R. v. Floyd, 2012 ONCJ 417

Citation: R. v. Floyd, 2012 ONCJ 417 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DAVID MICHAEL FLOYD Before Justice D.M. Paciocco Decision on Charter Motion Relating to the Validity of the Warrant Released on June 15, 2012 Ms. Lisa Blais ......................................................................................................... for the Crown Ms. Melody Foerster .............................................................................................. for the Crown The defendant David Michael Floyd on his own behalf PACIOCCO J.: 1. Mr. Floyd has challenged the search that was obtained and executed on 10 March 2005 as being contrary to

section 8 of theCharter. He is self-represented in these proceedings and naturally required some guidance in giving legal form to the many complaintshe raised. He claims that the warrant is invalid according to the Charter, and that there have been a host of breaches relating to itsobtainment and content. The onus of demonstrating these alleged breaches is on him. He must do so on the balance of probabilities.

Hemust also satisfy the court on the balance of probabilities that the remedy he seeks, exclusion from this trial of the evidence that wasobtained using that warrant, is required by section 24(2) of the Charter in order to protect the repute of the administration of justice. 2. Mr. Floyd made a cavalcade of complaints about the validity of the warrant. I will organize his complaints into four categories andaddress them in turn.

The first is his claim that Detective Catherine Brown, the affiant in the “Information to Obtain” the search warrant,relied upon illegal evidence, namely hydro records that she secured without a warrant. The second complaint is that the “Information toObtain” affidavit did not disclose the grounds required for securing a search warrant, with reasonable and probable grounds lacking bothwith respect to the place searched and the offence itself.

The third claim is that the warrant should be struck down because of misconductby Detective Brown relating to misrepresentations and the failure to disclose material information, contrary to the Charter. The fourthhas to do with the execution without grounds of the warrant during the evening hours, as well as related concerns. I will examine eachcomplaint in turn. Complaint 1 – The Legality of the Hydro Records Search 3. Detective Catherine Brown contacted Ottawa Hydro and secured account information for 2745 Page Road. Mr.

Floyd argues thatthe warrantless consultation of these records violated his Charter rights. In substance he is contending that the inclusion in the“Information to Obtain” affidavit of this “illegally obtained” hydro information renders the warrant invalid, or at the very least, requiresthat the hydro information illegally obtained should be struck from the “Information to Obtain” affidavit. He cites R. v. Philpott (Ont.S.

C) for the proposition that unless the relevant hydro service is in the practice of sharing hydro information with thepublic a warrant must be secured before it is released. R. v. Philpott does not say this. More importantly the Supreme Court of Canada inR. v. Plant (SCC), [1993] 3 S.C.R. 281 held that utility records disclosing the consumption of hydro do not containinformation over which a reasonable expectation arises, making it appropriate for hydro officials to share such information without awarrant.

While the Court in Plant did note that the relevant hydro Commission in that case, Calgary Hydro, permitted public access to itscomputer data bank containing hydro records and that this diminished any expectation of privacy, this was an alternative basis for theconclusion that there was no reasonable expectation of privacy in that case. It was not a necessary condition of the permissiblewarrantless search of hydro records. The key point in the Plant decision was that hydro records disclosing patterns of consumption donot tend to reveal intimate details of the lifestyle and personal choices of individuals.

As such they do not intrude sufficiently into thebiographical core of information about a person to warrant Charter protected informational privacy. This was treated at the centralprinciple in the case as it was relied upon by the Supreme Court of Canada in R. v. Tessling (2004), 2004 SCC 67 , 189 C.C.C.(3d) 129 (S.C.C.) to conclude that there is no reasonable expectation of privacy in heat emanations detectible from a building using a FLIR (Forward Looking Infra-Red) device. James A.

Fontana and David Keeshan The Law of Search & Seizure in Canada (8th ed),(Toronto: LexisNexis, 2010) at 824 describe how Plant “definitively answered” in the affirmative the question: of “whether anindividual’s utility record can be reviewed by law enforcement without first obtaining a warrant.” I agree and on this basis alone rejectthis particular challenge. 4. Even if I am wrong about the law, this particular Charter challenge nonetheless fails. An issued search warrant is presumptively

valid and this search was done pursuant to a warrant issued on 10 March 2005 by a judicial officer. Mr. Floyd therefore bears the onus ofdemonstrating its invalidity: (R. v. Feldman (1995), (SCC), 93 C.C.C. (3d) 575 (S.C.C.)). This burden includes theobligation of establishing the factual basis for the alleged breach. Mr. Floyd has led no evidence about Hydro Ottawa’s privacy policiesor the terms of the hydro contract relating to hydro consumption. I therefore have no evidence as to whether Hydro Ottawa does or doesnot share their accounts publicly. I am therefore unable to verify Mr. Floyd’s claim to a reasonable expectation of privacy. I thereforefind no

section 8 violation based on the fact that Detective Brown obtained and relied in the ““Information to Obtain” on data securedthrough a warrantless requisition of information from Ontario Hydro. Complaint 2 - The Sufficiency of the Grounds 5. A search that is not legal is unconstitutional. The legality of this particular search depends on its compliance with

section 11 of theControlled Drugs and Substances Act S.C. 1996, c. 19. If the warrant does not meet the requirements of that provision the warrant isillegal and hence a search pursuant to that warrant is illegal and therefore unconstitutional, and the appropriate remedy must beconsidered.

Section 11 of the Controlled Drugs and Substances Act requires, in the context of this application, that before issuing a searchwarrant the issuing justice has to be satisfied on oath that there are reasonable grounds to believe (1) that there was a Cannabis Marijuanagrow-operation at 2745 Page Road at the time the warrant was issued, (2) that the things searched for as listed in Appendix B to thewarrant will afford evidence, and (3) that evidence would be found at that location described in Appendix “C” at the time the warrantwas issued: (See R. v. Sanchez (1994), (ON SC), 93 C.C.C. (3d) 357 at 365 (Ont. Ct.

Gen. Div)). The sufficiencychallenge in this case raises the third and first of the foregoing requirements. It is argued in substance that the place to be searched –relevant to requirement (3) - was not described with sufficient precision to identify that location. If a place cannot be identified, exhypothesi it cannot be concluded that there are “reasonable grounds” to search that place. The central argument, however, relates torequirement (1) above.

It is argued that it has not been shown that there are “reasonable grounds” to believe that there was a CannabisMarijuana grow-operation at 2745 Page Road on 10 March 2005. 7. When the standard of “reasonable grounds” is used in a statute, as it is with the Controlled Drugs and Substances Act, it isinterpreted to invoke the usual standard required for constitutionally valid searches, namely “reasonable and probable grounds.” This“reasonable and probable grounds” standard does not require a finding that the relevant conclusions are more probable than not.

Insteadthe reasonable and probable grounds standard lies between suspicion and proof beyond a reasonable doubt (R. v. Bush 2010 ONCA 554, [2010] O.J. No. 3453 at para. 37 (Ont.C.A.). 8. In Hunter v. Southam Inc. (SCC), [1984] 2 S.C.R. 145 it was explained that “reasonable and probable grounds”arise when “credibly-based probability replaces suspicion.” The reference to “credibly-based” probability reflects that the reasonable andprobable grounds standard requires more than that the quantum of evidence is adequate to move from suspicion to a reasonableprobability.

Part of the assessment is whether there are adequate objective indicators contained in the “Information to Obtain” affidavit toconclude that the information offered is credible enough to be relied upon to support conclusions about what is reasonably probable: R. v.Debot (1989), (SCC), 52 C.C.C. (3d) 193 at 215 (S.C.C.). 9.

In sum, the “reasonable and probable grounds” or “credibly-based probability” concept requires that the grounds furnished mustdemonstrate that there is a probability as opposed to a suspicion that the relevant facts could be true, assuming the information to be true(the “sufficiency inquiry”), and that there are reasonable grounds to believe that the information relied upon is credible enough to supporta conclusion that there is a reasonable probability that the relevant fact exists (the “credibility inquiry”). 10.

