R. v. Jones Date:, 2013 BCPC 149

Citation: R. v. Jones Date: 20130619 2013 BCPC 0149 File No: 84988-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. IAN KENNETH JONES RULING ON VOIR DIRE OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: K. MacWilliam Counsel for the Defendant: D.F. Henderson Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: January 27, February 26 and May 24, 2013 Date of Judgment: June 19, 2013

INTRODUCTION [1] This ruling arises in what is commonly known as a “marijuana grow op” prosecution. The accused, Ian Kenneth Jones (“Mr.Jones”), faces charges of production of marijuana and possession of that illicit substance for the purpose of trafficking, contrary tosubsections 7(1) and 5(2), respectively, of the Controlled Drugs and Substances Act. The Crown proceeds against him by indictment. The Information number is 84988, sworn on November 9, 2010. The alleged offence date is August 12, 2010. [2] Evidence upon which the Crown seeks to rely in its prosecution of Mr.

Jones was obtained in the course of execution, by police on the alleged offence date, of a search warrant (the “Warrant”) at a residence located at 21150 – 123rd Avenue, Maple Ridge, B.C. (the“Subject Residence”). Mr. Jones contends, through his counsel Mr. Henderson, that the Warrant was invalid. Mr. Henderson argues insubmissions that the Information to Obtain (the “ITO”) sworn by Crown witness Cst. Eric Obermayer (“Cst. Obermayer”) that underliesthe Warrant is “inaccurate, misleading and incomplete” and did not disclose sufficient grounds for the issuance of the Warrant.

Thus it iscontended that the search of the Subject Residence was an unreasonable search, carried out in breach of Mr. Jones’ rights under s. 8 ofthe Charter, and that the evidence seized in the course of it should be ruled inadmissible under s. 24(2) of the Charter. [3] I declared a voir dire at the commencement of Mr. Jones’ trial. I did so in order that: (

a) The validity of the Warrant could be assessed; and, if it were to be found invalid; (

b) The question of whether the breach of Mr. Jones’ s. 8 Charter rights was such as would justify exclusion of the evidence gathered inthe course of execution of the Warrant could be considered and answered. [4] Three discrete but interrelated issues arise for consideration in this voir dire. They are: (

a) Does Mr. Jones, as a non-resident of the Subject Residence, have standing to challenge the validity of the Warrant?; (

b) Does the impugned ITO properly support the issuance of the Warrant?; and, if not (

c) Should evidence obtained in the course of execution of the Warrant be excluded under subsection 24(2) of the Charter? STANDING [5] Crown counsel, Ms. MacWilliam, argues that Mr. Jones has no standing to challenge the Warrant or invoke s. 8 Charter rightsto vindicate a personal privacy interest in connection with the Subject Residence. She places reliance in this regard upon his contentionthat he had not lived at the Subject Residence for a period of months prior to August 12, 2010, when the Warrant was executed. [6] The fact of Mr.

Jones having not lived at the Subject Residence since May/June of 2010 appears to have been, for the purposesof the voir dire at least, accepted by the Crown. For example, Ms. MacWilliam invites the court to rule against him on the issue ofstanding, invoking that very assertion. It is not a bare assertion. Some support for it can be found in the evidence adduced by the Crownshowing (for example) that dated and unopened mail was seized from the Subject Residence at the time the Warrant was executed. [7] Mr. Henderson, on the other hand, says that Mr.

Jones has standing to seek a Charter remedy based on an alleged s. 8 breach. He points to evidence that suggests that a connection between Mr. Jones and the Subject Residence subsisted up to the time of executionof the Warrant and that that connection lends substance to his argument that Mr. Jones had, correspondingly, a subsisting privacy interestin that residence. [8] The evidence led by the Crown at the voir dire did establish that, as of August 10, 2010, materials belonging to Mr. Jones werestored at the Subject Residence.

Those materials included mail, income tax documents and medical reports of a very private andsensitive nature. I have already mentioned that some of the mail, addressed to Mr. Jones at the address for the Subject Residence, wasdated and unopened. Some of it was seized, in fact, from the mailbox on the very day the Warrant was executed. [9] While I accept Ms.

