COURT FILE NO.: CR-19-01-00MO DATE: 20191202 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – 1758691 ONTARIO INC. (“ATV FARMS”) Applicant

Counsel: Robert Morin, for the Respondent Brian H. Greenspan and Peter S. Hamm, for the Applicant

HEARD: April 25, June 5, June 25 and August 13, 2019

dawe j.

I. Overview

[1] The Applicant 1758691 Ontario Inc., which operates under the business name “ATV Farms”, is one of Ontario’s largest growers, importers, exporters and wholesalers of root vegetables. In March 2019, officials from the Canadian Food Inspection Agency (“the CFIA”) obtained and executed s. 487 Criminal Code search warrants on the Applicant’s business premises, seizing over 50 boxes of documents and making copies of electronic files. [1] The CFIA also obtained Criminal Code production orders requiring three of ATV Farms’s customers and a customs broker it used for some exports to produce various documents.

[2] The CFIA obtained these search warrants and orders on the strength of an Information to Obtain attesting that there were reasonable grounds to believe that ATV Farms had committed various offences relating to the packaging and marketing of vegetables with incorrect country of origin information, contrary to the Canada Agricultural Products Act (“the CAPA”) and its associated regulations, which was the legislation in force at the relevant times. No charges have yet been laid against ATV Farms.

[3] ATV Farms complains that the issuance and execution of the search warrants and production orders has harmed its reputation in the grocery community. It maintains that some of its customers have stopped buying vegetables from ATV Farms and have indicated that they will not do so as long as the company remains under a cloud of suspicion. ATV Farms accordingly seeks an order in the nature of certiorari quashing the search warrants and a declaration that its s. 8 Charter rights have been infringed, in the hope that this will vindicate its reputation and prevent it from suffering further financial loss.

[4] In an earlier decision released on May 14, 2019, I ruled that ATV Farms’s interest in having the lawfulness and constitutionality of the searches adjudicated was sufficiently strong to justify permitting its application for declaratory relief to proceed. Importantly, ATV Farms had abandoned its request for an order requiring the CFIA to return the seized documents and/or any copies it had made of these documents. I concluded that in these circumstances there would be no substantial risk of prejudice to the CFIA’s ongoing investigation if ATV Farms’s application were allowed to continue or if I were ultimately to grant ATV Farms the declaratory relief it sought. I noted that the balance of interests might change if any charges were laid against ATV Farms in the coming months. However, as noted above, no charges have yet been laid.

[5] I subsequently granted leave to ATV Farms to cross-examine the search warrant affiant, CFIA Investigation Specialist Michael Cole, and the principal sub-affiant, CFIA Inspector Mairead Hannigan. These cross-examinations were conducted before me on June 25, 2019. ATV Farms also adduced an affidavit from its president and co-owner, Anthony Agresti, and he was cross-examined on his affidavit on this same date. I then heard submissions on August 13, 2019.

II. Factual and legislative background

[6] During the relevant time period the distribution and sale of fruits and vegetables in Canada was governed by the Canada Agricultural Products Act (“the CAPA”) and its associated regulations, including the Fresh Fruit and Vegetable Regulations. [2] The CAPA and its regulations make it an offence, when packaging or marketing fruits and vegetables, to incorrectly label their country of origin, which was defined to mean the country where the produce was actually grown.

[7] Specifically, s. 33(1) of the CAPA made it an offence to “contravene any provision of this Act or the regulations”. Section 17 of the CAPA provided further:

17. No person shall, except in accordance with this Act or the regulations, (a) market an agricultural product in import, export or interprovincial trade; (b) possess an agricultural product for the purpose of marketing it in import, export or interprovincial trade; or (c) possess an agricultural product that has been marketed in contravention of this Act or the regulations.

Section 2 of the CAPA defined “marketing” to include “the conveyance, purchase and sale of agricultural products and any other act necessary to make agricultural products available for consumption”.

[8] Section 6(1) of the Fresh Fruit and Vegetable Regulations provided further that:

6(1) No person shall package produce in a container that bears a label that misrepresents the quality, quantity, composition, nature, safety, value, origin or variety of the contents.

[9] On March 13, 2019 CFIA inspectors obtained s. 487 Criminal Code search warrants authorizing them to conduct searches of ATV Farms’s business premises in Holland Landing and in Keswick, Ontario. They also obtained production orders under s. 487.014 of the Code requiring three of ATV Farms customers and a customs broker to turn over certain documents relating to their transactions involving the company.

[10] The Information to Obtain the search warrants (“the ITO”) was sworn by CFIA Investigation Specialist Michael Cole. He asserted that he had reasonable grounds to believe that the proposed searches would reveal evidence that the Applicant had committed offences under s. 33(1) the CAPA, as set out in five counts. Four of these counts allege that on three specified dates in January 2018 the Applicant unlawfully packaged, marketed or possessed imported American turnips as produce of Canada. Specifically:

(a) Count 1 alleges that ATV Farms unlawfully packaged US-grown turnips as “Product of Canada” on or about January 26, 2018; (b) Counts 2 and 3 allege that ATV Farms unlawfully marketed US-grown turnips as “Product of Canada” on or about January 25, 2018 to two different purchasers: a buyer in the US called Sun City Produce (Count 2), and a buyer in Canada, Wal-Mart Canada Corp. (Count 3); (c) Count 4 alleges that ATV Farms unlawfully possessed US-grown turnips stored in bags marked “Product of Canada” on or about January 29, 2018, for the purpose of marketing these turnips in a manner not in accordance with the regulations.

As discussed further below, these allegations all relate to the same batch of turnips, which ATV Farms had imported from the US in December 2017.

[11] While the first four charges allege specific and discrete acts of misconduct by ATV Farms relating to one particular lot of turnips, Count 5 sets out a broad and unparticularized charge alleging that ATV Farms marketed imported vegetables, not particularized by type, with incorrect country of origin information over an 18-month period between April 2017 and September 2018.

III. The legal framework when reviewing the issuance of a search warrant

[12] Section 487(1)(b) of the Criminal Code authorizes a justice to issue a search warrant when “satisfied by information on oath” that:

… there are reasonable grounds to believe that there is in a building, receptacle or place … anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence … against this Act or any other Act of Parliament.

In the case at bar, ATV Farms does not dispute that the CFIA had reasonable grounds to believe that the things specified in the search warrant as the items to be searched for – namely, ATV Farms’s business records – would in fact be found in the places proposed to be searched, which were ATV Farms’s business premises. However, ATV Farms maintains that the CFIA did not have reasonable grounds to believe that ATV Farms had committed the offences alleged in the ITO, and thus did not have reasonable grounds to believe that its business records would “afford evidence with respect to the commission” of these offences.

