R. v. Truong and Le, 2017 BCPC 467

Citation: R. v. Truong and Le 2017 BCPC 467 Date: 20170518 File No: 209639-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. QUAN TRUONG VIET KHANH LE RULING ON VOIR DIRE OF HONOURABLE JUDGE J.I.S. SUTHERLAND Counsel for the Crown: Federal Crown: B. Girn, K. Torvik Counsel for Mr. Truong : J. Whysall Counsel for Mr. Le : J. Conroy, Q.C., M. Jackson Place of Hearing: Surrey , B.C. Dates of Hearing: February 14, 15, 16, 17; April 4, 11; May 3, 2017 Date of Judgment: May 18, 2017

INTRODUCTION [ 1 ] On January 26 and 27, 2015, Cpl. Holmquist of the RCMP Coordinated Marihuana Enforcement Team was granted two search warrants under the Controlled Drugs and Substances Act . The search warrants related to two addresses on a large agricultural property where it was believed marihuana was being produced in excess of that authorized under the Marihuana Medical Access Regulations (hereinafter “MMAR”). [ 2 ] The search warrants were executed on January 27, 2015.

Found on the property was approximately 15,900 marihuana plants in excess of the 989 authorized under the MMAR to be grown at that location.

Also found were 113 pounds of dried marihuana, 46 pounds of packaged marihuana, 32 grams of hashish, and 5.5 grams of marihuana oil. [ 3 ] As a result of this discovery, five accused have been charged with unlawfully producing marihuana contrary to s. 7(1) of the Controlled Drugs and Substances Act and possession of marihuana for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 4 ] Two of the accused, Quan Truong and Viet Khanh Le apply to have the evidence found in the searches excluded from their trial based on assertions their

section 8 right under the Canadian Charter of Rights and Freedoms to be free from unreasonable search and seizure was violated. In particular, they argue there were insufficient grounds to justify the issuance of the search warrants. As a result, the Applicants assert that the evidence found in the searches ought to be excluded from their trial pursuant to section 24(2) of the Charter. [ 5 ] This is my ruling on the application of Mr. Truong and Mr. Le.

FURTHER BACKGROUND [ 6 ] The property at issue consisted of a seven-acre parcel of land that contained eight buildings; a large 51,000 square foot metal barn, a residence, and six trailers. [ 7 ] One search warrant was for the address 40 - 264th Street, Aldergrove, British Columbia and specified the "residence and outbuildings." This included the barn where most of the marihuana plants were found.

The offences alleged in the Information To Obtain a Search Warrant (“ITO”) and the Search Warrant itself were Production of Marihuana and Possession of Marihuana for the Purpose of Trafficking. [ 8 ] The other search warrant was for address 1 - 40 - 264th Street, Aldergrove, B.C. and identified the premise to be searched as a white trailer that is approximately 980 square feet in size.

Paper and electronic documents comprised the items believed to be in the trailer that would afford evidence of the production of marihuana in the barn and its possession for the purpose of trafficking. [ 9 ] The same ITO was used for both search sites. [ 10 ] The Applicant, Mr. Truong owned the property. The property was developed for growing mushrooms, and indeed a mushroom- producing facility existed there at one time. [ 11 ] Four Personal Use Production Licences (“PUPL”) issued under the MMAR had been issued for the property at 40 - 264th Street.

The licences were issued to four different people, one being the applicant Viet Khanh Le. Nine hundred and eighty-nine marihuana plants were authorized to be grown at the premises and approximately 97 pounds of dried marihuana was authorized to be stored there when the licences were combined. [ 12 ] The grounds for the search warrant applications were gathered over approximately two months, from November 20, 2014 to January 26, 2015. Key components of the ITO are: 1.

Observations made during 18 days of surveillance, including the smell of marihuana, people present at the property whom it was believed were not the licence-holders, and vehicles at the property that did not belong to the licence holders; 2. The limits to the number of plants that could be grown under the PUPL licences; 3. The belief that there was no legitimate commercial business or agricultural activity being conducted at the property other than the licenced grow operations and an office for a trucking carrier; and 4.

Hydro consumption that was believed to be excessive for the amount of marihuana licensed to be grown at the premise. [ 13 ] In an earlier ruling, I declared that a voir dire be held and granted leave to cross-examine the affiant of the ITO, Cpl. Holmquist, on his grounds for the search warrants. The cross-examination of Cpl. Holmquist amplified the record in material ways. The amplified record and details of the contents of the ITO will be referred to below in the course of my analysis of the sufficiency of the grounds for the search warrants.

To put that analysis in context, I will now turn to the applicable law. LAW The Standard of Review [ 14 ] A search warrant, having been judicially authorized, is presumptively valid ( R. v. Wilson, 2011 BCCA 252 , para 63 ). It follows from this presumption of validity that the onus of demonstrating invalidity falls on the parties who assert it, in this case, Mr. Truong and Mr. Le. [ 15 ] It is important to acknowledge the limits to the court’s discretion when reviewing the sufficiency of the grounds for issuing of a

search warrant. There is only a narrow basis upon which a reviewing judge can declare a search warrant invalid based on insufficientgrounds. [16] In R. v. Morelli, 2010 SCC 8 , [2010] 1 S.C.R. 253, Justice Fish for the majority of the court stated the test forreviewing the sufficiency of a search warrant this way (at para. 40): [40] In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that mightreasonably be believed on the basis of which the authorization could have issued” (R. v.

Araujo, 2000 SCC 65 , [2000] 2 S.C.R.992, at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, butwhether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds tobelieve that an offence had been committed and that evidence of that offence would be found at the specified time and place. [17] As noted in Morelli, it is not for me to substitute my view of the sufficiency of the ITO for that of the Judicial Justice (hereinafter“JJ”).

Rather, if the grounds set out in the ITO as modified on amplification are capable of satisfying a JJ that there is a reasonable beliefthat evidence of an offence is in the place to be searched, then I ought to uphold the decision of the JJ. The Reasonable Grounds Standard [18] The reasonable grounds standard is something more than suspicion but less than the civil balance of probabilities standard (R. v.Whitaker, 2008 BCCA 174 at paras. 39-42; quoting Mugesera v. Canada (Minister of Citizenship & Immigration), 2005 SCC 40, [2005] 2 S.C.R.100).

It has also been described as a “credibly based probability” (Hunter v. Southam, (SCC),[1984] 2 S.C.R. 145) and “reasonable probability” (R. v. Debot (1989), (SCC), 52 C.C.C. (3d) 193 at 213). This standardenvisions a practical, non-technical, and common sense probability as to the existence of the facts and inferences asserted (R. v. Jir, 2010BCCA 497, at para. 27 quoting R. v. Sanchez (1994), (ON SC), 93 C.C.C. (3d) 357 (Ont. Gen. Div.), at 367). [19] Further, the affiant’s belief must have an objectively supportable basis founded on reliable and compelling information(Mugesera v.

Canada (Minister of Citizenship & Immigration)). Amplification [20] In an earlier ruling, I granted leave to the Applicants to cross-examine the affiant of the ITO. The effect of that examination wasto amplify, or expand, the record the JJ had to work with in deciding whether to issue the warrants. The effect of amplification on thetask of the reviewing judge was stated in R. v.

Scott, 2012 BCCA 99 at paragraph 42: [42] Ultimately, the reviewing judge must examine the record submitted to the authorizing Justice, including any exclusions andadditions arising from proper amplification on review, and decide whether on a “practical, non-technical, and common sense basis” thetotality of the circumstances demonstrates reasonable grounds for the belief the appellant was committing the stated offenses, and couldsupport the issuance of a warrant: R. v. Wilson, 2011 BCCA 252 at para. 52, 272 C.C.C. (3d) 269; R. v.

