DATE: 2021-08-13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
COURT FILE NO.: F#2113/20
HER MAJESTY THE QUEEN
– and –
KEVIN BLAIR PLAIN AND JOSHUA STEVEN DAWS
Defendants
AND BETWEEN:
HER MAJESTY THE QUEEN
– and –
THOMAS ADAM JACKSON
Defendant
AND BETWEEN:
HER MAJESTY THE QUEEN
– and –
AARON ARTHUR MANESS AND FLOYD WILLIAM JOSEPH BULLOCK
Defendants
Kenneth A. McNair, counsel for Public Prosecution Service of Canada
Christos Vitsentzatos and Wanda B. F. Corston, counsel for the Defendants
COURT FILE NO.: F#2114/20
COURT FILE NO.: F#2115/20
HEARD: June 15 - 17, 2021.
THOMAS, RSJ:
[1] This judgment encompasses three separate indictments which were tried together on consent. Each of the indictments charge the accused with unlawfully possessing cannabis for the purpose of selling it; contrary to s. 10(2) of the Cannabis Act. Two of the three indictments contain a second count alleging proceeds of crime contrary to s. 355(b) of the Criminal Code. At the beginning of the trial the Crown moved for dismissal against the accused Daws and Bullock and those accused dropped out of the trial.
[2] The Federal Cannabis Act came into force on October 17, 2018. Pursuant to s. 10 of the Act it is an offence to sell Cannabis unless you are authorized. Section 69(1) of the Act directs that authorization to sell must come from a Provincial Act. In this case, the Cannabis Licence Act, 2018, S.O. 2018, Chapter 12, Schedule 2.
[3] The evidence disclosed that to enforce the Act the Province created a Provincial Joint Forces Cannabis Enforcement Team (PJFCET). In 2019 this team, as well as other local police services, started to investigate retail Cannabis operations being conducted on Indigenous lands in the Province. While attempting to step away from the language of oppressive colonialism, the term “Reserves” is so embedded in the governing legislation and provincial records, that I find it almost impossible to do so. I will endeavour to limit the use of the term.
[4] As a result of these investigations similar charges to those confronted here have been laid across the Province.
[5] Each of the accused here is an Indigenous person. Kevin Plain and Aaron Arthur Maness are members of the Aamjiwnaang First Nation located in close proximity to the St. Clair River and the City of Sarnia. Thomas Adam Jackson is a member of the Kettle and Stoney Point First Nation. All the Indigenous lands associated with these prosecutions lie within Lambton County.
[6] It became clear to me early in my contact with these prosecutions that the accused and their counsel, Mr. Vitsentzatos and Ms. Corston, were intent on challenging the constitutional validity of the Cannabis Act. They maintain that pursuant to Treaty rights, Indigenous peoples on the designated Reserves had the right to self-govern and to practice and regulate their own economies. The governing Acts are silent as to their application on Indigenous lands. They argue that the Federal Government failed in its duty to consult First Nations regarding the application and enforcement of the Cannabis Act, thereby breaching ss. 25 and 35.1 of the Constitution Act, 1982. Notices of Constitutional Question have been served in each of these prosecutions.
[7] Relying upon the direction of the Supreme Court of Canada in R. v. DeSousa, 1992 CanLII 80 (SCC), [1992] 2 S.C.R. 944 at para. 17, counsel agreed to call the evidence on each of these trials prior to arguing constitutional validity. In that way the Court would acquire a factual foundation and determine in each individual case if the liberty interests of the defendants were in fact at risk before embarking on the constitutional challenge.
The Trials
[8] Before providing reasons for each of the individual proceedings, there are some admissions that have allowed for trial efficiencies.
[9] The defence has admitted that Cannabis dispensaries were being operated as business undertakings within the Indigenous communities where the searches and seizures took place. It was admitted that the substance seized was Cannabis and that the certificates of analysis can be filed without the need for further proof and continuity of the substances and currency seized, is not contested. Further, it is not contested that each of the three accused were in possession of Cannabis within the dispensaries for the purpose of selling it, and that in each of these three instances, the dispensaries themselves did not have Provincial retail operating licences, nor did the individual accused.
