R. v. Savoy, 2012 NBCA 36

COURT OF APPEAL OF NEW BRUNSWICK 133-11-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - ALBERT SAVOY and CHERYL DIANE SAVOY RESPONDENTS ALBERT SAVOY et CHERYL DIANE SAVOY INTIMÉS R. v. Savoy, 2012 NBCA 36 R. c.

Savoy, 2012 NBCA 36 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Turnbull The Honourable Justice Larlee CORAM : L’honorable juge en chef Drapeau L’honorable juge Turnbull L’honorable juge Larlee Appeal from a decision of the Provincial Court: September 14, 2011 Appel d’une décision de la Cour provinciale : Le 14 septembre 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: February 14, 2012 Appel entendu : Le 14 février 2012 Judgment rendered: April 19, 2012 Jugement rendu : Le 19 avril 2012

Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : L’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Turnbull The Honourable Justice Larlee Souscrivent aux motifs : L’honorable juge Turnbull L’honorable juge Larlee Counsel at hearing: For the appellant: Mélanie Ferron For the respondents: James E. Fowler Avocats à l’audience : Pour l’appelante : Mélanie Ferron Pour les intimés : James E. Fowler THE COURT The appeal is allowed, and a new trial is ordered. LA COUR Accueille l’appel et ordonne la tenue d’un nouveau procès.

The judgment of the Court was delivered by DRAPEAU C.J.N.B. I. Introduction [ 1 ] This is an appeal against the respondents’ acquittal on charges of cultivating marihuana and possession of marihuana for the purpose of trafficking. The contested verdicts were entered after Crown counsel declined to proffer evidence in support of the charges, a course of action the Attorney General of Canada says was dictated by the trial judge’s exclusion of evidence seized at the respondents’ residence under the authority of a search warrant.

The Attorney General contends the trial judge committed reversible errors of law in finding the search and seizure violated the respondents’ rights under s. 8 of the Charter and in excluding the evidence in question pursuant to s. 24(2). Objection is taken to the finding of a rights violation primarily on the grounds that the trial judge applied the wrong standard to determine the subfacial validity of the warrant and failed to discern the requisite reasonable grounds for its issuance from the redacted Information to Obtain (“ITO”) submitted for his consideration.

In my respectful judgment, that failure constitutes reversible error no matter what legally recognized standard is applied and, in the result, it is not necessary to pass upon the complaints directed at the trial judge’s s. 24(2) analysis. II.

Context [ 2 ] On December 21, 2009, a judge of the Provincial Court issued a search warrant under s. 11(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19, for two places in Northumberland County, New Brunswick: (1) the residence of Harley Matchett and Patricia Savoy, the respondent Albert Maurice Savoy’s daughter, at 408 Northwest Road, Exmoor, (“Premises number 1” in the ITO, the “Exmoor residence” in these reasons); and

(2) Mr. Savoy’s residence at 81 Route 435 highway in Whitney (“Premises number 2” in the ITO, the “Whitney residence” in these reasons). The warrant was executed immediately following its issuance. The present case is concerned with the admissibility of things seized by the police at the Whitney residence pursuant to the

warrant. [3] Following the search and seizure at the Whitney residence, the respondents were charged jointly on twoseparate single count Informations, the first for production of cannabis (marihuana) (s. 7(1) of the CDSA), the second for possession of cannabis (marihuana) for the purpose of trafficking (s. 5(2) of the CDSA). In time, the defence was provided with a redacted version ofthe ITO filed in support of the application for the warrant to search the Exmoor and the Whitney residences.

The editing was carried outto avoid disclosure of the identity of a confidential source. [4] “Not guilty” pleas having been entered, a trial was scheduled for November 29, 2010.

On that date, therespondents pursued their application for the exclusion from the evidential record of the things seized at the Whitney residence.Concomitantly, they sought leave to cross-examine RCMP Corporal Richard Girouard (the ITO’s affiant), Sergeant Bill Cummings ofthe Miramichi Police Force (the handler of the paid confidential source whose statements provided the main informational basis for theissuance of the warrant) and RCMP Corporal Daniel Haché (the Forward Looking Infrared operator whose evidence was offered toprovide some confirmation of the reliability of the information provided by the confidential source).