This two-part “reasonable and probable grounds” standard is relevant to two inquiries that must each be met before a “reasonable andprobable grounds” search warrant can issue. First, the affiant who has sworn the “Information to Obtain” affidavit, in this case DetectiveCatherine Brown, must honestly believe that they have reasonable grounds to believe that an offence is occurring and that what is beingsought is evidence that will be found at the place to be searched, in this case 2745 Page Road. If the affiant does not actually believe that,the search warrant is invalid.

This first inquiry is the “subjective” component of the reasonable and probable grounds standard: (R. v.Storrey (SCC), [1990] 1 S.C.R. 241 at 250.) The second inquiry, the “objective” component, requires that the affiant’sbelief that they have reasonable and probable grounds must be supported by enough information to enable a reasonable person to come tothe same conclusion: R. v. Storrey [1990] 1 S.C.R. 241 at 250. 11. Not only must there be “reasonable and probable grounds” as described before a warrant can issue, those grounds must bedemonstrated to the issuing justice.

This latter requirement is “known as the requirement of ‘prior authorization’”: (R. v. Morris 1998NSCA 229 , [1998] N.S.J. no. 492 at para. 32 (N.S.C.A.). It is meant to ensure that the decision to compromise a reasonableexpectation of privacy is made by an impartial and independent judicial officer rather than an investigator who may have an interest inpursuing the investigation. 12. During a review of the validity of a warrant that has been issued the reasonable and probable grounds standards are to be evaluated

by the reviewing judge with deference. This is because the legal responsibility for issuing the warrant belongs, in law, to the judicialofficer who has been called upon to issue that warrant. Accordingly the standard on review is not whether the reviewing judge wouldhave found the relevant “reasonable and probable grounds” on the basis of the information before the issuing justice. The ultimate issue,and the one that I must determine here, is whether the issuing justice could reasonably find the grounds to be sufficient. 13.

While this review is ordinarily conducted using the precise record of information that was before the issuing justice, the law doesprovide in some cases for the amendment of that record by the removal of information or the addition or amplification of that record withadditional information: R. v. Araujo 2000 SCC 65 , [2000] S.C.J. No. 65 at paras. 51-53 (S.C.C.). The relevant principles insettling the record for review are as follows. 14. First, factual claims made in the “Information to Obtain” affidavit that are without an objective foundation of credibility should bedisregarded.

For this reason, bald unsupported conclusions and erroneous or false facts should notionally be excised from an“Information to Obtain” affidavit: R. v. Morris (1989), 1998 NSCA 229 , 134 C.C.C. (3d) 539 at 553 (N.S.C.A.), cited withapproval in R. v. Aruojo 2000 SCC 65 , [2000] S.C.J. No. 65 at para. 54, and see para. 58. 15. Second, facts that should have been disclosed that weaken the significance or credibility of the grounds relied upon should also betaken into account since it is expected that during ex parte warrant applications the affiant will make full and frank disclosure of theactual state of affairs.

Where this has not occurred such facts can be considered by the reviewing judge as if they had been before thereviewing judge: Re Church of Scientology (No. 6) (1987), 31 C.C.C. (3d) 499 at 528-529 (Ont. C.A.), cited with approval in R. v.Aruojo 2000 SCC 65 , [2000] S.C.J. No. 65 at para. 57. 16.

Third, in appropriate cases even information that could have supported the warrant but that was not put before the issuing justice bythe affiant can be added during the review stage through “amplification.” In particular, amplification can occur where additionalinformation that was available to the affiant at the time the “Information to Obtain” affidavit was sworn is inserted to correct errors orinaccuracies in the “Information to Obtain” affidavit that have been made in good faith: R. v. Aruojo 2000 SCC 65 , [2000]S.C.J. No. 65 at para. 57. This can involve the correction of misstated information. In R. v.

Plant (SCC), [1993] 3 S.C.R.281, for example, the information stated that the informant had supplied the address but evidence showed that the police had actuallydetermined the address from the precise description of the house. The sufficiency of the ““Information to Obtain” affidavit” wasevaluated with this correction in mind. 17. It is possible that the amplification doctrine may also permit the insertion of relevant information that was simply omitted. In R. v.Kesserling (ON CA), [2000] O.J.

No. 1436 (Ont.C.A.) the “Information to Obtain” affidavit failed to includeimportant information supporting the conclusion that hydro records disclosed inordinate electricity consumption consistent with a growoperation. Proof during the voir dire that the officer had information at the time the warrant was secured that other houses on the samestreet consumed materially less electricity was used to “amplify” the record.

After the Kesserling decision was released, however, andwithout referring to that decision, the Supreme Court of Canada cautioned courts to exercise care with amplification and made commentsthat raise questions about whether amplification should be used to add information that is not omitted by error. In R. v. Arujo 2000 SCC65 , [2000] S.C.J. No. 65 at para. 59 Justice Lebel said: “When using amplification courts must strike a balance between two fundamental principles of search and seizure law that come into arather unique tension...

The danger in amplification is that it might become a means of circumventing a prior authorization requirement.Since a prior authorization requirement is fundamental to the protection of everyone’s privacy interest amplification can go so far as toremove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham.

Onthe other hand to refuse amplification would put form above substance in situations where the police had the requisite reasonable andprobable grounds and had demonstrated investigative necessity but had, in good faith, made some minor, technical error in draftingtheir affidavit material. Courts must recognize (along with investigative necessity) the two principles of prior authorization and probablegrounds at the time of the application.... in considering the jurisprudence on amplification (emphasis added).” In Quebec (Attorney General) v.

Laroche (2002), 2002 SCC 72 , 169 C.C.C. (3d) 97 (S.C.C.) Justice Lebel again cautioned, thistime more directly, that amplification should not be used to cure defects that are fundamentally flawed. 18. Once the record for review is settled, “the function of the reviewing judge is to determine whether there is any evidence remaining,after disregarding the allegations found to be false and taking into consideration the facts found to have been omitted by the informant,upon which the justice could be satisfied that the warrant should issue” (R. v.

Arujo 2000 SCC 65 , [2000] S.C.J 65 at para. 57).When this task is undertaken the reviewing judge must examine the totality of the “Information to Obtain” affidavit. (R. v. Araujo [2000]S.C.J. No. 65 at para 54 (S.C.C.).

While it is appropriate to pay close regard to the significance and reliability of specific informationincluded in an “Information to Obtain” affidavit when evaluating “reasonable and probable grounds” what the reviewing judge mustultimately determine is whether, on the “Information to Obtain” affidavit as a whole given the quality of the information consulted, thejustice could properly be satisfied that the warrant should issue. 19.

The place to begin applying all of these principles is with the subjective component of the reasonable and probable grounds inquiry.I have no hesitation in concluding that this subjective belief component was met in this case. The ITO attests to Detective Brown’s

subjective belief that she had reasonable grounds to obtain the warrant and conduct the search. The issuing justice could certainly accept this sworn assertion to be true on the information before him and nothing in evidence presented during this voir dire suggests this representation to be inaccurate. The subjective element of the reasonable probable grounds requirement is therefore satisfied in this review. 20 . The “objective” component it is the one in issue here both with respect to the challenge to the sufficiency of the “place to be searched” and the grounds for the offence.

Reasonable and Probable Grounds and the Place to be Searched 21 . Mr. Floyd’s arguments relating to the description of the place to be searched were not entirely clear to me. His essential complaint was that a second officer would be unable to identify the place to be searched from the description in the Warrant to Search and the “Information to Obtain” affidavit because there is no address number posted on 2745 Page Road and the properties in the area are not numbered sequentially according to a predictable pattern.

