COURT FILE NO.: CR-73-20 DATE: 20210923
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Jason Edward Norley Respondent
Alexandra Mamo, for the Applicant
Myfanwy Smith, for the Respondent
HEARD: July 15, 2021
Tranquilli J.
RULING RE S. 8 CHARTER APPLICATION
Overview
[1] The applicant Jason Norley held two federal licences to cultivate marijuana: one for his personal use and the other for a designated person. These licences permitted him to grow the marijuana at an address on Osler Street, London, but did not authorize him to sell or distribute the product. However, in 2018, a Confidential Informant (CI) told the Royal Canadian Mounted Police that Mr. Norley was selling cannabis from his licensed grow operation at Osler Street and was also trafficking other controlled substances.
[2] This tip sparked a nine-month RCMP investigation of Mr. Norley. The investigation culminated in the execution of four search warrants issued under s. 87 of the Cannabis Act and s. 487 of the Criminal Code. The warrants were based on an Information to Obtain a Search Warrant (ITO) sworn by Constable Jennifer George and for searches of four locations: 1. Mr. Norley’s home at 549 Pall Mall Street, London, 2. His licensed grow operation at 11/12 3051 Osler Street, London; 3. A 2008 Black Escalade; and 4. A 2006 Black Audi. The four warrants authorized search and seizure of financial documents, Canadian currency, digital devices, drug packaging and illicit Cannabis.
[3] Mr. Norley was arrested following the execution of these search warrants on November 26, 2018. He is charged on a seven-count indictment in connection with alleged drug trafficking: unlawful cultivation, distribution and possession of cannabis for the purpose of distributing contrary to sections 9(1)(a), 9(2) and 12(6)(a) of the Cannabis Act, two counts of possession of Schedule 1 controlled substances for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, laundering proceeds of crime contrary to s. 462.1 of the Criminal Code, and possession of proceeds of crime exceeding $5,000, contrary to s. 354(1)(a) of the Code.
[4] Mr. Norley applies for an order excluding all evidence gathered in execution of the search warrants on his home and the grow operation pursuant to s.24(2) of the Charter. The applicant claims the ITO lacked the necessary reasonable and probable grounds to believe that evidence of the offences would be found in these two locations. The applicant submits police relied upon generalizations and stereotypical inferences to assert the items would be in the applicant’s home and the Osler address. These failures are in breach of his s. 8 Charter right to be secure against unreasonable search and seizure. This conduct seriously impacted his right to privacy such that the evidence must be excluded.
[5] The Crown submits the ITO provided ample grounds for issuance of the search warrants of the applicant’s home and the grow operation. The affidavit presented a wealth of reasonable grounds to support a belief that the items sought were within the identified locations. In the alternative, if there were any breaches of the applicant’s s. 8 Charter rights, the balancing of factors under s. 24(2) of the Charter favours the admission of the evidence.
Issues
[6] A valid search and seizure consists of reasonable and probable grounds to believe that an offence has been committed and that there is evidence of that offence to be found in the place of the search: Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 SCR 145. The applicant did not take issue with whether there were reasonable and probable grounds to believe that offences had been committed. The applicant also did not challenge the sufficiency of the search warrants in connection with his two personal vehicles. This application is only with respect to the validity of the search warrants on his home and the licensed grow operation.
[7] There are two main issues on this application:
Did the ITO establish reasonable and grounds to believe evidence of the offences would be found at the applicant’s home and the licensed grow operation?
If the ITO failed to disclose reasonable and probable grounds that evidence of the offences would be found at the applicant’s home and licensed grow operation, should the evidence be excluded pursuant to s. 24(2) of the Charter?
[8] The Crown took the position that the court could consider these issues based on a review of the ITO in its redacted form, removing identifying information relating to the Confidential Informant. The application therefore proceeded as a facial challenge.
Background
[9] The following background comes from the ITO sworn by Constable Jennifer George on November 26, 2018.
[10] In February 2018, a CI advised the RCMP that the applicant was involved in trafficking cannabis and controlled substances in the London area.
[11] The CI’s information included the following details: the CI bought cannabis from the applicant at the applicant’s licensed grow operation at the Osler Street address, that the applicant had licences to grow marijuana for personal use and one other specific person, that the applicant sold cannabis and pills from his vehicle, regularly attended a London bar for trafficking and did not have a legitimate occupation.