MacWilliam’s submission that “an accused cannot seek a remedy for a breach of his or her Charter rightswhen he or she denies the very connection to the location searched from which those Charter rights would arise,” this is not a case inwhich the accused denies any association whatsoever with the Subject Residence. Mr. Jones has not challenged, much less refuted, theCrown’s evidence that situates his private documents and mail there; indeed, he relies on that evidence for his own arguments in this voirdire.

Nor has he challenged, or refuted, the Crown’s evidence that situates near the Subject Residence a vehicle with registration papersin his name giving the address of the Subject Residence as his address. Mr. Jones denies that his association with the house in questionis sufficient to support an inference of possession of the marijuana found there, but he does not disavow any and all associations with theSubject Residence. Nor, I say again for emphasis, does he deny an interest in what was stored there (as his argument on standing makesplain). [10] The evidence, led by the Crown and uncontradicted by Mr.

Jones at the voir dire, establishes a linkage between Mr. Jones andthe Subject Residence which, I am satisfied, confers upon him a residue of privacy rights at the Subject Residence. He had at the time ofexecution of the Warrant a reasonable, though limited, expectation of privacy regarding certain of the contents of the Subject Residence.

Those privacy rights are plainly not comparable to those of an actual resident in occupation at the time the search pursuant to the Warrantwas carried out by police, but I would also say that they are rights that extend beyond any rights that might be claimed by, for example,“mere babysitters,” as happened in R. v. Khuc, [2000] B.C.J. No. 50 (C.A.). As Mr.

Henderson has argued, stored-item-based privacyrights in locations like bus station lockers—in effect, rights of licensees based mainly on their having stored their property in thoselocations in the reasonable expectation that their privacy rights regarding that property would be respected—have been recognisedrepeatedly in the cases: see, for example, R. v. Buhay, [2003] 1 S.C.R. 731. Moreover, the contention that Mr.

Jones has such rights visà vis the Subject Residence is not plucked from thin air; rather, it is grounded in the aforementioned evidence adduced at the voir dire, asthe law requires it to be: see R. v. Sandhu (1993), (BC CA), 82 C.C.C. (3d) 236, leave denied, [1993] 4 S.C.R. vii

and, more recently, R. v. Sipes, [2011] B.C.J. No. 2761 (S.C.). [11] For these reasons, I conclude on the first issue that Mr. Jones has standing to invoke his right to be secure against unreasonablesearch and seizure, pursuant to s. 8 of the Charter, in challenging the validity of the Warrant executed at the Subject Residence. DOES THE ITO PROPERLY SUPPORT THE WARRANT? [12] Mr. Henderson, on behalf of Mr. Jones, calls into question in his submissions the sufficiency and reliability of the content of theITO regarding the following evidence: (

a) the smell of marijuana emanating from the Subject Residence; (

b) the “heat signature” for the Subject Residence obtained by use of a forward looking infrared detecting device (“FLIR”); and (

c) the pattern of hydro consumption at the Subject Residence.

The General Law [13] Before embarking upon a review of the specifics of the challenges raised to the ITO, and the responses to them, I will brieflysummarise the law regarding the sufficiency and reliability of ITOs in general. [14] The first point to make is that in my capacity as a judge reviewing an ITO supporting a warrant that has been called intoquestion by an accused, my function is to determine whether there was reliable evidence presented in the ITO that might reasonably bebelieved and on the basis of which the judicial officer who issued the warrant could, reasonably, have issued it.

Where deficiencies,weaknesses and even intentionally misleading content are identified in an ITO, the question remains the same: While all of that isrelevant, does there remain a basis in the ITO upon which the judicial officer could reasonably have issued the warrant? It is expresslynot my function to determine whether, upon reviewing the same ITO, I would myself have issued the warrant that the judicial officerissued. This, like much of the law in this area, is all found in the decision of the Supreme Court of Canada in R. v.

Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 and its progeny. [15] In the main, in order to issue a valid warrant, a judicial officer must have reasonable grounds to believe that a search of abuilding, receptacle or place will yield evidence of something there with respect to the commission of an offence there; or of thewhereabouts of the committer of such an offence; or of something there intended to be used for the purpose of committing an offence.