I have characterized this argument as a challenge to the sufficiency of the grounds to believe that there would be evidence to be found at the place to be searched, since if the place is not adequately identified, it necessarily follows that reasonable and probable grounds to believe there may be evidence at that place is necessarily absent. It is also possible to characterize this as a challenge to the search itself – if the warrant does not identify the location adequately it cannot be used to justify a search of the place searched leaving the search itself illegal. 22 .

In the end it does not matter how this legal challenge is characterized because the contention that the description in the warrant documents is inadequate to permit a second officer to identify the place from that description alone is unsustainable. Even if there is no address numbers posted on the property, the address furnished would narrow the place to be searched down to few properties.

From there, the physical description of the siding, the vehicles likely to be parked at the place to be searched, the outbuildings and the state of snow removal, all included in the warrant, would provide precise enough markers to enable identification. This particular Charter challenge, however it is conceived, therefore fails. Reasonable and Probable Grounds to Believe the Offence is Occurring 23 . Mr.

Floyd argues, in substance, that no issuing justice could reasonably be satisfied on the information in this case that there were objective reasonable and probable grounds for concluding that there was a marijuana grow operation at 2745 Page Road. While on its face there is sufficient information to meet the reasonable and probable grounds standard in this regard, if the record is adjusted using the principles described above and the credibility foundation for the information is examined, the warrant violates

section 8 of the Charter . 24 . There are indeed a plethora of credibility issues to be canvassed relating to Detective Brown’s “Information to Obtain” affidavit. The foundation for the warrant depends ultimately on information from (1) three untried confidential police informants, two of them apparently anonymous, (2) on a disappointing police investigation conducted to confirm the credibility of these informants, and (3) on the problematic use of hydro information. There is no other evidentiary foundation to support the warrant. 25 . To avoid redundancy I will proceed as follows.

I will begin to settle the factual record that must ultimately be reviewed by considering issues relating to the deletion of misleading information or the addition and amplification of material that can conveniently be resolved at the outset. After doing so I will then examine each source of information in turn to describe the contribution it makes and to identify issues relating to its credibility. For convenience I will combine my examination of points (1) the three confidential informants and (2) confirming information found during investigation relating to each informant.

I will then examine the use that was made of the hydro records. As I describe each source of information I will begin to explore not only its contribution but its credibility. While examining these sources of information I will also resolve any remaining issues of deletion, addition and amplification of the ultimate review record that could not conveniently be done at the outset.

While the exercise I have described will involve a dedicated evaluation of the credibility of the information provided by each Informant in turn, I want to be clear that I am not forgetting the principle that ultimately the reasonable and probable grounds evaluation is to be applied to the “Information to Obtain” affidavit as a whole and not to piecemeal items of evidence evaluated in isolation.

It is important, however, for a reviewing judge to get a relevant measure of the credibility of each source of information relied upon before attempting to evaluate the reasonableness of finding the information as a whole satisfies the credibly-based probability foundation. Once I have examined each source of evidence in the way I described I will then undertake the overall evaluation of the “Information to Obtain” affidavit using the standards set out above. The Settlement of General Issues Relating to the Record for Review Deletions of Information the has no foundation in Credibility 26 .

In conducting this review I will be deleting the representations in paragraphs 2.03 and 3.03 relating to all information having been corroborated to the extent possible through investigations of the information provided.

Specifically, I am deleting the last two sentences in paragraph 2.03 dealing with the informers, and the italicized portions of paragraph 3.03 relating to Informant “B.” For clarity the passages to be deleted are italicized: 2.03 The information provided by Informants “A”, “B” and “C” relating to the subject matter of this investigation has resulted in the commencement of a criminal investigation. All information has been corroborated, to the extent possible, through investigations of the information provided.

The information they have provided has, to the extent possible, proved through investigations by me to be accurate and reliable.

3.03 …. The information that Informant “B” has provided, to the extent possible, has been proven through investigation to be accurate and reliable” Informant “B” was questioned by Detective Carey with respect to this subject.

The information he has provided to me Detective Carey Informant “B” to the extent possible, has been proven through investigation to be accurate and reliable .… [Sic – the ungrammatical presentation of this last sentence is found in the “Information to Obtain” affidavit.] I am deleting these passages because they are manifestly unsupported by any information contained in the “Information to Obtain” affidavit and they have been shown to be misleading.

As the examination of the “Informant” information I undertake below demonstrates there is no record of corroboration for most of the information supplied by the Informants, including many details which could easily have been confirmed, if true. Indeed, in the evidence provided before me Detective Brown testified to no attempts to confirm the physical characteristics of the locations described or of the activities alleged.

She described a single visit to the location the day before this warrant was secured, which visit occurred after the material substantive provisions of the “Information to Obtain” affidavit now relied upon had already been drafted. This visit was conducted so that Appendix “C” could be amended to satisfy the concerns that prevented Justice of the Peace Chappelle from issuing a warrant during an earlier warrant application due to concerns Justice of the Peace Chappelle had about inadequacy in the property description.

Contrary to the representations in the targeted paragraphs, most of the “Informant” information was uncorroborated. Nor has the information proven to be accurate and reliable through investigation “to the extent possible.” To the contrary efforts at confirmation were cursory and half-hearted. 27 . I am also deleting from my review aspects of the general

summary of “F. GROUNDS TO BELIEVE AN OFFENCE HAS BEEN COMMITTED” for which there is no foundation. Specifically, I am deleting the italicized portions of the following paragraph: I verily believe that there is an indoor cannabis marijuana growing operation in the garage of 2745 Page Road because of the following: - Three separate confidential Informants have come forward to report this cannabis marijuana indoor grow operation independently over the course of one year and all of their information corroborates each other’s accounts . 28 .

Dealing first with the deletion of the “independently” claim, it is important to appreciate that one or both of Informants “A” and “C” are anonymous. That anonymity makes it impossible for the police to have confirmed that the three tips were “independent.” The anonymity of Informant “C” is made express in the “Information to Obtain” affidavit.

The only reasonable conclusion from the “Information to Obtain” affidavit is that the same is true for Informant “C.” There is no indication as there is with Informant “B” that Informant “A” was interviewed, and the sparse nature of the information furnished suggests that no interview took place. Moreover it appears that no criminal record search was done on Informant “A” as was undertaken with Informant “B.” The most reasonable inference is that Informant “A’s” biographical information is unknown to the police.

Since “C” and possibly “A” are apparently anonymous informants, it is possible that more than one of the Informants were in fact the same person. While it may be reasonable for the issuing justice to infer that they are likely separate persons as the three tips are expressed in different ways, there is absolutely no basis for concluding that the three informants came forward “independently.” Indeed, it is highly coincidental that Informant “A” came forward on 19 January 2005 and Informant “B” only two days later. The alleged crime is not an impending event that would easily explain this coincidence.

As the information from Informant “C” shows, the investigation was into an ongoing criminal enterprise that was at the time the warrant was sought at least a year old. There is no foundation in the warrant for the assertion that the Informant’s are independent. Specifically, there seems to be no factual basis for concluding that they never discussed 2745 Page Road between themselves or were unaware of the report of others. The claim they came forward “independently” must therefore be disregarded. 29 .

In addition, while there are similarities in some of the information provided (detailed below) it is a gross overstatement to say “all of their information corroborates each other’s accounts.” In making these deletions I am mindful that this passage purports to set out Detective Brown’s own beliefs and that this passage might simply record her misunderstanding of what the investigation produced. She is however the affiant whose information is being relied upon by the issuing justice and the relevant information listed in this paragraph is presented as objective fact.

The identified representations are therefore misleading and require removal. 30 . I am also deleting certain representations relating to hydro usage. To understand the extent and reason for the deletion about to be described it is important to understand that Detective Brown relied in the “Information to Obtain” affidavit on two factors relating to hydro usage – (1) the excessive consumption and (2) dramatic fluctuations over time.