[10] In each trial the defence focussed only on the legality of the searches of the dispensaries by police and the seizure of Cannabis and currency. In each trial a Charter application and factum was filed by defence alleging a breach of s. 8 of the Charter of Rights, that is to be secure against unreasonable search and seizure. The defence alleged significant deficiencies in the facial validity of the warrants, ultimately leading to warrantless searches. The defence seeks to have the proceeds of the searches excluded by operation of s. 24(2).
[11] The Crown rightly conceded each of the accused had standing to bring the s. 8 argument. The defence in each trial relied upon the affidavit of Doug Pine, sworn May 18, 2021 which provided some historical background to the creation of the Reserves, the background of the Indigenous defendants, and the alleged deficiencies in the warrants and procedures. The Crown chose not to cross-examine Doug Pine.
R. v. Thomas Adam Jackson
Section 8 Breach
[12] At the outset of this trial the Crown conceded a s. 8 breach, making the search of the related premises warrantless and presumptively unreasonable. The Crown sought to characterize the breach as only technical as it related to the improper use of the telewarrant provisions of the Criminal Code. (Sections 487.1(1) and (4)).
The Evidence
[13] On May 17, 2019 Detective Constable Shawnoo (“Shawnoo”) of the Anishinabek Police Service was advised that a Cannabis dispensary was operating at 6098 Indian Lane within the Kettle and Stoney Point First Nation. On the same date, Shawnoo drove past the location and found an obvious and active business with customers coming and going regularly.
[14] On June 5, 2019 Shawnoo attended this business known as Organic Solutions and spoke to Thomas Adam Jackson (“Jackson”). Shawnoo observed large jars of what appeared to be Cannabis and he warned Jackson, who admitted he was the unlicensed owner and operator. This warning apparently did not stop the continued sale of Cannabis.
[15] On June 10, 2019 Shawnoo forwarded his information to obtain (ITO) and related documents to the Telewarrant Centre in Newmarket. However, it was rejected by a Justice of the Peace since there was no evidence that it was impractical for Shawnoo to attend before a justice to obtain the warrant. (Section 487.1(4)(a)).
[16] On the afternoon of the same date, Shawnoo attended the Sarnia Courthouse with his warrant material. Again, the warrant was rejected as it was not properly sworn or the jurat completed. The presiding Justice of the Peace indicated by endorsement that it could be submitted again with the ITO properly sworn.
[17] After the rejection of the ITO, Shawnoo left to work in Parry Sound and other areas and returned to the Sarnia area on July 2, 2019. He testified that he did not see any urgency in obtaining the Organic Solutions warrant.
[18] On July 2, 2019 Shawnoo met with members of the PJFCET. It was his intention to apply for two warrants and he arranged for 40 members of the team to conduct simultaneous searches on that date. It is clear that since the team was standing by, Shawnoo again utilized the telewarrant provisions as he felt he felt some pressure to move matters forward.
[19] At 11:35 p.m. on July 2, 2019 Justice of the Peace Dubé issued the warrant from Newmarket. Shawnoo had earlier advised the Telewarrant Centre that the application was not urgent. Again, the ITO did not address the impracticality of attending before a Justice of the Peace. It was intended that the warrant be executed on July 4, 2019. At para 38 of the ITO, Shawnoo disclosed the June 10, 2019 rejection of his application as the ITO was improperly sworn.
[20] On the morning of July 4, 2019 the Enforcement Team executed the warrant at the retail location of Organic Solutions at 6098 Indian Lane, which operated out of a trailer on the property. Jackson was arrested.
[21] A large quantity of Cannabis and Cannabis products were seized along with $2,381. in cash and an ATM machine. The police estimate of the street value of the Cannabis seizure was $146,000.