Iam compressing and paraphrasing the language of s. 487 of the Criminal Code here somewhat but that is the gist of it. [16] When considering the ITO in this case, I must review its contents in the context of the totality of the circumstances, and judgethe sufficiency of the grounds in the aggregate, as distinct from carrying out a piecemeal, “microscopic” examination of every avermentfound within it.

The deponent of the ITO is required to provide the judicial officer to whom it was tendered with a “full, fair and frank”outline of the material facts such that, as a whole, the ITO properly informs and does not mislead. These legal propositions, too, can betraced mainly back to Araujo and the cases that have followed in its wake. The Smell of Marijuana [17] Mr. Henderson, on behalf of Mr. Jones, argues that there was insufficient evidence to reliably identify the Subject Residence asthe source of a smell of growing marijuana.

Such smells were first noted by a civilian who provided police with a tip shortly before theinvestigation began. They were later noted by Cst. Obermayer, the deponent of the ITO, and by his colleague and FLIR technician, Cst.David Bazett (“Cst. Bazett”).

The arguments advanced by the defence are that the smell of growing marijuana referred to in the ITOcould have been emanating from other structures in the residential neighbourhood where the Subject Residence is located, that theofficers were not sufficiently diligent in their efforts to rule out those other structures and that in deposing with confidence to a belief thatthe Subject Residence was the source of the smell of growing marijuana in the absence of reasonable and adequate efforts to pinpoint itssource, Cst. Obermayer misled the judicial officer who issued the Warrant. Ancillary points raised by Mr.

Henderson in argument in thiscontext relate to discrepancies between the ITO and Cst. Obermayer’s notes, the unattested to ability of Cst. Bazett to identify the smellof marijuana and the failure of Cst. Obermayer, as deponent, to give sufficiently detailed expression to what smells he and Cst. Bazettdetected during their investigation. [18] Ms. MacWilliam, for the Crown, contends contra that when regard is had to comparable authorities, the efforts made by Cst.Obermayer and Cst.

Bazett to localise the smell of marijuana to the Subject Residence, as reported in the ITO, were adequately diligentfor the purpose of obtaining the Warrant and that the ITO furnished the judicial officer who issued it with a reliable basis for doing so. [19] In weighing these arguments, I begin by noting that the process of identifying the source of smells is an imperfect andsubjective process. That this is so is acknowledged in the authorities: see, for example, R. v. Newton, 2003 BCSC 1197. Substancesthat activate the olfactory senses (sometimes called aerosols) are airborne.

They are carried to olfactory sensors (in the nose) on currentsof air. Without aids like flags, wind vanes, wind socks or visible airborne content like smoke or steam—none of which were invoked inthe evidence on this voir dire—the direction in which air is flowing at any particular moment in any particular place is not easilyidentified.

Moreover, it is a notorious fact that the direction of air flow is changeable as a function of atmospheric pressure andtemperature variations generally, that that direction can and does change frequently, and that air flow is to some degree further affectedlocally by the patterns of unobstructed corridors and obstacles that are found in the locations where air movement is of interest. As Mr.Henderson rightly conceded in his written submission, “smell cannot be traced”.

Recognising these simple facts forces the conclusionthat a subjective claim that a smell was noted to be emanating from a particular structure, especially on occasions when there wasdetectable air movement, is evidence that must be treated with some considerable caution. However, I also add that it is evidence of anature that requires that individual observations of smells and their apparent origins must not be assessed in isolation or weighed in too-fine scales. [20] Mr. Henderson argues that Cst. Obermayer could have done more than he did in pinpointing the location of the marijuana

smells he referred to as emanating from the Subject Residence during the course of his investigation. He could have done a completeperimeter search of the Subject Residence, for example, “squaring it off” as Mr. Henderson put it. Undoubtedly, Mr. Henderson is right. The constable could have done more. One can always imagine more that could have been done to make a claim of sufficiency of anyhuman enterprise more robust. But that is not the test. The question here is whether what Cst. Obermayer—assisted by Cst.

