SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CR-14-28
DATE: 2015-11-13
RE: R. v. Krieger
BEFORE: E.J. Koke (SCJ)
COUNSEL:
David Holmes, Counsel for the Crown
Benjamin E.S. Prichard, Counsel for Noah Krieger
HEARD: October 19, 2015
REasons for Ruling
application to Exclude Evidence (garofoli application)
INTRODUCTION
[1] Noah Krieger 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 resulting in the charges against Mr. Krieger was issued on November 1, 2013 by a Justice of the Peace on application under s. 11 of the CDSA. The warrant authorized the search of Mr. Krieger’s property, including a search of his residence and outbuildings. It will be referred to as the “third warrant” or the “CDSA warrant”.
[3] Prior to the issuance of the CDSA warrant, two general search warrants (the “first warrant” and the “second warrant”) were issued and executed pursuant to s. 487.01 of the Criminal Code which authorized a search of Mr. Krieger’s property.
[4] The main issue in this application is whether information which was obtained in relation to the earlier searches, and used as grounds to obtain the CDSA warrant, was obtained in a manner which violated Mr. Krieger’s privacy rights.
BACKGROUND FACTS
The Terms and Scope of the First Warrant, and the Information obtained as a Result of its Execution
[5] The Information to Obtain (the “ITO”) in support of the first warrant was sworn by Detective Constable Jason Winser of the OPP on July 30, 2013. Under the heading, “Case Overview” Officer Winser reports:
On July xx, 2013, I commenced a CDSA investigation into Noah Krieger (DOB 04 NOV 86) and Brandon Deacon (DOB 14 JAN 92) upon receiving confidential informant information that they were maintaining an outdoor cannabis marijuana grow operation on the property owned by Krieger at 145 Lorimer Lake Road, McDougall, Ontario.
[6] The ITO reveals that Officer Winser believed he had information which supported the existence of an “outdoor” grow operation. Much of his information came from a confidential informant (“Informant #1”) who “has demonstrated that he has intimate knowledge of the activities, whereabouts and associates of Krieger and Deacon”. Informant #1 informed him that “the plants were being grown behind Krieger’s house on Lorimer Lake Road near the Bunny Trail”.
[7] The search warrant authorized the police to undertake the following:
“Surreptitious trespass” onto the Lorimer Lake Road property, and the adjacent private lands bounding this property, “to allow for covert physical surveillance of any and all occupants on the property”.
To use vision enhancement equipment, aerial surveillance, visual recording devices and to obtain a sample from the cannabis marijuana plants to be submitted for analysis.
[8] The accused does not dispute that Officer Winser’s ITO established “reasonable grounds” to undertake a search on these terms.
[9] The search was conducted under the direction of Detective Sergeant Dean Pauli (“Detective Constable” at that time) in the early morning hours of August 13, 2013. The actual physical search of the property was carried out by Officer Pauli and Officer Scott McKay, with cover support from two Emergency Response Team (“ERT) members of the OPP. Officer Pauli’s notes refer to his “mission” that night as being “covert entry onto property to locate suspected marijuana grow op (outdoor) in order to support grounds for execution of CDSA S/W at residence”.
[10] At the preliminary hearing Officer Pauli reported that they did not discover any plants growing behind Mr. Krieger’s residence, but during the search they located a shed in the backyard about 100 feet behind the house and observed what they believed to be a large quantity of marijuana leaves drying on a screen door which had been laid out like a table in the shed. He detected a strong odour of marijuana coming from the inside of the shed. He also observed that the shed contained a quantity of pots.
[11] After observing the contents of the shed and not discovering any plants growing outside Officer Pauli concluded that any marijuana grown on the property was possibly grown as part of an indoor operation. His notes contain the following entries in relation to the discovery of the items in the shed…“appeared to be harvested…possible indoor marijuana grow... no operation ongoing on the property”. At the preliminary hearing he testified that:
“It was a – it’s what I concluded at the time because I didn’t see any evidence in the darkness that there was something ongoing outside that - ah – and given the time, it being the 13th of August, it’s not likely that somebody’s going to harvest plants on the 13th of August. Usually they’ll grow to maturity and, from my experience, we’re well into September months before outdoor harvest.