[22] It was the evidence of Shawnoo that he had 19 years’ experience as a police investigator as of 2019. He had an abundance of specialized training including obtaining search warrants. He was most often the lead on drug investigations and had utilized the telewarrant provisions of the Criminal Code before.
Section 24(2)
[23] The Crown properly conceded that the search of Organic Solutions was warrantless and a breach of s. 8. as it is clear that Shawnoo could not satisfy the impracticality criteria for using the telewarrant system. (Section 487.1(4)(a)). The telewarrant could not be lawfully granted otherwise and is quashed.
[24] I must now turn to the Grant analysis under s. 24(2). (R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353). At para. 71 of Grant the Court set out its then fresh direction on the impact of s. 24(2):
[71] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. ...
Positions of the Parties
[25] The defence maintains the breach was serious as it amounted to clear recklessness, a disregard for the guiding statute and judge-shopping. The defence argues the impact of the breach on Jackson should be seen as neutral as the search was of a commercial premises with a lessened expectation of privacy. However, a team of officers descended on the defendant’s premises for a warrantless search. Finally, the defence maintains that while society has an interest in this matter going to trial, there should be an expectation that the state will meet its obligations, particularly when it involves enforcement on First Nations land, to prosecute what is described as a regulatory offence. The offence is not serious, and this Court should disassociate itself from this serious police failure.
[26] The Crown position is that the breach was technical, careless, but not done in bad faith. At worst, the actions of Detective Constable Shawnoo were sloppy but he sought to obtain a warrant and the factual grounds are not contested. The Crown argues the breach is not serious, the impact on the defendant’s commercial interest is minimal, and the nature of the evidence dictates the charges must be tried on their merits.
The Seriousness of the Breach
[27] As an experienced investigator, the actions of Shawnoo concern me. There was no urgency and he had been told in early June by the telewarrant Justice of the Peace that he had no grounds to use that system. He responded to convenience and not legal efficacy. He did, however, make multiple efforts to obtain a search warrant and did in fact obtain one, although in a tainted process. The obtaining of the warrant indicates obvious concern for Charter rights, and he disclosed his prior attempt with the Sarnia Justice of the Peace in his ITO. There was no attempt to mislead and no bad faith. (R. v. Rocha, 2012 ONCA 707 at paras. 28 and 29).
[28] In R. v. McKenzie, 2016 ONSC 245, Justice Campbell considered the use of a telewarrant to obtain a warrant to seal for guns and ammunition. Although in that case he found the telewarrant provisions were properly utilized and that there was some urgency after hours to conduct the search, he said this about s. 24(2) and the seriousness of the police conduct if he was wrong:
[106] Further, the courts have recognized that employing the telewarrant process in obtaining the necessary prior judicial authorization for a proposed search, without having properly demonstrated the necessary grounds justifying resort to the telewarrant process, is not a serious breach of the Charter where the proposed search would likely have been properly judicially authorized in any event. See R. v. Lacelle, at paras. 11-12; R. v. Lao, at para. 75; R. v. Farewell, 2008 BCCA 9, 229 C.C.C. (3d) 17, at para. 43; R. v. Daniels, at paras. 37-40. In the present case, in my opinion, had the affiant not sought to employ the telewarrant procedure, a standard, personally-presented search warrant would inevitably have been issued had a justice been available when the telewarrant was requested.
(McKenzie, para. 106).
[29] In my opinion, since there is no contest that the grounds in the ITO were sufficient to support the issuance of a warrant, the warrant would have been granted if Shawnoo had just returned to the Sarnia Courthouse.
[30] The first prong of the analysis favours admission of the evidence.
The Impact of the Breach
[31] Jackson was conducting the search of an advertised, open and accessible retail dispensary for the purchase of Cannabis. It was a commercial establishment with a significantly lessened expectation of privacy. In fact, in R. v. Felger, 2014 BCCA 34, para. 50, the Court found that there was no reasonable expectation of privacy in a place that was “publicly and brazenly selling marijuana”. This branch of the Grant analysis favours admission.
