of Rights and Freedoms (the “Charter”) to exclude evidence on the basis that a search warrant was issued in circumstances which violated his 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 his 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 submits that the search warrant was obtained without reasonable grounds for its issuance. He argues that the Information to Obtain (the “ITO”) sworn by the affiant, Detective Constable Andrew Kraemer was based largely on information obtained from three individuals referred to therein as Confidential Informants No. 1; No. 2 and No. 3, and that Officer Kraemer did not take the requisite steps to establish the veracity or reliability of these persons or their evidence.

The Test on Review of the Issuance of a Search Warrant

[5] 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].

[6] 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].

[7] 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.

A) Preliminary Application…Leave To Cross-Examine the Affiant

[8] By way of preliminary application on this Garofoli application, the applicant seeks leave to cross-examine the affiant officer on the following:

The nature and extent of the independent investigations conducted by the police which the affiant states to have bolstered the grounds of the warrant and corroborated certain information from the confidential Informants.

The Test for permitting Cross-examination of the Affiant

[9] In 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].

[10] 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].

[11] 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.

Application of the Test for Leave to Cross-Examine to the Facts of this case.

[12] The accused takes issue with what he alleges is the failure of Officer Kraemer and the other investigating officers to conduct independent investigations to establish the reliability and credibility of the confidential Informants and to corroborate their evidence.

[13] Informant No. 1 is described by Officer Kraemer as “unproven” and “has yet to provide information to the police that has resulted in the execution of a search warrant or arrest”. Queries of CPIC and directly with Informant No. 1 confirmed that Informant No. 1 did not have a criminal record and that he/she had never provided information to the police which was later found to be misleading in nature. This informant was described as being familiar with the appearance, odour and production of cannabis marijuana.

[14] The affiant officer states in the ITO that he spoke to the Informant No. 1 on August 1, 2013 and was given the following information:

a) A man who goes by the name of John has a substantial marijuana grow in his residence which is on Stisted Road in the community of Sprucedale.

b) He was told by a third party that “John” starts 25 tables of plants every two weeks.

c) He learned this information from someone who is involved in the illegal sale of cannabis marijuana in the Sprucedale area.

[15] Officer Kraemer comments in relation to this information that he has confirmed the following in relation to Informant No.1’s information:

a) Informant No. 2 informed him that an individual who lived at 1825 Stisted Road and who goes by the name “John” grows marijuana on his premises.

b) Investigative checks of MTO and RMS reveal that Arthur John Blackwood lived at 1825 Stisted Road;

c) From his experience as a drug investigator he knows that in many instances indoor cannabis marijuana grows are grown in cycles to allow for a constant supply.

d) An MTO records check reveals that Mr. Blackwood signed his Driver’s Licence “J. Blackwood”.

[16] With respect to Informant No. 2, the affiant states that his identity is unknown and he stated that it is also unknown if he has previously provided information to the police that has resulted in the execution of search warrants and arrests.

[17] The affiant officer stated that Informant No. 2 contacted the police on August 27, 2013. He/she did not wish to identify himself or herself. This informant would only state that a man by the name of “John” lived at 1825 Stisted Road in Sprucedale and operates an illegal marijuana grow op.

[18] The affiant described Informant No. 3 as “unproven” and someone who has yet to provide information to the police that has resulted in the execution of search warrants or arrests. The affiant stated that from his checks of RMS and CPIC he knows that this informant has never provided police with any information that has later been found to be misleading in nature. He also stated Informant No. 3 is familiar with the appearance, odour and production of cannabis marijuana.