Saunders, 2003 NLCA 63, 181C.C.C. (3d) 268 at para. 15, aff’d 2004 SCC 70 , [2004] 3 S.C.R. 505. [21] In performing the analysis on review, the reviewing judge must exclude erroneous and misleading information from the ITO andmay consider information brought out in the amplification process (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 58; R. v.Garofoli, (SCC), [1990] 2 S.C.R. 1421; R. v Campbell, 2011 SCC 32 , [2011] 2 S.C.R. 549, at para. 14; R.v. Morelli, at para. 41). [22] The limits on amplification by the Crown were also discussed in Scott.

At paragraph 41, the court stated that the Crown is“restricted to amplification directed to the correction of minor or technical errors made in good faith and derived from informationavailable to the police at the time the warrant issued.” [23] In the end, if I find at the conclusion of the amplification process that, when assessed on a practical, non-technical, and commonsense basis, there continues to be some reliable and credible information upon which a JJ could have authorized the search of theproperty, then the warrant should be sustained (R. v. Wilson; R. v. Garofoli; R. v. Araujo; R. v.

Sadikov, 2014 ONCA 72). Sub-Facial Challenges to Search Warrants [24] In the present matter, the Applicants make a sub-facial challenge to the search warrants. In World Bank Group v. Wallace, 2016SCC 15; a sub-facial challenge to a wiretap authorization (which has similar legal principles to a sub-facial challenge to a search warrant)was described as an assertion that “the record did not accurately reflect what the affiant knew or ought to have known, and that if it had,the authorization could not have issued” (para. 120).

To appreciate this type of challenge, it is useful to reiterate the obligations of anaffiant applying ex parte for a search warrant as Cpl. Holmquist did in the present case. [25] The affiant in an ex parte application bears a legal obligation of full, frank, and fair disclosure in the ITO. This requires thatmaterial facts be included in the ITO and that they be set out truthfully, fairly, and thoroughly so as to not mislead the reader (R. v.Morelli; R. v. Araujo). Inferences [26] A JJ is entitled to draw reasonable inferences from the information set out in the ITO.

It is not the reviewing judge’s role to drawinferences, or to prefer one inference over another. In conducting its review, the reviewing judge is limited to determining whether theinferences drawn by the authorizing JJ were reasonably capable of being drawn from the totality of the evidence. Where the informationset out in an ITO, including any reasonable inferences to be drawn from it, is capable of satisfying a JJ that the affiant’s belief isreasonable then the warrant should issue. The Totality of the Evidence

[27] All of the information must be considered together because each piece of evidence colours other pieces of evidence to create thefull picture (R. v. Lam, 2002 BCCA 99). [28] A weakening of the strength of an assertion contained in the ITO does not necessarily result in the assertion being discountedaltogether. Rather the assertion, even if its apparent frailties significantly weaken the weight to attach to it, must still be factored in to theextent its weight will allow (R. v. Tran, 2011 BCSC 838).

Similarly, the presence of an innocent explanation for facts advanced tosupport grounds for the search warrant does not justify ignoring those facts when considering the totality of the evidence (R. v. Lao,2013 ONCA 285, at para. 59). Prior Criminal Activity [29] Different courts have espoused different views of the relevance of prior criminal activity of a person associated to a property orcrime that is connected to a place to be searched. [30] On the one hand, R. v.

Loewen, 2016 BCCA 351 states [51] …There is no rule precluding the inclusion of such information in an ITO so long as the prior criminal activity is relevant to thematter under investigation: see e.g. Della Penna at paras. 36–37. The exception is for facts leading to charges that have been dismissedor judicially stayed. [31] On the other hand, R. v. Gardner, 2015 BCSC 801 at paras. 59 and 60 states: [59] The recitation of material from prior unrelated activities suggesting unproven criminal conduct has been the subject of adversecomment in our courts. In Regina v.

Nguyen and Truong… McKinnon J. of our court observed: [18] Courts have commented about the extent to which prior offences ought to be considered in ITO’s. In R. v. Hutchings, (BC CA), [1996] B.C.J. No. 3060, McEachern C.J.B.C…. stated in para. 33: …I would not approve the practice of including dismissed charges in an information. [19] It seems to me that references to instances where no charges were laid is equally objectionable. [20] In Re Criminal Code, [1997] O.J.

No. 4393, Hill J, described the practice of including information about “investigations andcharges which did not result in criminal convictions” as “prejudicial and irrelevant.” [60] In R. v. Nguyen and Nguyen, 2012 BCSC 1758, Joyce J. referred to the McKinnon decision observing: In my view, the inclusion of the reference to Mr. and Mrs. Nguyen’s involvement with respect to the previous investigation would havethe same prejudicial effect as in Nguyen and is similarly objectionable on that ground.

Evidence of Fraud, Material Non-Disclosure, Misleading Information, and Hearsay Evidence [32] I have also instructed myself that after factoring in evidence of fraud, material non-disclosure, and misleading information, I muststill consider the remaining information in its totality to determine whether the JJ could have issued the warrant based on thatinformation. That information may contain hearsay given the different purpose and thus evidentiary considerations between a trial and aCharter application (R. v. Loewen; R. v.

Wong, 2017 BCSC 306). [33] For hearsay and other second-hand information, it is not the ultimate truth of the information that is important in the review butrather whether it was reasonable for the officer to rely on the information at the time in forming grounds for the warrant (R. v. Paterson,2017 SCC 15).

ANALYSIS [34] The ultimate question to be answered is whether there was sufficient reliable information in the ITO, as amplified on review,from which the JJ who authorized the warrants could reasonably conclude that the amount of marihuana being grown or kept at theproperty exceeded the cumulative amount authorized by the licences. [35] Before discussing the particulars of the ITO in question, I wish to comment on the approach taken to the investigation leading tothe search warrant application.

The Investigation [36] The investigation leading to the grounds contained in the ITO was almost exclusively conducted by Cpl. Holmquist. He mademost of the third party information inquiries, reviewed reports generated by others, conducted all of the surveillance, twice with otherofficers, drafted the ITO, and obtained the search warrants. Other police officers who played a noteworthy role were Cpl. Brassingtonwho took aerial photos and Cpl. Rettie who placed an undercover phone call to Truong Enterprises at Cpl. Holmquist’s request. [37] The duty on Cpl.

Holmquist, as an affiant on an ex parte application, is to present all material facts to the JJ be they favourable orunfavourable to the application. This duty partially originates from what the affiant’s role is not. The affiant is not an advocate for issuingthe search warrant thereby tailoring the information presented in order to achieve the affiant’s desired outcome (R. v. Morelli; at para.58). [38] I have concerns that Cpl. Holmquist had a desired outcome from the start of his investigation. This is reflected in his email to

Canna Farms dated November 25, 2014 at 10:57 a.m. where he writes: I’m currently investigating a very large scale MMAR grow operation. I want to contrast it to a MMPR LP to show how ridiculous the MMAR facility is. All I can say is that there are 4 MMAR licenses in a building that is more than 10 times your size with electrical consumption in the hundreds of thousands a year. (Marihuana for Medical Purposes Regulations (MMPR) is the successor to the MMAR licencing scheme. Both were in effect under the circumstances of this case at the time of the email.) [ 39 ] Cpl.

Holmquist’s characterization of the grow operation at the property as “very large scale” and “ridiculous” is revealing. At this point in the investigation he had little evidence to support these characterizations.