[12] Police confirmed the applicant held two federally regulated licences to permit him to produce cannabis at an industrial commercial address at units 11/12 of 3051 Osler Street, London, Ontario for personal use and for a designated person. These licences allowed him to grow a total of 206 cannabis plants. However, he was not permitted to sell or distribute cannabis to others.
[13] Subsequent investigation over the next approximate nine months included 54 days of surveillance, six pulls of the applicant’s residential garbage at 549 Pall Mall, tracking warrants of his two vehicles and production of his financial information and cell phone data.
[14] The surveillance showed the applicant meeting various people in parking lots for short periods of time. Similar short stops were corroborated by data from the trackers on both of his vehicles. At some points when in the course of making these stops, he was observed attending his home at 549 Pall Mall Street or the Osler Street address. He was also observed at the London bar identified by the CI on several occasions. On surveillance he was seen leaving the bar with an unknown individual, show that person a pill bottle stored in his car, whereupon they went behind a fence out of view. An undercover officer met the applicant in the bar on a few occasions in an effort to purchase cannabis from Mr. Norley. The applicant and officer discussed a drug transaction; however, it was never completed.
[15] The garbage pulls from the curbside of applicant’s residence occurred between April and November 2018 and yielded a range of evidence including:
• handwritten notes with references to “shatter”, “tabs” “KUSH” and “gummes”;
• a handwritten debt list and cost/profit calculations;
• a handwritten list of Mr. Norley’s “assets” listing his house (paid $330,000), a boat (paid $15,000) an Escalade (paid $24,000) an Audi (paid $14,000) and reported “cash” income between 2016 and 2018 in a range of $120,000 and $220,000 as a medical marijuana grower;
• an email between two individuals providing the recipe for making cannabis gummies;
• Clear plastic Foodsaver packaging and baggies, some containing residue and/or writing in black marker on the outside, with notations such as “$3,000”, “RPMS Molly” “Jay OZ Byron”. Health Canada variously identified residue found in the packaging as oxycodone, cocaine or Phyto cannabinoids;
• Prescription receipts and empty prescription bottles showed the applicant was regularly prescribed quantities of oxycocet and hydromorph contin.
[16] The financial productions showed he made large, rounded number cash deposits into his account. On a private mortgage application, he reported regular salaried employment and provided an employment letter with two pay stubs. However, police were unable to confirm any such employment or any trace of cheques being regularly deposited in the amounts represented on the paystubs. Rather, between September 27, 2012 and July 19, 2018, his bank account received 171 cash deposits ranging in amounts from $80 to $9,000. There were cheques and an e-transfer from one individual who texted the applicant to buy gummies.
[17] In addition to showing that the applicant made frequent short stops in his vehicle, the tracking data revealed a driving pattern that was inconsistent with regular employment.
[18] Finally, the cell phone data revealed text messages from individuals to the applicant asking for their “mail” or for “gummies”.
[19] Surveillance throughout this period also showed two other individuals regularly attending at the licensed grow operation at Osler Street and accessing the unit with keys. On November 26, 2018, police observed these two individuals at the Osler address engaged in what appeared to be the cultivation of cannabis. Police arrested them for production of illicit cannabis. The search warrants were issued later that same day based upon Constable George’s ITO.
The Searches
[20] Upon execution of the Osler Street search warrant, police discovered a grow operation with the number of marijuana plants more than the permitted amount under the applicant’s federal licences. The operation consisted of watering, ventilation and lighting systems, shrouds, timers, and chemicals. Police seized the overage of 499 plants, leaving only the number the applicant was licensed to grow. At his home at 549 Pall Mall Street, police seized 9 kilograms of cannabis in various types of packaging, 118 grams of “shatter”, cannabis “gummies” and “gummy” molds, packaging materials and narcotic prescription bottles. Police found various pill bottles in both vehicles along with two baggies of suspected marijuana.
Analysis
1. Did the ITO establish reasonable grounds to believe evidence of the offences would be found at the applicant’s home and the licensed grow operation?
[21] The applicant submits the ITO was too broad. It relied upon stereotypes and generalisations to raise grounds that evidence of the offences would be located in either of the locations searched. There is nothing more than proximity being relied upon as the ostensible grounds. The only connection of these places to the offences was that the applicant lived at 549 Pall Mall and had a licensed grow operation at Osler Street. There was no reasonable basis on which to believe that illicit drugs, drug paraphernalia, cash or financial documentation would be found at these two locations. The surveillance did not show him engaging in activity that was consistent with trafficking from his residence or even his grow operation. There was no evidence beyond mere suspicion that because of the observations of the applicant making multiple stops in his vehicles, that drug packaging, financial documents or currency would be found at either his home or his grow operation.