Society’s Interest in Adjudication on the Merits
[32] The evidence seized here was objective, reliable physical evidence which is critical to the Crown’s case. If it were excluded it would negatively impact the repute of the administration of justice as the prosecution would be terminated (Grant, paras. 79 and 84).
[33] The concerns expressed by the defendant about state interference on First Nations lands cannot override all other factors on this branch of the analysis.
[34] This branch favours admission of the Cannabis and currency seized. On balance then, the evidence obtained pursuant to the telewarrant ought to be admitted as a result of the s. 24(2) analysis despite the s. 8 breach.
R. v. Aaron Arthur Maness and R. v. Kevin Plain
Issues
[35] In the two trials, the defence challenges the facial validity of the search warrants granted by Justice of the Peace Jackson sitting in Sarnia. Both warrants were granted on July 29, 2019.
[36] The defence argument centres around the alleged inaccurate descriptions of the premises to be searched, and to a lesser extent, the handwritten uninitialed changes made to the date and time when each warrant was to be executed.
[37] As the only issue in these two trials relate to the search and since the defence arguments significantly overlap, I will consider the evidence and the analysis together.
The Evidence
[38] Acting Sergeant Dahl, (Dahl), has been an Ontario Provincial Police (O.P.P.) officer since 2001 and at the time was assigned to the Cannabis Enforcement team (PJFCET). He was the officer in charge for both of the searches and subsequent seizures for the charges against Aaron Arthur Maness, (Maness), and the separate indictment charging Kevin Plain. Both searches took place on the Aamjiwnaang First Nation at separate Cannabis dispensaries.
[39] On July 2, 2019 Dahl spoke to Detective Constable Howell of the Sarnia Police Service who indicated to him that there were several illegal Cannabis dispensaries on the Aamjiwnaang First Nation Reserve. Dahl testified that on July 22, 2019 he started his investigation of the dispensary known as the “Reefinery” located at 1646 St. Clair Parkway. He reviewed the report of Detective Dufton who had previous contact with the owner of the Reefinery, Shawn Plain. Shawn Plain was unlicensed and had been warned about his Cannabis sales in January, 2019.
[40] On July 22, 2019 Dahl and Howell drove past the Reefinery location and noticed a grey structure resembling a trailer one might see on a construction site. The structure was on cement blocks without a foundation. Directly in front of this structure was a 10’ x 12’ sign advertising the Reefinery and listing prices. A few feet behind the sign and a few feet in front of the structure was a green 911 identifier sign showing 1646. A number of vehicles could be seen coming and going.
[41] On the same parking lot was a separate but similar structure also resembling a construction trailer. It was white in colour with a “Pepsi” sign in the front Window facing St. Clair Parkway. That structure was two to three car lengths or approximately 40 feet to the south of the Reefinery trailer. In the minds of the officers, there was no doubt as to which structure housed the Cannabis dispensary.
[42] After these observations, Dahl did a Google search of the location and subsequently drafted the ITO for the search warrant seeking to search “Reefinery trailer located at 1646 St. Clair Parkway, City of Sarnia, Province of Ontario.” Photographs produced at trial confirm the observations made by the officers.
[43] The second search was to be of the Tashmoo Dispensary located at 1069 Tashmoo Avenue. The address at 1069 Tashmoo Avenue contained a number of structures. On July 15, 2019 Detective Anderson of the Intelligence Unit of the Sarnia Police Service spoke to Kevin Plain at the dispensary and warned him about continued sales. Photographs of the various structures were taken. Undercover officers made two purchases from the Tashmoo Dispensary on July 20, 2019.
[44] The address of 1069 Tashmoo Avenue contained a residence and three buildings, separately signed as Buildings A, B and C. Building B was a quonset hut type steel building which also housed White Plain’s Auto Body & Service Centre registered to Kenneth Plain.
[45] Building B had a glass door entrance to a vestibule leading to doors that opened onto the small dispensary and then another door leading to the Auto Body portion of the building. The vestibule was connected to the Auto Body Shop portion by a smaller connecting building. At the time of the initial police contact, outside in front of the glass door, was a dispensary “open” sign and two potted Cannabis plants.
