2011 NBCA 106, 2011 NBCA 106

COURT OF APPEAL OF NEW BRUNSWICK 51-11-CA MARK STEPHEN PITRE APPELLANT MARK STEPHEN PITRE APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Pitre v. R., 2011 NBCA 106 Pitre c.

R., 2011 NBCA 106 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Deschênes The Honourable Justice Quigg CORAM : L’honorable juge en chef Drapeau L’honorable juge Deschênes L’honorable juge Quigg Appeal from a decision of the Provincial Court: February 17, 2011 Appel d’une décision de la Cour provinciale : Le 17 février 2011 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: October 26, 2011 Appel entendu : Le 26 octobre 2011 Judgment rendered: December 8, 2011 Jugement rendu : Le 8 décembre 2011 Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : L’honorable juge en chef Drapeau

Concurred in by: The Honourable Justice Deschênes The Honourable Justice Quigg Souscrivent aux motifs : L’honorable juge Deschênes L’honorable juge Quigg Counsel at hearing: Mark Stephen Pitre appeared in person For the respondent: Cameron H. Gunn Avocats à l’audience : Mark Stephen Pitre a comparu en personne Pour l’intimée : Cameron H. Gunn

THE COURT The appeal is dismissed. The Court’s reasons for decision confirm that: (1) asearch warrant issued pursuant to s. 11 of theControlled Drugs and Substances Act need notidentify by name the peace officer or officersauthorized to carry out the search; (2) contrary to theview expressed in R. v. Allain (S.) (1998), (NB CA), 205 N.B.R. (2d) 201,[1998] N.B.J. No. 436 (QL), the standard of reviewfor the substantive sufficiency of an Information toObtain is the same, whether the ITO has been editedor not: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R.992, R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253and R. v.

Campbell, 2011 SCC 32, [2001] S.C.J. No.32 (QL); and (3) the principles that inform thatreview, which are set out in R. v. Allain (S.) and wererecently reaffirmed in Arsenault v. R., 2009 NBCA29, 344 N.B.R. (2d) 113 embrace the following: thereviewing process begins with a presumption ofvalidity for both the search warrant and the ITO; thedefence bears the burden of demonstrating the ITO isnot law-compliant; the reviewing court must notassess substantive value solely on the basis of theevidence which is explicitly set out in the ITO.

Itmust also bear in mind the undoubted power of theissuing judge to draw reasonable inferences; just asimportantly, an overly strict

interpretation of thewords used in the ITO is not warranted by thejurisprudence, or by s. 8 of the Charter and thereviewing court’s assessment must take into accountthe totality of the ITO, interpreting its constituentparts in context; that said, the reviewing court mustremain vigilant and not allow its tolerance fordrafting errors or deficiencies to extend to materialomissions with respect to substantive requirements. Ultimately, the question for the reviewing court iswhether the judge, acting judicially, could haveissued the warrant on the basis of what remains ofthe edited ITO: Araujo, Morelli and Campbell.

LA COUR Rejette l’appel.

Les motifs de décision de la Cour confirment ce quisuit : (1) il n’est pas nécessaire qu’un mandat deperquisition délivré conformément à l’art. 11 de laLoi réglementant certaines drogues et autressubstances désigne nommément l’agent ou les agentsde la paix autorisés à effectuer la perquisition; (2)contrairement à l’opinion exprimée dans l’arrêt R. c.Allain (S.) (1998), (NB CA), 205 R.N.-B. (2e) 201, 1998] A.N.-B. no 436 (QL), lanorme qu’il faut appliquer aux fins de contrôler la validité quant au fond d’une dénonciation en vued’obtenir un mandat est la même, que des passagesaient ou non été retranchés de cette dénonciation : R.c.

Araujo, 2000 CSC 65, [2000] 2 R.C.S. 992, R. c.Morelli, 2010 CSC 8, [2010] 1 R.C.S. 253, et R. c. Campbell, 2011 CSC 32, [2001] A.C.S. no 32 (QL);et (3) les principes qui doivent guider la révision,lesquels sont énoncés dans l’arrêt R. c. Allain (S.) etont récemment été confirmés dans l’arrêt Arsenault c.

R., 2009 NBCA 29, 344 R.N.-B. (2e) 113, sontnotamment les suivants : le processus de révision estfondé sur une présomption de validité pour ce quiconcerne à la fois le mandat de perquisition et ladénonciation; c’est à la défense qu’il incombed’établir que la dénonciation n’est pas conforme à laloi; le tribunal de révision ne doit pas évaluer lavaleur de la dénonciation quant au fond sur la seulebase de la preuve qui y est explicitement mentionnée.Il doit aussi se rappeler le pouvoir incontestable dontjouit le juge qui a décerné le mandat de tirer desdéductions raisonnables; chose tout aussi importante,une interprétation trop étroite des mots utilisés dansla dénonciation n’est pas justifiée par lajurisprudence ni par l’art. 8 de la Charte, et letribunal de révision doit, dans son évaluation,prendre en considération la totalité de ladénonciation et en interpréter les différentes partiesen contexte; cela dit, le tribunal de révision doitrester vigilant et ne pas faire en sorte que sa toléranceà l’égard des erreurs ou des faiblesses de rédaction nes’étende à des omissions importantes concernant lesexigences de fond.

Au bout du compte, la question à laquelle doitrépondre le tribunal de révision est celle de savoir sile juge, agissant de façon judiciaire, aurait pudécerner le mandat en s’appuyant sur ce qu’il restede la dénonciation après que certains passages en ontété retranchés : Araujo, Morelli et Campbell. The judgment of the Court was delivered by DRAPEAU, C.J.N.B.

I. Introduction [ 1 ] The appellant, Mark Stephen Pitre, challenges his conviction in Provincial Court on each of two counts: one for production of marihuana ( ss. 7(1) and 7(2) (

b) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19) and the other for possession of marihuana for the purpose of trafficking (ss. 5(2) and 5(3)(

a) of the CDSA ). The evidence upon which both convictions depend was seized during a search of Mr. Pitre’s residence. He contends the trial judge committed reversible error in ruling the warrant authorizing that search was valid. Mr. Pitre’s principal submission is that the wrong standard of review was applied to determine the warrant’s sub-facial validity. [ 2 ] In my respectful judgment, neither that submission nor any other objection to the facial or sub-facial validity of the warrant has merit. I would, therefore, dismiss the appeal. II.

Context [ 3 ] On April 15, 2009, a judge of the Provincial Court granted a search warrant authorizing unnamed provincial peace officers to search “the residence of Mark Stephen Pitre situated at 1675 Water Street in Miramichi, New Brunswick” for cocaine, marihuana and marihuana growing equipment. The warrant was issued pursuant to s. 11(1) of the CDSA .

Broadly speaking, that provision requires a demonstration by information on oath that there are reasonable grounds to believe there is in the place to be searched: (1) a controlled substance in respect of which the CDSA has been contravened; or (2) a thing that will afford evidence of any such contravention.

Section 11(1) goes on to state that, in those circumstances, the warrant may issue “authorizing a peace officer, at any time, to search the place for any such controlled substance […] or thing and to seize it”. [ 4 ] The salient parts of the warrant under consideration here read as follows: To the peace officers in the said province of New Brunswick; Whereas it appears on the oath of Constable Greg Scott of the Miramichi Police Force that there are reasonable and probable grounds to believe that: 1.

Mark Stephen Pitre (Date of Birth: 1980-October-10), at or near the City of Miramichi, County of Northumberland and Province of New Brunswick, is trafficking in cocaine and unlawfully producing marihuana contrary to s. 5 and s. 7 of the Controlled Drugs and Substances Act , hereinafter referred to as the offences. 2. Cocaine, Marihuana and Marihuana growing equipment, hereinafter called the said things, will afford evidence with respect to the offences. 3.

The said things are located in the residence of Mark Stephen Pitre situated at 1675 Water Street, at the City of Miramichi, County of Northumberland and Province of New Brunswick, hereinafter called the said residence. Attached below is a photograph of the said residence. Original included photo of residence at 1675 Water Street

This is, therefore, to authorize and require you, on April 16, 2009, to make an unannounced entry (forced if required) into the said residence and announce your presence once entry is gained and to search for the said things for no longer than six consecutive hours and to bring them before me or some other judge. [ 5 ] The warrant at issue was granted on the basis of a 50-paragraph Information to Obtain (“ITO”), paragraph 48 of which provides the following highlights of the police investigation, which spanned several years: Based on the information revealed in this investigation, the informant verily believes the following to be true: a.