[12] Officer Pauli described the shed in the following words:
It was like a plywood-type shed and it had a – a tarp-like tent structure on the front. There would have been a – the entrance to the shed was covered, like in a tarp – like fashion coming from the roof down to the ground. And then around the back of the shed it was open at the back.
[13] Officer Pauli was adamant that he did not enter the shed. He testified that he had a clear view of the contents of the shed through an opening. His notes make reference to a “door wide open at the back of the shed”.
[14] Officer Pauli testified that it was his understanding that the search warrant authorized him to look inside a building, as long as he did not break the threshold of the shed. He stated that based on his experience and knowledge of search warrants, he believed he was precluded from even poking a head in or breaking the plane of the building, and he maintained that he did not breach the threshold of the opening in any way.
[15] Officer McKay did not testify at the preliminary hearing but in reference to the shed his notes indicate the following:
Open shed (doorways and window) on the S/B property…odour of marijuana…observed plant material drying on screen…believe to be marijuana.
The Terms and Scope of the Second and Third Warrants, and the Information obtained as a result of their Execution
[16] Officer Winser testified at the preliminary hearing that following the search on August 13th, 2013 the police formed the opinion that they “didn’t find enough to continue with the investigation”.
[17] Several months later, on October 28, 2013, he was contacted by another police officer who advised him that he had received confidential information from an informant (“Informant #2”) that there was an indoor growing operation being carried out at 145 Lorimer Lake Road.
[18] In response to this information, another officer, Officer Vincer prepared a second ITO which was sworn by him on October 30, 2013. Under the heading, “Case Overview” Officer Vincer reports the following:
On the 28th of October, 2013, I commenced a CDSA investigation into the production of cannabis marijuana at 145 Lorimer Lake Road, McDougall, Ontario, upon receiving confidential informant information indicating that Noah Krieger was operating an indoor marijuana grow operation within the outbuilding located at 145 Lorimer Lake Road, McDougall, at the District of Parry Sound, Ontario. Further confidential source information indicates that he is in possession of a large amount of dried cannabis marijuana within his residence.
[19] In his ITO, Officer Vincer refers to the evidence of the new confidential informant, (Informant #2) as well as to the earlier evidence of Informant #1 which was included in the first ITO. He also reports that the property was the subject of a search several months earlier. In par. 19 of the ITO he summarizes the first search in the following words:
- On October 29th, 2013 I spoke with Detective Constable Dean Pauli who was present during the execution of a General Warrant to Search the Property of 145 Lorimer Lake Road, McDougall, Ontario. He provided me with the below information:
d) During execution of the General Warrant to search, the following observations were made by Detective Constable Pauli:
i) The residence is located on the East side of Lorimer Lake Road at the Bunny Trail intersection.
ii) On the property, approximately 100 feet from the residence, was an unlocked, open shed which contained black pots, a strong odour of cannabis marijuana and , in plain view, a screen door laying on its side (like a table) containing cannabis marijuana leaves.
iii) Attached to the shed was a tent like structure.
iv) No cannabis marijuana bud was observed.
v) No plants were located on the property.
[20] The search warrant obtained by Officer Vincent authorized the police to undertake the following:
Covert physical surveillance of any and all occupant(s) and the outbuildings on the property of 145 Lorimer Lake Road, McDougall, Ontario;
To use vision enhancement equipment;
Surreptitious entry into the shed located on the property of 145 Lorimer Lake Road
[21] The warrant specifically prohibited the officer from making observations within the residence on the property.
[22] The second search was again conducted under the direction of Detective Sergeant Dean Pauli in the early morning hours of November 1, 2013. During this search, the police found evidence of an indoor growing operation in the shed. This resulted in the preparation of a third ITO on November 1, 2013 and the issuance of the CDSA warrant which is in issue in this application.