The trial judge allowed the defenceto cross-examine the ITO affiant, but dismissed the application in relation to Sgt. Cummings and Cpl. Haché. [5] Following Cpl. Girouard’s testimony at the voir dire on March 29, 2011, and after considering follow-upsubmissions from counsel, the judge ruled in favor of the defence. In his August 9, 2011 decision, the judge found the “ITO as edited[was] materially less significant than the record before the issuing judge particularly with respect to evidence of the reliability of the paidinformant”. That finding led to the application of the review standard approved in R. v.

Allain (S.) (1998), (NB CA),205 N.B.R. (2d) 201, [1998] N.B.J. No. 436 (C.A.) (QL); R. v. Shalala (R.H.) (2000), (NB CA), 224 N.B.R. (2d)118, [2000] N.B.J. No. 14 (C.A.) (QL), application for leave to appeal dismissed [2000] S.C.C.A. No. 133 (QL) and Arsenault v. R.,2009 NBCA 29, 344 N.B.R. (2d) 113.

The standard in question posits that, where a redacted ITO provides a materially weakenedinformational justification for the issuance of the warrant, the trial judge must ask whether a judge, acting judicially, would have issuedthe warrant on that basis, not whether the issuing judge, acting judicially, could have done so. In the trial judge’s view, the warrantwould “stand or fall on the basis of the investigation conducted by the affiant [Cpl. Girouard] to confirm the allegations of theconfidential source”.

Ultimately, the trial judge concluded the redacted ITO would have caused him to issue the warrant to search theExmoor residence, but not the Whitney residence. [6] In finding the ITO affiant had failed to adequately confirm the information provided by the confidentialsource in relation to the Whitney residence, the trial judge ventured the following opinions: (1) the editing of the ITO by the Crown hadeffectively removed the basis upon which the issuing judge would have relied for comfort regarding the reliability of the informationprovided by the confidential source in relation to the Whitney residence; (2) the information in question had been obtained by Sgt.Cummings from the confidential source and then relayed to the affiant, Cpl.

Girouard, who did not know the identity of the source; (3)the redacted ITO revealed “significant differences in the confirmatory evidence with respect to the two geographically separated homessubject to the warrant”. Although the redacted ITO provided electric consumption data for the Exmoor residence that was “indicative ofmarijuana production” at that location and, thus, provided confirmation of the confidential source’s information in relation to thosepremises, it offered no such data for the Whitney residence.

Moreover, the redacted ITO revealed that, on December 21, 2009, Cpl.Haché applied a thermal detection device (FLIR) to each of the targeted residences. His follow-up report indicated a vent with amechanical fan had been installed on the wall of the Exmoor residence’s basement. This fan was venting extreme heat and exhibiting anenergy signature which, in Cpl. Haché’s opinion, was similar to that observed in premises featuring a marihuana grow operation. However, no such venting system had been observed at the Whitney residence. That said, Cpl.

Haché’s testing did reveal an “excessiveamount of heat being emitted from the concrete located on the right side of the residence as […] compared to the left side”, a state ofaffairs that, in his opinion, “is consistent with [the] energy signature previously observed in houses known to have a marihuana growoperation”; (4) the redacted ITO did not disclose any evidence confirming Cpl.

Girouard’s statement that he believed the informationsupplied by the confidential source in relation to the Whitney residence to be reliable; (5) the power consumption and the venting systemat the Exmoor residence provided the requisite confirmation of the information provided by the “unknown” confidential source inrelation to the Exmoor residence and “would support the issuance of a warrant to search” that place.

However, the ITO evidence wasinsufficient “to confirm the unknown source’s information with respect to the Whitney residence of the two accused”; (6) the FLIRresults, “while they may be consistent with the signature of a known grow op, are also consistent with many other innocent conclusionsincluding a poorly insulated basement in the northern half of New Brunswick on the first day of winter”.