It can be summarized as: • surveillance observations on November 20, and 25, 2014 that established the smell of marihuana coming from the property (which all parties agreed does not indicate the number of plants at the property), and the appearance and layout of the property including that the barn “appears to be used to grow mushrooms” (ITO para 68d); • open source internet information that the property has operated as a mushroom farm and that an active carrier company, Sunrise TLT Group Products Inc., had the property listed as its mailing address; and • electrical consumption records for the property up to October 31, 2014 showing that the electrical consumption for the property had doubled from 2012 to 2014 and that the daily consumption was high in his view.

It is unclear whether he had a report at the time from Darrell Waddell, an electrician and expert in the area of calculating electrical consumption and pairing it with marihuana grow equipment. Even if he did, it did not shed any significant light on whether the grow operation on the property was of a “very large scale” or the scale licenced by Health Canada. [ 40 ] Cpl. Holmquist did not have any information at the time that the mushroom farm was not in operation. His conclusion that the MMAR based grow operation at Mr. Truong’s property was “ridiculous” and of “a very large scale” was obviously premature.

The investigation was 5 days old. This premature conclusion could be rooted in Cpl. Holmquist’s baseline belief stated in the ITO that the MMAR were increasingly being abused. Whatever the reason, this view that existed at the start never seemed to leave and regrettably shaped some of the investigative steps taken and thoroughness of the investigation. The assumptions made, the inferences urged upon the JJ, and the manner the information contained in the ITO was presented, were also affected. The ITO [ 41 ] It is fair to say the pillars supporting the ITO are contained in its

summary paragraphs: 47, and 131-132: 47. I believe that the following indicate that 40 - 264 th Street, Aldergrove is a large scale commercial marihuana grow operation: a. Strong smell of growing marihuana emanating from the property and the size of the large metal barn (51,000 square feet); b. Numerous people attending the property and none of the vehicles observed match the descriptions of the MMAR license holders; c. The electrical consumption at the medical marihuana grow operation is being paid by a business listed as a mushroom farm that is not selling mushrooms; d.

The electrical consumption is extremely high. In comparison to other grow operations I have attended the electrical consumption is equivalent to the production of thousands of plants - far exceeding the 998 marihuana plants authorized to be grown at 40 - 264 th Street, Aldergrove. [ 42 ] Paragraph 131 contains 27 sub-paragraphs that seem to culminate in paragraph 132 which reads: 132. I believe that the following are indicative of a large scale commercial marihuana grow operation at 40 - 264 th Street: a. Strong smell of growing marihuana emanating from the property; b.

The MMAR license holders do not live on the property and do not appear to have care and control of the site; c. Numerous people attending the property and none of the vehicles observed match the descriptions of the MMAR license holders; d. The size of the large metal barn (51,000 square feet); e. Metal garbage bin of potting soil for the use of potting a large volume of marihuana plants; f. The electrical consumption at the medical marihuana grow operation is being paid by a business listed as a mushroom farm that is not selling mushrooms; g. The electrical consumption is extremely high.

In comparison to other grow operations I have attended the electrical consumption is equivalent to the production of thousands of plants - far exceeding the 998 marihuana plants authorized to be grown at 40 - 264 th Street, Aldergrove. [ 43 ] Despite the additional sub-paragraphs of paragraph 132, the basic categories of evidence are the same as those in paragraph 47. [ 44 ] I will use the categories of evidence contained in these paragraphs as a framework for my analysis of the sufficiency of the warrants. At times I will refer to the more detailed descriptions contained in the sub-paragraphs of paragraph 131.

Despite using this

framework, I have considered the evidence in its totality even if it does not fall neatly into one of these categories. [ 45 ] I will start, however, by considering information contained in the ITO that does not fall into one of the

summary categories of paragraphs 47 and 132. This is information about the MMAR. I. The MMAR [ 46 ] Although not included in paragraphs 47 and 132, Cpl. Holmquist sets the stage for his conclusions in the ITO by outlining why he believes the MMAR is increasingly being abused through trafficking and over production (para. 63-66). At paragraph 131 a-b, he summarizes the basis for this belief. At paragraph 131 a, he states that Health Canada Inspectors have no ability to conduct compliance checks under the MMAR.

Sub-paragraph b states: I believe there is an overwhelming temptation to abuse the MMAR program not only because Health Canada Inspectors do not have the ability to monitor the production of a scheduled substance but because of the high value of marihuana and a high demand for recreational use (para. 131 b). [ 47 ] The Crown concedes that “overwhelming” is an overstatement. I agree. Furthermore, this statement of opinion has little value in establishing grounds for the search but does reveal Cpl.

Holmquist’s subjective view of the MMAR program at the time. [ 48 ] The demand and value of marihuana has always existed. Detection of overproduction could still be achieved by traditional law enforcement techniques such as search warrants as was done in this case. To the extent Cpl. Holmquist’s opinion is informed by the findings of a report for the Canadian Association of Chiefs of Police referred to earlier in the ITO under a heading entitled “Documented Medical Marihuana Abuse” (ITO, para. 63), there is insufficient context to the findings to objectively assess the extent of any abuse.

For example, there is no date of the report, or number of MMAR licences issued in total to help put the number of abuses (190) into context. To the extent Cpl. Holmquist relies on his experience he does not offer any statistical or even anecdotal evidence from which the JJ can measure his statement that he has “observed a growing trend involving the use of medical marihuana licences to disguise commercial scale grow operations.” [ 49 ] I would expunge from the ITO Cpl.

Holmquist’s opinion that there is an “overwhelming temptation” to abuse the MMAR program and that it is happening with increasing frequency. [ 50 ] I will now move to the categories of evidence in the

summary paragraphs of the ITO. II. The Smell of Marihuana [ 51 ] Counsel for the Crown and the Applicants agree that the smell of marihuana is a neutral factor under the circumstances and more narrative-based. Reference to it in the ITO, establishes the basic prerequisite to the investigation that marihuana is the subject matter and that it was being grown at the premises at the time the search warrants were applied for. At no point in the ITO does Cpl. Holmquist say that he can tell with any precision the number of plants by the smell. III. The Absence of the MMAR Licence Holders [ 52 ] Cpl.

Holmquist received information from Health Canada that only an MMAR licence holder can produce and tend to the plants they are authorized to grow. Therefore, others cannot be hired by the licence holder to assist in growing or maintaining the plants. He also deposed that from his experience, he would expect to see the MMAR licence holders on the premises on a daily basis as daily care of the plants is required (ITO para. 28, 56). This provided meaning to Cpl.

Holmquist’s belief that the presence of a grow operation in the absence of the licence holders was indicative of a “large scale commercial grow operation” at the property. [ 53 ] This consideration was described in sub-paragraph 47 b and 132 b-c of the ITO. Sub-paragraph 131 i, of the ITO reads: All 4 licence holders do not live at the marihuana production site. In addition, the MMAR licenses permit the combined storage of approximately 97 pounds of marihuana at 40-264 th Street for which I have not observed them attend . (my emphasis) [ 54 ] Cpl.

Holmquist’s conclusion in the ITO that none of the licence holders have “care and control of the site” (para. 132

b) is based in part on reliable information obtained from Health Canada, and driver’s licence and vehicle ownership information that lists their residential addresses as elsewhere. The other part relates to surveillance observations by Cpl. Holmquist whereby he does not observe on any occasion the vehicles belonging to the three licence holders who have vehicles. [ 55 ] The ITO notes that Cpl. Holmquist observed people and numerous vehicles on the property during his 18 days of surveillance. He drew the inference that none of these people were the MMAR licence holders (ITO para. 131 i, 132 b, c).