Bazett—didwas sufficient to furnish him with adequately reliable evidence regarding smells emanating from the Subject Residence which he, in turn,could impart to the judicial officer who was asked to issue the Warrant. [21] The evidence on the voir dire established that Cst. Obermayer and Cst. Bazett attended at the Subject Residence on severaloccasions in July and August, 2010. They walked in close proximity to it although, by Cst. Obermayer’s admission, neither he nor hiscolleague ever “squared it off”. They stopped short of entering onto private property to collect observations on all sides of the building.

On some occasions they detected a strong smell of marijuana emanating from the Subject Residence; on others, the smell was lessstrong. On still other occasions the officers detected no marijuana smell at all in areas where, previously, they had detected such asmell. Particular features of the house near which the smell was detected were not uniform, but there were recurrent observations insome areas (near a vent, for example) where the smell was noted more than once. [22] I consider it significant that police interest in the Subject Residence was first triggered by a civilian who phoned in a tip.

Sheidentified the Subject Residence by its address to police in her report, and (as is conveyed in the ITO) advised that “a strong smell ofmarijuana could be smelt [sic] while walking past [it]”. [23] What emerges from what I have reviewed above is the fact that a civilian and two officers, none of whom have any knownmotive to misattribute the smell of marijuana to any particular house in an area where several houses were located, formed the conclusionthat the marijuana smells they were detecting on multiple occasions were coming from the Subject Residence.

While subjectiveimpressions about smells and their origins must be treated with caution (as I have noted), the convergence of a number of suchimpressions, gained by different people on different occasions, upon a single source elevates their reliability and probative value. Ananalogy might be drawn between the aggregation of the subjective impressions of the two officers and a civilian witness in this caseabout the source of marijuana smells and the strands in the figurative rope that Taylor J. used to illustrate the accretion of reasonablegrounds for arrest in R. v. Parchment, 2005 BCSC 1871 , [2005] B.C.J.

No. 3031 (S.C.): “... many weak fibres may bythemselves make a strong rope. Likewise, individually assessed weaknesses may be given strength when combined with evidence that isa strength or corroborative in nature" (at para. 55). The evidentiary “rope” in the case at bar gains strength, as I have sought to show, bybeing composed of observational strands gathered by multiple observers, not all police personnel, on multiple occasions during July andAugust of 2010, and under differing conditions. Its strength is further enhanced by the fact that, appropriately, Cst.

Obermayer asdeponent of the ITO, included among his reported observations occasions where he did not detect the smell of marijuana in areasproximal to the Subject Residence where, previously, he had done. That candour tells me that the officer was aware of, and acted upon,his duty to disclose, inter alia, that which was material and did not favour the issuance of the warrant he was seeking. My confidence inthe ITO is strengthened by this display of necessary candour. [24] Mr. Henderson complains of some discrepancies between Cst.

Obermayer’s officer’s notes, and the ITO, mostly regarding theprecise locations at which some observations of smells were detected. It is true that in transferring his recorded observations to the ITO,Cst. Obermayer got some details wrong. But it is not contended that these discrepancies reflect an active intention or purpose to mislead,nor could it be. More important, when seen in the round, the observations of three witnesses (one a civilian) stand together and, withconsistency, implicate one property—that is, the Subject Residence.

The observations converge upon the Subject Residence as the onehouse among various alternatives possibilities that, to all three observers, appeared to be the source of the marijuana smells. This is whatgives the olfactory evidence its added strength. [25] Mr. Henderson argues that Cst. Obermayer did not, in the ITO, categorise the smells he detected in proximity to the SubjectResidence as odours associated with burning or vegetative marijuana and that the parts of the ITO that refer to his olfactory observationsshould be excised. I cannot accept that argument. [26] That Cst.

Obermayer can distinguish between the two is not in doubt. He deposed in the ITO that he has personally attended atten marijuana grow operations prior to the one at issue here and that he is “familiar with the odour of fresh growing marijuana and that ofsmoked marijuana”. He knew he was involved in investigating the question of whether someone was growing a marijuana crop at theSubject Residence. One would expect the references in the ITO to what he smelled in the course of that investigation to be material tothe investigation he was conducting. As Rosenberg, J.A. noted in R. v. Polaschek, [1999] O.J.