[19] In December, 2013 Informant No. 3 advised him that Arthur “John” Blackwood has a cannabis marijuana grow op in his house and confirmed that he goes by the name of John. He informed the affiant officer that:

a) Mr. Blackwood is in his mid-50’s and lived in a log home at 1825 Stisted Road N. in Sprucedale;

b) He has visited the residence on Stisted Road in the past and believed the grow was still in existence since John “has been growing for years”;

c) That John has 4 tables of plants with 70 plants per table, and that the tables are divided up into 2 separate rooms, all growing at different stages and;

d) That “John” harvests a quantity of cannabis marijuana bud every 2 weeks;

e) That there are 2 large grow light bulbs per table and that 12 mother plants are maintained in a separate room;

f) That John had an outdoor grow the previous summer behind his house;

g) That John sells marijuana by the pound at $1500 to $1800 per pound or by the ounce at $180 to $200 per ounce;

h) That John has lots of cash on hand;

i) That the cannabis is kept in the fridge freezer;

j) That John also produces hash oil which is stored in the oven;

k) That John is paranoid of the police and keeps 2 loaded shotguns in the house;

l) That John drives a grey Volvo;

m) That John doesn’t work or have another source of income, other than drugs;

n) That John has a husky mix dog.

o) That John’s home is heated with a woodstove.

[20] In response to the information provided by Informant No. 3 the affiant provided the following confirming and corroborating information :

a) A background check revealed that Mr. Blackwood was 54 years old;

b) Queries with CPIC and RMS revealed that Mr. Blackwood had been arrested for production of cannabis marijuana three separate times since 2001;

c) A check with RMS revealed that in September 2007 an illegal cannabis marijuana operation was located at Mr. Blackwood’s home at 1825 Stisted Road;

d) From his experience as a drug investigator he knew that:

…it is common for marijuana to be grown in cycles;

…large incandescent lights are an integral component of an indoor marijuana grow-op;

…growers rely on “mother plants”

…the prices quoted by Informant No. 3 are consistent with the provincial wholesale street values

…marijuana bud is commonly stored in freezers to maintain its freshness;

e) His inquiries revealed that Mr. Blackwood is prohibited by law from possessing firearms for life.

f) His inquiries revealed that Mr. Blackwood drives a grey Volvo and has a husky type dog.

[21] The affiant reported that additional investigative steps were taken by the police which included information regarding hydro usage at the Stisted Road location. Consumption data obtained from Hydro revealed that the property experienced 12 and 18 hour high consumption cycles at off peak hours, during the middle of the night. Officer Kraemer stated that this pattern of usage is consistent with the way in which hydro is used in a grow op to provide lighting to the plants.

Analysis…Leave to Cross-Examine

[22] The applicant questions the reliability of the information provided by Informant No. 1 on the basis that it is second hand or hearsay information, and that there is nothing in the ITO to indicate an effort by police to establish the veracity or reliability of the person who gave the information to this informant.

[23] In determining whether to grant a warrant, the authorizing Justice must look at the totality of the evidence. In my view, the information provided by Informant No. 1 is consistent with the corroborating evidence obtained by the affiant from Informant No. 2, namely that an individual by the name of John lives at 1825 Stisted Road North and that John grows marijuana plants. It is further corroborated by a property search which confirmed that an individual by the name of Arthur John Blackwood lived at 1825 Stisted Road and an MTO records check which revealed that Mr. Blackwood signed his driver’s licence J. Blackwood.

[24] The affiant was candid about the fact that Informant No. 1 was unproven and had yet to provide information resulting in the execution of a search warrant. The authorizing Justice could therefore consider whether some limits should be placed on the weight to be given to the information from this informant.

[25] In my view, cross-examination of this informant will not assist in determining whether there is a basis upon which the authorizing judge could grant the order authorizing the search warrant, and it might needlessly reveal information which could be used to identify the informant or the individual who provided him with the information.

[26] With respect to the person described as Informant no. 2, the affiant stated that this informant is anonymous. I agree with the defence that this individual is more of a “tipster” than a confidential informant. The police do not know his identity.

[27] The information provided by Informant No. 2, namely that John lived and has a marijuana grow op at 1825 Stisted Road is corroborated by the other two Informants.

[28] Informant No. 2 is anonymous and in the circumstances I am not persuaded that any information can be obtained by cross-examining Officer Kraemer which will assist this court in determining the ultimate issue, namely whether there was some evidence before the authorizing Justice, which, if reasonably believed, could form the basis on which the authorization could be issued.