Mark Stephen Pitre is unemployed and despite no known legitimate source of income, Pitre manages to pay rent, purchase vehicles in cash, pay significant power bills, put gas in his vehicle, maintain large gambling habits, and travel extensively (Paragraphs 14, 15, 16, 17, 19, 25, 35, 38). b. Pitre did not want Police to know that he was living at 1675 Water Street and has taken steps to conceal the inside of the residence with coverings on the windows (Paragraph 14). c.

Pitre associates with people who were convicted in relation to a large scale marihuana cultivation and distribution ring (Paragraphs 9, 10, 11, 12, 21, 26). d. Pitre rents a large two storey home all by himself (Paragraphs 14, 28, 41). e. On February 27 th , 2009, it was very suspicious that two chimneys at 1675 Water Street were hot when you consider that there was no smoke from either and the fact that it would not be reasonable to heat your home with wood, oil and electricity (Paragraph 39). f.

The second FLIR reading of 1675 Water Street on April 9 th , 2009, depicts an excessive amount of heat coming from the basement of the residence and according to Cpl. Haché’s opinion this is consistent with an indoor marihuana growing operation (Paragraph 46). g. According to surveillance, Mark Stephen Pitre leaves 1675 Water Street between 13:00hrs and returns around 20:00hrs during the week (Paragraph 41). The informant does not know where Pitre is during this time frame. h.

Pitre is using a Telus cellular telephone that is in a fictitious name and address and the informant believes this is not “normal” and is being done to avoid detection. Also, based on phone records obtained through a Production Order, Pitre is making and receiving a large volume of phone calls that involve very short conversations which the informant believes is consistent with a person(

s) talking in code and making arrangements to meet and perform a drug transaction (Paragraph 45). i. Pitre is involved with trafficking cocaine with Willard Martin based on the high volume of regular phone calls that involve short conversations as well as source information indicating that Pitre is supplying Martin. Based on the phone calls, the informant believes that Pitre is in almost daily contact with Martin and the informant believes that this would be consistent with a “supplier/dealer” relationship (Paragraphs 21, 45). j.

Pitre’s alleged drug activities involve David Mitchell based on the frequent phone calls involving short conversations, proven reliable source information and the observation of an isolated “meeting” between the two by police (Paragraphs 15, 31, 45). k. Proven reliable sources and a Crime Stopper’s Tip indicate that Pitre has been involved in marihuana cultivation dating back to 2004 and that he has houses in “Chatham”, which is where 1675 Water Street is located (Paragraphs 4, 6, 15). l. In paragraph 23, the source indicates that Pitre was supplying a drug dealer from Eel Ground.

Phone records outlined in paragraph 45

indicates that Robert Simon from Eel Ground was in contact with Pitre and that he is a convicted drug dealer and is currently charged with possession of marihuana for the purposes of trafficking. It is very possible that this is the person referred to by the source as the information did not identify any other calls to or from Eel Ground (Paragraph 23). m. Pitre is in regular contact with Armand Kevin Richardson, Daniel Cheng-Fung Tran, Dale John Robert Frost although the extent of the relationship is unknown as this time.

It appears, however, that Pitre trusts Tran and Frost enough to have them attend his residence at 1675 Water Street (Paragraphs 30, 41, 45). n. Surveillance on April 15 th , 2009, confirms that the basement windows are still covered as was described by Cst. Hirtle in September 2007. The informant believes that this would suggest that Pitre is maintaining this house as a marihuana growing operation and that he is continually maintaining the operation after each harvest (Paragraphs 14, 47). o.

The informant realizes that proven reliable source information related to Pitre’s involvement in marihuana cultivation was provided in 2004 and 2007, however, subsequent police investigation related to power consumption trends, police surveillance, phone records and FLIR readings would provide “recent” confirmation to the reliable source information and would suggest a continual pattern of activity.

The informant verily believes that Pitre has never been arrested for any offences and there is no indication he suspects a police investigation, therefore, the informant verily believes Pitre is continuing to commit the offences (Paragraphs 4, 15, 39, 46). p.

Therefore, based on experience, training and the above noted investigation, the informant verily believes that 1675 Water Street contains a marihuana grow operation in the basement and that Pitre is living off the revenue generated through the distribution of marihuana and cocaine. [ 6 ] While executing the warrant during the specified timeframe, police officers found a sophisticated marihuana grow operation in the basement of 1675 Water Street.

It consisted of 23 marihuana plants and included Mylar on all the walls, numerous ballasts, fans, high voltage lights, appropriate venting and strings tethering the plants to the ceiling. Sgt. Jody Whyte described the set-up as a three-stage hydroponic marihuana grow operation utilizing an active drip emitter system. Such a system consists of tubing which regulates the amount of nutrient solution delivered to each individual container. Excess liquid is drained from the container and returned to the reservoir and reused.

Drip emitters can be used with semi-porous medium such as ceramic beads, lava rock, and gravel.

In this case, lava rock was used. [ 7 ] In addition to the 23 marihuana plants, the officers also found the following items: (1) two bags of marihuana in the freezer of the house; (2) two additional bags of marihuana in the utility trailer in the yard; (3) two bags of lava rock; (4) money counters; (5) two sets of digital scales; (6) mini bags; (7) score sheets; (8) $2,210 in Canadian currency; (9) $62 in American currency; (10) 28 pesos; (11) $284 in Canadian coins; (12) books entitled “Crime School: Money Laundering”, “The Indoor Gardener – Hydroponic and Aeroponic Gardening” and “Police Powers including Search Warrants”; (13) personal documentation including Mr.

Pitre’s birth certificate, his passport and correspondence indicating he was living at 1675 Water St.; (14) keys to Mr. Pitre’s truck; and (15) keys to the residence. [ 8 ] Follow-up forensic testing of the plants revealed it to be marihuana, and also showed traces of tetrahydrocannabinol and cannabinol on one set of scales and traces of cocaine on the other. Sgt. Whyte, who was recognized as an expert in the field of controlled substance appraisal, valued the marihuana seized at $57,500 (at the pound level), $92,000 (at the ounce level) and $206,080 (at the gram level).

He described the operation as commercial in scope. [ 9 ] Shortly after the warrant’s execution, Mr. Pitre arrived at the premises. He was promptly arrested for the indictable offences of production and possession of marihuana for the purpose of trafficking. At his trial on those charges, Mr. Pitre challenged the lawfulness of the search on a number of grounds, chief among which were the following. The first objection targeted the facial validity of the warrant itself. On that score, it was Mr.

Pitre’s submission that the warrant failed to comply with s. 11 of the CDSA because it did not identify by name the officer or officers authorized to execute the search. Mr. Pitre’s second objection was grounded upon the contention that the warrant was sub-facially invalid. That was so, he claimed, because what remained of the ITO, after editing and deletions for objectionable parts, did not disclose reasonable grounds for the applicant’s subjective belief that the things to be searched for were in the place to be searched (1675 Water Street).

Following a voir dire , the trial judge upheld the validity of the warrant and the lawfulness of the associated search and seizure. [ 10 ] The parties then agreed to the admission into the record of exhibits and witness statements, which the trial

judge relied upon to find Mr. Pitre guilty of the offences charged. Proceedings concluded with Mr. Pitre being sentenced to concurrentjail terms of 14 months and subjected to auxiliary orders, including firearms prohibition and DNA sample orders. III. Grounds of Appeal [11] In his Notice of Appeal, Mr.

Pitre claims the trial judge applied the wrong standard of review to determine thesub-facial validity of the warrant, erred in finding there were reasonable grounds to believe that the things to be searched for would befound at 1675 Water Street during the specified search period, failed to apply the principles adopted in R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115 (QL) and R. v.