As such, the FLIR results were“insufficient to confirm the information” provided by the confidential source with respect to the Whitney residence; and (7) the Crownhad failed to demonstrate that the “warrant to search [the Whitney residence] would have issued on the basis of the edited ITO”. [7] The trial judge went on to find the search of the Whitney residence was unreasonable and violated therespondents’ rights under s. 8 of the Charter.

He then turned his mind to the respondents’ request for exclusion of the evidence seized attheir residence. [8] The trial judge began by rightly noting that exclusion pursuant to s. 24(2) of the Charter is not automatic inthe event of a violation of s. 8 and that it can be ordered only where warranted following application of the analytical frameworkprescribed by the Supreme Court of Canada, notably in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. As required, the trial judgeassessed and balanced the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the

seriousness of the Charter breach; (2) its impact on the Charter protected interests of the accused; and (3) society’s interest in a merits- based adjudication of the case. While the trial judge did not attribute bad faith to Cpl. Girouard, he was satisfied the Charter breach was quite serious because it involved a “violation of the sanctity of a person’s home”.

He was also of the view that “the impugned evidence [was] undoubtedly crucial to the prosecution’s case” and that “society’s interest in the adjudication of a case on its merits […] always favours the prosecution in a case involving production or trafficking in marihuana”.

However, after “balancing [his] assessments under the lines of inquiry suggested in Grant ”, the trial judge concluded “the seriousness of the breach, in this case involving a breach of the sanctity of the home, and the significant impact on the two accused’s Charter protected interests in the sanctity of their home outweighs the interest of society in seeing an accused marihuana producer tried on the merits”.

The judge then found the admission of the evidence seized at the Whitney residence would bring the administration of justice into disrepute, and he excluded it from the record. [ 9 ] As indicated, the Crown offered no evidence when called upon to present its case. Expectedly, verdicts of acquittal were then entered. III Grounds of Appeal [ 10 ] Some of the complaints formulated in the Notice of Appeal were not pressed in the Appellant’s Submission or at the hearing, and may be dismissed summarily.

That is the case for both the objection to the leave given the defence to cross-examine the ITO affiant and the complaint that the trial judge fell into error in finding there was a “material difference” between the redacted ITO and the ITO submitted to the issuing judge. [ 11 ] First off, it is not readily apparent how either of those grounds of appeal, as framed, raises a question of law alone (see E.G. Ewaschuk, Criminal Pleadings & Practice in Canada , 2 nd ed. (looseleaf) (Aurora, Ont.: Canada Law Book, 2009), para. 23:1060(2), (3), (9) and (11)).

That concern recorded, it remains that the point was not argued, hence my preference for a merits-based disposition of the grounds in question. [ 12 ] The decision to allow cross-examination of the ITO’s affiant was made in the exercise of a discretionary power. Where appealable, decisions of that nature can only be reversed if the discretion was not exercised judicially. R. v. Pires; R. v.

Lising , 2005 SCC 66 , [2005] 3 S.C.R. 343 offers the following insights on point: On reviewing a trial judge’s decision to permit or deny leave to cross-examine, an appellate court is not entitled to simply substitute its view for that of the trial judge. The trial judge’s determination of whether the proposed cross-examination is reasonably likely to elicit evidence of probative value to the issues for consideration involves an exercise of discretion.

The trial judge is in a better position to assess the material, the submissions of counsel and the evidence, if any, in the context of the particular voir dire and trial. The need for a deferential standard of appellate review was recognized in Garofoli . Sopinka J. stated that “[t]he discretion of the trial judge should not be interfered with on appeal except in cases in which it has not been judicially exercised” (p. 1465). This deferential standard is important.