[46] Howell, prior to drafting the ITO for the Tashmoo Dispensary, confirmed that it was in fact unlicensed. He performed a Google search on the business located on the premises. He sought a warrant to search the premises of “Tashmoo Dispensary, located at 1069 Tashmoo Avenue, City of Sarnia, Province of Ontario”, including the entirety of the quonset hut identified as “Building B”, its attached structures, and White Plain’s Auto Body & Service Centre. His thinking was that storage of Cannabis likely took place in the larger easily accessible Auto Body Shop.
[47] Howell took all warrant materials to the Sarnia Courthouse at 10:00 a.m. on July 29, 2019 and received both back signed an hour later. At that time, he noticed the date when the warrant was effective had been changed, as had the time. The warrants were now dated July 29, 2019 instead of July 30 as previously shown. He presumed that Justice of the Peace Jackson made the changes. It was his evidence that neither he nor any other police officer made alterations to the warrant.
[48] The search warrants were executed at the Reefinery and Tashmoo Dispensary on July 30 and July 31st respectively. An enforcement team of approximately 10 officers were involved in each of the searches.
[49] Maness was arrested inside the Reefinery. It appears from the seizure exhibit list that approximately $3,195. in currency was seized and in excess of $100,000. in Cannabis as estimated by police. Plain was arrested at the Tashmoo Dispensary. Officers seized approximately $18,271. in currency and by their estimate in excess of $200,000. in Cannabis.
[50] Cross-examination of the police witnesses revealed that both officers were of the opinion that the Aamjiwnaang First Nation was within, or a part of, the City of Sarnia. Neither knew that possession of the lands on First Nations was evidenced by a Certificate of Possession.
[51] As to the parcel of property where the Reefinery was situated, it was conceded that in fact it was 1644 St. Clair Parkway and not 1646 as indicated in the warrant. The green 911 sign related to the tobacco sales trailer to the south which was on its own separate parcel. The officers relied upon various provincial records which erroneously described the dispensaries and the individual defendants as living within the City of Sarnia. Much of this evidence came from the affidavit of Doug Pine and was uncontested by the prosecution.
[52] Finally behind an open door in the Tashmoo Dispensary was a sign indicating the dispensary was in fact located in a building designated as “D”. The evidence seems to suggest this was the only identifier of “Building D”. It was the evidence that while both officers had policed on Reserve lands in the past, they had little training or knowledge in the organization of a First Nations community.
Are the Warrants Defective?
The Law
[53] Search warrants are generally location-specific documents, authorizing physical intrusion into a defined space. The scope of the intrusion is limited by the description of the place set out in the face of the warrant.
[54] Moving from that general statement it is clear that the context of the investigation will impact the degree of specificity and accuracy required in the description of the search location.
[55] In R. c. Charles, 2010 QCCQ 9178, the Court considered the validity of a warrant to search a basement apartment for drugs. The warrant allowed for a search of 491 Bourbonnais Street when in fact the basement was a separate flat designated as 491A.
[56] I reproduce below paras. 22 and 23, 28, 33-37 and 39 of Charles which describes what could be seen as a practical approach to concerns about location specificity:
[22] In The Law of Search and Seizure in Canada, 7th edition, Markham, Ont.: LexisNexis, 2007) at p. 61, authors J. Fontana and D. Keeshan, addressed the importance of particularizing the “location of the search” as follows:
The search warrant process is location-critical and a high degree of precision is expected in both the supporting documents and the warrant itself…Vagueness in the description of premises invites, as a consequence, mistaken searches of wrong places or premises or innocent premises, with the resultant falling into disrepute of the search warrant process and remedial consequences under the Canadian Charter of Rights. To avoid search warrants becoming an instrument of abuse it has long been understood that if a search warrant… fails to accurately describe the premises to be searched… then it will be invalid.” [RE McAvoy (1971, 1970 CanLII 1132 (NWT TC), 12 C.R.N.S. 56 (N.W.T. Terr. Ct.), at 65, per Morrow, J.]