[22] The principles relevant to addressing this issue are set out in R. v. Morelli, 2010 SCC 8. In reviewing the sufficiency of a warrant application, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued. The question is whether there was sufficient credible and reliable evidence to find reasonable and probable grounds to believe that evidence of the offence would be found at the specified place: paras. 40-41. It is not the role of courts to establish by judicial fiat broad generalizations regarding the “proclivities” of certain “types” of people, including offenders. Courts must be particularly wary of endorsing such generalizations: at para. 81.
[23] Read in isolation, there are portions of the ITO that could be characterized as unsupported generalizations or stereotypes as to the habits and practices of drug traffickers and the extent to which illicit drugs, drug paraphernalia, financial documents and currency would be found in a trafficker’s home or other location. I accept that on its own, an affiant’s subjective belief or suspicion that the items had to be in those locations simply because of drug trafficking activities observed elsewhere is unlikely to justify a search of his home and grow-operation: R. v. Herdsman, 2012 ONCJ 739 at paras. 69-71; R. v. Liu, 2014 BCCA 166 at paras. 42-45
[24] However, those challenged portions of the ITO highlighted by the applicant arise in the concluding paragraphs of an approximate 97-page narrative that summarizes the series of events and investigative steps taken in the nine-month investigation. Determining whether evidence gives rise to a “credibly-based probability” does not involve parsing the facts or assessing them mathematically. The judge must identify credible facts that make the decision to authorize a search reasonable in view of all the circumstances: Morelli, supra at para. 129; R. v. Campbell, 2010 ONCA 588 at para. 52; R. v. Sadikov, 2014 ONCA 72 at para. 82
[25] I am of the view that the totality of the circumstances set out in the ITO demonstrate a credibly-based probability that drug packaging, financial data, digital information and currency would be found at the applicant’s home and that illicit cannabis, drug paraphernalia, financial documents, digital information and currency would be found at the applicant’s grow-operation. I reach this conclusion for the following reasons:
The CI provided a first-hand account of having recently purchased cannabis from the applicant at the licensed grow-operation. Although the historical reliability of the CI is unknown, on balance, the CI’s information was credible, compelling and corroborated: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 SCR 1140 at 1168. Numerous other of the CI’s assertions were corroborated by the subsequent police investigation through surveillance, tracking data, the garbage pulls and financial tracking. This investigation corroborated several of the CI’s assertions: that the applicant distributed cannabis and shatter where and when he can, including at parking lots; that the applicant held two marijuana cultivation licences, that he regularly attended a London bar, that he kept pills in his vehicles and that he did not have a legitimate job. The applicant’s biographic information from the CI was also corroborated through surveillance, police inquiries and other databases.
The applicant’s residential garbage consistently yielded evidence that gave rise to reasonable and probable grounds that drug packaging, financial data and currency relevant to the offences of trafficking and money laundering would be found on the premises. This included handwritten lists of his assets, his past and projected income as a medical marijuana grower, prescription medication records and a debt list. Also found was packaging with various drug labelling and containing drug residue and an empty baggie with “$3,000” written on it.
On multiple occasions he was seen going to his home before or after attending the grow-operation. On one occasion, an identified individual was observed entering the home with the applicant. This same individual was listed on one of the handwritten notes retrieved from the applicant’s garbage, with notations as to “Cost, Profit” and “Pay out, 12,660/$6240”. On another occasion, an unidentified person was seen briefly attending the applicant’s residence and leaving with an object in a plastic shopping bag. The applicant was earlier seen bringing an object of a similar appearance from the trunk of his car into his residence.
Two other individuals were seen regularly attending the grow-operation, bringing in boxes and on one occasion, propane tanks. On one occasion shortly before the search warrant was sought, one of these individuals was seen leaving the grow-operation wearing latex gloves, retrieving a box from a vehicle, and returning to the building. Police confirmed that neither of these individuals were authorized by Health Canada to produce cannabis at this location.
Constable George has six years training and experience as a financial crime investigator and five years training and experience as a drug investigator at Toronto Pearson International Airport. An affiant’s experience is relevant to the assembly of investigative facts and their promotion as affording reasonable grounds of belief: R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.) at para. 68. Constable George noted that on some occasions when the applicant was observed making short stops and meeting with people, he was then observed attending his home at 549 Pall Mall Street. His bank accounts showed large rounded cash deposits and no evidence of regular employment income. However, he has acquired substantial assets. The officer deposed that in her experience, illicit cash derived from crime is difficult to re-integrate into the banking system without raising suspicion, such that cash is often stored at the residence.