[13] In R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65 the Supreme Court of Canada set out the roadmap a judge must follow to determine whether a search warrant was improperly issued:

(i) The judge must first identify any parts of the information to obtain the warrant (the ITO) that are inaccurate or misleading, in the sense that they do not reflect what was actually known or believed by the affiant at the time of the search warrant application; (ii) If these errors or omissions are found to be inadvertent, the judge must “amplify” the ITO by replacing the erroneous or misleading statements in the ITO with corrected and/or more fulsome versions that accurately reflect what the affiant actually knew or believed; (iii) If the errors or omissions are found to have been deliberate, the judge must excise the faulty statements from the ITO without amplification; (iv) The judge must then review the ITO “as reduced and amplified” (R. v. Morelli, [2010] 1 S.C.R. 253, 2010 SCC 8 at para. 44) and ask whether a justice who had been presented with this revised ITO could have properly issued the search warrant.

If the judge determines that the warrant could have properly been issued based on the revised ITO, he or she must then consider whether the investigators engaged in any misconduct that was so egregious, “in the totality of the circumstances”, that the warrant should still be quashed in order to protect the integrity of the prior authorization scheme.

IV. Analysis

A. Overview of the structure of the ITO

[14] The ITO in the case at bar was sworn by CFIA Investigation Specialist Michael Cole on March 13, 2019. Although some parts of the ITO reflected Investigation Specialist Cole’s first-hand knowledge, it was largely based on information he had received from other CFIA Inspectors who had at various different times actually attended ATV Farms’s business premises and had taken other investigative steps.

[15] The structure of the ITO can be summarized as follows:

(a) The first 74 paragraphs set out information about Investigation Specialist Cole’s work experience, the applicable legislation, and the corporate structure of ATV Farms and its associated companies; (b) Paragraphs 75-87, 90-125 and 159-69 set out information about inspections and other investigations the CFIA inspectors had conducted in and around January 2018 relating to the turnips that are the subject of Counts 1 to 4; (c) Much of the balance of the ITO sets out information relating to the broader allegation in Count 5 that ATV Farms marketed different types of vegetables with incorrect country of origin information over an 18-month period between April 2017 and September 2018. Specifically: (i) Paragraphs 88-89 and 126-34 summarize information the CFIA gathered regarding a bag of ATV Farms red onions that a CFIA inspector purchased from a FreshCo store in Kingsville on January 24, 2018, which was labelled as produce of Canada but which the affiant appears to have believed contained produce grown in the US; (ii) Paragraphs 135-50 detail the information the CFIA obtained when it attempted to trace what had happened to a quantity of carrots ATV Farms had imported from Mexico in May 2017; (iii) Paragraphs 151-58 set out information obtained by the CFIA regarding ATV Farms’s practice of sometimes placing stickers on produce bags to indicate the correct country of origin when this is different from the country printed on the bags; (iv) Paragraphs 170-77 set out information concerning an incident in June 2017 having to do with some Israeli carrots which CFIA Insp. Hannigan came to believe ATV Farms had repackaged into “Product of Canada” bags. The ITO states that this incident resulted in a “Letter of Non-Compliance” being issued to ATV Farms some seven months later, in January 2018, and that this was the only prior documented instance in its files of ATV Farms being sanctioned for alleged non-compliance with the CAPA and its regulations; (v) Paragraphs 178-89 set out information obtained by Investigation Specialist Cole regarding the seasonal availability of domestically-grown Ontario root vegetables based on his review of the “Foodland Ontario Fruits and Vegetables Availability Guide”; (vi) Paragraphs 190-222 summarize information from the CFIA’s records about ATV Farms’s history of importing root vegetables from abroad and about import and export inspections conducted by the CFIA Inspection branch; (vii) Paragraphs 223-33 summarize ATV Farms’s history of applying for “Ministerial Exemptions” that permitted it to import particular types of vegetables to alleviate a domestic shortage of those vegetable types; (viii) Paragraphs 234-50 summarize “retail observations” Investigation Specialist Cole made in July and August 2018 and between January and March 2019 in which he attended various retail stores and noted various different types of ATV Farms root vegetables that were on display and for sale. (d) Paragraphs 251-330 then summarize the affiant’s grounds. Specifically: (i) Paragraphs 251-58 summarize his grounds for believing the offences alleged had been committed; (ii) Paragraphs 259-309 set out his grounds for believing that the items to be searched for would afford evidence of these offences; (iii) Paragraphs 310-30 set out his grounds for believing that the items to be searched for would be found in the places he was proposing to search; (iv) Paragraphs 331-402 set out his grounds for seeking an assistance order in relation to ATV Farms employees who were familiar with the company’s computer systems, and for seeking production orders directed at the customs broker Willson International and three of ATV Farms’s retail customers, Wal-Mart Canada Corp., Sobeys Inc., and Longo Brothers Fruit Markets Inc.; (e) Paragraphs 403-16 then summarize the nature of the orders the affiant was requesting.

B. Grounds to believe the offences in Counts 1 to 4 relating to US turnips had been committed

1. The grounds set out in the ITO

[16] The ITO indicates that on January 23, 2018 CFIA Inspector Mairead Hannigan attended ATV Farms’s main business premises in Holland Landing, at the company’s request, to conduct an export inspection for a shipment of onions. While she was there, she noticed two lots of 25-pound bags of turnips in a cooler. Their packaging indicated that the turnips were “Product of USA” and that they came from two different growers in Michigan, one called Rice Lake Farms and the other called Victory Farms. Insp. Hannigan also saw a third lot of 25-pound bags of turnips nearby in ATV Farms bags labelled “Product of Canada”. She took photos of all three lots of turnips.

[17] Six days later, on January 29, 2018, Insp. Hannigan returned to ATV Farms’s Holland Landing premises with another inspector named Alexa Morden. They were joined by two inspectors from the CFIA’s Kingsville office, Diane Mifflin and Marco Sabelli, who came along as part of a training exercise. Insp. Hannigan thought it would be a “potentially useful training exercise” to trace the Michigan turnips she had observed during her January 23, 2018 visit “and verify that the products were ultimately marketed in compliance with requirements”. The team accordingly asked company employees for documentation regarding these turnips.

[18] The inspectors were shown documents indicating that on December 29, 2017 ATV Farms had received two shipments of turnips, one from each of the two Michigan growers. Each shipment received had consisted of 800 25-lb bags of turnips on ten pallets, for a total of 1,600 bags and twenty pallets. ATV Farms’s documentation indicated that both shipments had been “[r]eceived under protest; subject to inspection”. As Investigation Specialist Cole explains in his ITO, CFIA inspectors are routinely called in to document shipments of vegetables that the receiver believes are of too poor quality to be re-sold in order to assist in resolving disputes with the supplier. ATV Farms also provided documentation indicating that it had requested inspections of the two lots of imported turnips on January 6, 2018. CFIA inspectors had then examined the Rice Lake Farms turnips on January 8, 2018 and noted that “92% of the load appeared to exhibit ‘brown discolouration’”. The Victory Farms turnips were then inspected the next day, revealing “brown discolouration” on 59% of the product.