[23] Officer Vincent referred to the results of both prior searches in this third ITO. With respect to the first search, he included the information which he had included in the second ITO. With respect to second search , he reported the following at par. 22:
- On November 1st, 2013, members of the North Bay Drug Enforcement Unit together with members of the Emergency Response Team surreptitiously entered onto the property of 145 Lorimer Lake Road. Included was Detective Constable Dean Pauli, who made the below observations;
a) 15-20 pots on the ground beside the shed containing soil and the stocks of cannabis marijuana plants.
b) A high pressure sodium bulb light covered by an aluminum heat shield hanging in the center of the shed, attached to an electrical cord and electrical ballast on the floor of the shed.
c) Approximately 10 bags of soil/fertilizer on the floor of the shed.
d) A large quantity of marijuana leaves on the floor of the shed.
e) Since the execution of the General Warrant on August 13th, 2013, the shed has been insulated with drywall, and a door attached.
f) There was no heat source observed within the shed or the garage.
[24] The third warrant (CDSA warrant) was executed the same day. The police submit that they found over a kilogram of marijuana on the premises, which resulted in the charges against the accused.
POSITION OF THE APPLICANT
[25] The grounds on which the applicant bases his assertion that the CSDA warrant was improperly issued are the following:
a) Firstly, the ITO’s in support of the second and third warrants were based in part on information which was improperly obtained i.e. in carrying out the first search the police did not restrict their search to an “outdoor” search.
b) Secondly, Informant #1 had provided dated and false information in support of the first warrant i.e. the search did not reveal the existence of an outdoor grow operation. Informant #1 was therefore not a credible informant and the information he provided in support of the second and third ITO’s should not have been included in these ITO’s.
c) Thirdly, the ITO’s in support of the second and third warrants relied on information received from a second confidential informant (Informant #2). The investigating officers failed to carry out adequate investigations to corroborate or verify the veracity of this informant’s claims and his information should not have been included in these ITO’s.
THE TEST ON THE REVIEW OF THE ISSUANCE OF A SEARCH WARRANT
[26] 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).
[27] The accused submits that the search warrant was obtained without reasonable grounds for its issuance and infringed on his Charter right to privacy.
[28] 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].
[29] 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].
[30] 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.
[31] A search warrant is deemed to be presumptively valid, and the onus is on the accused to demonstrate on the balance of probabilities that it is invalid.
DID MR. KRIEGER HAVE AN EXPECTATION OF PRIVACY IN THE SHED?
[32] Section 8 of the Charter provides that “everyone has the right to be secure against unreasonable search and seizure” [emphasis added]. Section 8 protects people, not places.
[33] In order for Mr. Krieger to argue that his s. 8 rights have been violated in the circumstances of this case, he must satisfy the court that he was entitled to an expectation of privacy in the shed.
[34] To put this in context, one must consider where one might expect to exercise a reasonable degree of privacy. On a continuum, we expect the highest degree of privacy in our own homes, less in private automobiles, still less in public transportation, and practically none in terms of when one is in plain view, in broad daylight, on a public sidewalk.
[35] Along this continuum we must fit outbuildings such as the shed. Not being a place where people usually sleep, change their clothes, bathe or carry on their private or intimate conversations, there is considerably less expectation of privacy in a garden shed than in a residence.
[36] Officer Pauli testified that the marijuana leaves or shake on the screen door were visible to him and Officer McKay through an open door or other opening in the back of the shed. It was not necessary for them to enter the shed to observe this evidence and they did not do so.
[37] Mr. Krieger filed an affidavit in the application in which he stated that the shed did not contain any marijuana shake, and there was no reason why it would have presented an odour of marijuana. Furthermore, he believed there were no openings or doors left ajar, and the only way anyone would have been able to make observations in the shed would have been by opening a door or a window.
[38] I prefer the evidence of Officer Pauli to the evidence of Mr. Krieger. It is supported by his notes and his testimony at the preliminary hearing, as well as the notes of Officer McKay. The officers state that they observed marijuana drying on a makeshift table. The existence of an open door or other opening in the back of the shed is consistent with the drying process since it would have allowed for the movement of air.