The hydro representations of concern here relate to “excessive consumption.” Specifically, I am deleting the reference in paragraph 4.02 to excessive hydro consumption, which I am italicizing below: 4.02. It has been my experience that cannabis marijuana production involves the consumption of large amounts of electrical power. In some cases, as in this one , excessive hydro consumption is noted in the billing records. There is no basis shown in the “Information to Obtain” affidavit for concluding that there was excessive hydro consumption at 2745 Page Road.

No indication is provided as to what ordinary consumption ranges would be and there is no reference made to comparisons of hydro consumption between 2745 Page Road and comparable structures. Indeed, evidence provided during the voir dire disclosed that no effort was made by any police officers to compare the hydro usage at 2745 Page Road to comparable buildings. Detective Brown was re-examined on this point but provided no information available to her that the Hydro Ottawa readings were excessive. The only information received pertained to variations within the readings furnished for 2745 Page Road.

The words I am deleting here therefore

amount to a bald assertion of opinion unsupported in the “Information to Obtain” affidavit. Additions of Information that should have been Disclosed 33. Mr. Floyd urged that the “Information to Obtain” affidavit should have disclosed details relating to a separate search warrant executed at 2742 Page Road on 18 January 2005, the day before the investigation began into this alleged grow-op. The 2742 Page Road warrant is mentioned by one of the Informants but the precise date on which it was executed is not supplied and, more importantly, the nature of the investigation is not revealed. Mr.

Floyd argued that Detective Brown knew that 2742 Page Road was a grow operation search warrant because she was the investigator in that case, and she knows that 2742 Page Road is directly across from 2745 Page Road. She also knew that the search of 2745 Page Road found evidence of a grow operation. Given that two Confidential Informants spoke of the smell of marijuana when speaking of 2745 Page Road, he argued, the confirmed existence of a grow operation across the street at relevant times is material as this information should be considered by an issuing justice who is considering “smell” evidence. I agree.

In conducting this review I am therefore considering this information – that a grow operation was discoverd during a search warrant executed at 2742 Page Road across from 2745 Page Road on 18 January 2005 - as if it was included in the “Information to Obtain” affidavit. 34. The search warrant discloses no surveillance having been conducted at 2745 Page Road. Mr. Floyd urges me to find that surveillance was conducted but mention of it was intentionally omitted because nothing was found, contradicting claims made by the Informants.

In substance he would want me to include information in my review that surveillance occurred but confirmed none of the informant information. He bases his argument on deduction, without any affirmative information that surveillance took place. He relies primarily on the substantial likelihood that surveillance would have occurred, and on the inclusion in Appendix “C” (which is more legible in the Search Warrant than the “Information to Obtain” affidavit) of information about 2745 Page Road and its occupants that was not secured from the Informants and not sourced in the “Information to Obtain” affidavit.

Specifically Appendix “C” asserts that the occupants “frequently use” a beige Ford Taurus and a black Ford Pickup truck and that “the walkway up to the front door way is covered in snow and consequently it is indicative of a rear door being used by the occupants of the house to enter the dwelling place.” He claims that this betrays that surveillance did take place.

Dealing first with the condition of the premises, Detective Brown testified that the evening before the search warrant was executed she went by 2745 Page Road to secure further descriptors of the property to satisfy concerns Justice of the Peace Chappelle expressed when she refused to grant a warrant relating to the inadequacy of the property description. Detective Brown’s visit accounts for the description of the walkway in Appendix “C”.

The representations about the presence and use of “the beige Ford Taurus and the black Ford Pickup truck” could have been obtained by surveillance but it could also have come from information received that Detective Brown chose not to rely upon in the search warrant. It could also have come, for example, from the in-house checks that were referred to generally in the “Information to Obtain” affidavit. I am therefore not prepared to find on the record before me that there has been material non-disclosure about surveillance. Mr.

Floyd has not discharged his onus on this point as the requisite foundation is simply not there. 35. Having said that, the reference in Appendix “C” to the vehicles being frequently used should not have been included and authorization should not have been given for their search. This is because there is no mention of the Ford Taurus in the “Information to Obtain” affidavit.

While there is mention of the Black Truck by two confidential informants, there is no mention of either vehicle being “frequently used.” There is no basis offered for a reasonable belief that there would be evidence found even in the Black Truck. This warrant therefore did not provide any justification for the search of these vehicles and it was unreasonable to grant it. This point is largely moot, however, because I have no evidence before me that those vehicles were even searched, or that any evidence was found within them. 36. Mr.

Floyd also argues that there was a material intentional failure to disclose to the issuing justice that 2745 Page Road was a multi- unit residential building. He produced no evidence that 2745 Page Road is a multi-unit residential building or who resided in its units at the time but the Crown, appropriately indulgent to Mr. Floyd’s unrepresented status, proceeded on the assumption that his representations this was a multi-unit residential building were true. I will therefore assume for the purpose of this application that 2745 Page Road was a multi-unit residential building at the time.

Still, this concession leads nowhere. Even if the building was a multi-unit residential building at the time Mr. Floyd was unable to provide any direct evidence that Detective Brown had this knowledge. Again, Mr. Floyd wanted me to infer that she did because it is obvious to anyone paying attention. He argued that anyone viewing the premises would have seen two front doors and a side door, and he points out there is even a back door. He urged that the number of doors makes it obvious that this is a multi-unit residential building.

He also urged that the fact that the registered owner of the property is Mary Carmella Floyd, that Ms. Deborah Kilpatrick is shown in Hydro Records as the account holder, and that he himself is associated with the building, all facts known to Detective Brown, would make this obvious. I disagree. The information he relies upon is too equivocal to conclude that Detective Brown probably knew that this was a multi-unit residential building.

It has not been shown that she had information about the status of the residence as a multi-unit residential building that should have been added to the “Information to Obtain” affidavit and I therefore reject the invitation to consider this during my review. Additions based on “Amplification” 37. Additional information available to Detective Brown but not included in the “Information to Obtain” affidavit was described during her evidence. Specifically the information she referred to included that:

(1) She drove by 2745 Page Road the evening before the warrant observing the green siding on the house and the large garage. Thisinformation would confirm some descriptive details provided by police informants;

(2) She spoke to an unidentified employee at Hydro Ottawa who told her [with respect to variation in hydro readings at 2745 PageRoad] “that the readings for the running of the house should be closer and there shouldn’t be that much difference in the running of aregular house.” I am not prepared to amplify the record for review with this additional information. Amplification is manifestly appropriate to correct a“good faith … minor, technical error in drafting [the] affidavit material” (see Justice Lebel in R. v. Arujo 2000 SCC 65 , [2000]S.C.J.

No. 65) but there is no basis for concluding that these details were omitted by inadvertence. No evidence was provided byDetective Brown that these details were intended to have been included but where accidently omitted. Indeed, in the case of the visit itappears that she chose not to include the information about her observations in the body of the “Information to Obtain” affidavit.

This isbecause she took the time to amend Appendix “C” but made no effort to describe her visit in the evidence portion of the application.While there may be jurisdiction to permit amplification in the interests of ensuring that warrants are available where reasonable andprobable ground do exist even where information is not omitted by some “good faith … minor, technical error in drafting [the] affidavitmaterial” (see Justice Lebel in R. v. Arujo [2000] S.C.J. No. 65) I would not exercise my discretion to do so here. First, this informationis unimportant.

These characteristics of the property do no more than assist in identifying the residence – they do nothing to support theactivities taking place inside. As for the comment of the unidentified hydro employee, it is a hearsay opinion expressed by someone whomay not have had the competence to evaluate hydro usage. No effort was made by the Crown to furnish a factual record that couldestablish its utility. The addition of this evidence would not, therefore materially advance the principle that reasonable and probablegrounds should not be denied on matters of form.

In contrast its admission through amplification would insult the competing principle ofprior authorization. Detective Brown submitted this search warrant for approval on four occasions. It would be insensitive to the “priorauthorization” requirement to permit this additional information to be added after she made no effort to include it on those four earlieroccasions when seeking prior authorization. Amplification with this information in this case would not represent an appropriatebalancing of the competing principles the Arujo Court directed reviewing judges to keep in mind.