[19] The ITO explains that when a vegetable importer receives “a shipment of imported produce [that] is so poor that some or all of it must be disposed of due to deterioration”, the importer may request that the CFIA inspect the produce and provide a “dump certificate” in order “to assist with dispute resolution between the buyer and the seller”. During their January 29, 2018 visit to ATV Farms the CFIA inspectors asked Viviano Agresti – Anthony Agresti’s father, and a co-owner of the company – whether ATV Farms had requested a dump certificate in relation to either the Rice Lake Farms or the Victory Farms turnips. He advised them “that no dump certificate had been requested, and that ATV [Farms] had made an agreement with the supplier to salvage what they could in order to save on trucking costs”.

[20] The CFIA inspection team were also shown logs and advised by ATV Farms staff that 271 bags of the imported US turnips had subsequently been shipped out to buyers. 250 bags had gone out on January 25, 2018 to a buyer in Florida called Sun City Produce. The CFIA inspectors were also given an invoice from a customs broker, Willson International, relating to this shipment. Investigation Specialist Cole states in his ITO:

The Willson invoice describes both the “Country of Origin” and “Province of Origin” for the turnips as “ONTARIO-Canada”. I believe from my experience that “Country of Origin” in the context of this document refers to the “Country of Growth, Produce or Manufacture” as stated further down on the document, rather than the country from which the shipment is physically arriving.

(In his own affidavit, ATV Farms’s president Anthony Agresti states that his contrary belief is that the “Country of Origin” on Willson’s form refers to the country from which the shipment originates, not the country in which the produce being shipped was grown).

[21] Records indicated that also on January 25, 2018, 21 more bags of the imported US turnips had been sent to Wal-Mart Canada distribution centres in Mississauga and Cornwall. On January 30, 2018, the day after the inspection at ATV Farms, Insps. Mifflin and Sabelli went to a Wal-Mart Canada store in Windsor and observed a store employee restocking a display of loose turnips in the produce section from 25-lb ATV Farms bags with “Produce of Canada” labels. These turnips would have come through Wal-Mart Canada’s Mississauga distribution centre at some point. However, there is no indication in the ITO that the inspectors obtained any information about when these particular turnips had been received by the distribution centre or shipped to Windsor.

[22] During the CFIA inspectors’ January 29, 2018 visit to ATV Farms, company staff also told the inspectors that some of the imported US turnips were “still in the cooler”. The CFIA inspection team were shown around the warehouse by “an ATV Shipper/Receiver named ‘Carlos’”, whose last name is not indicated in the ITO. In one cooler the inspectors observed some 25-lb bags of turnips, some of which were in “Victory Farms” bags with “Produce of USA” labels, and some which were in “ATV Farms” bags with “Product of Canada” labels. They also observed four full pallets of 25-lb bags of turnips in “Victory Farms” bags, along with a fifth partial pallet of “Victory Farms” turnips with an empty “ATV Farms” bag sitting on top of it, and a sixth partial pallet of “ATV Farms” turnip bags labelled “Product of Canada”. The ITO states:

The inspectors asked Carlos about the source of the turnips in the ATV bags. Carlos indicated to the CFIA inspectors that the product in question was from the nearby Victory Farms bags. He also confirmed that the ATV bags as observed was how the product was shipped out from the facility to Wal-Mart and Sun City, without any additional labels or stickers. This is important because the ATV bags are labelled with a different country of origin than the Victory Farms bags, yet the ATV employee stated that the Victory Farms turnips were used to fill the ATV bags.

[23] Ten days after the CFIA inspectors’ visit to ATV Farms, on February 8, 2018, the company requested a dump certificate in relation to the 400 bags of Rice Lake Farms turnips, which were inspected by the CFIA and dumped the next day.

[24] The ITO contains information about ATV Farms’s practice of sometimes affixing printed stickers to bags to correct the country of origin information. However, as noted above, the ITO specifically states that “Carlos” told the CFIA inspectors on January 29, 2018 that the ATV Farms bags containing Victory Farms turnips that were previously shipped to Sun City Produce and Wal-Mart Canada had gone out “without any additional labels or stickers”.

2. Assessment of the grounds relating to Counts 1 to 4

[25] In my view, the information set out in the ITO regarding ATV Farms’s handling and sale of the Victory Farms turnips reasonably supports the affiant’s stated belief that the company had committed the offences in Counts 1 to 4. All are offences of strict liability that can be committed through inadvertence or oversight.

[26] The information gathered by the CFIA inspectors indicated that ATV Farms had received shipments of two lots of US-grown turnips in December 2017, one from Rice Lake Farms and the other from Victory Farms. Some of the turnips in each lot showed signs of decay, but the Rice Lake Farms turnips were in much worse shape than the Victory Farms turnips. Nearly all the of the Rice Lake Farms turnips were decaying and unsellable, but about half of the Victory Farms turnips were still in sellable condition. ATV Farms ultimately obtained a dump certificate for the Rice Lake Farms turnips, but decided to “salvage what they could” of the Victory Farms turnips.

[27] In my view, the information set out in the ITO reasonably supported the conclusion that ATV Farms staff went about the task of salvaging the usable Victory Farms turnips by opening the original packing bags, removing the turnips that were still sellable, and repackaging the good turnips in ATV Farms bags with pre-printed “Product of Canada” country of origin information, presumably because these bags were what ATV Farms had readily on hand.

[28] Critically, the ITO states that the CFIA inspectors were specifically told by “Carlos”: (i) that the turnips the inspectors saw in ATV Farms bags with “Produce of Canada” labels were in fact taken from the Victory Farms bags, and were thus US-grown; and (ii) that the turnips that had been shipped to Sun City Produce in Florida and to Wal-Mart Canada in Ontario a few days earlier had been shipped in these same ATV Farms bags “without any additional labels or stickers”.

[29] In my view, based on Carlos’s information it was reasonable for the affiant to conclude that ATV Farms had committed the offences of unlawfully packaging the US-grown turnips in a container that misrepresented their country of origin as Canada, and of unlawfully marketing them in contravention of the CAPA and its regulations by sending the turnips to the purchasers in the mislabelled packages. It was also not unreasonable for the affiant to infer that ATV Farms had also possessed the turnips that the inspectors saw in ATV Farms bags on January 29, 2018 – which Carlos told them also contained Victory Farms turnips – for the purpose of eventually shipping them to customers in the same manner that he described the earlier shipments to Sun City Produce and Wal-Mart Canada having gone out, namely, without any overlaid labels that correctly identified the turnips as US-grown produce.