Debot, (SCC), [1989] 2 S.C.R. 1140, [1989] S.C.J.No. 118 (QL), in connection with the ITO’s hearsay statements by confidential informants, disregarded the CDSA’s requirements for afacially valid search warrant and failed to take into consideration the fact that the “place” to be searched pursuant to the warrant was atwo-unit apartment building. At bottom, Mr. Pitre takes issue with the trial judge’s finding that his s. 8 Charter rights were not violated. IV. Analysis and Decision A. The warrant’s facial validity [12] Sections 11(1) and (4) of the CDSA read as follows:

(1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that (

a) a controlled substance or precursor in respect of which this Act has been contravened, (

b) any thing in which a controlled substance or precursor referred to in paragraph(

a) is contained or concealed, (

c) offence-related property, or (

d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in

part in relation to a contravention of this Act, under

section 354 or 462.31 of the Criminal Code is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it. […]

(4) An endorsement that is made on a warrant as provided for in subsection (3) is sufficient authority to any peace officer to whom it was originally directed and to all peace officers within the jurisdiction of the justice by whom it is endorsed to execute the warrant and to deal with the things seized in accordance with the law. 11.

(1) Le juge de paix qui, sur demande ex parte , est convaincu sur la foi d’une dénonciation faite sous serment qu’il existe des motifs raisonnables de croire à la présence, en un lieu, d’un ou de plusieurs des articles énumérés ci-dessous peut délivrer à un agent de la paix un mandat l’autorisant, à tout moment, à perquisitionner en ce lieu et à les y saisir :

a) une substance désignée ou un précurseur ayant donné lieu à une infraction à la présente loi;

b) une chose qui contient ou recèle une substance désignée ou un précurseur visé à l’alinéa a );

c) un bien infractionnel;

d) une chose qui servira de preuve relativement à une infraction à la présente loi ou, dans les cas où elle découle en tout ou en

partie d’une contravention à la présente loi, à une infraction prévue aux articles 354 ou 462.31 du Code criminel . […]

(4) Le visa confère à tout agent de la paix à qui le mandat était adressé en premier lieu, ainsi qu’à ceux de la circonscription territoriale en cause, tant le pouvoir d’exécuter le mandat que celui de disposer, selon le droit applicable, des biens saisis. [13] Mr. Pitre contends ss. 11(1) and (4) contemplate a warrant that identifies by name the peace officer or officers authorized to carry out the search. The trial judge rejected that submission: Before I review the contents of the ITO I want to address the issue of the validity of the form of the warrant.

Counsel argued that it was invalid having been directed “To the peace officers in the said Province of New Brunswick” rather than to a named peace officer. All the cases referred to the Court in support of this argument were in relation to the Food and Drugs Act or the Narcotic Control Act which provided as follows in

Section 10: “Section 10(2) – A justice who is satisfied by information upon oath that there are reasonable grounds for believing that there is a narcotic, by means of or in respect of which an offence under this Act has been committed, in any dwelling-house may issue a warrant

under his hand authorizing a peace officer named therein at any time to enter the dwelling-house and search for narcotics.” The Food and Drugs Act contains an identical provision (See R. v. Goodbaum [1977] OJ No. 1212; (ON CA), 38CCC 2d 473 R. v. Davidson [1982] NBJ No. 33; (NB KB), 40 NBR (2d) 702) Since that time the Narcotic Control Act has been replaced by the Controlled Drugs and Substances Act which provides in Section 11(1)as follows: “11.

(1) Information for search warrant – A justice who, on ex parte application, is satisfied by information on oath that there arereasonable grounds to believe that (

a) a controlled substance or precursor in respect of which this Act has been contravened, (

b) any thing in which a controlled substance or precursor referred to in paragraph (

a) is contained or concealed, (

c) offence-related property, or (

d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in

part in relation to acontravention of this Act, under

section 354 or 462.31 of the Criminal Code is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlledsubstance, precursor, property or thing and to seize it.” It seems clear that the Parliament of Canada in enacting

Section 11 of the Controlled Drugs and Substances Act clearly removed therequirement that the warrant be directed to a named officer. That is the position taken by the Court of Queen’s Bench of Alberta in R. v.Penford,

(1999) ABQB 275 which I accept reflects the current state of the law on the issue. Accordingly there is no merit in theargument that the warrant must be issued to a named officer. [paras. 12-15] I am in full agreement with the trial judge’s reasoning and decision. [14] The law on the subject is set out in Bruce A. MacFarlane, Q.C., Robert J.

Frater and Chantal Proulx, Drug Offences in Canada, 3rd ed. (Aurora, Ont.: Thomson Reuters Canada Limited, 2011): There is no requirement that a specific peace officer be named on the face of the warrant. […] In addition, an argument that s. 11 of theControlled Drugs and Substances Act was constitutionally infirm because it did not require than an officer be specifically named on awarrant was rejected in R. v. Broadbent (unreported, February 26, 1999, B.C.S.C.). [para. 19.960] In R. v. Penfold, 1999 ABQB 275, [1999] A.J. No. 408 (QL), reversed on other grounds 2000 ABCA 19, [2000] A.J.

No. 12 (QL),application for leave to appeal dismissed [2000] S.C.C.A. No. 112 (QL), Justice Bielby provides a helpful historical and contextualanalysis of the expression “a peace officer” and the phrase “any peace officer to whom it [the warrant] was originally directed” found ins. 11(1) and s. 11(4), respectively: There is no requirement to address a search warrant issued under the CDSA to a specific police officer or officers. Such a requirementwas mandated by its predecessor legislation, the Narcotic Control Act, R.S.C. 1970, c. N-1 as amended which read: 12.

A justice who is satisfied by information on oath that there are reasonable grounds for believing that there is a narcotic, by means ofor in respect of which an offence under this Act has been committed, in any dwelling-house may issue a warrant, under the hand of thejustice, authorizing a peace officer named therein at any time to enter the dwelling-house and search for narcotics. [Emphasis inoriginal.]

The obligation to name a peace officer in a search warrant has been the subject of significant judicial commentary, most notably by theSupreme Court of Canada in R. v. Genest (1989) (SCC), 45 C.C.C. (3d) 385. Chief Justice Dickson therein stated at203: The naming requirement ensures that there is at least one officer who is responsible for the search, who must be personally present andmust supervise the search. Because of the greater infringement of the individual’s interests caused by the extensive power to search adwelling-house, some officer must be accountable for the way the search is carried out.

The courts have consistently held that a failure toname the officer in a s. 10(2) warrant means that the warrant is invalid.... He went on to determine that serious search warrant defects were present in that case, including the absence of the officer named in thesearch warrant from the premises when the search occurred. The evidence garnered in that search was excluded, ultimately, as itbreached the s. 8 guarantee in the Charter of safety from unreasonable search and seizure.

The current legislation did not expressly bring forward the requirement that any search warrant issued thereunder be addressed to aspecific peace officer or officers.

Section 11 of the CDSA reads as follows:

(1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that (

a) a controlled substance or precursor in respect of which this Act has been contravened, (

b) any thing in which a controlled substance or precursor referred to in paragraph (

a) is contained or concealed, (

c) offence-related property, or (

d) any thing that will afford evidence in respect of an offence under this Act is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlledsubstance, precursor, property or thing and to seize it. ...

(4) An endorsement that is made on a warrant...is sufficient authority to any peace officer to whom it was originally directed and to allpeace officers within the jurisdiction of the justice by whom it is endorsed to execute the warrant and to deal with the things seized inaccordance with the law. [Emphasis in original.] This legislation expressly does not contain the phrase “named therein” which appeared in its predecessor legislation. Should itnonetheless be interpreted as if to require that the warrant be addressed to or name a specific peace officer or officers to be responsiblefor its execution?

Two brief lines of authority have developed, each from oral decisions in circumstances where no opportunity was present for fullargument upon the point. In R. v. Schreiner, an unreported decision of Owen-Flood, J. of the Supreme Court of British Columbia,Vancouver Docket No. CC980825.ORL, delivered on December 4, 1998, the Court stated at p. 13: I do not...read subsection (4) [of s. 11 of the CDSA]...as stipulating expressly or by implication that a search warrant must specificallyname the peace officers. It must, however, I find, identify the peace officers.