If not adhered to, trial judges, out of an abundance of caution, are likely to embark upon many unnecessary hearings rather than risk vitiating an entire trial. The trial court’s power to control the proceedings then becomes more illusory than real and, in the context of a Garofoli hearing, the very purpose of the leave requirement is defeated. [paras. 46-47] In applying this deferential standard, appellate courts have looked for clear errors in the trial judge’s decision to permit or deny cross- examination (see R. v. Lepage , 2008 BCCA 132 , [2008] B.C.J. No. 524 (QL) ( sub nom. R. v.

Oliynyk ), at para. 18 , and R. v. Chow , 2009 BCCA 328 , [2009] B.C.J. No. 1421 (QL), at paras. 10-12 ). That approach accords with the generally accepted view that a trial judge’s discretion will be found to have been judicially exercised unless it yielded an unreasonable decision or one that is tainted by an error of law, an error in the application of the governing principles or a palpable and overriding error in the assessment of the evidence.

In my judgment, the case for intervention against the decision to allow cross-examination of the ITO’s affiant has not been made. [ 13 ] As for the existence of a “material difference” between the original ITO and its redacted version, I am satisfied the trial judge could make that finding. Assuming for the sake of argument that this finding is appealable, I fail to see how it is the product of any palpable and overriding error in the assessment of the evidential record. I would go further. If called upon to deal with the issue, I would make the very same inference that the trial judge drew.

To my mind, the inference of a “material difference” is inescapable, having regard to the number of deletions, the evident significance of some (e.g. a whole paragraph is blackened) and the context in which they were made. Nothing further need be said on the point, and I will now turn to the Attorney General’s more serious imputations of error.

[ 14 ] First, the Attorney General contends the trial judge applied the wrong standard in determining the subfacial validity of the warrant. The correct standard, which is set out in R. v. Araujo , 2000 SCC 65 , [2000] 2 S.C.R. 992 , directs the trial judge to decide whether a judge, acting judicially, could have issued the warrant on the basis of the redacted ITO, not whether he or she would have issued the warrant on that footing.

Second, the Attorney General submits the trial judge erred in law in determining the redacted ITO did not provide sufficient grounds for the issuance of the warrant. [ 15 ] Finally, and in the alternative, the Attorney General argues the trial judge erred in law in applying s. 24(2). As mentioned, on the view I take of the second ground of appeal summarized in the preceding paragraph, there is no need to pass upon this particular complaint. IV.

Analysis and Decision [ 16 ] A warrant may issue pursuant to s. 11(1) of the CDSA only where a judge is satisfied by sworn information that there are reasonable grounds to believe that an offence has been committed or is about to be committed, and that evidence of that offence will be found at the specified time and place. It is trite law that the case for issuance need not be made beyond a reasonable doubt.

It is sufficient if it is established to the warrant judge’s satisfaction that the things to be searched for are probably in the place to be searched. [ 17 ] At trial, the burden is on the accused to establish the warrant’s subfacial invalidity. In the case at hand, the trial judge imposed on the Crown the burden of proving subfacial validity. In doing so, he committed an error of law, but the point has not been pursued by the Attorney General .

Be that as it may, I agree the trial judge also fell into error in selecting and applying the standard by which substantive adequacy stood to be assessed, and in failing to draw from the redacted ITO the information upon which the warrant could have lawfully issued. A. The correct standard for the review at trial of the informational sufficiency of a redacted ITO [ 18 ] Contrary to the view expressed in R. v. Allain (S.) , the standard of review for the substantive sufficiency of an ITO is the same, whether it has been edited or not. The law on point was recently considered in Pitre v.

R., 2011 NBCA 106 , 381 N.B.R. (2d) 203 .