[29] The applicant wishes to cross-examine Officer Kraemer with respect to whether Informant No. 3 has a criminal record.

[30] Informant No. 3 provides the police with a substantial amount of firsthand detailed information, much of which is corroborated by information obtained from the other informants, by investigative experience and through further police inquiries. The authorizing Justice was made aware that this informant was “unproven”, but also that the informant had never provided police with information that was later found to be misleading. I am not persuaded that a cross-examination of the affiant with respect to this informant’s criminal record can assist this court in deciding the ultimate issue.

Decision…Leave to Cross-examine

[31] This preliminary application for leave to cross-examine the affiant is therefore denied.

B) Garofoli Application: Did the Authorizing Justice have Reasonable Grounds to believe that a Search of the Applicant’s Residence would afford Evidence in respect of an Offence under the CDSA?

Was the Information provided by the three Informants Credible, Compelling and Corroborated?

[32] The applicant submits that the authorizing Justice should have found that the evidence of the three informants did not meet the test of reliability and credibility.

[33] In R. v. Debot, 1989 13 (SCC), [1989] SCJ No. 118 the Supreme Court of Canada discussed the factors which a reviewing judge should consider in circumstances where information from a confidential informant figures prominently in the grounds presented by the police to obtain a search warrant. In paragraph 53 of Debot the Court stated:

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.

[34] In my view, the evidence which was before the reviewing judge in this case met the test set out in Debot.

[35] Firstly, taken as a whole, the information provided by the three informants included the name and approximate age of the accused, a description of the house and its location, details and a description of the methods used in the growing operation, the amount charged for the finished product and even a description of the accused’s vehicle and his dog. The cumulative effect of their evidence, and the fact that their evidence is consistent and provides considerable detail makes their evidence compelling.

[36] Secondly, although Informant No. 2 was unknown to the police and provided information which was in the nature of a tip, this informant’s evidence was consistent with the information provided by the two other informants. This gave it credibility and reliability. The reviewing Justice was made aware that this informant was anonymous and could consider this fact in determining weight.

[37] Thirdly, the authorizing Justice had before her a considerable amount of information which corroborated the information received from the three Informants. This corroborating information which has already been referred to, included the following significant facts:

a) The alleged grow op was hidden from public view…this is an indicia of the existence of a grow op.

b) High power consumption and consistent cycles of power consumption at off peak hours…this is consistent with the light usage of an active grow op.

c) Mr. Blackwood was 54 years old…this is consistent with the information provided by Informant No. 3 which referred to him as being in his mid-50’s

d) Mr. Blackwood had been arrested for production of cannabis marijuana three separate times since 2001;

e) An illegal cannabis marijuana operation had previously been located on Mr. Blackwood’s home at 1825 Stisted Road;

f) Mr. Blackwood is prohibited by law from possessing firearms for life.

[38] The applicant complains that the corroborative evidence of the police does not include evidence which points to the criminal activities alleged by the informants.

[39] The issue of whether corroborative evidence in cases such as this must be directed at the criminality of the informant’s information was dealt with by Justice Doherty of the Ontario Court of Appeal in R. v. Lewis 1998 7116 (ON CA), [1998] O.J. No. 376 where he stated at paragraph 22:

In concluding that the totality of the circumstances did not provide reasonable grounds for an arrest, I do not suggest that there must be confirmation of the very criminality of the information given by the tipster. The totality of the circumstances approach is inconsistent with elevating one circumstance to an essential prerequisite to the existence of reasonable grounds.

[40] I agree that there is some corroborative evidence from the police which does not point directly to the criminal actions of the accused. However, in my view the fact that the police were able to confirm and corroborate seemingly neutral evidence such as the fact that Mr. Blackwood drove a Volvo, owned a husky mix dog and went by the name of John points to the fact that the informants based their information on more than just a casual connection to Mr. Blackwood. This adds to the overall credibility of their evidence. Other corroborative evidence, such as the fact that Mr. Blackwood had been charged in the past with cultivating marijuana and that the pattern of energy usage in the house was consistent with the usage of a grow op, provided more direct corroboration of the alleged criminal activities.