They can be identified by name or indeed by jurisdiction orindeed by the force to which they belong. The essential thing is that the search warrant must be directed to peace officers who are peaceofficers within the jurisdiction of the justice by whom the warrant is endorsed. That is all that is required. The peace officers do not have

to be named. ... I am persuaded that when Parliament used a different wording and expressly deleted the requirement for naming the police officer in s.11 of the [CDSA], Parliament meant what it said. In the result, I am persuaded that there is no requirement that in a search warrant the peace officer be expressly named. It is sufficient tosay, as the search warrant at bar says, “to the Vancouver Police peace officers in the City of Vancouver in the Province of British Columbia”. The issue was addressed locally in the decision of R. v.

Hutlet, an unreported decision of Judge Schollie of the Provincial Court ofAlberta, Red Deer Docket No. 80250871P10101, delivered September 4, 1998 in which he stated at pp. 12-13: Ever since 1955, they’ve been trying to wipe out technical defences. With the 1955 Criminal Code, they’ve been realizing that technicaldefences don’t really make the law very popular. ... So I can only assume that Parliament intended to do what they did, as opposed to made a mistake. ... Personally, my judgment is and my decision is, that it is not necessary to have a named officer, because the legislation doesn’t require it.

Contra, we have the decision of Judge Macfarlane of the Provincial Court of British Columbia in R. v. Layzell, an unreported decision,Prince George Docket No. C01500F, delivered April 22, 1998. In concluding a warrant issued under the CDSA was defective on its face for failing to name a specific peace officer he states, at p. 2: ...there is more than an oblique reference to the fact that parliament determined that individual peace officers, who are executing thewarrant, must be named.

He is referencing an apparent conflict which arises if one does not interpret s. 11(1) as requiring a specific officer to be named. If it doesnot, why are the words “any peace officer to whom it was originally directed, and to all peace officers within the jurisdiction” necessaryin s. 11(4)? The phrase “any peace officer to whom it was originally directed” can be interpreted to mean that a given or specific peace officer mustbe named or, conversely, that any one of a group of peace officers may be more generally identified as being charged with the executionof the warrant.

The application of the principles of statutory construction assist in resolving this ambiguity. First, there is the presumption that a change in language on re-enactment of a provision must be presumed to have some significance, seeConstruction of Statutes, E.A. Driedger, 2nd edition, p. 127; Bathurst Paper Ltd. v. Minister of Municipal Affairs (1971) (SCC), 22 D.L. R. (3d) 115 at 119. However, Driedger goes on to note that this is only a presumption which may be rebutted by, forexample, the conclusion that a re-enactment had been shortened by the omission of certain cumbersome phrases to make it more

readable, as in Ouellette v. Canadian Pacific Railway Co. (UK JCPC), [1925] A.C. 569. Second, there is the presumption that effect is to be given to the whole of

an Act. Not only must the whole Act be read, but everyprovision of it should be given meaning, if possible. In other words, where one

interpretation would allow meaning to be given to everyportion of an enactment, whereas the competing

interpretation would leave a portion of the Act meaningless, the former should beselected. See Driedger (supra) p. 91-92; Montreal Light, Heat and Power v. City of Montreal (UK JCPC), [1924] 2D.L.R. 605; City of Medicine Hat v. Howson (AB CA), [1920] 2 W.W.R. 810.

Finally, while the general rule is that materials that were before Parliament when it considered enacting the new legislation are notadmissible to show parliamentary intent, they may have limited admissibility to show the “mischief” or goal toward which theamendments were directed; see Driedger (supra) 156; Reference re Anti-Inflation Act (SCC), [1976] 2 S.C.R. 373.

To that end counsel introduced into argument extracts of materials obtained from the Library of Parliament showing that prior to theenactment of the CDSA, evidence was heard by the Standing Committee on Health from witnesses concerned that s. 11 of the CDSA, asit was originally drafted, maintained the requirement of naming of a specific police officer. At 3:80 of the Proceedings before thatCommittee dated May 24, 1994 the following appears: We are also going to make some remarks about the

section dealing with searches. In our view, sub-sections (1) and (4) of

section 12,taken together, maintain the obligation in law to issue a warrant to a specific peace officer. This existed in the old Act, and this is aprovision that does not exist under the Criminal Code, where the search warrant is issued to a peace officer. In our view, this is anunnecessarily complicated requirement and we don’t think that it is necessary at all. Quite often, in practice, people who have knowledgeof the facts can obtain search warrants, but they are not necessarily the people who are going to execute the warrants.

If we understand the Act correctly, the person who obtains the warrant has to be present during the search. In any event, that was theinterpretation of the Ontario Court of Appeal in one of its rulings. In our view, that requirement could be dropped. Unfortunately, the extract provided does not identify the speaker. However, subsequent to May 25, 1994 s. 12(4) [as it then was] of thedraft Act was amended to its current wording, prior to the delivery of the report of the Standing Committee on Health on the draft Bill tothe House of Commons. The original wording was:

(4) An endorsement that is made on a warrant as provided for in subsection (3) is sufficient authority to the peace officer to whom itwas originally directed and to all peace officers within the jurisdiction of the justice by whom it is endorsed to execute the warrant and todeal with the things seized in accordance with the law. [Emphasis in original.] The amended, and current wording of the

section replaced the words “the peace officer” with the wording “any peace officer”. From this, one concludes that Parliament was alive to the issue and enacted the legislation in its amended form with an intent to removethe requirement of naming a specific peace officer in a search warrant. This intention would not carry the day if the principles of statutory

interpretation nonetheless mandated a different conclusion but theysupport the

interpretation that dispenses with the naming requirement. The first principle, that a change in the language must bepresumed to effect a different result than the original enactment, is preserved. The omission of the phrase “named therein” in s. 11(1) ofthe CDSA is thus given meaning, i.e. it does not mean that a peace officer must be named therein. The second principle, that an

interpretation must be adopted that if applied consistently gives meaning to all sections of the Act, is alsorespected. Section 11(1) allows a search warrant to be issued to a group of peace officers identified by police force and location;interpreting s. 11(4) to mean that any one of that group of police officers is authorized to execute the warrant gives a consistent meaningto the express provisions of both subsections. Accordingly, I resolve the apparent ambiguity in s. 11(4) of the CDSA by interpreting it to mean that any member of the group of policeofficers named in a search warrant may execute that warrant, and that there is no requirement that a specific officer or officers be named.

[paras. 42-62] I detect no flaw in Justice Bielby’s research and analysis, and unhesitatingly concur with her

interpretation. [15]

Section 11 does not prescribe the use of a particular form for a search warrant.

In my view, a duly signedsearch warrant purporting to issue pursuant to s. 11 of the CDSA will generally pass facial muster if it: (1) is directed at named orunnamed peace officers from the issuing judge’s jurisdiction; (2) identifies “an offence with sufficient precision to apprise anyoneconcerned of the nature of the offence”; (3) describes the things “to be seized with enough specificity to permit the officers executing thewarrant to identify them and link them to the offence”; and (4) pinpoints the place to be searched “with sufficient accuracy to enable thereader to know [for] what premises it authorizes the search” (see Drug Offences in Canada, para. 19.1700).

The warrant at issue heresatisfies those requirements and is facially unobjectionable. I would wrap up the discussion on point by recording that, when pressed atthe hearing, Mr. Pitre conceded the facial validity of the warrant. B. Issues pertaining to the sub-facial validity of the warrant [16] Mr. Pitre isolates each strand of information in the redacted ITO and submits none provides a compelling basisfor the reasonable grounds required by s. 11(1) of the CDSA. That approach is inappropriate.

Indeed, the law requires the reviewingcourt to consider all of those strands contextually and to determine whether, having regard to the totality of the circumstances revealedby the ITO, the issuing judge could conclude to the existence of the requisite reasonable grounds (see R. v. Allain (S.) (1998), (NB CA), 205 N.B.R. (2d) 201, [1998] N.B.J. No. 436 (QL), at paras. 11-13; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R.992; R. v. Blizzard, 2002 NBCA 13, 247 N.B.R. (2d) 203, at para. 51; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 and R. v.Campbell, 2011 SCC 32, [2011] S.C.J. No. 32 (QL)).

That fundamental point made, I turn to five of Mr. Pitre’s numerous andmultifarious objections. [17] Mr. Pitre submits there was no evidence placed before the warrant judge by which she could have comparedthe consumption of electricity during suspected grow activity and other periods, or contrasted the consumption of electricity at 1675Water Street with similar premises. Moreover, Mr. Pitre underscores the fact that the documents evidencing electrical consumption donot identify kilowatt hours, but the cost to the consumer. Finally, Mr.