It may be summarized as follows: (1) the process for the determination of a claim of subfacial invalidity begins with a presumption that the warrant was validly issued and the correlative attribution to the defence of the burden of establishing the ITO, whether redacted or not, fails to pass muster; (2) in assessing informational sufficiency, t he reviewing court must take into account the totality of the data collected in the ITO, as well as any inference the issuing judge was at liberty to draw; (3) moreover, the reviewing court must take a holistic approach to the ITO’s assessment, interpreting its constituent parts in the light provided by the context; (4) that said, while an overly strict

interpretation of the words used in the ITO is not appropriate, the reviewing court must guard against allowing tolerance for drafting errors or deficiencies to extend to material omissions with respect to substantive requirements; and (5) ultimately, where the ITO does not expressly or by implication disclose grounds upon which a judge, acting judicially, could have issued the warrant, the latter cannot validate the search or seizure in issue. [ 19 ] In Pitre , the Court went on to the make incidental observations, which bear repeating: Needless to say, the reviewing court never knows what the warrant judge would have done if the atrophied ITO 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 accordance with the Araujo test, the issue must be whether the authorizing judge, acting judicially , could have given his or her imprimatur on the basis of what remains of the information on oath he or she was provided.

To my mind, the “acting judicially” component of the test brings into the mix an objective standard: could the issuing judge, acting judicially , have issued the warrant on the basis of the information provided in the atrophied ITO? […] In my respectful opinion, any judge would have issued the contested search warrant if, having regard to the information in the downsized supporting ITO and acting judicially, he or she could have done so. Let me be blunt, absent exceptional circumstances, 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 [2010 NBCA 89 , 367 N.B.R. (2d) 1], 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 be found 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 of the contested warrant. The statements in Morelli [2010 SCC 8,[2010] 1 S.C.R. 253], at para. 40, eliminate any doubt that might have persisted on point and recall to center stage the celebrated case ofHunter v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145, where the Court emphasized that a belief in the possibility offinding evidence at the specified place, even if reasonable, was not sufficient for the principled issuance of a search warrant: The purpose of an objective criterion for granting prior authorization to conduct a search or seizure is to provide a consistent standard foridentifying the point at which the interests of the state in such intrusions come to prevail over the interests of the individual in resistingthem.

To associate it with an applicant’s reasonable belief that relevant evidence may be uncovered by the search, would be to define theproper standard as the possibility of finding evidence. This is a very low standard which would validate intrusion on the basis ofsuspicion, and authorize fishing expeditions of considerable latitude. It would tip the balance strongly in favour of the state and limit theright of the individual to resist, to only the most egregious intrusions.

I do not believe that this is a proper standard for securing the rightto be free from unreasonable search and seizure. (p. 167) [paras. 39-40] [Emphasis in original.] As mentioned, in Morelli, the majority defined the test for reviewing courts as being whether “there was sufficient credible and reliableevidence to permit [the issuing judge] to find reasonable and probable grounds to believe that an offence had been committed and thatevidence of that offence would be found at the specified time and place” (para. 40).

In my respectful judgment, that formula fits neatly inthe overall statutory scheme and may well, in the fullness of time, gain widespread traction among reviewing judges. That acknowledged, it is difficult, if not impossible, to imagine a situation where the differently formulated standards might lead todivergent outcomes.

They certainly do not in the case at hand and, in that regard, I would simply refer to paragraph 58 of the lightenedITO and point out that, on any of the standards of review mentioned in these reasons, the information summarized therein amplysupports the sub-facial validity of the warrant. [paras. 34-36] [20] As is evident from his reasons for decision, the trial judge did not apply the correct standard in determining thesufficiency of the redacted ITO.

Instead of asking himself whether he would have issued the warrant on the basis of the diminishedinformational package under consideration, he should have applied his mind to the following question: could a judge, acting judicially,have issued the warrant on the basis of the information provided expressly or by reasonable implication in the redacted ITO? Inmisdirecting himself on the applicable standard of review, the trial judge committed an error of law.

That said, and as will be seen, theapplication of the “would have issued” test should nonetheless have led the trial judge to rule against the defence’s objection to theinformational sufficiency of the redacted ITO. On the information provided by that document, some of which the trial judge overlooked,no judge, acting judicially, would or could have refused the warrant. B. Application of the correct standard of review to the redacted ITO [21] Cpl.