Examination of the Confidential Informants 38. When an affiant receives information from another person and relies upon it in an “Information to Obtain” affidavit the issuingjustice is being presented with hearsay. It is appropriate for affiants to rely upon hearsay, including hearsay information provided byconfidential informants, provided that, in the totality of the circumstances, it is reasonable to rely upon those informants. Factors thatshould be considered were described in R. v. Debot (1989), 52 C.C.C. (3d) 197 at 215 (S.C.C.): “First, was the information ... compelling?

Second, where that information was based on a “tip” originating from a source outside thepolice, was the source credible? Finally, was the information corroborated by police investigation prior to making the decision toconduct the search?” The extent to which information is “compelling” turns on the amount of precision offered. The credibility of the source is based on whatis known of the tipster. And corroboration, while ordinarily secured through observations by the affiant or other police officers, can beany independent information that reasonably enhances confidence the information is true.

It need not satisfy more formal conceptions ofcorroboration and it need not confirm the illegal activity directly; the ultimate question is whether the confirming information canreasonably enhance confidence in that the information is true. Corroboration between Informants can also, in appropriate cases, beprovided by confidential informants, a point I will return to below. Informant “A” – the Crime Stoppers Tip 39.

The first confidential informer, whose information is provided for in paragraph 3.01 of the “Information to Obtain” affidavit andwho is identified therein as “Informant ‘A’”, provided seven points of information:

(1) That a male named Mike owned 2745 Page Road

(2) That Mike was approximately 50 years old

(3) That Mike had white hair

(4) That Mike was unemployed

(5) That Mike drove a black truck

(6) That there was much activity at the house between 3 a.m. and 5 a.m.; and

(7) Mike was “growing and selling.” 40. This information was furnished as a “Crime Stoppers” tip. The date on which the tip came forward is not made clear. The“Information to Obtain” affidavit describes the “Crime Stopper Tip” being assigned from Sergeant S. Kerr to Detective Brown on 19January 2005. It does not disclose when the tip was initially provided to the police by the Crime Stoppers informer. I find that it wouldbe reasonable, however, for an issuing Justice to infer that Crime Stoppers tips are assigned in a reasonably prompt fashion after beingreceived.

It would therefore be appropriate to treat the information contained in the tip as reasonably current - less than two months oldwhen the warrant was issued.

41. The identity of the Crime Stoppers informer appears to be unknown to the affiant Detective Brown as there is no informationprovided about the Informant. Nothing is therefore known about how reliable this person is. Indeed, the “Information to Obtain”affidavit does not state that Informant “A” personally made the observations in question. Informant “A” could therefore be presentinghearsay information he or she obtained from others. In other words, the Crime Stoppers information may be “double-hearsay” consistingof unsworn claims from Informant “A” about what he or she in turn was told.

This raises acute issues as to the credibility of the source ofthis information. 42. Even where an informant purports to provide personal information where the informant is unknown the level of verification requiredis higher before it is reasonable to rely upon the information: R. v. Hosie (ON CA), [1996] O.J. No. 2175 at para. 14(Ont.C.A.). The same holds true with emphasis when it may be double hearsay that is being offered by an unknown informant. Theseconcerns alone do not absolutely preclude reliance on Crime Stopper’s information from an anonymous informer.

A Crime Stopper’s tipfrom an anonymous informant can be relied upon if it is sufficiently specific and/or sufficiently corroborated. In R. v Plant (SCC), [1993] 3 S.C.R. 281 a highly specific Crime Stopper’s tip that was corroborated by hydro records was ultimately used tosupport a valid warrant. By contrast, in R. v. Jacobsen (ON CA), [2006] O.J. No. 1527 the Ontario Court of Appealoverturned a trial judge for relying upon a Crime Stoppers tip that was not compelling and “police were able only to confirm some of thedetails of the tip” (at par 16). 43. What of this Crime Stopper’s tip?

The information furnished by Informant “A” here could not, in my view, be found to becompelling by a reasonable issuing justice. Quite to the contrary. The information indicating a marijuana grow operation is located at2745 Page Road is sparse. The first five pieces of information are purely biographical. They tell nothing of any illicit activity andprovide no foundation for believing the illicit activity described is occurring. At no point does Informant “A” purport to have directinformation about illegal activity.

He or she offers only their “thought” that Mike is “growing and selling.” To highlight the lack ofprecision in the tip, Informant “A” does not even mention what was grown or sold. The only detail that is provided as to what Informant“A’s” conclusion is based on is the entirely equivocal observation that “there was much activity at the house between 3 a.m. and 5 a.m.”On the scale of things this tip amounts to little more than a deduction without any demonstrated foundation. 44. Is the tip corroborated? As indicated very little investigation was done by the police.

The “Information to Obtain” affidavit disclosesno attempt to confirm the description or employment status of “Mike,” no effort to confirm that “Mike” drove a black truck, and nosurveillance to confirm the night-time activity. The “corroboration” that did occur is paltry. Paragraph 3.07 reveals that “in-housechecks” revealed that the owner of 2745 Page Road was Michael David Floyd and that he was born November 17, 1958. This wouldcorroborate points (1) and (2) above.

Even with this paragraph 3.17 appears to contradict the “ownership” claim made in both theInformant “A’s” report and the claim made in paragraph 3.07. Paragraph 3.17 shows that Mary Carmella Floyd is the owner, not Mr.Floyd. Meanwhile Informant “A” claims that Mike had “white hair.” Based on my observations of him in Court Mr. Floyd does not nowhave white hair. His hair is short and while clearly greying still appears to contain enough brown hair to make the description “whitehair” unlikely. The Crown did not take issue with his representation that even then he did not have “white hair.” 45.

What should be made of the largely uncorroborated and unsupported, conclusory belief provided by an Informant of unknownreliability that may not even rest on information he knows personally? In my opinion this “Crime Stoppers” tip is unsettlinglycomparable in quality to the one that was found in Jacobson to be incapable of forming part of the grounds that an issuing justice canreasonably rely upon: R. v. Jacobson (ON CA), [2006] O.J. No. 1527 at para. 16.

In that case the Court found the tipto be “not compelling” because, like the tip from Informant “A” in this case, there was nothing to indicate the informer’s source ofknowledge and, as in this case, that Informer’s tip was “tentative.” 46. The fact that the tip from Informant “A” proves on critical examination to be virtually incapable of having any weight arguablysupports an approach in which the tip from Informant “A” would be excised from the record before examining whether the balance ofthe information could be accepted by an issuing justice as providing reasonable and probable grounds.

There is much to be said for this.While, as explained below, confidential informants can mutually corroborate each other, there is a risk of “double-counting” or boot-strapping if informant information having value is treated as corroborating informant information that has none.

In effect, and in thecontext of this case, permitting mutual corroboration to operate would involve assigning weight to Informant “A’s” otherwise valuelesstip by borrowing from what other informants have said, and then adding Informant “A’s” tip to the scale to supplement the weight of thevery information it depends upon for its own weight. While it may therefore be appropriate to simply excise Informant “A’s” tip fromfurther consideration, the law requires that the “reasonable and probable grounds” review by undertaken of the case as a whole.