He based his conclusion on the fact he did not see any vehicles registered to them on the property and, as mentioned, according to their MMAR licences and other government sources, they lived elsewhere. The significance of this conclusion according to Cpl. Holmquist is that it, along with the other information, showed that in fact numerous other people were managing and tending to a large scale production and the MMAR licences are merely “a façade for a commercial scale operation” (ITO, para. 131 aa).

However, amplification added to this part of the ITO. [ 56 ] The ITO notes the various dates and times surveillance was conducted and that it was for “short periods” because of the location of the property (ITO para. 35). During amplification it was established that surveillance was often conducted during drive-bys without stopping. The rest of the occasions involved stops of five minutes at the most.

At times it was dark out. [ 57 ] The licence holders’ addresses were far enough away that it would require some form of transportation for them to get to the property if they lived at the addresses noted in the MMAR licences and government sources. This lends significance to not seeing vehicles registered to those licence holders who had vehicles registered to them, according to Cpl. Holmquist, because the marihuana plants they were licensed to grow would require daily maintenance.

[ 58 ] The residential addresses noted in the licences do not match the addresses from the drivers’ licences for two of the four licence holders. One, the Applicant Mr. Le, has driver’s licences in B.C. and Quebec. There is no information in the ITO describing the licence holders’ movements or whereabouts; whether they were commuting to the property, if so, how, or staying close by, or not attending as alleged. [ 59 ] Cpl.

Holmquist testified that he did not necessarily see all the vehicles on the property or always observe the make, model, and licence numbers of the vehicles on the property when he did his brief surveillance stints. [ 60 ] During the cross-examination of Cpl. Holmquist, it was determined that he did not know what the licence holders even looked like other than that they were likely Asian by virtue of their names. It was conceded that it was possible the licence holders were present on the days surveillance was conducted and that any Asian person seen on the property during surveillance (e.g.

November 24, 2015, January 23, 2016; on December 23, 2015 a “person” was observed), therefore, could have been a licence holder. Why Cpl. Holmquist did not at least obtain photos of the licence holders, perhaps from ICBC or the Superintendent of Motor Vehicles was not explored in evidence. [ 61 ] During surveillance Cpl. Holmquist did not observe any evidence of marihuana leaving the property or see the production of marihuana taking place to help gauge the size of the grow operation. [ 62 ] Cpl.

Holmquist believed the people at the property were accessing the barn where he believed the grow operation to be based on the smell of marihuana. He conceded that it was possible the licence holders were present to work their grow operations and the rest of the people he saw were there for legitimate agricultural farming but did not think that was the case because there was no business licence there. I will return to the reasonableness of Cpl.

Holmquist’s belief that there was no business licence for farming on the property later in these reasons. [ 63 ] The inference that the licence holders were not present and did not “have care and control of the site” could not reasonably be made by the JJ once the amplified record was considered . [ 64 ] Despite their frequency, Cpl. Holmquist’s attendances at the property were so brief, and viewpoints less than ideal, that his observations cannot reasonably lead to the inference that the licence holders or their vehicles were not present during the investigation.

Indeed, he was not always able to determine what vehicles were present. [ 65 ] More troubling, however, is that omitted from the ITO, and thus the authorizing JJ’s consideration, was that Cpl. Holmquist did not know what the licence holders looked like, and thus, would not have recognized the licence holders if he saw them. [ 66 ] The inference the JJ was asked to draw could not reasonably be drawn if the authorizing justice had been informed of this material fact. Indeed, Cpl. Holmquist did occasionally see Asian males on the property accessing the barn. For all he knew, they could have been licence holders.

A more accurate conclusion on the evidence was that Cpl. Holmquist did not see the licence holders’ vehicles but could not say whether any of them were at the property. [ 67 ] The ITO is incomplete in a material way in this area and misleading. As a result, the inference Cpl. Holmquist urged upon the authorizing justice that the licence holders are not attending the property should be excised from the ITO. iv. Lawful Commercial Activities at the Property [ 68 ] At one time the property was a commercial mushroom farm. However, Cpl.

Holmquist concluded in the ITO that those days were over and that no lawful commercial activities of a scale that could account for the activity and hydro consumption were taking place at the property. [ 69 ] He arrived at this conclusion primarily based on attempts to eliminate the possibility of legitimate activity taking place through (

i) an undercover call by Sgt. Rettie on November 26, 2014; (ii) inquiries with the City of Langley that showed the only business licence issued for the property was for Sunrise TLT’s office. From this he concluded there was no business licence for mushroom farming or any other farming; and (iii) Cpl. Holmquist’s own observations that in his opinion no agricultural farming activity was taking place. The Undercover Phone Call [ 70 ] On November 26, 2014, at Cpl. Holmquist’s direction, Sgt.

Rettie placed an undercover phone call to the business number for Truong Enterprises that was also the number for the mushroom farm. According to Sgt. Rettie’s notes, the accuracy of which was not challenged, a woman with an Asian accent answered using a generic “hello” instead of a business greeting. Sgt. Rettie asked if he had called “Truong’s Mushroom Farm.” After some hesitation she said “yes.” Sgt. Rettie asked if they had a storefront from which he could purchase mushrooms. The woman said: “We haven’t grown mushrooms for a year.” [ 71 ] What was not placed in the ITO was that Sgt.

Rettie asked about storefront sales. The Applicants argue this suggests that the person who answered the phone was referring to no transactions at the retail or commercial level had taken place in a while as opposed to a definitive statement about mushroom production. Further, the Applicants point out that Sgt. Rettie did not inquire about mushrooms being distributed or other agricultural products being grown at the property. [ 72 ] The Applicants also attack the reliability of the information provided by the woman who answered Sgt. Rettie’s call.

The identity of that person is unknown; consequently her authority to comment and knowledge of what actually was going on at the property is questioned. [ 73 ] The identity of the person answering Sgt. Rettie’s inquires was unknown - she was anonymous to the police. Further she did not provide much detail, rather she simply responded to Sgt. Rettie’s questions. Her source of knowledge was unknown but under the circumstances an inference can reasonably be drawn that she had some knowledge when the following aspects are considered.

[ 74 ] The call was made to Truong Enterprises’ phone number and this person was present and answered it. She answered the phone which suggests she was entitled to do so. She did not pass off the call when Sgt. Rettie asked if it was Truong Enterprises but rather confirmed it was. She answered Sgt. Rettie’s inquiries about the business. The woman stated “ we haven’t grown mushrooms for a year” implying she was part of the enterprise. [ 75 ] It is difficult to assess the credibility or reliability of an anonymous source who provides only basic detail.

Corroboration of the information is helpful in assessing its reliability. However, under all of the circumstances of the call, there was a degree of reliability to what Sgt. Rettie was told by the woman on the other end of the call such that what he was told could reasonably be believed. [ 76 ] This would rule out mushroom growing as the cause of the hydro consumption and activity observed but it does not point to excess marihuana growing as being the probable cause for it all. Inquiries with the City of Langley [ 77 ] Further grounding Cpl.

Holmquist’s belief of a lack of legitimate activity that could account for the high hydro and activity he observed was that as a result of inquiries with the City of Langley and other government sources, he believed the only current business associated to the property was a company called Sunrise TLT Group Products (“Sunrise”). It had the same phone number as Truong Enterprises Ltd. and the same address: 40 - 264 th Street in Langley. [ 78 ] The ITO notes that Sunrise is an active trucking carrier.

The business licence for Sunrise was issued December 9, 2014. [ 79 ] On its application for a business licence, it listed itself as a small office used only for shipping wholesale food products and that no mushrooms were to be brought to the property. The application for a business licence notes the business is an “exporter” and not a “manufacturer.” Further, that it had only three employees. To Cpl.