Girouard explains at paragraph 9a) of the redacted ITO why he believes the information provided by Sgt.Cummings’ confidential source (“Source A”) is reliable: I was informed by Sergeant Bill Cummings, a police officer and a member serving with the Miramichi Police Force, in the Province ofNew Brunswick, hereinafter referred to as Sgt. CUMMINGS that he has a reliable and confidential human source who associates freelywith persons involved in criminal activity and whom he believes. Sgt.

Cummings advises that he has known this source, hereinafterreferred to as Source A for the past [part redacted] years, and has known Source A as an individual who has provided information for thepast [part redacted] years. [part redacted] That Source A has received financial payment for information provided. Information providedby Source A has been corroborated through other sources of information. Source A does have personal knowledge of the informationcontained herein, based on conversations and or observations with the persons involved unless otherwise stated.

The informant believesthe information supplied by Source A to be reliable. [22] The issue becomes whether Cpl. Girouard’s subjective belief could be viewed as reasonable by a warrantjudge, acting judicially. That inquiry brings into focus the nature of the information supplied by the confidential source and what insightsthe redacted ITO provides regarding his or her reliability. [23] The information provided by the confidential source is set out in paragraphs 10 and 11 of the redacted ITO:

10. On December 18th, 2009, the [affiant] was advised by Sgt. Cummings that he had received information from Source A onDecember [part redacted] 2009. Source A states the following:

a) Source A states that Harley Matchett and Patricia Savoy are presently maintaining a marihuana grow operation in the basement ofthe premises number 1 [the Exmoor residence] as observed by Source A. [part redacted]

b) Source A states that Harley Matchett and Patricia Savoy are producing [part redacted] marihuana [part redacted] Source A [partredacted] the marihuana plants [part redacted].

c) Source A states Patricia Savoy’s father, Albert Maurice Savoy is also presently maintaining a marihuana grow operation in thebasement of his residence, premises numbers 2 [the Whitney residence], as observed by Source A. Source A also states there is amarihuana grow in the loft of a large garage that is located to the rear of premises number 2 [the Whitney residence].

d) Source A identified the premises number 1 [the Exmoor residence] as Harley Matchett and Patricia Savoy residence as depictedin digital photograph 2 a), referred to as premises number 1 [the Exmoor residence] taken by Sgt. Cummings on December [partredacted] 2009. Source A described the residence located on Northwest Road, near Sunny Corner, being described by Source A as ayellow single story dwelling with basement with an attached civic number 408.

e) Source A identified the premises number 2 [the Whitney residence] as Albert Maurice Savoy’s residence as depicted in digitalphotograph 3 a), referred to as premises number 2 [the Whitney residence] taken by Sgt. Cummings on December [part redacted] 2009.Source A described the residence as a white residence with brick on the front and a brick chimney on the right-hand side with attachedcivic number 81. Source A states there is also a large garage with a loft located to the rear of the premises number 2 [the Whitneyresidence]. 11. On December [part redacted] 2009, Source A advised Sgt. Cummings of the following information: a) [part redacted]

b) Source A states that all three, Harley Matchett, Patricia Savoy and her father Albert Maurice Savoy have been growingmarihuana [part redacted] in premises number 1 [the Exmoor residence] and premises number 2 [the Whitney residence] and at thepresent time, as of December [part redacted] 2009, are growing marihuana in both premises. [part redacted]. [24] Clearly, the confidential source has personal knowledge of the marihuana grow operations at both the Exmoorand the Whitney residences. He or she acquired that knowledge through conversations with the targets, namely Mr. Savoy, HarleyMatchett and Mr.

Savoy’s daughter, Patricia Savoy, and actual observations of the grow operations at each residence. Moreover, theconfidential source is not anonymous. He or she has been known to Sgt. Cummings for years and has provided intelligence for years,which intelligence “has been corroborated through other sources of information”. Finally, the confidential source has been paid for his orher services. [25] In the course of delivering judgment for the majority in R. v. Greffe, (SCC), [1990] 1 S.C.R.755, [1990] S.C.J.