Similarly, I accept the officer’s reasoning that digital devices and storage media are integrated into our lives and that such items would be found at the residence and grow-operation. Constable George specifically noted the applicant’s use of a cell phone, an email address, and e-transfers into the applicant’s bank account from individuals associated with purchasing drugs from him. Canada Border Services identified texts from those individuals to the applicant looking to purchase illicit drugs.
Finally, I disagree with the applicant’s assertion that evidence from the CI or the investigation was stale. To the contrary, the observations and evidence from the tracking data, financial information and garbage shows that the same activities consistent with drug trafficking endured throughout the nine-month investigation.
[26] I am therefore satisfied the justice had a sufficient basis transcending mere suspicion to credibly-based probability for issuing the search warrants for the home and grow-operation for evidence of the offences.
[27] As I have concluded the search warrant could have issued for the items sought at the applicant’s home and commercial grow-operation, it follows that the search did not violate s. 8 of the Charter.
2. If the ITO failed to disclose reasonable and probable grounds that evidence of the offences would be found at the applicant’s home and licensed grow operation, should the evidence be excluded pursuant to s. 24(2) of the Charter?
[28] If I am mistaken as to the validity of the search warrants, the issue is then whether the evidence ought to be excluded. This involves a consideration and balancing of the three factors set out in R. v. Grant, 2009 SCC 32.
- The Seriousness of the Charter-Infringing State Conduct;
[29] There is no basis to conclude the police acted deceitfully or in wilful or reckless disregard of the applicant’s Charter rights. None of contents of the ITO have been shown to be either inaccurate or an overstatement. The investigation revealed the applicant held other property, such as a cottage; however, the ITO sought only the warrants on his vehicles, his London home and his grow-operation. This shows some consideration of the applicant’s Charter rights and the need for reasonable and probable grounds. To the extent there was any Charter-infringing conduct, I find it is at the low end of the spectrum. This step of the analysis favours inclusion.
- The Seriousness of the Breach on the Charter-Protected Interests
[30] This inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive: Grant, supra at para. 76. The Crown properly acknowledges that the search of the applicant’s home is highly intrusive and would favour exclusion. However, I do not accept the applicant’s proposition that he enjoys the same high expectation of privacy with respect to his federally licensed grow-operation. I will allow there is limited expectation of privacy in respect of the grow-operation given the controlled access to the unit. However, only the evidence from the applicant’s home would favour exclusion.
- Would admission of the evidence would undermine public confidence in the administration of justice?
[31] This third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. The long-term repute of the justice system is the focus of s. 24(2): Grant, supra, at paras. 79-84.
[32] The seized marijuana, marijuana products, controlled substances and related items are real evidence. The reliability of this evidence is not affected by the Charter issues. Excluding the evidence would end the prosecution. There is a strong societal interest in seeing this case determined on its merits. As acknowledged by the applicant, this factor favours inclusion of the evidence: R. v. McGuffie 2016 ONCA 365 at para. 62.
[33] The court must now balance these factors to decide, having regard to all the circumstances, whether admission of the evidence would bring the administration of justice into disrepute. In practical terms, this becomes important when one, but not both of the first two inquiries pushes strongly toward the exclusion of evidence: McGuffie, supra at para. 63
[34] The first and third factors favour inclusion, whereas the second factor encourages exclusion of the evidence seized from his home. The second factor highlights the applicant’s privacy interest in his home.
[35] On balance, I find that if there was a s. 8 Charter breach, the evidence should nevertheless be admitted. The search was pursuant to a warrant based upon a comprehensive summary of a lengthy investigation. High privacy interests attach to the applicant’s home but lesser, qualified interests to his grow-operation. In any event, there is no evidence of bad faith in the context of the investigation leading to the search warrants.
[36] I conclude that admission of the evidence from the applicant’s home and grow-operation would not bring the administration of justice into disrepute.
[37] I therefore find the evidence is not excluded by s. 24(2) of the Charter.
[38] The application is dismissed.
Justice K. Tranquilli
Date: September 23, 2021
COURT FILE NO.: CR-73-20 DATE: 20210923
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Jason Edward Norley Respondent
RULING RE S. 8 CHARTER APPLICATION
Tranquilli J.
Released: September 23, 2021