Holmquist, this legitimate business was of a much smaller scale than what appeared to be going on at the property. [ 80 ] The application describes the business of Sunrise but does not necessarily shed light on the use of the rest of the property. The direction “no mushrooms to be brought to the property” is ambiguous without an explanation of why not. Is it because there are already mushrooms being grown there, or there is no room to store them, or some other reason, or because the property is not being used for anything but Sunrise’s business and growing marihuana?

Whichever inference the JJ drew, I need to consider if it was reasonable rather than whether I would draw the same conclusion. [ 81 ] From the totality of the evidence up to this point, the JJ could conclude that Sunrise was not growing mushrooms and that mushrooms were not being grown on the property but it does not exclude the possibility that other legitimate agricultural product was being grown by an entity other than Sunrise, particularly if no business licence is required for farming.

This leads to a point of contention between the Crown and the Applicants - whether a business licence was required for farming. [ 82 ] It has been urged upon me by the Applicants to conclude no business licence was required for mushroom or other agricultural farming or wholesaling agricultural products at the property. Crown Counsel asks me to find otherwise. [ 83 ] No evidence was called on this point.

No witness testified or even affidavit evidence presented on whether the City of Langley required a business licence for farming or wholesaling activity on property located in the Agricultural Land Reserve as this property was. Rather, I was presented with argument by counsel on how the combined effect of the City of Langley zoning bylaws, licensing bylaws, and the Agricultural Land Commission Act (the “ Act ”), should be interpreted to support their respective positions. [ 84 ] I mean no criticism of counsel who waded through this legislation to make cogent argument on how it should be interpreted.

It should not be left to me, however, to divine from this analysis, my own view on the proper

interpretation of the combined workings of the bylaws and the Act , and have that view substitute for evidence. [ 85 ] Relevant evidence that did come out during the cross-examination of Cpl. Holmquist was that he asked at the City of Langley Bylaw Department for all the documents they had relating to the property and if there were any business licences associated to the property. What he was given was referred to in the ITO. He never asked if farms required a business licence. This is troubling as, in addition to the call by Sgt.

Rettie, the lack of a business licence for the farm was an important piece in asking the JJ to join him in his conclusion that there was not legitimate farming activity taking place at the property. [ 86 ] This is illustrated in paragraph 25 of the ITO that reads: 25. Shauna VENDENBERG, an employee at the City of Langley Bylaw Department advised me that there is one only valid business licence issued to 40-264 th Street Aldergrove.

The business licence was issued in April 2014 to Sunrise TLT Group Products Ltd…. [ 87 ] Although true in a literal sense, the way this paragraph is written is misleading because it suggests no other legitimate commercial or agricultural activity than Sunrise and the licenced grow was permitted at the property. Yet, Cpl. Holmquist did not know whether a business licence was required for farming. He assumed it was but never asked the simple but important question. [ 88 ] It also suggests a lack of diligence in pursuing relevant information.

This is an important obligation on the police in ex parte applications for search warrants. The law in this regard was discussed in R. v . Morelli , and R. v. Adair, [1994] O.J. No.3265 (Ont. Gen. Div.) . The following principles emerge from that discussion. [ 89 ] An affiant must be reasonably diligent in gathering information for the ITO ( R. v . Morelli , at paras. 100 and 102 ). Diligence adds to the completeness of the ITO thereby reducing the risk of the ITO creating a misleading impression. Moldaver J. in R. v.

Adair, at paras. 17-19 also touched on this obligation of the police to carry out reasonably thorough investigations. He cautioned against relying on seemingly legitimate information if further investigation is reasonably called for. [ 90 ] Related to the reasonable diligence obligation is the examination on review of not just what the affiant knew but what they ought

to have known at the time the ITO was sworn ( World Bank Group, at paras.119-122). In other words, if by exercising reasonable diligence, the affiant would have been aware of additional material evidence that should have been included in the ITO that evidence ought to be considered on the review of whether the search warrant could have issued. In World Bank Group , the following passage from R. v.

Sipes, 2009 BCSC 612 , para. 41 was adopted to illustrate the point: During this review, if the applicant establishes that the affiant knew or should have known that evidence was false, inaccurate or misleading, that evidence should be excised from the [information to obtain] when determining whether the warrant was lawfully issued.

Similarly, if the defence establishes that there was additional evidence the affiant knew or should have known and included in the [information to obtain] in order to make full, fair, and frank disclosure, that evidence may be added when determining whether the warrant was lawfully issued. [ 91 ] The flip side is that an error or omission which an affiant could not have reasonably known will not be factored in on the review ( World Bank Group , para. 122 ). [ 92 ] I am not saying Cpl. Holmquist ought to have known a licence was not required.

Rather, he ought to have known one way or the other through reasonable diligence whether one was required. The ITO is misleading to the extent it implies one was required. [ 93 ] The Applicants take issue with Cpl. Holmquist not including in the ITO information uncovered from the Internet and other pubic source inquiries of all the various corporate and commercial entities Mr. Truong has been involved in at various times over the years. Only two were associated to the property to be searched. It was those two that were mentioned in the ITO: Truong Enterprises Ltd. and Sunrise TLT.

I see nothing misleading in only referring to the entities relating to the property to be searched. Observations of Farming Activities [ 94 ] According to Cpl. Holmquist, he saw nothing consistent with other agricultural products being grown at the property during surveillance. He did see logos of “Truong’s Mushrooms” and “Money’s Mushrooms” on the side of the barn. He concluded, therefore, that any agricultural business associated with the property would be mushrooms. Further, he testified that for the past 5-6 years he regularly drove by two operational mushroom farms on his way into work. Compared to them, Mr.

Truong’s property did not have activity consistent with mushroom farming. [ 95 ] This subject was not set out in any detail in the ITO and not explored in any depth during the examination of Cpl. Holmquist. Consequently, it is difficult to attribute much weight to this evidence even if it was properly admissible on amplification. [ 96 ] The presence of multiple people on the property supports the conclusion that whatever is going on at the property is of a size and scope that requires multiple people.

The crux of the matter is the reasonableness of the conclusion that it was excess marihuana growing taking place at the property. [ 97 ] Paragraph 132 e does reference as “indicative of a large scale commercial marihuana grow operation” a metal garbage bin of potting soil for potting a large volume of plants. At paragraph 107 f of the ITO, Cpl. Holmquist writes of seeing two large dump truck size piles of potting soil at the side of the barn.

It is difficult to reach a conclusion about the significance of this, even in combination with all of the other evidence, without knowing if the amount of potting soil is more than that required for the combined number of licensed plants being grown. This may have significance though if the JJ could reasonably conclude that no other activity was occurring on the property that could account for the potting soil other than growing marihuana. v. Hydro Consumption [ 98 ] Cpl.

Holmquist concluded in the ITO that the hydro consumption for the property was excessive considering the lack of any significant lawful business operations and the limited number of marihuana plants authorized to be grown. He based his conclusion on hydro consumption records for the property as compared to two other grow operations he has experienced, one legitimate and one illegitimate. Information from Darrell Waddell, an expert in the electrical consumption of equipment associated with grow operations, also may have informed his opinion. [ 99 ] Paragraphs 38-44 capture the basis behind Cpl.

Holmquist’s belief stated in the

summary paragraphs noted earlier. Paragraphs 38-44 reads: 38. I obtained electrical consumption records under a Freedom of Information and Protection of Privacy Act request for 40 - 264 th Street, Aldergrove. I learned the following: a. There are two electrical meters that supply 40 - 264 th Street, Aldergrove and they are both being paid by Truong’s Enterprises Ltd; b. The average electrical consumption of the 1 st meter is 164 kWh a day ; c. The average electrical consumption of the 2 nd meter is 6,649 kWh a day ; d.