[23] In short, protection of privacy rights requires that the location of the premises to be searched under a warrant be sufficiently or adequately designated. A warrant that designates in vague or incorrect terms the place to be searched will fail to guard against potential abuse from the police or confer too much discretion to the officers executing the warrant.
[29] On the consequences relating to the failure to designate in full the civic address of a unit in a multiple dwelling home, the case of Sparkes, 2006 NLCA 6 is of interest. The facts in Sparkes were remarkably similar to the facts in the case at bar. Also similar were the constitutional issues to be decided by the court.
[33] At the Newfoundland Court of Appeal, the parties limited themselves to the trial judge's s. 24(2) analysis. It is worth noting that Welsh, J.A. expressed some disappointment with the fact that no issue was raised with regards to the violation of s. 8 of the Charter. At par. 7 of the judgement, he stated that:
For procedural reasons, the question of whether Mr. Sparkes’ right under section 8 was infringed was not appealed. Despite the fact that it would have been preferable to have that issue reviewed in the appeal, in the circumstances, I will proceed with the review under section 24(2) of the Charter.
[34] After reviewing the principles that govern a s. 24(2) inquiry, Justice Welsh also ruled that the evidence should not be excluded.[^7] Essentially, Justice Welsh's decision was predicated upon the fact that the place to be searched was sufficiently described and known by the police. In his words:
Without doubt, it would have been desirable to have identified Mr. Sparkes’ residence in the warrant as 109A or by description as a separate apartment in the house, to be accessed by the side door. However, in the circumstances of this case, particularly where it is clear that the police intended to search only Mr. Sparkes’ apartment and that they knew how to access that apartment, I am satisfied that to admit the evidence would not encourage unacceptable conduct by the police in the future.
[35] Similarly, American cases dealing with searches in multiple dwelling homes have adopted a pragmatic approach in determining whether or not the "particularity-of–description" criteria set out in the Fourth Amendment were satisfied. Essentially, this pragmatic approach focuses on whether or not the targeted premises were sufficiently described so as to avoid the search of an innocent residence. In the leading case of Steele v. United States (1925m 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757, the Supreme Court ruled that the particularity–of-description requirement of the 4th amendment was satisfied where “the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.[^8]” Multiple U.S. district courts have framed the particularity-of details test as follows:
The test for determining the adequacy of the description of the location to be searched is whether the description is sufficient to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.[^9]
[36] In short, practical accuracy rather than technical precision controls the determination of whether a search warrant adequately describes the premises to be searched.[^10]
[37] Keeping with this pragmatic approach, a technically wrong address does not invalidate a warrant if it otherwise describes the premises with sufficient particularity so that the police can ascertain and identify the place to be searched.[^11] In the matter of United States v. Turner, 770 F.2d 1508 (9th Cir.1985), cert. denied, 475 U.S. 1026, 106 S.Ct. 1224, 89 L.Ed.2d 334 (1986), for instance, the 9th circuit court upheld the search of a home that was sufficiently described except for the street number. The court found that the warrant description was sufficiently particular on the basis that:
[t]he verbal description contained in the warrant described the house to be searched with great particularity; no nearby house met the warrant's detailed description; the address in the warrant was reasonable for the location intended; the house had been under surveillance before the warrant was sought; the warrant was executed by an officer who had participated in applying for the warrant and who personally knew which premises were intended to be searched; and the premises that were intended to be searched were those actually searched.[^12]
[39] In sum, a search warrant that bears an incorrect address will not preclude admission of evidence discovered during a search where the premises were sufficiently described and where there was no possibility the wrong property would be searched.