Pitre says the ITO is deficient in failing to provide any expertevidence to interpret the electrical consumption data at 1675 Water Street during the pertinent period. According to Mr. Pitre, withoutsuch evidence, the rate of electrical consumption at that location was, and remains, entirely meaningless. In support of that proposition,Mr. Pitre refers to R. v. Baxter, (ON SC), [2007] O.J. No. 4532 (S.C.J.) (QL), at paras. 26-27 and R. v. Philpott,[2002] O.J. No. 4872 (S.C.J.) (QL), at para. 169. [18] There may indeed be instances where the missing evidence to which Mr.

Pitre adverts might well cast doubtover the existence of the requisite reasonable grounds. This is not the situation in the case at bar, having regard to the totality of theinformation provided by the redacted ITO. The trial judge disposed of Mr. Pitre’s argument on point as follows: While there is no comparative consumption of electricity to that of the consumption of the accused his history of consumption as set outin the ITO cannot be said to have no value in assisting the issuing judge in his/her assessment of the totality of circumstances.

Clearly inthe reality of the climate in New Brunswick, for there to be no drop in power consumption in the summer months is worthy of note andin the circumstances set out in the ITO, could reasonably be suggestive of consumption of electricity in support of a marihuana growoperation. The judge could have also concluded that periods of normal consumption were between crops. I am not persuaded the trial judge fell into error in coming to that conclusion. [19] Mr.

Pitre also complains the data in the ITO was not sufficiently current to allow the issuing judge to findthere were reasonable grounds to believe that, during the period specified in the warrant, the “things to be searched for” would be at1675 Water Street. He cites in support R. v. Turcotte, [1987] S.J. No. 734 (C.A.) (QL); R. v. Chen, 2007 ONCJ 177, [2007] O.J. No.1572 (QL) and R. v. Colby, [1999] S.J. No. 915 (Q.B.) (QL).

The trial judge made the following determination: While much of the information in the ITO is dated, it was important that the affiant set out the historical context of the totality of thecircumstances for the issuing judge. The ITO contains ample information for the judge to have concluded that the accused’s involvementwith the drug trade continued up until the date of the issuance of the warrant. Such information included the accused’s continuedassociation and contact with people known to be associated with the drug trade either as producers, sellers or purchasers.

Alsoinformation which was obtained through monitoring phone calls, surveillance, observation of the premises and culminating in a positiveF.L.I.R. examination of the accused premises the day before the warrant was issued was information from which the issuing judge couldconclude that there was ongoing drug activity in the premises. Examining the totality of the information in the ITO, there are sufficientreasonable grounds upon which the issuing judge could conclude that there was an ongoing involvement by the accused as a producer of

marihuana to the date of the warrant. I respectfully agree with the trial judge’s conclusion, one that is largely, if not entirely, driven by the context. As McNally J. emphasized in R. v. Black, 2008 NBQB 17 , “an assessment of the currency issue must be considered in the context and nature of the investigation” (para. 17). [20] It is Mr. Pitre’s further contention the applicant for the warrant knew 1675 Water Street was a two-unit residence and that he misled the issuing judge by not underscoring that fact. Mr.

Pitre adds that, in any event, the warrant is overly broad because it does not target a specific unit in the two-unit building. Mr. Pitre relies upon R. v. Charles , 2010 QCCQ 9178 , [2010] Q.J. No. 10824 (QL), at paras. 16-40 . The trial judge rejected these objections: I do not accept that the judge was misled as to the number of residential units in the building. The premises are described as 1675 Water Street throughout. The only suggestion it was other than a single dwelling was reference to the word Apartment on one of the doors.

Police officers who attended the premises on unrelated business saw no indication of use of that area as a separate apartment. During extensive surveillance nobody else was seen as associated with the premises other than the accused, who was seen coming and going repeatedly. The only phone line subscribed to the premises was in the name of the accused as well as the electrical service. And the owner of the premises leased the entire premises to the accused.

In my opinion there was ample information from which the issuing judge could reasonably conclude that the accused was the sole occupant of the premises as a single dwelling. I find no error in the trial judge’s analysis and conclusion. [21] Mr. Pitre submits the trial judge failed to appreciate the ITO provided hearsay information from unidentified sources without accompanying evidence to sufficiently establish their reliability. Mr. Pitre focuses on two paragraphs of the ITO where information is provided by confidential informants: On March 6 th , 2004, Cst.

Richard Girouard, a member of the Royal Canadian Mounted Police, currently assigned to District #6 in Sunny Corner Detachment, received information from a confidential proven reliable source who stated that they spoke with Stephen Pitre and learned that Pitre was maintaining a marihuana growing operation at his residence in partnership with the “Blacks”. The source described Pitre as being between 24-25 years of age, 5’11”, 240 lbs, with brown short hair, and that he always wears a ball cap. Pitre resides near the Newcastle Liquor store and drives a blue older model Chevrolet Cavalier. [Blacked out in original].

Constable Richard Girouard advised that this source associates freely with persons involved in criminal activity and he has known this source for the past 11 years. This source provided information for the past 5 years and does have a criminal record, however it does not include any conviction for the offences of perjury, obstruction or public mischief. This source has received financial payment for information provided and has been corroborated through other proven reliable sources. Information from this source has been used on eight authorized search warrants pursuant to

Section 11 of the Controlled Drugs and Substances Act , resulting in eight positive searches where controlled drugs were seized. According to Cst. Girouard, this source has never been inaccurate and Cst. Girouard believes the information supplied by this source to be reliable. On August 8 th , 2005, the Miramichi Police Force received a Crime Stoppers Tip that stated that 810 King George Highway is possibly a “grow house”. The tipster advised that the previous fall and winter, all of the windows were covered. Tipster advised that there is a “Venmar” air ventilation system installed on the roof.

Tipster advised that the person who is renting the house does not live there and only comes every 2 to 3 days and stayed only about one hour. The Tipster advised that the person who rents the house operates a green Ford van with a roof rack and has New Brunswick license plate NAD-644.

Tipster advised that this has been going on since the previous year and that the owner of the house lives next door and may not know what is going on. [paras. 4 and 6] In my view, those paragraphs provide more than sufficient evidence of source reliability and it follows that the standards developed in Garofoli and Debot have been met. Mr. Pitre also points to paragraph 21 as another instance where, in his submission, the ITO falls short of the mark set by those standards. However, that paragraph sets out information obtained from an identified source.

At any rate, paragraph 21 is of little, if any, informational value. I can only assume it did not weigh, to any measurable extent, in the balance when the trial judge concluded the issuing judge could have found the requisite reasonable grounds existed on the basis of the redacted ITO.

[22] Finally, Mr. Pitre contends the April 9, 2009 F.L.I.R. (Forward Looking Infrared) examination of 1675 Water Street was meaningless, having regard to the relatively neutral results obtained from such an examination a mere two months previous.

It may be timely to reproduce paragraphs 39 and 46 of the ITO, which deal with those F.L.I.R. examinations: On February 27 th , 2009, at 03:00hrs, the informant was with Sergeant Simon Roy, a member of the Royal Canadian Mounted Police assigned to the Coordinated Marihuana Enforcement Team in Fredericton, where he conducted a Thermal Imaging examination of the residence located at 1675 Water Street from adjacent roadways. Sgt.

Roy is a certified operator of the Scout ZX, which is an infrared imaging and measurement device used to “see” and “measure” thermal energy emitted from an object – the higher the object’s temperature, the greater the infrared radiation emitted. As a result of the examination, Sgt. Roy made the following observations: a. The residence in question is a two-storey house with light blue vinyl exterior siding. There are two chimneys on one side of the house, one being a brick chimney while the second is an aluminum chimney.

Some of the windows on the main level of the house (side street side) appear to be covered tightly against the window frames from the inside with a plastic and a brown opaque material. b. No observations could be made of the basement portion of the residence due to high snow banks against the residence. Excessive heat pattern could not be observed from the eaves of the residence or the two attic vents visible from the roadways (side & rear). c. Although no smoke could be observed coming out of either chimney, an excessive amount of heat was being emitted from both. d.