No. 698 (C.A.), on the analogous subjectof whether olfactory observations can ever provide reasonable grounds for arrest: “The circumstances under which the olfactory observation was made will determine the matter. It may be that some officers throughexperience or training can convince the trial judge that they possess sufficient expertise that their opinion of present possession can berelied upon.” (at para. 14, emphasis added) [27] Here, the “circumstances under which the olfactory observation … made” by Cst.

Obermayer (to track the language fromPolaschek), include the fact that he was acting on a civilian tip that there was a grow operation in the Subject Residence and that it wasexuding marijuana smells.

With ten grow operation investigations to his credit at the time, the officer’s reference to detecting marijuanasmells around and coming from that residence would, I believe, have left no doubt in the mind of the judicial officer who issued theWarrant that the olfactory observations of which he made mention were observations material to an investigation to determine thepresence of marijuana growing in the Subject Residence. [28] Mr. Henderson also raises the point that Cst.

Bazett—who was engaged primarily to carry out a FLIR survey of the SubjectResidence but who also made observations about marijuana smells that he detected in proximity to the house during that survey—wasnot described in the ITO as a person who is able to identify the smells of marijuana, whether growing or burning. I cannot see merit inthat argument either. [29] Cst. Bazett is described in the ITO as a thermogapher who, by use of FLIR technology, had been active in investigatingmarijuana grow operations since at least May of 2009 (more than a year prior to the investigation at issue in this case). He was brought

into the present investigation in order to gather heat signature evidence that would either confirm, or contradict, the other evidence then in hand suggesting the presence of a marijuana grow operation at the Subject Residence. It is, again, a reasonable inference that—as a police constable with service experience involving “structures housing marijuana grow operations”—Cst. Bazett communicated to Cst.

Obermayer olfactory observations he made that he appreciated were germane to the exercise they were undertaking together, namely, determining whether there were reasonable grounds to believe that a marijuana grow operation was in existence in the Subject Residence. [ 30 ] If Cst. Bazett’s evidence regarding the detection of the smell of growing marijuana had been the only olfactory evidence relied upon by the Crown in defending the Warrant at issue here, the result might have been different. That was the case in R. v. Bui , [2005] B.C.J. No.1219 (Prov. Ct.) , a decision on which Mr.

Henderson lays considerable emphasis. Here, however, Cst. Bazett’s olfactory evidence draws strength from the corroborating evidence of Cst. Obermayer who attested in the ITO to having detected the odour of marijuana during the course of the grow-operation investigation they were both carrying out, and to being able to distinguish between the smells of growing and “smoked” marijuana. Harkening back once again to the rope analogy employed by Taylor J. in Parchment , I would say in this regard that the perhaps weaker strand of olfactory evidence contributed by Cst.

Bazett is fortified by the stronger strands contributed by Cst. Obermayer, given that “individually assessed weaknesses may be given strength when combined with evidence that is a strength or corroborative in nature” (at para. 55). [ 31 ] The portions of Polaschek that Mr. Henderson invokes in favour of the above-noted arguments are distinguishable on the bases that I have identified above in these reasons. I repeat that I accept that evidence of olfactory observations has inherent limitations and must be treated with caution for all of the reasons I have acknowledged earlier. But the passages to which Mr.

Henderson adverts in Polaschek (and, as well, in R. v. Oakley , [2002] B.C.J. No. 3102 (S.C.) ) speak mainly to the problems that are encountered when police action has been predicated solely on olfactory evidence. Here, olfactory evidence is only one part of a constellation of observations of varying kinds that, together, featured in the ITO and are said by the Crown to have justified the issuance of the Warrant. [ 32 ] Ms. MacWilliam, for the Crown, has cited to the court cases that, like those cited by Mr. Henderson, are not on all fours with the case at bar.

None of the cases cited to me by either counsel match the contours of this case exactly and to the extent of the differences, all of the authorities I have been asked to consider must be assessed in light of their individual facts. That said, certain Crown cases provide some particularly helpful guidance. I will single out only two for special mention. [ 33 ] R. v. Wilson , [2011] B.C.J. No. 965 (C.A.) is such a case. In Wilson comparatively slight olfactory evidence contributed one part of an array of evidence in an ITO that, like the case at bar, also made reference to FLIR results.