The electrical consumption for 40 - 264 th Street, Aldergrove has doubled over the last three years with the following consumption: i. 2012 total electrical consumption was $89.033.04; ii. 2013 total electrical consumption was $151,993.20; iii. 2014 total electrical consumption was $183,709.77. 39. I believe that if someone was to spend over $180,000 a year on electrical consumption they require a substantial income to justify

the expenditure. 40. Darrell Waddell is an electrician who has been qualified in BC Provincial and Supreme Court related to the operation of electrical apparatus pertaining to marihuana grow operations. He reviewed the electrical consumption records for 40 - 264 th Street and stated: a. The consumption of 164 kWh is comparable to 9 (nine) 1,000 watt marihuana grow lights; b. The consumption of 6,649 kWh is comparable to 440 (four hundred forty) 1,000 watt marihuana grow lights and 16 (sixteen) 5,000 watt air conditioning units. 41.

CannaFarms, a MMPR licensed producer facility in Hope is growing approximately 4,000 marihuana plants (not including marihuana clones) and only consuming 1,972 Kilowatt hours compared to the electrical consumption of 6,649 Kilowatt hours for 40 - 264 th Street, Aldergrove. 42. I believe that if 4,000 marihuana plants can be grown with 1,972 kWh a day then 40 - 264 th Street, Aldergrove is growing substantially more than 998 marihuana plants when their electrical consumption is 6,649 kWh a day. 43.

I was the primary investigator in an illegal grow operation in 2009 where the electrical consumption was $155.24 a day ($56,662 a year). There were 194 (1,000) one thousand watt grow lights and 7,775 growing marihuana plants. 44.

I believe that 40 - 264 th Street, Aldergrove is growing substantially more than 998 marihuana plants when their electrical consumption is approximately $493.15 a day ($180,000 a year) and 7,775 marihuana plants can be grown with only $155.24 a day ($56,662 a year). [ 100 ] The number of plants referred to in paragraphs 43 and 44 were corrected on amplification to 4,476 and in paragraph 42 to 989. [ 101 ] Sub-paragraphs 131 t, u, w, and x read: t. Through my experience, I have located excess medical marihuana plants where electrical consumption is very high.

I believe the only way to justify the spending of $189,000 a year for electricity is if the medical marihuana was being sold for profit and not for personal use; u. If the electrical consumption at 40 – 264 th Street, Aldergrove was divided by the 4 medical marihuana license holders, it would cost each of them approximately $47,500 a year ($189,724.10 divided by 4). I doubt that the 4 medical marihuana license holders would pay that much money for electricity in addition to other costs such as: i. Fuel to drive to and from the grow operation; ii. Purchase soil, fertilizers, and grow equipment; iii.

Living expenses (food, clothing, and shelter). w. In 2009 I was the primary investigator in a marihuana grow operation investigation. I located a marihuana grow operation consisting of 194 (one hundred ninety four) 1,000 watt grow lights and 7,775 marihuana plants. BC Hydro determined it cost the cultivators $155.24 a day in electricity. If this electrical consumption is compared to the electrical consumption at 40 – 264 th Street, Aldergrove (over $550 a day) which is 3 times higher, it could represent the production of 23,000 marihuana plants (7,775 x 3); x.

I have been inside a MMPR licensed producer facility in Hope and have obtained their electrical consumption records. I learned that between 3,500 and 4,000 marihuana plants (excluding marihuana clones) were being grown at a cost of approximately $157.94 a day ($4,738.20 every month or approximately $57,000 a year). If the electrical comparison is compared to the electrical consumption at 40 – 264 th Street, Aldergrove (over $550 a day) which is 3 times higher, it could represent the production of 12,000 marihuana plants (4,000 x 3); [ 102 ] In my view, Cpl.

Holmquist’s analysis of the hydro information and how he presented it to the JJ was too simplistic. It assumes the electrical consumption at the property, and that of the comparables he uses, was all devoted to growing marihuana. This was too stark an assumption even if he did have grounds to believe mushroom farming was not taking place at the property. Presumably, there were some other sources of electrical power draw than growing marihuana, for example lights, heat, or other equipment etc. All 7 buildings on the property were presumably consuming electricity. [ 103 ] Cpl.

Holmquist agreed in cross-examination that inferences can be drawn about whether hydro consumption for a particular property is high, based on comparing that property to others. However, he acknowledged in cross-examination that it is best for the comparison to be with a similar sized property. [ 104 ] Canna Farms did not have a potential agricultural component other than marihuana growing. It is not outlined in the ITO whether the other comparable did. Canna Farms is a 7,000 sq. foot facility with a 4,000 sq. foot grow space.

Far smaller than a property with a 51,000 sq. foot barn, residence, and 6 mobile trailers. No details of the size or outlay of the building(

s) of the other comparable were in the ITO. No comparison was made with other active or inactive farming properties similar to the one at issue. No third party sources, such as Darrell Waddell, were consulted about hydro consumption for a legitimate agricultural farm of the size at issue. On the contrary, the “average electrical consumption for a residence in the Lower Mainland,” whatever size and features that has, was included in the ITO (para. 84 d). Cpl.

Holmquist does not know the average electrical consumption for a mushroom farm specifically or a farm generally. [ 105 ] I appreciate that the comparables Cpl. Holmquist used were referenced to provide a correlation between hydro consumption and

number of plants being grown. This highlights, however, the overly simplistic

interpretation of the hydro information. The properties compared are very different and, therefore, the sources of power draw between the properties are different. This makes these comparables of little use other than as reference points for the amount of power drawn for the number of plants being grown at those locations. It does nothing to shed light on the baseline power draw from legitimate sources of the property at issue.

This is important in determining whether the power consumption was “unusually” high. [ 106 ] The best comparable would have been simply determining when the Truong property was producing mushrooms, obtaining the data for that period of time, comparing it to the current data, and subtracting the likely consumption for the licensed grows. However, Cpl. Holmquist testified that he was not investigating what was happening at the property years ago and that what was important was the current consumption data.

For this reason, he said, he did not obtain consumption data from when the farm was clearly producing mushrooms. [ 107 ] Related to this point is that the dates the MMAR licences were issued were not included in the ITO. Amplification established that they were issued between June and August, 2013. Historical data on whether licences existed before then was not obtained. [ 108 ] In reviewing the two years worth of hydro data, it would no doubt have assisted the JJ to know when licensed growing of marihuana began. The date the MMAR licences were issued is relevant for this historical hydro analysis.

Knowing when the licenced growing likely began would assist in knowing the baseline hydro consumption for the property before it began, and provide a starting point for analysing the hydro data. Then a reasonable estimate could be made of the hydro draw of the licenced grow operation. Without informing the JJ of the dates the licences were issued, it is difficult to parse the hydro consumption data between that related to legitimate activity and that related to suspected illegitimate growing. [ 109 ] In

summary, Cpl. Holmquist’s references to hydro being “extremely high” is misleading without any reliable basis for comparison. This point was referenced by Justice Quinn in R. v. Philpott, [2002] O.J. No. 4872 at paras. 168 - 171 : [168] I have held in other cases that it is not enough for one who is seeking the issuance of a search warrant merely to regurgitate hydroelectric consumption figures and couple them with the bold assertion that the consumption is excessive and, thus indicative of the hydroponic cultivation of marijuana.