[30] Significantly, when cross-examining Insp. Hannigan, ATV Farms did not challenge the accuracy of her account of what Carlos told the CFIA inspectors. ATV Farms instead argues that Carlos may have been misinformed and given the CFIA inspectors incorrect information. This may well be true. However, when reviewing a search warrant what matters is not whether the information relied on by the investigators to obtain the warrant is actually true or accurate, but whether it was reasonable for them to consider the information true and accurate at the time they applied for the warrant.

[31] In my view, it was reasonable in the circumstances here for the CFIA inspectors and for the affiant to assume that “Carlos” was knowledgeable about the matters he was discussing with the inspectors. He is described in the ITO as an ATV Farms employee who had been tasked with taking the CFIA inspectors on a tour of the Holland Landing facility. ATV Farms was obliged by s. 21(3) of the CAPA to give the CFIA inspectors “all reasonable assistance to enable [them] to carry out [their] duties”, and to “furnish the inspector[s] with such information … as [they] may reasonably require”. It was reasonable for the inspectors to assume that the person ATV Farms had assigned to show them around the facility would know what he was talking about and would provide them with accurate information as was required by the CAPA.

[32] ATV Farms also objects that “the alleged practice of repackaging American turnips as Canadian would make no economic sense”, because American turnips are generally more expensive than Canadian turnips. This is very likely true. However, as noted above, the offences alleged in Counts 1 to 4 are strict liability offences. Even if it would not make economic sense for ATV Farms to embark on a systematic scheme to repackage US-grown turnips in “Produce of Canada” bags in order to flout the CAPA country of origin labelling rules, this does not make it implausible that the company might have done this on one occasion as a temporary shortcut. ATV Farms was in possession of a quantity of turnips that were approaching the outer bounds of freshness and apparently had customers who had ordered turnips and were waiting to have their orders filled. Faced with these exigencies, it does not seem implausible to me that the company might have decided to repackage the Victory Farms turnips into “Produce of Canada” bags, and might then have shipped these bags out without first affixing “Produce of USA” stickers, as “Carlos” told the CFIA inspectors. Whether the failure to re-sticker the bags was inadvertent or intentional does not matter for the purpose of establishing reasonable grounds to believe that the strict liability offences at issue were committed.

[33] Moreover, it is not apparent that ATV Farms would have suffered any financial loss by doing what “Carlos” described having been done. The customers who received the turnips may have been entirely indifferent about what country of origin labels were on the bags, as long as they got the turnips they wanted, at the time they wanted them, and at the price they had agreed to pay. Indeed, Mr. Agresti testified in cross-examination that ATV Farms’s customers generally “don’t care where the produce is grown”.

[34] In his affidavit and in cross-examination, Mr. Agresti also disputed whether ATV Farms would have tried to salvage any turnips from bags where more than half of the product showed signs of decay, as was the case with the Victory Farms turnips. While this may well be an accurate description of ATV Farms’s ordinary practices, the ITO states that on this one specific occasion in January 2018 Mr. Agresti’s father Viviano expressly told the CFIA inspectors that the company would be trying to “salvage what they could” from the partially spoiled lots of US-grown turnips. ATV Farms has not challenged the veracity of this aspect of the ITO. In my view, it was reasonable for the CFIA inspectors and the affiant to take Viviano Agresti at his word, particularly since what Mr. Agresti told them accorded with what they were also told by “Carlos” about ATV Farms employees repacking some of the turnips from the Victory Farms bags into ATV Farms bags.

[35] ATV Farms also complains that the ITO unfairly characterizes the company as having been less than fully cooperative with the CFIA inspectors’ inquiries arising out of the January 29, 2018 inspection by stating that ATV Farms’s counsel had “questioned the legal authority of the CFIA inspection and required further clarification before providing additional documents required by the inspectors”. I agree that this passage does not fully or fairly set out counsel’s position as reflected in his correspondence with the CFIA’s counsel. I also agree that this misstatement in the ITO was material, insofar as the extent of ATV Farms’s willingness to cooperate with the CFIA was a relevant factor for the justice to consider when deciding whether to exercise his discretion not to issue a search warrant in relation to the investigation of the alleged turnips offences even though the CFIA had reasonable grounds in relation to these offence (see, e.g. Baron v. Canada, [1993] 1 S.C.R. 416, 1993 SCC 154 at pp. 435-46). However, I am not satisfied that this misstatement is a fatal defect, since the standard of review when assessing the issuance of a search warrant is whether the warrant could have been issued. While I agree that a justice who had been fully and fairly apprised of ATV Farms’s position about its intention to cooperate with the CFIA might have declined to issue a warrant in March 2019 authorizing the CFIA to search for documents relating to the January 2018 turnips transactions, having regard to the passage of time and the extent of ATV Farms’s prior documentary disclosure to the CFIA, I cannot go so far as to say that no justice could have properly issued a warrant in these circumstances.

C. Grounds to believe ATV Farms had committed further labelling offences (Count 5)

[36] After setting out his grounds for believing that ATV Farms committed the specific offences in Counts 1 to 4, the ITO turns to the broader allegation in Count 5. The affiant states (at para. 253(i)):

I believe that other similar offences have been committed by ATV and 2405822 Ontario Incorporated [one of ATV Farms’s affiliated companies] between April 1, 2017 and September 30, 2018. In my experience, I believe that companies which mislabel produce once have done so on other occasions and often as a consistent business practice to increase profits or to keep promises to customers in spite of supply shortages.

The affiant then goes on to list his specific reasons for believing this to be true of ATV Farms in particular. Most significantly, the ITO asserts that ATV Farms had been “found” committing a similar infraction some six months earlier in relation to some Israeli carrots. However, as discussed below, what the ITO says about the prior Israeli carrots incident is in my view substantially inaccurate and misleading.

1. Misstatements in the ITO regarding the June 2017 Israeli carrots incident

[37] Investigation Specialist Cole states in his ITO that when he reviewed the CFIA’s own records he found reference to a prior occurrence on June 15, 2017 that was “described as involving fifty pound (50 lb.) bags of Product of Israel carrots being repackaged by ATV as a Product of Canada”. He states further (at paras. 173-74):

Inspector Hannigan has confirmed that she was involved in that incident as well, and described further details to me. She explained that she attended the ATV facility and observed empty Product of Israel carrot bags in the garbage which appeared to have been cut open.

She determined that the carrots from these bags were being placed into Product of Canada bags. She further noted that she never observed any products going out of the facility labelled as Product of Israel. Inspector Hannigan confirmed that ATV was issued a Letter of Non-Compliance in relation to the incident on January 24, 2018.

Later, when stating his grounds for believing ATV Farms had committed the broader ongoing offence in Count 5, the affiant stated (at para. 253(n)):

ATV was issued a letter of non-compliance by CFIA in January 2018, after they were found packing carrots from empty used Product of Israel bags into new ATV Product of Canada bags in June 2017.