[41] In conclusion, I find that the information received from the three Informants, when viewed in its totality and as corroborated by each other and the police was both compelling and credible.

Did the Police undertake a Thorough and Complete Investigation?

[42] The applicant submits that the duty by the affiant police officer to make full, frank and fair disclosure of all material information includes a duty by the police to undertake a thorough and complete investigation. He argues that the investigation by the police was sloppy and incomplete.

[43] In particular, the applicant alleges that :

a) There was no evidence of a search of workplaces, of Revenue Canada, or at banks, to confirm the allegation by the informants that Mr. Blackwood does not work or have any source of income other than from the drugs he sells.

b) There was nothing in the ITO which discloses any effort to make electricity records truly significant, such as a comparison of electrical use with neighbouring properties.

c) There was no reference to other indicia pointing to the existence of a grow op, such as whether the windows were fogged or whether there was a smell of marijuana coming from the building.

[44] The applicant suggests that such information and knowledge of such indicia could have been gleaned from interviews with neighbours or other persons who could lawfully view the residence, or from an examination of google earth or satellite photos, or from the use of FLIR technology.

[45] In my view, the complaint by the applicant that the police were unable to come up with more indicia confirming the existence of a grow op is answered in paragraph 24 of the affiant police officer’s ITO where he explained that he attended in the area of the suspect residence, but observed that:

From the travelled portion of the road I had no clear view to the residence. I could see that the property had a long driveway and I was able to make out 2 buildings on the property, but due to the distance from the roadway and the trees, the structures were mostly concealed and I could not describe either structure in detail.

[46] The officer explains that he could not do more to inspect or to survey the property from the public roadway without trespassing upon it. I agree with the respondent that the fact that the home was invisible from the roadway and that it was heated with wood provides a reasonable explanation of why a comparison of electrical usage with a neighbouring property was not undertaken. I also agree that it would have been unreasonable to interview neighbours about their hydro consumption or about their observations of the suspect residence because this could have jeopardized or compromised the entire police investigation.

[47] In assessing the completeness of the police investigation one must always keep in mind that the test in a review case such as this is whether there was sufficient credible evidence before the authorizing judge on which to base the authorization…the test is not focused on non-facts or non-disclosure.

[48] The Ontario Court of Appeal addressed the issue of what constitutes material disclosure on the part of an applicant for a search warrant in R. v. Nguyen, 2011 ONCA 465 where Justice Blair of the Ontario Court of Appeal wrote at par. 51:

The obligation on applicants for a search warrant is not to commit the error of material non-disclosure. "Materiality" is something that bears on the merits or substance of the application rather than on its form or some other inconsequential matter: R. v. Land (1990), 1990 10969 (ON SC), 55 C.C.C. (3d) 382 (Ont. H.C.), per Watt J., at p. 417. There is no obligation on applicants to anticipate, and to explain away in advance, every conceivable indicia of crime they did not see or sense and every conceivable investigative step they did not take at the time in order to counter the creative arguments of able defence counsel on a review hearing many months or years after the event. Here, for the most part, the impugned "omissions of fact" relied upon by the trial judge fall into the latter type of category, or they are simply immaterial, or were not omissions at all.

[49] In conclusion, although I expect that almost every police investigation can be improved upon, especially when viewed in hindsight, I am satisfied that the police investigation as set out in the ITO was sufficiently thorough and complete for the purpose of establishing grounds on which to apply for a search warrant.

Decision

[50] I have considered the evidence contained in the ITO in the context of all of the circumstances. I find that the evidence obtained from the three informants was credible and compelling, and that the police investigation was thorough. 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.

[51] In conclusion, I find that the Warrant to Search that was issued on January 14, 2014 was lawfully issued and valid. I am therefore making a determination that the evidence sought to be excluded in this application is admissible in this proceeding. The applicant’s section 8 Charter application is hereby dismissed.

E.J. Koke

Date: October 16, 2015