It istherefore prudent ultimately to consider the entirety of the evidence, including Informant “A’s” tip, always bearing in mind thatInformant “A’s” tip has the deficiencies identified. Informant “B” 47. Informant “B” provides the following information:

(1) That a man named Mike “Pinkie” Floyd from 2745 Page Road in Ottawa was growing marijuana in his garage;

(2) That he was a former police officer;

(3) That the house has green siding;

(4) That “Mike” drives a black Ford pick-up truck;

(5) That there are a lot of people coming and going from the house;

(6) That people can be seen bringing large screen televisions to and from the house;

(7) That the garage has a ventilation system attached;

(8) That all through the summer marijuana could be smelled coming from the ventilation system;

(9) That the owner “shut down his operation” when a warrant was issued at 2742 Page Road, across the street;

(10) That since the execution of that warrant improvements have been made to the rear of the garage where the cannabis marijuana grow operation is located;

(11) As part of this improvement vents were said to have been moved from the top of the building to vent out the rear;

(12) As part of this improvement additional insulation was added to the substructure surrounding the garage;

(13) That motion sensitive lights have been added at several locations surrounding the garage to give warning of anyone near the garage;

(14) The garage was approximately 100 feet in length;

(15) Snow is melted from one

section of the garage roof only;

(16) A blower can be heard when it clicks on at which point the odour of marijuana can be detected; and

(17) There is a view of the back of 2745 Page Road from a property at the rear of the house. It is a bushy area where there are power lines. It is accessible to people to walk their dogs. 48. For reasons that will become clear it is convenient to begin the evaluation of Informant “B” by examining how compelling this information is. In this regard his information appears to be timely even though it is not clearly stated when Informant “B” furnished the information to the police. It came in two emails, one that was forwarded to Detective Brown on 21 January 2005 and “a further email” on an unspecified date.

Again, with respect to the first email it may be reasonable to assume that it was forwarded reasonably promptly after it was received by Detective Carey. In any event, it is clear from the contents of the second email that it was sent some time after the 2742 Page Road raid on 19 January 2005. Since the 2745 Page Road warrant at issue here was secured on 10 March 2005, it is evident that the information was not stale when relied upon. 49. It is obvious that the information provided from Informant “B” is highly specific and given this and its timeliness it is, on its face, tremendously compelling.

While Informant “B” does not purport to have directly witnessed marijuana production or sale, Informant “B” provides extensive circumstantial identifiers highly indicative of a marijuana grow operation. The information provides more than a snap shot. It furnishes particular observations about the behaviour of the suspect, suggesting ongoing information. The informer even supplies the smell of growing marijuana and links it to the blowing system in the garage. Informant “B” also describes surveillance conscious actions by Mr.

Floyd, including shutting down his business after the raid across the street, and moving the vents to the back. The record relating to Informant “B” also verifies the experience of Informant “B” with the odour of marijuana, which would assist him in knowing what it was that he smelled. A reasonable issuing justice could find the information identified in the “Information to Obtain” affidavit from Informant “B” to be highly compelling. 50.

As indicated, I have to conduct this review of what a reasonable issuing justice could conclude about this specific information by taking into account additional information that is now part of the record. Of relevance is that until 19 January 2005 a grow operation had been operating across the street at 2742 Page Road, providing an alternative source of marijuana. This, Mr. Floyd argues, makes the smell information from Informant “B” less compelling. I disagree.

This new information does not significantly diminish the utility an issuing judge could find in Informant “B’s” information about the smell of marijuana. First, in the initial 21 January 2005 email Informant “B” specified the direction from which the marijuana smell was coming – from the garage ventilation system at 2742 Page Road. I appreciate that Informant “B” could be mistaken about the location but this is information with some precision. Second, the “Information to Obtain” affidavit represents that even after 2742 Page Road had been shut down, Informant “B” continued to smell marijuana from 2745 Page Road.

A reasonable issuing justice, even in light of the information I have added here about 2742 Page Road, could reasonably find the information form Informant B to be compelling. 51. The fact that information is compelling, however, speaks primarily to the sufficiency inquiry. While impressive detail can reasonably make information appear more credible than a bald assertion, any reasonable issuing justice would have to consider that there are limits to the extent to which detail verifies credibility – false information can be elaborate.

The primary indicia of credibility are therefore the reliability of the source and the extent to which the information finds independent support.

52. Who then is the source of this timely information? Even though the “Information to Obtain” affidavit does not verify that Informant“B” personally made the observations he purports to report, it would be reasonable for an issuing justice to conclude that Informant “B”is the source of the observations. Documents, including ““Information to Obtain” affidavits, should be read sensibly and in context. Withthat in mind, Informant “B” does not relay generalities.

He offers a highly specific description of the activities coupled with observationsthat would have been ongoing – “a lot of people coming and going from this house,” “Large screen televisions have also been seen beingbrought and leaving the house” - “when a search warrant was executed across the street at 2742 Page Road in January, the ownerresponded by shutting down his operation at 2745 Page Road Ottawa for approximately a week or so.” In R. v. Hosie (ON CA), [1996] O.J.

No. 2175 at para. 14 the Ontario Court of Appeal, when commenting how the failure to specify whether the CrimeStoppers “informer” in that case had personal knowledge, commented, “Had the informer provided information as to the type ofequipment and similar details then the justice might have been able to infer that the informer had obtained the information first hand.” Inthis case, it would be an entirely reasonable inference for an issuing justice to make that Informant “B” was purporting to describe thingshe had personally observed. 53.

Having said that, how reliable is Informant “B” shown to be in the “Information to Obtain” affidavit? There is no basis forconcluding that he is a credible person. Informant “B” is not a tested informant. This is the first time he has furnished information to theOttawa Police Service. Only three things are known of him. The first is that at some unknown time Detective Carey questioned him. Thedetails and results of that questioning are not shared in the “Information to Obtain” affidavit and are therefore unhelpful in showing himto be credible.

Second, the “Information to Obtain” affidavit discloses that he is familiar with marijuana and how it is transacted,including the paraphernalia required. This raises questions about whether he has had illicit involvement in narcotics. Third, Informant“B” probably has a criminal record. This conclusion necessarily emerges because of the way his criminal history is presented.

The“Information to Obtain” affidavit states “to the best of Detective Carey’s knowledge” Informant “B” does not have any criminalconvictions ‘for offences of dishonesty pertaining to the administration of justice,’” and then it records that a search verified that “he hasnone of the above convictions,” meaning convictions for offences of dishonesty.” If he had no record at all it is unlikely this qualifieddescription of his record would have been offered. By implication the only reasonable conclusion is that he probably has a criminalrecord for other offences.

This is relevant to the credibility of Informant “B.” Under the Canada Evidence Act R.S.C. 1985, c. C-5 s. 12any criminal conviction, whether for an offence of dishonesty or not, is considered to be relevant to the credibility of witnesses. Not onlyis Informant “B” not shown to be reliable, an issuing justice would therefore have to bear in mind that there may well be indicia ofunreliability present for Informant “B” in the form of undisclosed criminal antecedents. 54. To what extent is the information from Informant “B” corroborated?

I have already shared my conclusion that most of theinformation from Informant “B” was not corroborated and that efforts at doing so were cursory and half-hearted. Here are the details. Asrecounted above, Informant “B” offered 17 different pieces of information. Only three received any confirmation from independentinvestigation with one of those being only partially confirmed. The first two things conformed are no more than biographical information- that

(1) Mike “Pinkie” Floyd was confirmed as having been linked to the address supplied by Informant “B” and (2) that he was aformer police officer. The third point, point (8) is partially confirmed. It is known that that a search warrant was executed across thestreet at 2742 Page Road in January. The most telling part of point (8) however - that the owner of 2745 Page Road responded by“shutting down operation” - is not confirmed at all. 55.

To be sure, some of the information was transient and could not easily be confirmed, specifically point (5) that a lot of people arecoming and going from the house and (6) that large screen televisions have been seen being brought and leaving the house (the relevanceof which is unclear) (7) that marijuana could be smelled throughout the summer (it now being the winter) and (8) that insulation hadbeen added to the interior.

Yet the balance of the information described things that could have easily been confirmed to be true ifreliable, including (4) that “Mike” drives a black Ford pickup truck, (7) that the garage has a ventilation system attached, (10) thatimprovements have been made to the rear of the garage, (11) that vents were moved from their former location on top of the building tothe rear of the building, (13) that motion sensitive lights were added at several locations for the apparent purpose of detecting movementnear the garage, (14) that the garage was approximately 100 feet in length, (15) that snow is melted from one

section of the garage roofonly, (16) that a blower can be heard when it clicks on at which point the odour of marijuana can be detected, and (17) there is a view ofthe back of 2745 Page from a property at the rear of the house where there are power lines. The “Information to Obtain” affidavitdisclosed no efforts to confirm any of this information as reliable, in spite of the bald assertions made in the “Information to Obtain”affidavit that Informant “B” has proven to be reliable to the extent possible.