[38] However, the actual facts that emerged from Insp. Hannigan’s cross-examination were in my view substantially different from what is stated in the ITO. Insp. Hannigan explained that on June 15, 2017 she went to ATV Farms at the company’s request to inspect some onions. While she was there, she noticed three or four empty 50 lb. “Product of Israel” carrots bags in a dumpster that appeared to have been slashed open. She saw a number of similar but unopened bags of Israeli carrots on a nearby pallet.

[39] Insp. Hannigan later asked Viviano Agresti about these carrots, and was told that the bags had been inspected on site, that “if there was any problem with any of it they were culled out and destroyed”, and that the remaining bags had been shipped to a buyer in Montreal. Insp. Hannigan agreed that she had not been able to ascertain what had happened to the contents of the empty bags she had seen in the dumpster, but disagreed with the suggestion that it was standard practice to destroy the entire contents of a bag that had “more than a minor amount of bad product”, testifying that this was “not always the case”. She testified further that she had not seen any discarded carrots in the usual dumping area that day.

[40] In short, Insp. Hannigan did not actually “find” ATV Farms “packing carrots from empty used Product of Israel bags into new ATV Product of Canada bags”, nor did she ever in any real sense “determine” that the carrots from the empty Israeli bags she saw had been “placed into Product of Canada bags”. Rather, her belief that this was what had happened was wholly conjectural. In my view, the statements in the ITO that suggested otherwise were inaccurate and misleading.

[41] The Crown argues that it was not misleading for the ITO to assert that Insp. Hannigan had “found” and “determined” that Israeli carrots had been repacked in Product of Canada bags, because these words can be used to mean a process of reasoned inference-drawing rather than actual direct observation. I do not accept this submission, for two main reasons. First, while it may perhaps be possible to read the ITO in this rather strained way, it is far from the most natural interpretation. Most readers would understand the statement in the ITO that ATV Farms had been “found packing carrots from empty used Product of Israel bags into new ATV Product of Canada bags” to mean that CFIA inspectors had actually caught them in the act of doing this. As an ex parte applicant, Investigation Specialist Cole had an affirmative duty not to use ambiguous language that suggested that he had more or better information than he actually had. See R. v. Morelli, supra at paras. 45-48. Second, Insp. Hannigan’s conclusion that the carrots from the empty Israel bags she saw must have been repacked into Product of Canada bags was in any event not, in my view, a reasoned or a reasonable inference based on the information she actually had. Rather, I would describe it as little better than a guess on her part.

[42] While the statement that Insp. Hannigan had “never observed any products going out of the facility labelled as Product of Israel” may have been literally true, it was also in my view misleading. Insp. Hannigan does not seem to have observed any products with any sorts of labels leaving ATV Farms that day, nor does she appear to have made any effort to examine any of the products that were being shipped out. However, the ITO implied that Insp. Hannigan had some affirmative reason to think that the carrots she had seen in the “Product of Israel” bags sitting on pallets had not been shipped out in this packaging. To the contrary, she had no good reason to question Viviano Agresti’s assertion that these bags were later shipped to a buyer in Montreal, even though she had not personally witnessed this happening. As LeBel J. noted in Araujo, supra at para. 47, “[a] corollary to the requirement of an affidavit being full and frank is that it should never attempt to trick its readers”.

[43] In cross-examination, Insp. Hannigan sought to explain her conclusion that ATV Farms had improperly re-bagged and mislabelled the Israeli carrots by asserting that she had other information about “past infractions” and “mislabelling” by the company that justified her suspicions. However, she acknowledged that she did not share any of this other information with Investigation Specialist Cole. It accordingly has no relevance to the question of whether the search warrant was properly issued. As Fish J. noted in R. v. Morelli, supra at para. 42, citing LeBel J.’s earlier comments in R. v. Araujo, supra:

Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds. The use of amplification evidence cannot in this way be used as “a means of circumventing a prior authorization requirement”: Araujo, supra at para. 59.

[44] The Crown argues in the alternative that even if the ITO contained inaccurate and misleading statements about the Israeli carrots incident, these misstatements should only be corrected and amplified on review if Investigation Specialist Cole knew or ought to have known that his statements in the ITO were false or misleading. Crown counsel draws this conclusion from the Supreme Court of Canada’s decision in World Bank Group v. Wallace, [2016] 1 S.C.R. 207, 2016 SCC 15, where Moldaver and Côté JJ. stated (at paras. 122-23):

[A]n error or omission is not relevant on a Garofoli application if the affiant could not reasonably have known of it (para. 41). Testing the affidavit against the ultimate truth rather than the affiant’s reasonable belief would turn a Garofoli hearing into a trial of every allegation in the affidavit, something this Court has long sought to prevent (Pires, [R. v. Pires and Lising, [2005] 3 S.C.R. 343, 2005 SCC 66] at para. 30; see also R. v. Ebanks, 97 O.R. (3d) 721, 2009 ONCA 851, at para. 21).

When assessing a subfacial challenge, it is important to note that affiants may not ignore signs that other officers may be misleading them or omitting material information. However, if there is no indication that anything is amiss, they do not need to conduct their own investigation (R. v. Ahmed, [2012] O.J. No. 6643 (QL), 2012 ONSC 4893, at para. 47; see also Pires, at para. 41).

The Crown also relies on the Ontario Court of Appeal’s decision in R. v. Paryniuk, 2017 ONCA 87, where Watt J.A. relied on World Bank to make similar observations.

[45] World Bank reflects the well-settled principle that police officers may form reasonable grounds to arrest or search based on information they reasonably believe at the time to be accurate and reliable, even if it is later shown to be false. However, the suggestion that this rule extends to information shared between fellow officers has some startling implications, in that it would seemingly permit the police to circumvent the legal and constitutional limits on their powers simply by lying to one another about what they actually know.

[46] Courts in the United States have recognized and addressed this concern through what has become known the “fellow officer rule”. This rule permits officers who receive information from their fellow officers to presume that this information is accurate and to act on it without conducting their own investigation. However, the presumption of accuracy can be rebutted, and “an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest”: Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560 at pp. 568-69. As Marks J. of the New York Supreme Court explained in People v. McLoyd, 35 Misc.3d 822 at pp. 827-88 (2012):

The “fellow officer” rule thus allows the police to act on information relayed by other officers, but once the basis of that information is challenged, the officer who received the information will have no greater right to rely on the information than the officer who transmitted it. Any other rule would allow an illegal arrest to be insulated from challenge “by the decision of the instigating officer to rely on fellow officers to make the arrest.” (Whiteley v. Warden, Wyo. State Penitentiary, 401 US 560, 568 [1971]).