More is needed: [169] Records indicating hydroelectric consumption may serve as corroboration in a case like the one at bar if proper comparables are provided and supplemented by expert evidence as to the significance of the readings. Without proper comparables, and expert

interpretation, hydroelectric records are meaningless. … [171] The decision of the Supreme Court of Canada in R. v. Plant, supra, was rendered in 1994. Since then, in cases of alleged hydroponic cultivation of marijuana, our courts routinely encounter records of the hydroelectric consumption of the accused. Unfortunately, it appears that their use is frequently misunderstood by the police. Indeed, some officers regard increased hydroelectric consumption alone as sufficient to justify the issuance of a search warrant. It is not. Other evidence is required.

Evidence of increased hydroelectric consumption, or a particular level of consumption, means little without some basis upon which to associate it with the hydroponic cultivation of marijuana…. [ 110 ] It was open to the issuing justice to conclude, however, that the hydro consumption for the property had risen considerably from 2012-2013, and then again from 2013-2014. [ 111 ] The monthly consumption figures for the barn and other buildings were attached to the ITO and cover January 9, 2012-October 31, 2014. The figures for the one trailer with its own hydro meter cover January 9, 2012 - November 6, 2014.

The investigation spanned from November 20, 2014 - January 26, 2015. No hydro consumption figures were provided for the time frame of the investigation. Other than inference from historic hydro consumption information, there is no evidence of high hydro consumption for the period of the investigation. This is relevant to the requirement that the believed offence is being committed at the time the warrant is applied for. The relevance is particularly highlighted by Cpl.

Holmquist’s comment at paragraph 55 c of the ITO that the growing cycle for marihuana plants can be completed in as little as two months. [ 112 ] Cpl. Holmquist testified that he requested hydro records covering the period of the investigation on two occasions: January 6 and 12, 2016. He said he made the request to confirm the pattern of consumption continued during the investigation and to provide the JJ with the most recent information. He had not received the information before applying for the search warrant or by the time the search warrant was executed. Cpl.

Holmquist said he went ahead with the search warrant application anyway because he felt even without the information, the totality of the other information in the ITO was sufficient to establish reasonable grounds. [ 113 ] There was no urgency to this investigation. The hydro evidence was a cornerstone of Cpl.

Holmquist’s grounds for his belief overproduction was taking place as evidenced by, among other things, his mentioning it in his email to Canna Farms on November 25, 2014 and it being repeated in the paragraphs of the ITO summarizing the grounds for his belief. [ 114 ] I appreciate that there is probably always more investigation that could be done in support of an application for a search warrant. But this information should have been acquired and put in the ITO. Without it, there is a significant evidentiary gap in the ITO.

Omitting it also throws into question whether the obligation to conduct a reasonably thorough investigation was met. [ 115 ] Before leaving the topic of the hydro information, I wish to comment on the limited value of the evidence from Darrell Waddell. [ 116 ] Darrell Waddell correlates the hydro consumption with the number of grow lights and air conditioning units that would consume power, but no correlation is offered between the number of grow lights and air conditioning units and the number of plants being grown, nor could it have been given the variables in growing marihuana.

This means he was unable to assist with determining the amount of hydro required for the licenced 998 plants being grown at the property. Rather, only the information relating to Canna Farms and the illicit grow operation discovered in 2009 shed light on this.

[ 117 ] In light of the above, characterizing the electrical consumption for the property as “extremely high” at the time of the application for the search warrant, as stated in paragraphs 47 and 132 g, is misleading and such references ought to be expunged from the ITO. [ 118 ] The JJ was entitled though to consider and draw inferences from the increase in hydro consumption from 2012 to 2014. [ 119 ] Before leaving the discussion about hydro consumption, I wish to comment on the phenomenon of “monster plants.” [ 120 ] At the time he submitted the ITO, Cpl.

Holmquist was well familiar with the phenomenon of “monster plants.” Monster plants are much larger than normal marihuana plants and thus yield much more marihuana than contemplated in the MMAR. Monster plants are a means by which a licence holder can achieve a much higher yield per plant while staying within their authorized plant allotment. To grow monster plants, more space is required and more hydro consumed leading to higher hydro costs. Monster plants is a variable that makes it more difficult to correlate hydro consumption to growing excess marihuana to what is authorized. [ 121 ] Cpl.

Holmquist did not mention in the ITO that this phenomenon exists and can account for higher than normal hydro costs although he was aware of it. [ 122 ] On one occasion, January 20, 2015, Cpl. Holmquist saw a large amount of discarded potting soil in a large bin. During his cross- examination he added that the soil had root balls and that this was how he could tell the soil was potting soil. Further, that the root balls were smaller than what one would see with monster plants. Nowhere in the ITO is it mentioned that Cpl. Holmquist saw root balls. This evidence is only offered for Cpl.

Holmquist’s state of mind as to why he did not include monster plants in the ITO and not for its accuracy. [ 123 ] In my view, if there was a reasonably possible scenario, when viewed practically, with common sense, and not merely intellectually theoretical, that could explain how the number of plants grown could be within the authorized limit and account for the hydro consumption, it should be included in the ITO. Viet Khanh Le’s Background [ 124 ] Mr. Le’s criminal convictions, being drug related are relevant.

However, they are dated (1996) and it is unclear whether the circumstances bear any similarity to those here. As for his connection to a large outdoor illicit marihuana grow operation investigation in Ontario in 2008 for which he is a “person of interest” (ITO para. 93), I will assume it to be relevant without reconciling the authorities already referred to on this issue. However, given he is alleged to be involved in the present case as a PUPL licence holder along with three people and a property owner with unblemished records, it is to be considered but with limited weight attributed. Cpl.

Holmquist’s Actions Subversive of the Prior Authorization Scheme [ 125 ] Assuming without deciding that this is a basis upon which to exclude the evidence, I would not do so on this basis. My reasons will become clearer in my analysis of s. 24(2) but, to summarize, I do not find Cpl. Holmquist to have deliberately and consciously decided to undermine the prior judicial authorization process. Conclusion [ 126 ] In my view, Cpl. Holmquist started with a theory that marihuana was being grown at the property in excess of that authorized under the MMAR licences.

When I consider the sufficiency of the entirety of what is left in the ITO after removing the objectionable features and add to it what should have been added, I cannot conclude the theory could be viewed by the authorizing JJ as crossing the threshold to reasonable grounds.

When the modified ITO is looked at in its entirety, there is no more evidence from which a JJ could conclude that excess marihuana was growing on the property than that other legitimate activity was taking place that could account for the hydro consumption and the amount of people observed at the property. [ 127 ] To summarize, what is left after removing the objectionable features of the ITO and add to it what should have been added, is • A legal grow operation authorized under the MMAR was present; • An odour of marihuana emanated from the property; • Mushroom growing was not taking place at the property; • The hydro for the property had doubled in the past two years and was likely more than that required for the licenced grow operations; • A number of people were likely at the property daily; • Other incidental evidence. [ 128 ] The question is whether the JJ could reasonably conclude that overproduction of marihuana was taking place at the property or that marihuana was possessed there for the purpose of trafficking.

Based on this information, in my view, the JJ could not reasonably draw that conclusion. [ 129 ] The inability to determine the number of plants from the smell of marihuana, the lack of similar comparables to measure the hydro consumption against, the inability to get the most recent hydro information, and the difficult location of the property for surveillance purposes no doubt presented challenges to Cst. Holmquist.