No. 32 (QL), Lamer J., later C.J.C., confirmed that the “supplying of reliable information in the past” could providesufficient indicia of a confidential source’s reliability: I should note, at this point, that it is clear from the trial judge’s statement that he based his assessment of the reliability of theconfidential information on an ex post facto analysis; he reasoned, incorrectly in my view, that the information received by the R.C.M.P.must have been reliable because the search resulted in the recovery of the heroin.

With respect, a conclusion that the police had reliableinformation about the appellant’s attempt to import heroin must be based on more than the fact of a subsequent recovery of the drugs.There must be an independent inquiry into the source and reliability of the confidential information in order to determine whether, in thetotality of the circumstances, there existed reasonable and probable grounds to believe the appellant was carrying the heroin or whetherthere was mere suspicion.

Relevant to this inquiry is whether the information received contains sufficient detail to ensure that it is basedon more than mere rumour or gossip, whether the source or means of knowledge is revealed and whether there is any indicia of thereliability of the source of the information, such as the supplying of reliable information in the past: see R. v. Debot (1986), 1986

113 (ON CA), 30 C.C.C. (3d) 207, (Ont. C.A.), at p. 219 affirmed by this Court, [1987] 2 S.C.R. 1140. I shall return to this aspect of thetrial judge’s reasons in my analysis of the legal issues arising out of this appeal. […] The leading case in the area of assessing confidential information is Debot, supra, a decision by Martin J.A. of the Ontario Court ofAppeal. The Court of Appeal held that information supplied by a reliable informant may provide the “reasonable and probable groundsto believe” in order to justify the granting of a search warrant.

That reasoning is applied by the court when the issue is reasonable andprobable grounds to justify a warrantless search, as in the case at bar. The test for assessing the information is as follows, at pp. 218-19: I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable groundsfor conducting a warrantless search ....

Highly relevant ... are whether the informer’s “tip” contains sufficient detail to ensure it is basedon more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are anyindicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story bypolice surveillance. [paras. 24 and 47] [26] In R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115 (QL), Sopinka J.summarized the pertinent principles adopted in R. v. Debot, (SCC), [1989] 2 S.C.R. 1140, [1989] S.C.J.

No. 118 (QL)and Greffe: (

i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence ofa tip from an informer, by itself, is insufficient to establish reasonable and probable grounds. (ii) The reliability of the tip is to be assessed by recourse to “the totality of the circumstances”. There is no formulaic test as towhat this entails. Rather, the court must look to a variety of factors including:

a) the degree of detail of the “tip”;

b) the informer’s source of knowledge;

c) indicia of the informer’s reliability such as past performance or confirmation from other investigative sources. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information. [para. 68] [Emphasis added.] [27] In sum, evidence of what would otherwise be a probative tip from an informer, by itself, is insufficient toestablish reasonable grounds for the issuance of a warrant under s. 11(1) of the CDSA.

However, a reviewing court must accept thesufficiency of such a tip where, on the totality of the circumstances, the issuing judge, acting judicially, could conclude it was reliable.Importantly for our present purposes, a warrant judge is entitled to come to that conclusion where the ITO features confirmation of theinformer’s reliability in other instances. [28] In the case at bar, the redacted ITO establishes that the confidential source’s information is based on firsthandknowledge.

Moreover, the redacted ITO confirms a track record of reliability and of confirmation by other sources of the confidentialsource’s intelligence in other cases. Additionally, the excessive heat emanating from one side of the Whitney residence is far frominsignificant, having regard to the overall context: it is consistent with a marihuana grow operation in the basement. Finally, the trialjudge found reliable the confidential source’s information pertaining to the illicit activities at the Exmoor residence.

The reliability ofthat information buttresses the reliability of the confidential source’s assertion that a marihuana grow operation was also in progress atthe Whitney residence. Those circumstances, viewed cumulatively, lead inexorably to the conclusion that the redacted ITO gives rise tothe requisite reasonable grounds for the issuance of the warrant to search the Whitney residence. In concluding otherwise, the trial judgecommitted an error of law (see R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20 and Black v. R., 2010 NBCA 36, 360N.B.R. (2d) 132, at para. 18, per Bell J.A. for the Court).