The fact remains that there is almost no confirmation fromany police investigation of what Informant “B” says, even though a number of the things listed- a ventilation system, vents, motionsensitive lights at several locations to detect movement near the garage, the uneven melting of snow, a blower and the smell of marijuana– together are the most material indicia of a grow operation. The extent to which Informant “B” is corroborated by hydro records andmutual corroboration between Informants is canvassed below. Informant “C” 56.

After receiving the information from Informants “A” and “B” a police check uncovered a third tip from Informant “C” who saidthat:

(1) A “grow house” was located in the rear yard of 2745 Page Road;

(2) There were grow lights inside;

(3) There was a security code on the garage;

(4) At times he could really smell marijuana coming from the garage, and

(5) Unknown persons come at all hours of the night. 57. On its face the information supplied by Informant “C” is moderately compelling. He offers more than a bald assertion. The smell ofmarijuana coming from the garage that he describes is strong indicia, even allowing for the operation at 2742 Page Road that may havebeen operating at the time this tip was furnished. By contrast the security code is of little utility as security codes are common inresidential buildings, but the “grow lights” inside are significant.

Someone would have to be in proximity to the garage to identify these.While the heavy night-time traffic is consistent with many lifestyles, taken with other information it gives some modest support to theinference that a marijuana grow operation was being operated at 2745 Page Road. 58. The degree to which the information is compelling would nonetheless be compromised in the eyes of a reasonable issuing justice,however, by the age of this information. This report was received on February 27, 2004, more than a year before the warrant wassecured.

This information is stale enough to reduce how compelling the information is even bearing in mind that what is being describedhere is likely to be an ongoing enterprise. 59. Once again, it is not clear whose information is being conveyed. There is no indication that Informant “C” personally observed whathe describes. This information does not have the specificity that would make it reasonable to infer that these are probably thingsInformant “C” observed. This tip could well be communicating double-hearsay. 60. Moreover, nothing is known of Informant “C’s” credibility.

He is evidently an anonymous informant as no biographical informationis provided other than the informer’s sex. There is therefore no foundation for finding him to be reliable. 61. Once again there is no meaningful corroboration of this tip through investigation. No attempt was made to confirm any of thisinformation, that (2) there were grow lights inside; (3) there was a security code on the garage; that (4) at times marijuana could “really”be smelled coming from the garage, and that (5) unknown persons come at all hours of the night.

Again, leaving mutual corroborationand the hydro information aside for the moment, there is no meaningful corroboration disclosed in the “Information to Obtain” affidavitarising from any effort by the police to confirm what Informant “C” reported. Examination of the Hydro Information 62. Hydro information can provide in important foundation for a search warrant.

The “Information to Obtain” affidavit sworn byDetective Brown includes the claims (1) that the hydro consumption at the residence was excessive (para 5.06), the “kind of largeamount of electricity” often present in indoor hydroponic grow operations; and (2) that the hydro consumption at the residence (thehome and the garage which are separately metered) reflect the kind of dramatic fluctuation (para.3.12 for the garage) or very substantialincrease in usage (para. 3.13) consistent the high peaks generated with marijuana grow operations (para.3.12 and “F. GROUNDS TOBELIEVE AN OFFENCE HAS BEEN COMMITTED”).

Taken at face value these claims, if true, would be highly probative of a growoperation, even though excessive consumption and high fluctuations can be caused innocently. The sufficiency standard is “reasonableand probable grounds to believe” and not proof positive. There are however troubling issues about these hydro readings relating to thecredibility inquiry required by the reasonable and probable grounds standard. Excessive Hydro Consumption 63. As I have already ruled above, the claim made by Detective Brown in paragraph 5.06 that the hydro consumption in this case isexcessive is worthless.

It is a bald claim unsupported by any information. The hydro information in this case is nothing like the evidenceoffered in R. v. Plant [1993] 2 S.C.R 281 and R. v. Kesserling (ON CA), [2000] O.J. No. 1436. As indicated,absolutely no attempt was made to confirm usual hydro consumption patterns for similar properties or to otherwise determine how muchelectricity might ordinarily be consumed by properties of the kind in question. In R. v. Hosie (ON CA), [1996] O.J.

No.2175 (Ont.C.A.) the Court found that an opinion that was not sufficiently detailed and whose source is not sufficiently identified cannotsupport an allegation that marijuana is being grown. Although the Ontario Court of Appeal did not expressly endorse the ruling, in R. v.Jacobsen (ON CA), [2006] O.J. No. 1527 at para 10 it did not take issue with the decision of the trial judge to strikeinaccurate hydro evidence from the “Information to Obtain” affidavit. With respect to the “excessive consumption” claim, I have donethe same here. Fluctuating Usage 64.

As indicated, Detective Brown represents in the “Information to Obtain” affidavit that Hyrdo Ottawa records show high peaks in thehydro usage for both the garage and the house at 2745 Page Road, consistent with the operation of Cannabis marijuana grow operation.Specifically paragraph 3.12 speaks of two hydrometers on the property, including a small commercial metre for the garage.

65. With reference to the small commercial meter in the garage that paragraph describes a “dramatic fluctuation” in usage between December 2003 and February 2004, showing an “increase of usage” of 2067 KW. There is also said to be a “substantial difference” between December 2004 and February 2005” showing an increased usage of 1310 KW. 66.

Paragraph 3.13 speaks of the hydrometer for the house showing a “very substantial increase in usage as well.” An increase from October 2004 to December 2005 of 4381 KW is described while an “increase of usage” from “December 2005 (which I interpret to be December 2004) to February 2005” is described as 10631 KW. 67. This information about readings in the garage and house are offered to support her opinions at 3.11 that the “high peaks in hydro usage” at the property “is consistent with a cannabis marijuana grow operation” and at “F.

GROUNDS TO BELIEVE AN OFFENCE HAS BEEN COMMITTED” that “billing … shows high peaks in usage which is consistent with marijuana usage.” 68. Although no claim is made in the “Information to Obtain” affidavit that Detective Brown is an expert hydro witness, in its totality the document represents by obvious implication that Detective Brown has the experience to present the opinions being offered here, including the

interpretation of hydro readings. She is represented in the “Information to Obtain” affidavit as a 5 year member of the Ottawa Drug Unit who has studied a Drug Investigator’s Techniques Course.

The “Information to Obtain” affidavit specifies that hydroponic grow operations require a large amount of electricity and she offers the opinion that “The Hydro Ottawa billing for the residence located at 2745 Page Road, in Ottawa, shows high peaks of usage, which is consistent with a cannabis marijuana grow operation.” And she explained, albeit using boiler-plate passages, how exhaust blowers and fans are used in grow operations. 69. Mr. Floyd took extensive issue with the Hydro Ottawa information provided in the “Information to Obtain” affidavit.

He was able to demonstrate during the cross-examination of Detective Brown that the presentation of the reading information is misleading. The figures Detective Brown presents show the actual hydro usage in the relevant building over the designated period. They do not show the “increase in usage” during that period as represented. To determine the “increase in usage” one would have to subtract the actual usage in that period from the usage it is being compared to. The “increased usage” between December 2003 and February 2004 for the garage, for example, is not 2067 KW as shown.

Figures contained in the Hydro Records filed as Exhibit 13 show that the increased usage is actually 1,376 KW (2067 KW which is the usage from 12/12/2003 to 02/16/2004, minus 691 which is the usage during the prior two month period). Given that the hydro usage for the following two month period as shown in Exhibit 13 was 1,404 KW, the hydro consumption during that winter period was actually quite consistent. The imprecise presentation of this data paints a distorting picture.