[39] For the purposes of this application I find as a fact that the officers observed the marijuana leaves through an open door or other opening at the back of the shed. I also find that they did not enter the shed, and they did not open any windows or doors of the shed.
[40] In my view, while the use of a closed door clearly communicates some desire for security, an open door or other opening in an outbuilding such as the one described by Officer Pauli suggests only a very limited expectation of privacy by the applicant.
DISCUSSION AND ANALYSIS
Was the information pertaining to the contents of the Shed obtained in compliance with the terms of the First Search Warrant?
[41] In my view, the observations made by the officers of the interior of the shed did not constitute an “unreasonable search”. Therefore they did not infringe on Mr. Krieger’s privacy rights and the observations were properly included as information in the second and third ITO’s. I have come to this conclusion for the following reasons:
[42] Firstly, it is hard to understand how the police could have carried out their search safely and surreptitiously without viewing the buildings and structures located on the property to determine, among other things, whether they were occupied, or whether they constituted a hazard or threat to their safety. An outside view of the buildings on the property was a necessary and implied incident to their power to search. Because the shed was open in the back, a view of this building provided a view of the contents as well. Such a view is to be distinguished from entry into the building.
[43] The issue of whether the search in the circumstances of this case was unreasonable must be decided in relation to the degree of privacy which could be expected. The fact that the back of the shed was left open indicated that the applicant had little or no expectation of privacy when it came to the contents of the shed. The officers were able to view the contents from outside of the shed, and they could do so without taking any positive action such as opening a door or window. It would be unreasonable to expect them to have turned a blind eye to the contents of the shed in these circumstances.
[44] Secondly, the admissibility of this evidence is consistent with the common law principles which underlie the plain view doctrine and the provisions of section 489(1) of the Criminal Code.
[45] The preconditions to permitting evidence based on this doctrine where confirmed by the Ontario Court of Appeal in R. v. Fawrthrop, 2002 4504. Paragraph 29 of this decision is authority for the proposition that a plain view seizure must satisfy the following three requirements:
a) the police must be on the premises lawfully;
b) the nature of the evidence must be such as to be “immediately apparent” as constituting a criminal offence; and
c) the evidence must have been discovered inadvertently.
[46] Quite clearly, the first two preconditions have been met. The officers had a right to be on the property and make observations while conducting their outdoor search, and to use vision enhancement equipment to facilitate their search. It would also have been immediately apparent to them that the nature of the evidence i.e. the odour of marijuana and drying marijuana leaves, constituted a criminal offence.
[47] With respect to the third precondition, the information in the first ITO was that the police had information that marijuana was growing outside. They were requesting a search warrant so they could conduct an outdoor search for marijuana plants. Officer Pauli did not expect to find drying marijuana leaves or evidence of an indoor grow op. He testified that “given the time, it being the 13th of August, it’s not likely that somebody’s going to harvest plants on the 13th of August”.
[48] In my view, the third requirement was also met.
[49] In conclusion, I find that the information obtained during the first search was properly included in the second and third ITO’s to establish a basis for the subsequent searches.
If the Disputed Information is Excised from the second and third ITO’s, do Reasonable and Probable Grounds remain for the Issuance of the Second and Third Warrants?
[50] In the event I am mistaken, and this disputed information was obtained in violation of Mr. Krieger’s Charter rights, I am of the view that if reference to the contents of the shed as discovered during the first search is excised from the second and third ITO’s, the remaining information comprising these ITO’s provides a sufficient basis on which to establish reasonable and probable grounds in support of a search warrant.
[51] With respect to the second warrant, if reference to the results of the first search is excised from the second ITO, the following information remains:
Information about and from Informant #1
a) Background Information:
i. has provided information regarding persons involved in drug trafficking in the past;
ii. information from this source has been used to obtain judicial informations;
iii. information from this source has provided intelligence information in the Parry Sound area regarding offences against the CDSA that has been proven through police investigation;
iv. may or may not have a criminal record; however there are no charges or convictions for public mis