[47] In R. v. Debot, [1989] 2 S.C.R. 1140, 1989 SCC 13 the Supreme Court of Canada took a similar approach to information shared between officers. In that case a senior officer, Sgt. Briscoe, had ordered a second officer, Cpl. Birs, to make an arrest, based in large part on information Sgt. Briscoe had received from a third officer, Cst. Gutteridge, who had in turn received a tip from a confidential informant. Wilson J. explained (at pp. 1166-67):

The police officer who must have reasonable and probable grounds for believing a suspect is in possession of a controlled drug is the one who decides that the suspect should be searched. That officer may or may not perform the actual search. If another officer conducts the search, he or she is entitled to assume that the officer who ordered the search had reasonable and probable grounds for doing so. Of course, this does not prove that reasonable grounds actually existed. It does make clear, however, that the pertinent question is whether Sergeant Briscoe and not Constable Birs had reasonable and probable grounds. [Emphasis added]

Having determined that the relevant question was whether Sgt. Briscoe had reasonable grounds to order the search, and not whether Cst. Birs himself had grounds, Wilson J. explained that Sgt. Briscoe was entitled to rely on Cst. Gutteridge’s informant tip, but that the reliability of the tip should be assessed based on what Cst. Gutteridge knew about the informant at the time. She explained (at pp. 1167-68):

In Eccles v. Bourke, a pre-Charter case decided by this Court, Dickson J. (as he then was) held that hearsay evidence communicated by one officer to another may contribute to establishing probable cause. The principle was applied more recently by this Court in the Charter case of R. v. Collins. In the present case, the tip from the confidential source was hearsay in Sergeant Briscoe's hands. While Sergeant Briscoe was entitled to assume the authenticity of Gutteridge's report of his conversation with the informant, the value of the evidence in establishing reasonable and probable grounds must also take into account the credibility of the informant, whether or not Sergeant Briscoe himself had any personal knowledge of the source. [Emphasis added.]

On the facts of the case Wilson J. held that Cst. Gutteridge had sufficient information about the informant’s reliability “to validate the decision to treat the informant as credible”, even though there was no evidence he had shared all of this information with Sgt. Briscoe.

[48] In my view, Debot and World Bank can be reconciled by noting the differences in the two cases as to what the affiant or decision-maker were actually told. In DeBot, Cst. Gutteridge told Sgt. Briscoe that he considered the informant reliable, apparently without explaining in detail why he believed this to be the case. Since Sgt. Briscoe was not in a position to make his own independent assessment of the informant’s reliability, but had to instead rely on Cst. Gutteridge’s opinion, the focus accordingly shifted to whether Cst. Gutteridge’s opinion was objectively justified. In contrast, the affiant in World Bank had formed his own opinion about the informant tips provided to him by World Bank investigators based on documents these investigators had given him. He was not relying on the opinions of the World Bank investigators as to their belief in the informants’ reliability.

[49] World Bank might arguably support the Crown’s position if the evidence in this case established that Insp. Hannigan had actively misled Investigation Specialist Cole about her knowledge of the underlying facts regarding the Israeli carrots – for example, if she had falsely told him that she had personally seen ATV Farms’s employees re-packing the Israeli carrots into “Product of Canada” bags. However, the evidential record does not support this conclusion. To the contrary, Investigation Specialist Cole testified in cross-examination that he knew that Insp. Hannigan had seen “a number [of empty bags] in the dumpster” and that he understood that ATV Farms had explained to Insp. Hannigan “that they had been culled”, adding “I don’t believe she saw the culls either”. For her own part, Insp. Hannigan did not claim that she had misled the affiant about what she actually saw during her inspection visit. In my view, it is more likely than not that the misstatements in the ITO about the Israeli carrots incident resulted from Investigation Specialist Cole’s own careless choice of language when he set out to summarize what Insp. Hannigan had told him about her observations. In these circumstances, in my view, World Bank has no application. That said, I am not satisfied that Investigation Specialist Cole was deliberately trying to mislead the issuing justice. Accordingly, it is appropriate in my view to correct and amplify the misstatements in the ITO rather than simply deleting them entirely: Araujo, supra at 57.

[50] However, even if Investigation Specialist Cole’s statements in the ITO about the Israeli carrots were verbatim quotes of what Insp. Hannigan actually told him, this would not in my view change the analysis. If Insp. Hannigan had simply given the affiant her conclusory opinion that she had “found” or “determined” that ATV Farms must have repacked the Israeli carrots into “Product of Canada” bags, without explaining to him why she believed this, then under DeBot the focus would shift to whether her opinion was reasonably justified based on what she actually knew at the time. Any inaccuracies in the ITO would still have to be corrected and/or “amplified” to reflect her actual knowledge.

[51] In my view, if the Crown wants to resist amplification of a false or misleading statement in an ITO by claiming that the affiant was misled by a fellow state agent, the Crown should bear the burden of affirmatively establishing that this is what actually happened. The Crown has not met this burden here.

2. Reassessing the ITO’s grounds re Count 5 after amplification

[52] If the statements in the ITO about the Israeli carrots incident had been accurate – that is, if ATV Farms had in fact previously been caught in June 2017 repacking foreign-grown produce salvaged from partially spoiled bags into “Produce of Canada” bags without affixing corrective country of origin stickers – the affiant’s belief that ATV Farms had probably committed other similar offences within the time period of Count 5 might well have been reasonable. The similarity between the two incidents as they were described in the ITO – both were said to involve ATV Farms opening bags of partially spoiled foreign-grown produce and repacking the salvageable vegetables into “Produce of Canada” bags – would have reasonably supported the conclusion that on at least some occasions ATV Farms was failing to follow its usual practice of applying overlay stickers to correct the country of origin information on the re-packed bags.

[53] I do not think the unamplified ITO reasonably supported Investigation Specialist Cole’s further suggestion that ATV Farms might be doing this “as a consistent business practice to increase profits”, since the ITO provides no explanation as to how or why it would raise ATV Farms’s profits to pass off foreign-grown produce as if it had been grown in Canada. However, it might well have been reasonable to believe that ATV Farms was sometimes repacking foreign-grown vegetables in “Produce of Canada” bags as a shortcut, and then failing to re-sticker them either through inadvertence or because it was anxious to ship the produce before further spoilage set in, and did not want to take the time that would be needed to re-sticker the bags.