Indeed, during cross-examination Detective Brown agreed that the readings for the garage (the building using the small commercial meter referred to in Exhibit 13) during the entire period after the meters were installed and when the usage began in December 2003 are in fact quite consistent. That this is so can be seen in Exhibit 16. 70. I have no reason to believe this information was intentionally misleading. As indicated below, I find that this misleading presentation of information occurred because Detective Brown knows relatively little about hydro consumption.

It is therefore necessary to delete the misleading information from the “Information to Obtain” affidavit. In this context I would delete as materially misleading the references to “increase in usage” and amplify paragraphs 3.12 and 3.13 so that they refer to “usage.” 71. The foundation for the “very substantial increase in usage” and “high peaks and fluctuations” for the house is also problematic. Detective Brown repeats her error in describing actual usage as “increases,” again creating a misleading impression.

Then, as with the garage, the rate of consumption is provided for only two periods, October to December 2004 and December 2004 to February 2005. Two periods can show an increase but not fluctuations, particularly where no baseline is provided. Yet no attempt to offer comparators over time that would enable the claims about dramatic fluctuations and high peaks in usage to be objectively verified. To be sure the kilowatts used in the first period were 4381, and during the second, 10631 showing a marked change, but the two periods represent different seasons, the fall of one year and the winter of another.

It is common knowledge that hydro usage can vary tremendously seasonally. With respect to the house, these two readings on the face of the “Information to Obtain” affidavit offer little reasonable basis for the high peaks and dramatic fluctuation inferences she invites. 72. I have asked myself whether a reasonable issuing justice could credit Detective Brown’s opinions about the presence of material fluctuations indicative of a grow operation based on inferences about her expertise and competence to supply such opinions. On the record before me this would not be reasonable.

As intimated above, Detective Brown was shown during the Garofoli hearing to have no real competence in interpreting hydro readings. Her confident testimony in the affidavit about how to determine whether hydro usage in grow operations is consistent with a grow operation and what the information signifies here broke down in cross-examination.

As indicated, she erroneously confused the amount used over a period with an “increase in usage.” She admitted when asked about her comprehension of hydro readings that she does not even know how to read a hydro meter or how a hydro supplier goes about determining what people are billed for. She explained that her husband looks after the meter at home. Although this case did not require her to read meters or even raise issues as to how they are read, her evidence in this regard shows that she is manifestly a person with little knowledge about issues relating to hydro.

Indeed, during re-examination she recounted how she was told by an unknown employee of

unspecified competence at Hydro Ottawa that “there shouldn’t be that much difference in the regular running of the house.” Anyone withtheir own competence to identify material alterations in hydro usage and relate them to indicia of criminality would not require suchconfirmation or relate it as a basis for the opinion being offered. While hydro information can be relied upon reasonably without expertevidence, (R. v. Kesserling (ON CA), [2000] O.J.

No. 1436) and while it is not necessary for the affiant in a searchwarrant information to be an expert the point is that in this is a case Detective Brown has insufficient expertise to interpret hydroconsumption patterns, identify material fluctuations in hydro usage, and give them competent

interpretation. She should have disclosedthis in the “Information to Obtain” affidavit given that she was expressing interpretive opinions about the significance of fluctuatingusage and purporting to educate the issuing justice about hydro issues. Fairness requires that for the purposes of review, this be added tothe record for review.

With that intelligence in hand, and given the absence of sufficient detail from which the dramatic fluctuationconclusions could be sustained, this hydro information has virtually no utility, again, something that needs to be borne in mind whenundertaking the evaluation of the warrant information, as a whole. Evaluating the Amended “Information to Obtain” affidavit Record as a Whole 73.

The task, given this specific information about each source of information, is to determine whether looking at the information as awhole an issuing justice could have reasonably been satisfied that there were reasonable and probable grounds to issue this searchwarrant. 74. Manifestly, there is enough detailed information to satisfy the sufficiency component of the reasonable and probable groundsinquiry.

If the information in the “Information to Obtain” affidavit from Informants “A,” “B” and “C” and the dramatic fluctuationopinion relating to hydro consumption is assumed to be true there is a reasonable probability as opposed to a mere suspicion that amarijuana grow operation was being operated at 2745 Page Road in the City of Ottawa. 75.

But is there a sufficient foundation for an issuing justice to conclude reasonably that this probability is “credibly based?” Bearing inmind that the sum can be greater than its parts given the confirming impact that overlapping evidence can have, it is still important toappreciate the strengths and weaknesses of the constituent parts. To summarize the foregoing: a. What Informant “A” offers is arguably not even evidence. Informant “A,” whose reliability is completely unknown, offers hisbelief based on no evident foundation other than night-time traffic that Mr.

Floyd may be “growing and selling.” It is not even clear thatInformant “A” has personal knowledge of the things that have been reported; b. There is no basis for finding the key informant, Informant “B,” to be a reliable person – he is an untried informant who probablyhas a criminal past. His account finds no material confirmation in the investigation. None of the salient information he provides isconfirmed by independent evidence, even where it could have been if it was true.

While the detail and precision of information hassome logical tendency to buttress confidence in his credibility, taking the evidence of Informant “B” alone no reasonable justice could besatisfied that his allegations are probably credibly based. c. Similarly there is no basis for finding Informant “C” to be a reliable person. It is not even known if he is the source of hisinformation, which is more than a year old in any event. None of the details he gives are corroborated by investigation.

Nor is itcompelling enough information given its modest particularization and its staleness to find it to be probably credible because of thequality of the information. d. The “Information to Obtain” affidavit provides little objective support for the fluctuation claims relating to hydro consumption.With respect to the garage, the Garofoli cross-examination confirmed that the values depicted were for actual usage in the period inquestion, not an increase in usage, and that fairly interpreted the figures show the usage to be largely consistent. With respect to thehouse, only two values are provided.

Logically a fluctuation cannot be confirmed by two values. Moreover the two values that are showndepict usage and not increases in usage as represented and those figures reflect usage during different seasons, the fall and winterrespectively. The Garofoli cross-examination showed that the

interpretation of the significance of the variations was done by someonewith no expertise and little understanding of hydro matters. The material question is whether this information, together, could reasonably support a finding that a conclusion about the probability ofa marijuana grow operation operating at 2745 Page Road is credibly-based. 76. The law does allow for mutual corroboration between different sources of evidence, including between confidential informants inappropriate cases. R. v. Saunders is the case of highest authority.

The Newfoundland Court of Appeal ruled that while it may be true thatno one confidential informant provided sufficient evidence to support a warrant the “totality of the circumstances” inquiry imposed on a

reviewing judge required the reviewing judge to recognize that “the information from three [confidential] sources is corroborative interse: because of this, the whole of their information is greater than the sum of its parts”: R. v. Saunders 2003 NLCA 63 , [2003]N.J. No. 309. This decision was affirmed in a brief endorsement in R. v. Saunders [2004] S.C.J. No. 66, with the Court commenting that“there was sufficient material before the Justice of the Peace to support the issuance of the search warrant.” In R. v. McElroy 2009SKCA 77 , [2009] S.J. No. 416 (Sask C.A.) the Court used mutual corroboration.

Similarly, in R. v. Gianforte [2003] O.J. No.5711 (Ont. C.J.) a “factor” supporting the reviewing justice in upholding the warrant was that “all four main sources corroborated eachother.” In R. v. Jorge [2010] O.J. No. 3847 at para. 33 (Ont.S.C.J.) the evidence of one confidential informant was found to “contributeto the strength of other informant’s evidence.” 77. While mutual corroboration is therefore entirely appropriate it bears notice that in each of these cases one or more of the informantswere a person of demonstrated reliability.

Here, taking things at their highest, the issue is whether three untried informants and largelyunsubstantiated conclusions about hydro consumption can provide sufficient mutual suppor

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