It appears he fell into the trap of assessing the reliability of the informationprovided in respect of the Whitney residence in isolation from the information the confidential source provided for the Exmoorresidence. I repeat: the correct approach requires a consideration of the “totality of the circumstances”. Had the judge taken thatapproach, he would have concluded the confidential source’s information in relation to the Whitney residence was sufficiently reliable

and the redacted ITO provided ample grounds to uphold the warrant. As was the case in Pitre , whether one applies the “would have issued” test ( see Allain ) or the formulaically correct “could have issued” test ( see Araujo ), the result is the same: a valid search warrant and no violation of s. 8 of the Charter . C. Reversible error? [ 29 ] Where crucial evidence is excluded, the prosecution may, as it did here, call no evidence and appeal the verdict of acquittal.

However, any such appeal will fail unless it is shown that “the rejected evidence was important to [the Crown’s] case, and that it was fruitless to have continued without it” (see E.G. Ewaschuck, Criminal Pleadings & Practice in Canada , para. 23:1040). [ 30 ] The respondents contend the appeal must fail, despite the trial judge’s several errors of law, because nothing in the record identifies what things were seized at the Whitney residence. That state of affairs would make it impossible, so goes the argument, for this Court to determine whether the excluded evidence was indeed crucial.

While impressed with counsel’s ingenuity, I respectfully disagree with his contention. I do so for the following reasons. [ 31 ] The redacted ITO, which was received in evidence at the voir dire , establishes on a balance of probabilities that, at the time specified in the warrant for its execution, evidence of a violation of s. 5(2) of the CDSA (possession of marihuana for the purpose of trafficking) and of s. 7(1) of the CDSA (production of marihuana) would be found at the Whitney residence.

Evidence was seized at that residence on the very date of the warrant’s issuance and, as a result, charges were subsequently laid against the respondents for violations of the above-mentioned provisions of the CDSA . Later, the respondents successfully applied for exclusion of that evidence. While neither side adduced evidence to describe with specificity the items seized at the Whitney residence, the case was litigated on the basis that their admission into evidence was, as the trial judge put it, “absolutely crucial” to the prosecution.

The record shows that, following the trial judge’s decision to exclude, the prosecution’s case crumbled. There is no suggestion and, indeed, not one iota of evidence pointing to abuse of process in the decision to charge and prosecute the respondents on the basis of the evidence seized at their residence. That is likewise the situation for the Crown’s election to close its case once exclusion was ordered pursuant to s. 24(2) of the Charter . Viewed cumulatively, these circumstances compel the conclusion that the case for a new trial has been made. V.

Conclusion and Disposition [ 32 ] Verdicts of acquittal are not to be lightly interfered with ( see R. v. Sutton , 2000 SCC 50 , [2000] 2 S.C.R. 595 , at para. 2 , per McLachlin, C.J.C.). Nonetheless, appellate intervention is required where the court is satisfied the verdict results from a significant error of law ( see R. v . Pavlovszky , 2005 NBCA 9 , 281 N.B.R. (2d) 42 , at para. 29 , per Deschênes J.A.; R. v. Noel , 2010 NBCA 28 , 358 N.B.R. (2d) 108 , at paras. 43-50 and R. v.

Barros , 2011 SCC 51 , [2011] 3 S.C.R. 368 , at paras. 78-82 , per Binnie J.). [ 33 ] In the case at hand, the trial judge applied the wrong test to determine the subfacial validity of the search warrant in issue. Moreover, he committed reversible error in failing to distill from the redacted ITO a sufficient basis to uphold the warrant. I would reverse and order a new trial. ____________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK WE CONCUR:

_____________________________________ WALLACE S. TURNBULL, J.A. ______________________________________ M.E.L. LARLEE, J.A.