It is Sergeant Roy’s opinion that the heat pattern he observed from the two chimneys is suspicious, however, without any other supportive observations from the basement of the residence or elsewhere, it is his opinion that this thermal imaging examination is inconclusive. […] On April 14 th , 2009, the informant received information from Cpl. Daniel Haché, a member of the Royal Canadian Mounted Police assigned to the Coordinated Marihuana Enforcement Team in Fredericton. In February 2002, Cpl.

Haché received training in the theory and operation of thermal detection devices, also known as Forward Looking Infrared (FLIR), and he successfully completed the Basic Law Enforcement Thermography course offered by the Law Enforcement Thermographers’ Association and since then has conducted over two hundred FLIR examinations of structures suspected of housing indoor marihuana grow operations. On April 9 th , 2009, at 04:15hrs, Cpl.

Haché conducted a Thermal Imaging examination of the residence located at 1675 Water Street from adjacent roadways and noted an excessive amount of heat coming from the basement area and in his opinion this is consistent with an indoor marihuana grow operation. Cpl. Haché provided photographs that depicted the readings and the informant has attached them below.

Original included 3 photos that depicted the FLIR readings of 1675 Water Street [23] Having regard to those paragraphs and the totality of the information collected in the rest of the redacted ITO, I endorse the trial judge’s response to the F.L.I.R.-related argument: Undoubtedly the F.L.I.R. examination of the accused’s premises on the [9 th ] of April 2009 was of some significance to the issuing of the warrant to search, it being the opinion of the expert that the results of the examination were consistent with a marihuana grow operation.

However, I do not accept that its significance was in any way diminished by the earlier inconclusive examination in February. As described by the F.L.I.R. operator, in February, snow conditions were impeding his full access to the profile of the premises such that he could not conclusively state that the exam was consistent with a grow operation. Conversely the April exam had clear access to the

property. C. The correct standard of review [24] The trial judge made the following observations regarding the standard he was required to apply indetermining whether the redacted ITO disclosed sufficient information for the lawful issuance of the impugned search warrant: The role of the reviewing judge was described in R. v.

Grant (SCC), [1993] 3 SCR 223 where the Supreme Court ofCanada confirmed that the test for reviewing the issuance of a search warrant was the same as that set out by Justice Sopinka in R. v.Garofoli (SCC), [1990] 2 SCR 1421 (SCC) where at paragraph 56 he stated: “The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before theauthorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization then he or she should not interfere.

In this process, the existence of fraud, non-disclosure, misleading evidence and newevidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to beany basis for the decision of the authorizing judge.” In our own Court of Appeal, Justice Drapeau, as he then was, in R. v.

Allain (NB CA), [1998] NBJ No. 436described the role of the reviewing judge in paragraphs 11, 12 and 13 as follows: “The court must bear in mind the undoubted power of the issuing judge to draw reasonable inferences from such explicitly statedevidence… It is settled law that the issuing judge is fully empowered to make all reasonable deductions which flow logically from theevidence stated in the Information, and this power must be factored into the review process.

Furthermore, the assessment by thereviewing court must take into account the totality of the Information, interpreting its constituent parts in context… It is thereforeinappropriate to subject the Information to a microscopic analysis of its individual parts, each part being then viewed in isolation from itscontext. Finally, an overly strict

interpretation of the words used in the Information is not warranted by the jurisprudence, or by s. 8 ofthe Charter. This is particularly so where, as here, the evidence is uncontroverted that the deponent has acted in good faith throughout,and there is no evidence of fraud, reckless disregard for the truth, deliberate non-disclosure or intentional misstatement of the evidence.The reviewing court should be alive to the fact that, in most cases, the deponent is not trained in the niceties and subtleties of legaldrafting.” The Ontario Court of Appeal had this to say on the issue in R. v. Chan (ON CA), [1998] O.J.

No. 4536 in paragraph 4: “The affidavits in support of various search warrants must be reviewed as a whole in a common sense manner. In the language of the trialjudge a “line-by-line word-by-word dissection of the document in an effort to show that some of the grounds standing alone do notsupport the existence of reasonable grounds is not the correct approach and the determination must be made with regard to the totality ofcircumstances.” In

summary the ITO must not be assessed by a critical dissection of its individual parts but rather examined in the totality ofcircumstances to determine if there were reasonable grounds upon which the warrant could be issued. [paras. 8-11] [25] It is Mr. Pitre’s submission that the correct standard required the trial judge to determine whether a warrantwould have issued, having regard to the diminished evidentiary record that resulted from the ITO’s significant editing, which was made,we were told at the hearing, to protect the identity of confidential sources. In making that submission, Mr.

Pitre relies upon statements Imade while delivering the Court’s decision in R. v. Allain (S.): The test applied by the trial judge is unquestionably the proper test where the evidentiary record before the reviewing judge is notmaterially different from the record before the issuing judge. In Valley Equipment [(1998), (NB CA), 198 N.B.R.(2d) 211, [1998] N.B.J. No. 73 (C.A.) (QL)], pp. 219-20, at paras. 15-17, this Court summarized the law which applies in such a situationas follows:

[15] The issue of the sufficiency of the evidence before the issuing judge must be approached bearing in mind two well establishedprinciples. [16] First, the authority of a reviewing judge on the question of the sufficiency of evidence is confined to ascertaining whether there wassome evidence upon which the issuing judge, acting judicially, could issue the warrant (see R. v. Church of Scientology and Zaharia(1987), (ON CA), 18 O.A.C. 321; 31 C.C.C. (3d) 449 (C.A.), leave to appeal refused [1987] 1 S.C.R. vii; 82 N.R. 392;23 O.A.C. 320, and Quebec (Attorney General) v. Mathieu (1986), 50 C.R. (3d) 156 (Que.

C.A.)). [17] Second, the reviewing court cannot substitute its opinion as to the sufficiency of the evidence (see R. v. Grant (D.), (SCC), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1; 84 C.C.C. (3d) 173; 24 C.R. (4th) 1 (per Sopinka, J., at 251[S.C.R.]); and R. v. Turcotte, (SK CA), [1988] 2 W.W.R. 97; 60 Sask. R. 289 (C.A.)). Counsel for Mr. Allain submits that this standard of review does not govern where the record which can be considered by the reviewingcourt is materially different from the record before the issuing judge. I agree.

In any case where material parts of the Information havebeen excised, the issue is no longer whether there was some evidence upon which the issuing judge could act, but whether the warrantwould have issued on the basis of the evidence which remains. See R. v. Breton, supra, at p. 184, R. v. Grant, (SCC), [1993] 3 S.C.R. 223, 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1; 84 C.C.C. (3d) 173; 24 C.R. (4th) 1, at pp. 251-252 [S.C.R.], and R. v.Evans (C.R.) et al., (SCC), [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81; 104 C.C.C. (3d) 23, atpp. 23-24 [S.C.R.].

It seems plain to me that where the evidentiary record before the reviewing court is materially less significant than the record before theissuing judge, there is no longer any principled justification for deference. In such a situation, it is up to the Crown to satisfy thereviewing judge that the warrant would have issued on the basis of the remaining evidence. See R. v. Leipert (R.D.), (SCC), [1997] 1 S.C.R. 281; 207 N.R. 145; 85 B.C.A.C. 162; 138 W.A.C. 162, at pp. 302-303 [S.C.R.]. [paras. 17-19] [Emphasis added.] [26] In R. v. Shalala (R.H.) (2000), (NB CA), 224 N.B.R. (2d) 118, [2000] N.B.J.

No. 14(C.A.) (QL), a unanimous panel, of which I was a member, echoed those views about the standard of review applicable to cases wherethe evidentiary record provided to the warrant judge is more substantial than the one submitted to the reviewing court: [A wiretap] authorization can only issue on the basis of evidence that satisfies the issuing judge that the pre-conditions set by s. 186(1)have been met. Thus, the judge must be satisfied on the basis of the sworn affidavit contemplated by s. 185(1).

When there are deletionsor excisions to that affidavit, the trial judge is called upon to exercise jurisdiction on the basis of a record that is different from the onewhich was before the authorizing judge. In such a case, it is no longer open to the reviewing judge to sustain the warrant or theauthorization on the basis that the issuing judge could have ordered that they issue. When the evidentiary record is less substantive, thereviewing judge cannot logically justify his or her decision on the basis of deference for the discretion of the issuing judge.