[54] However, the situation changes once the inaccurate and misleading statements in the ITO concerning the June 2017 Israeli carrots incident are corrected and amplified. In my view, the totality of the evidence that remains falls short of establishing reasonable grounds to believe that ATV Farms committed any of the further offences that would fall within the ambit of the broadly-worded Count 5.

a) Red onions

[55] CFIA Insp. Mifflin bought a bag of ATV Farms red onions labelled “Produce of Canada” in a retail store on January 24, 2018, and also obtained documents from ATV Farms indicating that “approximately 60%” of the red onions the company had packed out that month had been grown in the US. The ITO notes further that Insp. Hannigan had “previously observed bags of Product of Canada onions in close proximity to empty used Product of USA bags at the ATV facility”. In his recitation of his grounds relating to Count 5, the affiant puts these items of evidence together as supporting his belief that ATV Farms had committed further mislabelling offences. Although not clearly stated, the evident implication the affiant was seeking to have drawn by the issuing justice is that the bag of onions Insp. Mifflin had purchased were probably US-grown onions that had been improperly re-packed and labelled as Canadian onions.

[56] In my view, this implied conclusion is not a reasonable inference from these facts. If 60% of the red onions ATV Farms had packed out in January 2018 were US-grown, this means that the remaining 40% were not US-grown. The affiant acknowledged in cross-examination that he knew from ATV Farms’s documents that the January 2018 pack-out included “some Canadian onions”, even though there were “more U.S. onions”. The Foodland Ontario Fruits and Vegetables Availability Guide – which the affiant refers to elsewhere in the ITO – specifically states that Ontario red onions are ordinarily available throughout the fall and winter months, from September to March. In short, it was entirely reasonable to expect that a substantial quantity of Canadian-grown ATV Farms red onions would be found on store shelves in January 2018, even if it was slightly more likely than not that any given store would have US-grown rather than Canadian-grown onions in stock. The fact that Insp. Mifflin went to one randomly selected store and found Canadian red onions on sale was not in my view even slightly suspicious. The conclusion that these onions were mislabelled and not actually Canadian is unreasonable.

[57] Moreover, Insp. Hannigan’s apparent observation of empty Product of USA bags near full “Product of Canada” onion bags on a different occasion does not in my view reasonably support the inference that the contents of the empty bags had been repacked into the full bags on this occasion. It certainly falls well short of supporting any reasonable conclusion that the red onions Insp. Mifflin observed in January 2018 had been improperly labelled.

b) Mexican carrots

[58] The affiant suggests that ATV Farms may have improperly exported Mexican-grown carrots as product of Canada on the basis of the following information:

(a) ATV Farms documents showed that the company had imported a quantity of Mexican carrots in May 2017; (b) Some of these carrots had been shipped to a US purchaser with customs documents that indicted the “country of origin” as Canada; (c) The CFIA inspectors who visited ATV Farms on January 24, 2018 “were not satisfied that ATV was able to accurately account for the distribution of the imported Mexican carrots or the country of origin declared on these products”; (d) The ITO states: “there is no indication or observation that ATV possessed any packaging to properly package Mexican produce until May 2018, short of a labour-intensive practice of applying stickers over pre-printed labels on each and every bag”; (e) The affiant states further:

[I]t is reasonable to believe that Mexican produce is being misrepresented as Product of USA. In my experience, some U.S. customers prefer U.S. or Canadian produce over for example Mexican produce. Moreover, Mexican produce could be mislabelled as U.S. products without raising suspicion at certain times of the year when Canadian supplies are known to be scarce, due to geographical differences in climate and growing season”.

[59] In my view, the totality of this information falls short of establishing reasonable grounds to believe that the Mexican carrots in question had been unlawfully packaged or distributed as if they had been grown in Canada. In relation to a different document – the invoice from Willson International regarding the turnips that were shipped to Sun City Produce in January 2018 – the affiant states:

I believe from my experience that “Country of Origin” in the context of this document refers to the “Country of Growth, Produce or Manufacture” as stated further down on the document, rather than the country from which the shipment is physically arriving.

However, even assuming the correctness of the affiant’s stated belief that the customs document relating to the shipment of Mexican carrots indicated that they were grown in Canada rather than merely shipped from Canada, it is in my view speculative to draw the further conclusion that the produce itself had been improperly repacked into “Produce of Canada” bags. The affiant’s comment about stickering is especially problematic, for two reasons. First, as set out elsewhere in the ITO, the affiant was “aware from reviewing the CFIA records provided that ATV was using over-stickering at least some of the time to correct origin information on pre-printed bags”. The implication in the statement of grounds that ATV Farms would not have used over-stickering in relation to the Mexican carrots because it was “labour-intensive” was in my view misleading. Second, the need to use stickers would only arise if the Mexican carrots had in fact been removed from their original packaging and re-packed into bags that showed a different country of origin. However, the ITO does not set out any reason for the affiant to believe that the Mexican carrots in question had not simply been shipped out in their original packaging, beyond his belief that “some U.S. customers” disliked buying Mexican produce.

[60] More generally, the ITO refers to ATV Farms’s history of importing foreign-grown produce, “includ[ing] shipments from Mexico”, at a time when “Inspector Hannigan and ATV representatives noted that only Canadian and US packaging was available at the facility”. Again, however, the ITO provides no reason to suppose that any of the produce ATV Farms imported from Mexico or other countries during this period was ever repackaged, beyond the affiant’s belief that “some U.S. customer” might avoid buying Mexican-grown vegetables.

[61] On balance, I am not satisfied that the totality of this information rises to the level of providing the affiant with reasonable grounds to believe that ATV Farms committed any labelling offences in relation to these Mexican carrots. While the apparent error on the customs document is perhaps somewhat suspicious, it does not on its own reasonably support the conclusion that the produce itself was improperly labelled or marketed.

c) Parsnips and beets

[62] The ITO describes how in July 2018 the affiant observed ATV Farms parsnips and beets, both labelled “Produce of Canada”, for sale in an Ontario retail store on July 5 and July 10, respectively. He presents this as a further ground to believe that ATV Farms committed the offences specified in Count 5, on the basis that: (i) the Foodland Ontario guide states that Ontario parsnips usually do not become available until August, and Insp. Hannigan “believes it unlikely” they would be available “in early July” (although elsewhere in the ITO Insp. Hannigan is quoted as acknowledging that this is “not impossible”); and (ii) although the Foodland Ontario guide states that Ontario beets are usually available in July, the affiant’s own experience is that “this would more likely be later in July”, and Insp. Hannigan also believed it was “unlikely” they would be available in “early July”.

[63] The affiant states further that between May 2017 and April 2018 ATV Farms submitted applications for Ministerial Exemptions relating to the import of carrots, beets and parsnips, which required the company to indicate that there was a domestic shortage of these vegetables. The affiant states:

The proof of shortage supplied in support of the 2018 exemption requests is also at odds with the observation of Product of Canada beets, parsnips and carrots in ATV or Your Fresh Market bags at retail stores in July and August 2018.