But investigational challenges do not lower the reasonable grounds standard. [ 130 ] I conclude that on the totality of the evidence in the ITO, as amplified, viewed on an objective basis, there was not sufficient reliable evidence that might reasonably be believed from which the authorizing JJ could have concluded that marihuana was being

produced in excess of that authorized by Health Canada under the MMAR or that it was possessed for the purpose of trafficking on the property in contravention of the CDSA. SECTION 24 (2): EXCLUSION OF EVIDENCE [ 131 ] In R. v.

Grant , 2009 SCC 32 , the Supreme Court of Canada established that: 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 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. (at para. 71) [ 132 ] The court went on to say that “the more severe or deliberate the state conduct that led to the charter violation, the greater the need for the courts to disassociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law” (para. 72).

Seriousness of the Charter -Infringing State Conduct [ 133 ] I do not think Cpl. Holmquist set out to obtain a search warrant for the property determined that he was not going to let Charter rights get in the way. My impression is that he did not deliberately choose to violate the Applicants right to be free from unreasonable search and seizure knowing full well that that is what he was doing. Nevertheless I do have concerns about how the search warrants were obtained. [ 134 ] As mentioned earlier, Cpl. Holmquist developed a premature angle to this investigation very early after its onset.

It was based on his subjective belief overproduction was taking place. Crown Counsel argues that he nevertheless fulfilled his duty by taking other investigative measures to ensure a thorough investigation. He did conduct further investigation but, in my view, the additional investigation was shaped to support his belief and not to ensure a thorough investigation was conducted. I would not characterize it as a thorough investigation.

My impression is that the investigation was never viewed objectively and the possibility that overproduction was not taking place never entered into the equation. [ 135 ] This conclusion seems to be the only explanation for why Cpl.

Holmquist, an experienced officer, would not ask at the City of Langley Bylaw Department whether a business licence was required for farming; or obtain photos or other means of informing himself what the MMAR licence holders looked like when he intended to tell the authorizing JJ that according to his observations they never showed up on the property; or waiting for the hydro consumption data that covered the period of the investigation. [ 136 ] Courts at all levels have noted that the expectation of privacy in a home is high.

Entry by state authorities into residences without being invited is recognized as a significant intrusion into the private lives of citizens. An unreasonable search of a person’s home is typically viewed as serious. Consequently, the requirement that the basis for a search warrant application be carefully established is well placed. Care, diligence, attention to detail, and fairness are all part of the process. This is particularly so given applications for search warrants are on an ex parte basis. [ 137 ] In my view, the ITO was not drafted with the attributes noted above in mind.

The cumulative effect is that an incomplete and misleading picture was portrayed in the ITO. [ 138 ] This matter was not urgent or high risk. There were no extenuating circumstances justifying the hastily reached conclusions drawn by the affiant. I consider the incomplete investigation and drafting of the ITO to be significantly deficient of what is expected in an ex parte application for a search warrant. [ 139 ] It is worth mentioning that the officers executing the search warrants were acting on what they believed to be valid search warrants.

They were not wilfully or negligently breaching the Charter . [ 140 ] Nevertheless, the deficiencies in the investigation and the way the ITO was drafted was a significant departure from the standard of conduct expected of the police making an ex parte application for a search warrant. This makes the Charter violation serious.

The Impact of the Breach on Charter -Protected Interests of the Accused [ 141 ] I will now turn to the 2 nd stage of the s. 24(2) inquiry, the impact of the breach on the Charter -protected interests of the accused. [ 142 ] The analysis at this stage 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. [ 143 ] Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual enjoys a high expectation of privacy is more serious than one that does not. [ 144 ] Mr. Truong owned the property for 22 years before the search. It was his home and commercial property.

The marihuana was located inside the barn and trailers where he had less of an expectation of privacy than his home, but it was all part of the same intrusive search of property in which he had a substantial privacy interest. I understand that the effect on the administration of justice may differ based on where evidence is found when multiple sites are searched ( R. v. Chuhaniuk, 2010 BCCA 403 ). Nevertheless, the search of the buildings where marihuana was found was part of the same “investigatory transaction” as the search of his home and all the buildings on his property.

Crown Counsel properly concedes that the impact on his privacy interests was significant. [ 145 ] The impact of the breach on the protected interests of Mr. Le was considerably less than Mr. Truong. There is no evidence Mr.

Le lived at the property. He had much less of an expectation of privacy in the areas searched than Mr. Truong. He did have a HealthCanada approved licence to grow his medicinal marihuana at the property. His interest appears to be limited to having space as a tenantof Mr. Truong, for the purpose of growing his marihuana in an outbuilding at the property. [146] As a license holder he had responsibility under the MMAR for securing the marihuana in his possession.

In other words, he had alegally recognized, through the MMAR, privacy interest in the location of his grow operation, the location of which was not clear on theevidence but was likely the barn-which was secured with a fence and a lock to control who went inside. There is no evidence to suggestMr. Le had a key or how many others did.

I draw the inference on all the evidence that he did not have exclusive use of the barn or otherareas where the search was conducted and marihuana found. [147] There is no evidence whether he had a subjective expectation of privacy in the areas searched and, with the exception of hispresumed knowledge of the need for security under the MMAR for his grow operation, one cannot easily be inferred from the evidence.In fact, there is a dearth of evidence of Mr. Le’s connection to the property other than his grow operation being in one of theoutbuildings. [148] Personal documents of Mr.

Le’s were found in a trailer at the property. These documents included a Visa statement from a fewmonths previous to the search. There was no evidence of Mr. Le’s connection to the property other than what has been mentioned above. [149] All searches are intrusive to some degree, given they interfere with the use of the area searched and expose private areas to others.But the greater the privacy interest in the area searched, typically the greater the intrusiveness. Under the circumstances of Mr.

Le’s lowprivacy interest in the area searched, based on his grow operation being in one of the outbuildings, I cannot conclude the intrusiveness onMr. Le’s privacy interest from the unreasonable search was very significant.

Society’s Interest in the Adjudication of the Case on its Merits [150] The question posed under this consideration is whether the truth-seeking function of the criminal trial process would be betterserved by admission of the evidence, or by its exclusion. [151] The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of acase on its merits must therefore be weighed against factors pointing to exclusion, in order to “balance the interests of truth with theintegrity of the justice system”: R. v.

Mann, 2004 SCC 52 , [2004], 3 S.C.R. 59, at para. 57. [152] The reliability of the evidence, its importance to the Crown’s case, and the seriousness of the offense are key aspects to beconsidered (see R. v. Vu, 2013 SCC 60). [153] There is a clear societal interest in adjudicating the charges against the Applicants on their merits. The evidence was highlyreliable and critical to the Crown’s case. The offences are serious. This was an extremely large illicit grow operation perpetrated throughan abuse of the MMAR licencing scheme. This factor militates in favor of inclusion of the evidence. CONCLUSION [154] For Mr.

Truong, with his much higher privacy interest in the property, than Mr. Le and thus, experiencing a greater negativeimpact on his right to free from unreasonable search and seizure than Mr. Le, admitting the evidence found at the property would, in theeyes of reasonable and informed members of the public, adversely affect, in the long term, the repute of the administration of justicewithin the meaning of s. 24(2) of the Charter. Therefore, the evidence discovered in the search of the property shall be excluded fromevidence at Mr. Truong’s trial. [155] For Mr.

Le, considering the circumstances of the case in their entirety, and balancing the assessments made under the three linesof inquiry articulated in Grant, I am of the view that reasonable and informed members of the public would believe that, in the long term,the admission of the evidence would not bring the administration of justice into disrepute within the meaning of s. 24(2) of the Charter.Therefore, the evidence found in the search of the property shall be admitted into evidence at Mr. Le’s trial. ______________________________ The Honourable Judge J.I.S. Sutherland Provincial Court of British Columbia