Thereviewing judge must exercise his or her own judgment and rule whether, despite the deletions and excisions, there remains a sufficientbasis to find that the impugned search warrant or authorization could reasonably have issued. […] It is true that some courts have not distinguished between the two situations and have applied the same standard of review to both. Thus,in R. v. Bisson (1994), (QC CA), 87 C.C.C. (3d) 440 (Que.

C.A.), a case relied upon by the trial judge, the QuébecCourt of Appeal ruled that so long as there remains, after deletions and excisions, some evidence upon which the authorization couldhave been granted (see pp. 452-53), the trial judge must give effect to it. With respect, that approach is flawed because it accords deference to the issuing judge’s exercise of discretion when the evidentiarybasis upon which that discretion was exercised is no longer in the mix, a revised record, one that is less significant, having resulted fromthe deletions and excisions.

Moreover, it bears mention that the Supreme Court did not endorse the standard of review propounded in theQuébec Court of Appeal when it dismissed an appeal from the latter’s decision. In R. v. Bisson, (SCC), [1994] 3 S.C.R.1097, at p. 1098, the Supreme Court dealt with the issue in these terms: ... The trial judge found that the affidavit material presented to the authorizing judge contained an error of non-disclosure relating to theretraction of Eric Lortie, a failure to state his age, and an error in including him as a target and accomplice.

Having found such errors, thetrial judge proceeded to vitiate the wiretap authorization finding that the police officer deliberately misled the authorizing judge. In sodoing, the trial judge fell into error.

As stated in R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421, errors in the information presented to the authorizing judge,whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization and do not by themselveslead to automatic vitiation of the wiretap authorization as was done by the trial judge. The trial judge should have examined theinformation inthe affidavit which was independent of the evidenceconcerning Eric Lortie in order to determine whether, in light of his finding, there was sufficient reliable information to support anauthorization.

Proulx J.A., writing for the Québec Court of Appeal, (QC CA), [1994] R.J.Q. 308, 87 C.C.C. (3d) 440,60 Q.A.C. 173, carefully reviewed and analyzed the affidavit after excluding the paragraphs directly affected by the retraction. On thebasis of this analysis, we are satisfied that there wassufficient independently verifiable information which was not affected by the trial judge’s finding and upon which an authorization couldreasonably be based. The Supreme Court found that what evidence remained, after the excisions, provided “sufficient” reliable information upon which anauthorization could “reasonably” be based.

That choice of words suggests that the Supreme Court does not share the view espoused bythe Québec Court of Appeal with respect to the standard of review. “Some” supporting evidence will not do; the remaining evidencemust be sufficiently reliable to establish to the trial judge’s satisfaction that the statutory pre-conditions were met and that, as a result, theauthorization could reasonably have been granted. In the present case, parts of the supporting affidavits were deleted. As a result, the evidentiary record before the trial judge was differentfrom the one before the issuing judges.

The question was not, as expressed by the trial judge, whether the authorizations could haveissued on the basis of the remaining evidence in the supporting affidavits but, rather whether there remained sufficient reliable evidenceupon which the authorization could reasonably be based. While the trial judge applied the wrong standard of review, his error is not onethat justifies a reversal of the verdict rendered at trial since the evidence that remains after the deletions permitted by the trial judgeconstitutes, in our view, sufficiently reliable evidence upon which the authorizations could reasonably be based.

Accordingly, Mr.Shalala’s challenge to the substantive adequacy of the supporting affidavits is rejected. [paras. 90-94] [Emphasis added.] [27] In Arsenault v.

R., 2009 NBCA 29, 344 N.B.R. (2d) 113, Richard J.A., writing for a unanimous panel,enunciated as follows the principles governing a trial judge’s ITO review to determine the warrant’s sub-facial validity: 1) A trial judge's review must be undertaken from the standpoint that the impugned search warrant and the ITO are presumed valid; 2) The burden rests on the challenger to satisfy the reviewing judge that the ITO does not comply with the substantive requirements setby law; 3) The reviewing court must not assess the substantive quality of the ITO by confining itself to the evidence which is explicitly set out init.

The court must bear in mind the undoubted power of the issuing judge to draw reasonable inferences from such explicitly statedevidence; 4) The assessment by the reviewing court must take into account the totality of the ITO, interpreting its constituent parts in context; 5) An overly strict

interpretation of the words used in the ITO is not warranted by the jurisprudence, or by s. 8 of the Charter, but thereviewing court must remain vigilant and not allow its tolerance for drafting errors or deficiencies to extend to material omissions withrespect to substantive requirements; 6) Ultimately, where the ITO does not expressly or by implication disclose the required reasonable grounds, the resulting warrant cannotbe said to have been properly issued; 7) Where the evidentiary record before the reviewing judge is not materially different from the record before the issuing judge, the teston review is whether there was some evidence before the issuing judge upon which that judge could, acting judicially, issue the warrantto search;

8) However, where the record that can be considered by the reviewing court is materially different from the record before the issuingjudge, such as where material parts of the ITO have been excised, the test on review is whether the warrant would have issued on thebasis of the evidence which remains; 9) Where the evidentiary record before the reviewing court is materially less significant than the record before the issuing judge, there isno longer any principled justification for deference and it is up to the Crown to satisfy the reviewing judge that the warrant would haveissued on the basis of the remaining evidence. [para. 5] [Emphasis added.] In James A.

Fontana and David Keeshan, The Law of Search and Seizure in Canada, 8th ed. (Markham, Ont.: LexisNexis Canada Inc.,2010) at 315, the authors opine that the foregoing “neatly summarized” the general principles governing the review at trial of an ITO todetermine a contested warrant’s sub-facial validity. See, as well, the pointed discussion and the cases mentioned in Black v.

R., 2010NBCA 36, 360 N.B.R. (2d) 132, at paras. 18-19, Bell J.A., for the Court. [28] However, in Araujo, LeBel J., who delivered the Supreme Court of Canada’s judgment, formulated theapplicable test somewhat differently: Given that the police did not take such steps that might have prevented these problems from ever arising, I must now focus on thearguments that challenge the affidavit from a subfacial perspective. Subfacial challenges to an affidavit go behind the form of theaffidavit to attack the reliability of its content.

The issue here is whether the trial judge correctly applied the standard of review for awiretap authorization in the face of the subfacial challenge that arose through cross-examination on the affidavit. The reviewing judge does not stand in the same place and function as the authorizing judge. He or she does not conduct a rehearing ofthe application for the wiretap. This is the starting place for any reviewing judge, as our Court stated in Garofoli, supra, at p. 1452: The reviewing judge does not substitute his or her view for that of the authorizing judge.

If, based on the record which was before theauthorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and newevidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to beany basis for the decision of the authorizing judge.

As I noted as a judge at the Quebec Court of Appeal in Hiscock, supra, at p. 326 C.C.C., even a basis that is schematic in nature maysuffice. However, as our Court has recognized, it must be a basis founded on reliable information. In R. v. Bisson, (SCC), [1994] 3 S.C.R. 1097, at p. 1098, the requirement was described as “sufficient reliable information to support an authorization”(emphasis added). The Court concluded that this requirement had still been met despite the excision of retracted testimony.

In looking forreliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was atleast some evidence that might reasonably be believed on the basis of which the authorization could have issued. In oral argument, counsel for the appellant Grandmaison made much of a passage in R. v. Grant, (SCC), [1993] 3S.C.R. 223, at p. 251, where Sopinka J. explained the test applicable on a review of a search warrant when some of the informationsupporting the warrant had been obtained in violation of the Constitution.

Sopinka J. wrote that “it is necessary for reviewing courts toconsider whether the warrant would have been issued had the improperly obtained facts been excised from the information sworn toobtain the warrant: Garofoli, supra” (emphasis added). In using the word “would”, Sopinka J. did not set out to alter the test that comesfrom Garofoli, given that he cited this judgment in the same sentence. I take the word in this context not as setting a different standard ofreview but simply as suggesting the sincerity of the inquiry that a reviewing judge should undertake.