[57] Charles was applied by Justice Deluzio in R. v. Kift, 2014 ONCJ 454. Kift was a decision considering the validity of a warrant for firearms where the warrant misdescribed both the address and the municipality. The Court concluded that the police searched the correct premises and there was no possibility of the wrong premises being searched. At para. 40, Justice Deluzio concluded:
[40] Although there was an error in the description of Mr. Kift’s address on the warrant, the Search Warrant is valid because the address description was sufficiently particular to enable the executing officers to locate and confirm the identity of the Kift residence before the warrant was executed. The inclusion of Apsley in the property description did not lead to any confusion about the correct address. There was no danger that the incorrect address would be searched …
[58] In R. v. Ting, 2016 ONCA 57, the Court of Appeal considered the validity of a search for drugs in a multi-unit commercial and residential premises. In that case, the police simultaneously entered a rear apartment for which they had a warrant, and a basement apartment for which they did not. Knowing the basement apartment was out of bounds, they continued to search and after completing the search obtained a correcting warrant.
[59] Miller J.A. agreed with the position of the trial judge that the warrant was invalid. His reasons focus on the need for accurate descriptions of locations to be searched, particularly in the instance of multi-unit residential premises. At para. 51, Justice Miller said the following:
[51] Just what constitutes an adequate description will vary with the location to be searched and the circumstances of each case. With respect to a multi-unit, multi-use building, as seen in this case, it is not enough to simply provide a street address that distinguishes the building from others. The description must adequately differentiate the units within the building, as those in a multi-unit dwelling have the same expectation of privacy as those in a single-unit dwelling. …
Application to the Facts
[60] In both the matters before me, the premises meant to be searched were in fact searched. Police had previously warned the business operators that they were operating illegally. At both the Reefinery and Tashmoo Dispensary undercover purchases of Cannabis had been made. Surveillance had been conducted on both premises. The affiant for each of the ITOs participated in the searches and was present in the dispensaries for the seizures and arrests.
[61] Photographs of both of these dispensaries make it clear these businesses were commercial outlets operating openly and notoriously. In the case of the Reefinery with an advertising sign in front, and with respect to Tashmoo, an open sign with two potted Cannabis plants at the front entrance.
[62] The structure housing the Reefinery was a separate and distinct commercial type trailer raised on concrete blocks. While there was another similar unit approximately 40 feet away, there was no chance of confusion as to what would or could be searched. While it is accepted that the 911 identifier related to the tobacco sales unit next door, that inaccuracy did not practically inhibit a lawful search.
[63] As to the Tashmoo Dispensary, the building was somewhat more confusing and included the attached Body Shop. However, the warrant included the Body Shop and the sign on the side of the building described it as “Building B”. A conflicting sign behind an open door suggesting another lettered description for the dispensary, cannot in these circumstances, be seen to create a serious issue of warrant validity.
[64] It is clear that I have adopted the pragmatic approach to these issues as described in the cases above. This does not however mean there can be no criticism of the police investigation.
[65] The officers’ knowledge of First Nations communities and their governance indicated a careless indifference to these unique circumstances. I do not intend to single out Acting Sergeant Dahl or Detective Howell. I have no doubt their level of knowledge is indicative of much of their respective police services. It is clear that this specialized enforcement team was being directed to Reserve locations in Lambton County and elsewhere in the Province where unlicensed Cannabis dispensaries had sprung up. It could not possibly be lost on those directing this team that these searches and subsequent charges would draw attention and as the Crown, Mr. McNair, indicated in his opening statement, be fuelled by “social and historically sensitive disputes.”
[66] It seems some knowledge of how title to Reserve properties are held, and the fact that Aamjiwnaang First Nation is not part of the City of Sarnia, is important for those proposing to enter and search upon Indigenous lands.
[67] Turning only briefly to the argument regarding the handwritten changes to the warrants, there is simply no evidence that these changes were made by anyone other than Justice of the Peace Jackson. The draft warrants were presented at the Sarnia Courthouse and were returned an hour later to Detective Howell with the changes made. The changes had no effect on the subsequent searches which were executed on a schedule predetermined by investigators and authorized by the warrants.