There were other indicia included as well—such as the pattern of melting snow on the roofs of certain buildings as compared to others, suggesting internal heat differences— that remove Wilson somewhat from the case at bar. As well, the structure in issue in Wilson was not as close to other structures as is the Subject Residence—structures that might have been alternative sources of the smells referred to by Csts. Obermayer and Bazett. Still, taken together, the smell evidence in both cases demonstrably gained strength from its association with other, corroborative evidence which Ms.

MacWilliam rightly argues “made it more likely that the smell [in the case at bar] was coming from the building in question”. The warrant at issue in Wilson was attacked, in part on the basis of the inherent frailties of olfactory evidence and limitations in determining a smell’s source (as well as the limited amount of the olfactory evidence that was available in that case). Yet, when seen in context, the supportive evidence addressed in the ITO, and the olfactory evidence in particular, was held to support the warrant sufficiently to survive Charter scrutiny in Wilson . [ 34 ] R. v.

Stewart , 2003 BCCA 636 , also cited by the Crown, is another case where the warrant under attack was issued on the basis of an ITO that made reference to an anonymous tip coupled with marijuana smells identified to be coming from the residence in question and corroborative FLIR heat signatures and hydro consumption data. The fact that the officer in that case did not circle or “square off” the house in question in the investigation did not undermine the investigation to the point of placing the validity of the warrant in peril.

The grounds cited by the deponent of the ITO, each of varying strength and probative value individually, nevertheless drew strength from each other when viewed cumulatively. The observations gathered in the course of the investigation joined together to form a confluence of observations that, taken together, constituted “reasonable grounds to believe.” Particular weaknesses in particular areas were overcome by the strengthening effect that accrued to individual observations being found to be coextensive with other individual observations. [ 35 ] To conclude on this point, I cannot accept Mr.

Henderson’s argument that the olfactory evidence regarding marijuana smells and their source was so unreliable that that evidence could not constitute a part of an array of reliable observations capable of supporting the Warrant in this case. The Heat Signatures [ 36 ] Mr. Henderson argues, on behalf of the accused Mr. Jones, that the heat signature data generated by Cst. Bazett’s FLIR examination of the Subject Residence is so inadequate that it lacks any probative value.

Specifically, he contends that without knowing more about the locations of the other residences for which FLIR readings were obtained, and without a numerical standard or scale to quantify the comparative results, the comparisons made between the readings given for the Subject Residence and the comparables are misleading. [ 37 ] In what is a recurring theme in the Crown’s arguments on this voir dire , Ms. MacWilliam submits that whether or not he employed a numerical standard or scale, Cst. Bazett was an experienced officer and thermographer.

FLIR-mediated observations of what to him was discernible as elevated heat in the basement area of the Subject Residence (where nothing comparable was noted in three, nearby residences of similar construction) form an important part of a larger picture. She says that when combined with other observations reported in the ITO and considered in that context, the FLIR data contribute something of evidentiary value to a matrix that, in its totality, is sufficient to support the issuance of the Warrant. [ 38 ] The ITO refers to FLIR observations that were gathered by Cst.

Bazett at varying distances from the Subject Residence and from more than one vantage point. These observations yielded readings that consistently identified the northwest corner of the foundation of the Subject Residence as having an “elevated/high heat signature”. By contrast, no other part of the Subject Residence that was examined using the FLIR device revealed any elevated heat signature. Three “nearby residences of similar style and

construction materials” were chosen by Cst. Bazett for comparison purposes and he measured the heat signatures of the foundations forall three.

Again, all of them, he said, were (perhaps not surprisingly) “relatively cold in relation to the main levels of the homes”—thefoundation of the Subject Residence being the only one of the four houses surveyed to reveal an elevated heat signature. [39] While more could have been done (as is always the case), the FLIR observations serve to distinguish the Subject Residencefrom neighbouring residences in a way that is crude but reliable and reveal a heat signature for it that is consistent with the presence of amarijuana grow operation. Ms.