As this Court confirmed in Bisson,supra, the reviewing judge must carefully consider the existence of sufficient reliable information, that is, information that mayreasonably be believed on the basis of which the authorization could have issued. Other appellate court jurisprudence confirms this understanding. In the context of reviewing a search warrant, appellate courts havelooked to whether the authorization could have issued: e.g., Mitton v. British Columbia Securities Commission (1999), 1999 BCCA 186, 123 B.C.A.C. 263; R. v. Allain (1998), (NB CA), 205 N.B.R. (2d) 201 (C.A.), at p. 217; and R. v.

Krist(1998), (BC CA), 113 B.C.A.C. 176, at p. 179. But they look at this in context. For example, in R. v. Monroe (1997), (BC CA), 8 C.R. (5th) 324 (B.C.C.A.), at p. 333, Esson J.A. stated that, after looking for whether there was sufficient

grounds on which the judge could have authorized a warrant, “The judge was then required to assess the evidence placed before thejustice, in the light of the evidence brought out at trial, in order to determine whether, after expunging any misleading or erroneousinformation, sufficient reliable information remained to support the warrant”. […] An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need forjudicial finality and the need to protect prior authorization systems.

Again, the test is whether there was reliable evidence that mightreasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, theapplication should have been granted at all by the authorizing judge. […] In Bisson, supra, at p. 1098, our Court gave very short reasons but also affirmed the reasons of Proulx J.A. in the Quebec Court ofAppeal, (QC CA), [1994] R.J.Q. 308, 87 C.C.C. (3d) 440.

In his judgment, Proulx J.A. was clear that a court mustlook at non-disclosure of any material fact [TRANSLATION] “with respect to the affidavit considered as a whole, or even with respect tothe remaining parts of it” (p. 455 C.C.C.).

He quoted at p. 457 C.C.C. from the Ontario Court of Appeal in Church of Scientology, supra,at pp. 528-29: “[T]he function of the reviewing judge is to determine whether there is any evidence remaining, after disregarding theallegations found to be false and taking into consideration the facts found to have been omitted by the informant, upon which the justicecould be satisfied that a search warrant should issue” (emphasis added) also affirmed in Morris, supra, at p. 558. Again, erroneousinformation is properly excised.

In Bisson, supra, of course, the recanted information obviously had to be excised entirely and theremaining information then assessed in the totality of the circumstances. Where the erroneous information results from a simple errorand not from a deliberate attempt to mislead the authorizing judge, amplification may be in order. Nonetheless, there would be no need toseek to amplify the record if sufficient reliable material remains even after excising the erroneous material. [paras. 50-54, 57] [Emphasis added.] See, as well, R. v.

Blizzard, at paras. 58-61, where our Court applied the Araujo test to a situation where the record before the reviewingcourt was precisely the same as the one considered by the issuing judge. [29] In Morelli, Fish J., writing for the majority, articulated the standard of review in this fashion: In reviewing the sufficiency of a warrant application, however, "the test is whether there was reliable evidence that might reasonably bebelieved 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 […] whether there was sufficient credible and reliable evidence to permit a justice of the peace tofind reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found atthe specified time and place. [para. 40] [Emphasis added.] [30] More recently, in Campbell, the Supreme Court of Canada described the governing standard in these terms: The relevant legal principles are not at issue in this appeal. Juriansz J.A. correctly followed the approach to reviewing the sufficiency ofa warrant application recently reviewed by this Court in R. v.

Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253. In order to comply with s. 8 ofthe Charter, prior to conducting a search the police must provide "reasonable and probable grounds, established upon oath, to believethat an offence has been committed and that there is evidence to be found at the place of the search" (Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p. 168).

The question for a reviewing court is "not whether the reviewing court would itselfhave issued the warrant, but whether there was sufficient credible and reliable evidence" to permit an issuing justice to authorize thewarrant (Morelli, at para. 40). In conducting this analysis, the reviewing court must exclude erroneous information from the ITO andmay have reference to material properly received as "amplification" evidence (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para.58; Morelli, at para. 41).

The accused bears the burden of demonstrating that the ITO is insufficient (Quebec (Attorney General) v.Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 68; Morelli, at para. 131). [para. 14] [Emphasis added.] [31] In Kelly v. R., 2010 NBCA 89, 367 N.B.R. (2d) 1, the Court contrasted the role of the issuing judge to that ofthe reviewing court by reference to the test articulated by Fish J. in Morelli:

Under s. 11(1) of the CDSA, the issuing judge must be satisfied that the thing to be searched for is in the place to be searched. In the caseat bar, the issuing judge had to be satisfied the ITO demonstrated: (1) the deponent believed an offence had been committed; and (2)evidence of that offence would be found in Mr. Kelly’s residence. The ITO also had to demonstrate this belief was based upon reasonablegrounds.

In contrast, the question for the trial judge was whether "there was sufficient credible and reliable evidence to permit [theissuing judge] to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offencewould be found at the specified time and place" (see R. v.

U.P.M., 2010 SCC 8 , [2010] 1 S.C.R. 253; 399 N.R. 200, 346Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, at para. 40). [para. 39] [Emphasis added.] [32] Be that as it may, in Araujo, the Supreme Court referred approvingly to the standard of review accepted in R. v.Allain (S.) at p. 217 of (NB CA), 205 N.B.R. (2d) 201, namely that “the authority of a reviewing judge on thequestion of the sufficiency of evidence is confined to ascertaining whether there was some evidence upon which the issuing judge, actingjudicially, could issue the warrant” (emphasis added). See, as well, Black v. R., at paras. 18-19.

As I read Araujo, Morelli and Campbell,reviewing courts are required to apply that standard, whether the supporting affidavits have been edited or not. In my respectfuljudgment, that is, in essence, the standard applied by the trial judge in the case at bar. Accordingly, there is no merit to Mr. Pitre’ssubmission to the contrary. [33] That said, I would add the following. My assessment of the difference between the “would” and “could” testshas evolved since R. v. Allain (S.) and R. v. Shalala.

I no longer view the two tests as markedly different, at least for practical purposes.Let me explain. [34] Needless to say, the reviewing court never knows what the warrant judge would have done if the atrophiedITO had been put to him or her. For there to be a meaningful and principled review at trial of the sufficiency of the ITO in accordancewith the Araujo test, the issue must be whether the authorizing judge, acting judicially, could have given his or her imprimatur on thebasis of what remains of the information on oath he or she was provided.

To my mind, the “acting judicially” component of the testbrings into the mix an objective standard: could the issuing judge, acting judicially, have issued the warrant on the basis of theinformation provided in the atrophied ITO? Support for that view may be discerned from Justice LeBel’s statements in Quebec (AttorneyGeneral) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708: [T]he reviewing judge will assess the whole of the evidence submitted to him or her and to the authorizing judge, and will then decidewhether the authorization should have been given.

The reviewing judge will begin the analysis by recalling that the law regards theauthorization as facially valid, and that it is the task of the applicant, on review, to demolish that appearance of validity. If that attemptfails, the authorization will be upheld. [para. 68] [Emphasis added.] Recall, as well, that in R. v. Bisson, (SCC), [1994] 3 S.C.R. 1097, [1994] S.C.J.

No. 112 (QL), the Supreme Court foundthat what evidence remained, after the excisions, provided sufficient reliable information upon which a wire tap authorization couldreasonably be based. [35] In my respectful opinion, any judge would have issued the contested search warrant if, having regard to theinformation in the downsized supporting ITO and acting judicially, he or she could have done so. Let me be blunt, absent exceptionalcircumstances, the judge who refuses a warrant despite a showing of the requisite reasonable grounds has not acted judicially.

Happily,in the real world, a judge would only very exceptionally deny a search warrant where “the material satisfies the authorizing legislation”(see The Law of Search and Seizure in Canada at 173). In Kelly, the Court described the obligations of the issuing judge as follows: Clearly, the trial judge applied an impermissibly low standard when she concluded the search warrant had been lawfully issued because“it was reasonable to conclude that the possibility and probability of the ‘things to be searched for’ as outlined in the warrant could befound at 120 Cassidy Circle” [Emphasis in original].

Contrary to the trial judge’s assertion, a probability, perforce a possibility, that incriminating evidence could be found at Mr. Kelly’sresidence did not constitute a legally sufficient basis for the issuance

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