However, it emerged in cross-examination that the affiant also knew from Insp. Hannigan that “when she tried to inspect the imports, the exemptions, she was told they hadn’t used them”. This latter information was not disclosed in the ITO. While this did not necessarily rebut the affiant’s contention that the fact that ATV Farms had requested the exemptions in the first place “indicated a shortage”, in my view the affiant fell short of complying with his obligation to make full, fair and frank disclosure by omitting the information that ATV Farms had denied actually using these exemptions to make any imports. Even if this information was not determinative, it was relevant and ought to have been provided to the issuing justice.

[64] In my opinion, the totality of the information in the ITO about parsnips and beets provides far too thin a reed to support a reasonable belief ATV Farms had committed mislabelling offences in relation to these vegetables. In particular, even if it can reasonably be inferred from ATV Farms’s applications for Ministerial Exemptions that the company anticipated a future shortage of Ontario beets and parsnips, and even if it is further assumed – contrary to Insp. Hannigan’s information – that ATV Farms later actually used some of these exemptions, a “shortage” is not the same as “total unavailability”. Even if ATV Farms had an insufficient supply of domestic parsnips and beets to meet its needs in July 2018, it does not follow that the company had no domestic product whatsoever, such that would be reasonable to conclude that any ATV Farms parsnips or beets seen for sale at a randomly selected retail store must necessarily be foreign-grown. The further suggestion that domestic parsnips and beets would be entirely unavailable in July based on the Foodland Ontario guide and Insp. Hannigan and Investigative Specialist Cole’s personal experience does not in my view rise to the level of reasonably supporting the conclusion that ATV Farms was mislabelling the country of origin of these vegetables.

D. Conclusions

[65] For the reasons discussed above, I am satisfied that the ITO as reduced and amplified does disclose reasonable grounds to believe that the offences in Counts 1 to 4, relating to the packaging and marketing of the US-grown Victory Farms turnips in January 2018, had been committed, and that the affiant also had reasonable grounds to believe that evidence of these offences would be found both at ATV Farms’s business premises and in the possession of two of the four third parties specified in the request for production orders, namely, Willson International and Wal-Mart Canada.

[66] However, I am also satisfied that the ITO as reduced and amplified did not disclose reasonable grounds to believe that ATV Farms had committed any further labelling offences on other occasions relating to other vegetables, as captured by Count 5. In this regard, while the information in the ITO as reduced and amplified, summarized above, must be considered in its totality, it is significant that the grounds set out in the ITO for believing that ATV Farms had committed the broadly-worded Count 5 offence consisting of allegations that the company had committed a series of discrete labelling offences involving different types of vegetable, each of which could have been particularized in a separate count. If the ITO does not establish reasonable grounds to believe that any of these discrete offences had been committed, chaining them together does not change the analysis. While a brick is not a wall, a group of unconnected bricks is also not a wall.

[67] It follows that while a justice presented with the reduced and amplified ITO could have properly issued more narrowly-framed search warrants that permitted the CFIA to search for and seize only documents relating to the January 2018 packaging and sale of the US-grown Victory Farms turnips, the justice could not have properly issued the much more sweeping search warrants that were actually issued in this case, which authorized the wholesale seizure of ATV Farms’s paper and electronic business records for an eighteen-month period.

[68] Moreover, while the justice could also properly have issued more narrowly-framed production orders directing Willson International and Wal-Mart Canada to produce documents relating to the sale and shipment of these same turnips, the justice could not have properly issued the more sweeping production orders against these two parties that were actually issued in this case. Further, there was in my view no basis on which the justice could properly have issued any production orders against Sobeys Inc. or Longo Brothers Fruit Markets Inc., neither of whom had any apparent connection to the January 2018 turnip transactions.

E. Remedy

[69] As noted earlier, ATV Farms seeks an order in the nature of certiorari quashing the search warrants and a declaration that its s. 8 Charter rights have been infringed. However, ATV Farms is not seeking any further order directing the CFIA to return any of the seized documents or any copies that have been made of them.

[70] The Respondent argues that even if the ITO as reduced and amplified only established grounds to search for and seize documents (physical and electronic) relating to the January 2018 turnip transactions and the related alleged offences, the search warrants that were issued can properly be severed to limit them to these documents, as an alternative to quashing the warrants entirely.

[71] There is authority for the proposition that an improperly issued search warrant can sometimes be severed to remove the defective parts while preserving the non-offending portions, so as to retroactively convert the warrant into a narrower authorization in a form that could properly have been issued. However, whether this is possible depends on how the offending search warrant is structured. In R. v. Fawthrop, 2002 ONCA 45004, the warrant contained a list of fourteen items to be searched for and seized, the first four of which were supported by reasonable grounds and the remaining ten which were not. In this situation, the Ontario Court of Appeal found that the trial judge had been “correct to sever the warrant” (at para. 20). However, as Chouinard J. held in Grabowski v. The Queen, [1985] 2 S.C.R. 434, 1985 SCC 13 at para. 61, severance will only be appropriate “[w]hen there is a clear dividing line between the good and bad parts of an authorization, and they are not so interwoven that they cannot be separated but are actually separate authorizations given in the same order”.

[72] The search warrants in the case at bar do not clearly delineate between the items to be searched for that relate to the alleged offences in Counts 1 to 4 – that is, the alleged offences relating to the January 2018 turnip transactions – and those being sought as evidence in relation to the broader Count 5 offence. Instead, the warrants authorize the CFIA investigators to search for and seize:

Items relating to the importation, exportation, receiving, production, inventory, packing, labelling, transportation, purchase or sale of fresh produce [by ATV Farms]… between the dates of April 1, 2017 and September 30, 2018, inclusive.

The warrants then set out non-exhaustive lists of particular types of physical and electronic documents that can properly be searched for and seized. In my view, the warrants as drafted cannot sensibly be “severed” by reading them down to only apply to documents relating to the January 2018 turnip transactions, which would be only a very small fraction of the documents the CFIA investigators were authorized to seize by the warrants that were actually issued. In the language of Grabowski, the warrants in this case are not structured to be “separate warrants given in the same order”. In effect, the Respondent seeks to have the warrants judicially rewritten to retroactively convert them into something quite different from the warrants that were actually issued and executed.

[73] The appropriate remedy in this case is accordingly to quash the search warrants. Since the searches the CFIA conducted this case depended on the warrants for their lawfulness, quashing the warrants renders the searches unlawful, and hence unreasonable within the meaning of s. 8 of the Charter. I am accordingly satisfied that ATV Farms is entitled to a declaration that the searches of its business premises infringed its s. 8 Charter rights.

The Honourable J. Dawe

Released: December 2, 2019

Footnotes:

[1] ATV Farms has two business premises, one in Holland Landing and the other in Keswick, and the CFIA obtained two search warrants, one for each address. However, all of the seizures were made from the Holland Landing location pursuant to the search warrant issued for that address.

[2] In January 2019 the CAPA and its regulations were replaced by the Safe Food for Canadians Act and the associated Safe Food for Canadians Regulations, SOR/2018-108.