MacWilliam states the following in her written submission: “... many factors that lead to grounds for issuance of a search warrant, taken in isolation, are next to meaningless. Covered windows or asound consistent with humming fans, for instance, do not provide much probative value on their own. However, considered in thecontext of all of the surrounding circumstances, they can be quite probative.” (emphasis in original) [40] As should be clear from what I have said above in these reasons, I respectfully agree with that submission. The mistake thatMr.

Henderson has made in his submissions contra, if I may say so, is that he has fallen into the practice of subjecting individualelements of the array presented in the ITO to “microscopic” assessment (which the cases say judges must not do). He has concentratedon the trees instead of the forest. In following that practice, he has failed to acknowledge the probative force that the variousobservations, none of which are determinative by themselves, gain from the fact that they are found together as a matrix. [41] Elsewhere in her submission Ms. MacWilliam correctly submits that in other cases (like R. v.

Cooke, [2012] B.C.J. No. 130(S.C.)), courts have upheld warrants where the ITOs that served as their substrata have reported significantly fewer observations that,nevertheless, in combination provided the deponents (and in turn the judicial officers issuing the warrants) with the requisite “reasonablegrounds to believe”. [42] I thus respectfully agree with Ms. MacWilliam that the heat signature data—which the ITO confirms is consistent with thepresence of a marijuana grow operation in the experience of Cst.

Bazett as a trained thermographer—contributes something to the overallarray of observations in this case and lends strength to the Crown’s contention that the Warrant is adequately and properly supported. The Hydro Consumption Data [43] Mr. Henderson challenges the portions of the ITO that set out hydro consumption records for the Subject Residence and thencompare them to hydro consumption at Cst. Obermayer’s own home. That comparison, Cst.

Obermayer deposes, reveals a markeddifference that suggests a pattern of excessive use of energy within the Subject Residence that is consistent with the operation of amarijuana grow operation there, given the energy demands that accompany the use of high intensity lighting, ventilation equipment andthe like. Mr. Henderson says that we don’t know enough to be confident that the comparison Cst. Obermayer has made is not an “appleand oranges” comparison that has little value in terms of assisting the judicial officer who issued the Warrant in determining where therewas the requisite “reason to believe”. [44] Ms.

MacWilliam, wisely, acknowledges the frailties and limitations inherent in Cst. Obermayer’s rather surprising selection ofhydro consumption at his own home as the yardstick against which hydro consumption at the Subject Residence would be measured. Inher submission she states: “While there would have obviously have been more preferable means of comparison at his disposal which could have led to a moredefinitive conclusion, we ought to be mindful of what the test is on review of the ITO.

The information the officer used was notfraudulent; it did not violate the rule of full, fair and frank disclosure; and it does not amount to non-disclosure. So, the most we can sayabout it is that the court, on review of the ITO, should perhaps assign it less weight than it would if a more reliable comparison had beendone.” [45] Cst. Obermayer’s comparison of energy usage at the Subject Residence to that at his own home yields information that iscoarse as opposed to refined. That limits, as Ms. MacWilliam says, its helpfulness and the weight that it can carry.

But the comparisondoes still have residual evidentiary value. The officer did roughly equate the size of the Subject Residence to his own home, and heruled out obvious high-energy-consuming features and property like pools, hot tubs, welding equipment and home-based businesses asexplanatory factors for the high numbers at the Subject Residence—at least to the extent that such features and property could bedetected from outside.

There are many ways in which the energy consumption profiles of the two structures could differ for innocentreasons not accounted for (the use of electrical heating in one, but not the other, being but one). But the variation from the provisionalyardstick employed by the officer based on the average monthly hydro consumption at his own house ($100) and that at the SubjectResidence (near $300) is marked and dramatic.

Accompanied by other observations contained in the ITO, that apparently markeddeparture from a rough norm which could be attributable to the energy demands of a marijuana grow operation with all of its attendantenergy demands, constitutes some evidence which, coupled with other evidence, could justify the issuance, by the judicial officer in thiscase, of a warrant. [46] It is important to note that this case differs factually from the case of R. v. Vu, 2006 BCPC 77 , [2006] B.C.J. 581(Prov. Ct.), cited by Mr.