[68] In conclusion on this issue, I find that the misdescription of the Reefinery as being at 1646 St. Clair Parkway in the City of Sarnia, when in fact it was located at 1644 and on the Aamjiwnaang First Nation, while an unfortunate inaccuracy, it cannot detrimentally affect the facial validity of that warrant. There is no section 8 breach in these circumstances.
[69] Similarly, whether the Tashmoo Dispensary was technically within the immediate confines of a quonset hut known as “Building B” or in the attached portion of the structure known as “Building D”, it does not affect the validity of that warrant. Again, there is no Charter breach related to the search.
If I am wrong?
[70] If I am subsequently found to be wrong regarding my findings above, the evidence should be admitted pursuant to s. 24(2).
[71] The misdescription of the premises, particularly the Reefinery, was careless and indifferent to the cultural realities of the location but was not done intentionally and does not exhibit bad faith. I do not find the conduct of police in the inaccurate description as serious.
[72] Both of these dispensaries were open and notorious commercial operations. The impact on the Charter rights of the defendants to be secure in these premises was minimal. The evidence seized was real evidence.
[73] The offence of selling Cannabis in significant quantities for profit is still viewed as serious criminal conduct. (R. v. Strong, 2019 ONCA 15, paras. 3 and 4). Society has an interest in seeing these charges tried on their merits.
[74] On balance, all facts in the Grant analysis favour admission of the seized evidence.
Conclusion
[75] As part of the argument, particularly under s. 24(2), the defence has raised the right of Indigenous peoples to be secure on their lands. They remind me that these communities acquired Treaty rights now protected by their Charter rights and that one of these rights is to be free to earn a livelihood on their lands unhampered by unilateral government regulation. Whether that is true and whether that affects the application of the Cannabis Act to First Nations lands is left for another day.
[76] I find that the Crown has proven each of the essential elements in the three separate indictments considered in this trial. I refrain at this time from entering convictions pending the determination of the outstanding constitutional question.
“Regional Senior Justice B. G. Thomas”
Regional Senior Justice B. G. Thomas
Released: August 13, 2021.
ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: F#2113/20
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KEVIN BLAIR PLAIN AND JOSHUA STEVEN DAWS
COURT FILE NO.: F#2114/20
AND BETWEEN:
HER MAJESTY THE QUEEN
– and –
THOMAS ADAM JACKSON
COURT FILE NO.: F#2115/20
AND BETWEEN:
HER MAJESTY THE QUEEN
– and –
AARON ARTHUR MANESS AND FLOYD WILLIAM JOSEPH BULLOCK
REASONS FOR JUDGMENT
Thomas, RSJ.
Released: August 13, 2021.
[^7]: Though Justice Welsh found that the trial judge erred in certain aspects of his 24(2) analysis, the application of the proper tests (at the time set out in the seminal case of Collins and referenced in the case of R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631), still led to the same conclusion on appeal.
[^8]: The same passage is quoted with approval in another Supreme Court decision dealing with the particularity of details requirement with respect to the location targeted in the search warrant: Maryland v. Garrison (1987), 480 U.S. 79, 91, 107 S.Ct. 1013, 94 L.Ed.2d 72.
[^9]: United States v. Williamson, 1 F.3d 1134 (10th Cir.1993); United States v. Pervaz, 118 F.3d 1, 9 (1st Cir.1997); United States v. Gitcho, 601 F.2d 369, 371 (8th Cir.1979).
[^10]: United States v. Dorrough, 927 F. 2d 498, 500 (10th Cir. 1991), para. 9, which quotes the supreme Court decision of United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); similarly, in United States v. Bedford, 519 F. 2d 650, 655 (3rd Cir. 1975) the Court stated that the standard for determining sufficient particularity of a description in a search warrant “is one of practical accuracy rather than technical.”
[^11]: United States v. Sturmoski, 971 F.2d 452, 458 (10th Cir.1992).
[^12]: Analysis and quote from the case of United States v. Gahagan (6th circuit) 865 F2d 1490, par. 58.