Henderson, where Judge Hicks noted that “no range of normal usage [was] provided for comparison by thejustice” (at para. 39). Here, a comparable of sorts was provided, although it was one of limited value and assistance. By contrast, in Vuthe judicial officer was not given any notional yardstick by the ITO deponent against which to measure, even grossly, the alleged highhydro consumption in the target house. [47] R. v. Mayoh, 2009 BCPC 423, also cited by Mr. Henderson in this connection, is also distinguishable.

There, the comparativeenergy usage aspect of the ITO was vulnerable (in a way that the ITO in the present case is not) to an “apple and oranges” attack by theaccused. The comparison made by the investigating officer in Mayoh between the energy consumption in his own, “larger, newerfamily home heated by natural gas” and that occurring in the target home which was “an old poorly insulated manufactured home heated

by electricity” was manifestly inapt. No effort seems to have been made by the ITO deponent in Mayoh to achieve a measure of even rough parity between the target residence and the “comparable”. The same cannot be said here. [ 48 ] Thus, I am satisfied that while it is not without its limitations, the rough comparison given by Cst.

Obermayer between the energy consumption in his own grossly comparable home, and the roughly three times higher consumption in the Subject Residence, was properly included in the ITO and, coupled with other evidence, furnished the judicial officer with a foundation of evidence sufficient to justify his issuance of the Warrant. CONCLUSIONS [ 49 ] For the reasons previously given, I have concluded that Mr.

Jones has standing to raise a s. 8 challenge regarding the search of the Subject Residence carried out by police pursuant to the Warrant that he now challenges. [ 50 ] I have also concluded that, while the evidence concerning detection of the smell of marijuana in proximity to the Subject Residence, the comparative heat signature data for that residence relative to others nearby as detected by the FLIR device, and the elevated energy consumption data for the Subject Residence, all have their frailties and their limitations, that evidence still has residual probative value.

The probative value of the challenged evidence is increased when individual observations are viewed together with other individual observations in the same category. And when all of the reliable evidence referred to in the ITO is viewed, as the law requires, in the aggregate as a matrix, then its probative value is enhanced even further. While, unavoidably, these reasons have concentrated on the evidence in the challenged categories, there was other unchallenged evidence that forms part of, and fortifies, that matrix. That other evidence includes: (

a) evidence associating Mr. Jones and his co-accused with the Subject Residence; (

b) evidence showing that Mr. Jones had a dated criminal record involving an offence of trafficking in an illicit substance; and (

c) evidence showing that the blinds at the Subject Residence were closed but lights were on inside. [ 51 ] The entire matrix, in my opinion, (though not perfect) nevertheless furnished the judicial officer with sufficient grounds to issue the Warrant. For the reasons I have given, I do not consider the ITO to have run afoul of any of the requirements of an ITO known to law. It is not inaccurate, nor is it misleading or incomplete. Rather, it afforded the judicial officer who reviewed it with reliable evidence that he could reasonably believe and on the basis of which he could reasonably issue the Warrant.

The Warrant, accordingly, was valid and lawful and the search of the Subject Residence conducted pursuant to it did not breach Mr. Jones’ rights under s. 8 of the Charter . Mr. Jones’ application to exclude the evidence obtained in the course of the search is therefore dismissed. [ 52 ] Before closing these reasons I wish to make brief mention, as a postscript as it were, of the objection that was taken by Mr. Henderson, on behalf of Mr. Jones, to the opening by police of some of Mr. Jones’ sealed mail. It has been contended that that action went beyond the authority conferred by the Warrant. However, Mr.

Henderson advised the court in submissions that “Mr. Jones does not seek to exclude that evidence ... as it assists his position that he had not been living at [the Subject Residence] ... since May-June 2010, and that he has no knowledge and/or control over the grow operation.” I therefore consider that aspect of Mr. Jones’ s. 8 challenge to have been abandoned at the outset, (notwithstanding the fact that reference was made to unauthorised opening of sealed mail again in Reply submissions filed by Mr. Henderson on his behalf at a later time). [ 53 ] Orders accordingly. ___________________________ Thomas S.

Woods, P.C.J.