R. v. Huynh, 2011 ONCJ 4

COURT FILE No.: Toronto Region Citation: R. v. Huynh , 2011 ONCJ 4 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent — AND — PHILIP HUYNH AND THI PHAM Applicants Before Justice Peter Harris Heard on November, 25, 2010 Reasons for Judgment released on January 11, 2011 ( Sections 8 , and 24(2) of the Charter of Rights ) K.W. Dickson ............................................................. for the Public Prosecution Services of Canada K. Schofield ...................................................................... for the Defendant/Applicant Philip Huynh D.

Heath ……………………………………………………….. for the Defendant/Applicant Thi Pham P. Harris J.: Introduction [ 1 ] The defendants Philip Huynh and Thi Pham are charged with drug related offences arising from allegations of participation in a marijuana production operation, commonly known as a “grow op”.

The charges against both defendants ― of production of a controlled substance and possession for the purpose of trafficking in a controlled substance ― followed the execution of a search warrant at the defendant’s residence on September 3, 2009. [ 2 ] The defendants take the position that the search and seizures that ensued have resulted in a violation of their Charter-protected rights and submit that the evidence seized under the search warrant should be excluded pursuant to s. 24(2) of the Charter . [ 3 ] On September 23, 2009, police obtained and executed a Controlled Drugs and Substance Act search warrant at the defendant’s residence at 128 Mercury Road, Toronto.

Both defendants were arrested at the residence. A “grow operation” was found in the basement of the home, containing 103 marijuana plants. Police also seized 103 grams of dried marijuana. [ 4 ] On the 25 th of November 2010, the hearing of this matter took place and I reserved my decision to December 22, 2010 at which time I determined that there had been a

section 8 violation because the search warrant had been issued on the basis of an ITO that was carelessly drafted, materially misleading and factually inaccurate and incomplete. I concluded that the evidence should be excluded pursuant to s. 24(2) of the Charter as a result of a search warrant application that fell so far below constitutional standards that the long term consequences on the administration of justice favoured exclusion. Both defendants were then acquitted of the charges. At that time I advised counsel that my reasons would follow. These are my reasons for the ruling. [ 5 ] The

Section 8 Charter application commenced on November 25 th , 2010 with a Garifoli application that began as a contested matter in respect to whether cross-examination of the affiant would be permitted. Cross-examination of the affiant on the ITO later proceeded by consent of counsel. The only witness heard on the Charter of Rights application was DC Craig Meredith, the affiant. The search warrant and ITO were marked as Exhibit 2 on the voir dire. The Investigation Described in the ITO [ 6 ] On August 26, 2009, the Affiant, D.C. Craig Meredith, received information from Ms.

Debbie Kupcho at ‘Toronto Hydro’ regarding the address 128 Mercury Road, Toronto. Officer Meredith received information that the Hydro account at 128 Mercury Road was “deemed suspicious”. Ms. Kupcho provided the average daily hydro consumption of 126, 128, and 130 Mercury Road. Over a

period of approximately 8 months, the consumption at 128 Mercury Road averaged about three times that of 126 Mercury Road and two times that of 130 Mercury Road. The affiant then stated (at page 6): “The residences are detached two-story units and are the same size …. yet this (hydro) usage difference is great.

The residence located at 128 Mercury Road would have no legal reason to use so much more electricity.” (emphasis added) [ 7 ] Also provided to the Affiant was the hourly electricity consumption pattern of 128 Mercury Road between August 8, 2009 and August 20, 2009 and that of an unidentified neighbouring address. (The bar graph for 128 Mercury Road shows a very low KW/H usage pattern for some period of time followed by a period of intermittently higher and lower power usage averaging 2 to 2.5 KW/H.

Bar graphs compare quantities of hydro usage over time but without a 24-hour gradation of the “x-axis” of the bar graphs in the ITO, it is not possible to readily ascertain daily use patterns). [ 8 ] DC Meredith then refers to illegal marijuana grow operations generally, and states that “the load jumps up at specific times each day and then drops down at specific times each day.” “The cycle mimics a 12 or 18 hour outdoor sunlit environment.” “Depending upon the stage of grow (sic) of the plants, the lights operate on a 12 hour or 18 hour cycle.” Referring to the instant case, he said, “ the hydro presents a 24-hour cycle which appears to be utilized to grow the marijuana plants in several different rooms at the same tim e.” (emphasis added). (There is no explanation of how a ‘24-hour cycle’ was ascertained from the graphs and if it was a ‘cycle’, how a high load for 24 hours followed by a lower load for 24 hours would support a grow operation.

The second address’ daily consumption is also not discernible from the bar graph. All one could learn from comparing the two property’s hourly consumption over 12 days, besides a higher power usage at 128 Mercury, was that the usage pattern was more consistent at 128 Mercury Road.

At the other address, there appears to be more fluctuation in power usage at peak periods). [ 9 ] DC Meredith goes on to say that “ ballasts used in a grow operation working on 24-hour cycles are not allowed any time to be turned off and with no internal cooling mechanism are operating at an extremely hazardous level” (emphasis added). (This statement would suggest that there was no 24-hour cycle at all ― but simply a constant high load usage). [ 10 ] The officer then made the following statement in the ITO: “the comparison between two addresses’ hydro consumption graphs shows clearly that the hydro from 128 Mercury Road is being used in 24-hour cycles. ” “The neighbouring house (no address given) has a standard operational usage of under .05 Kilowatts / hour where as 128 Mercury Rd. run (sic) at 6 KW/H up to 5.6 KW/H (emphasis added). (This statement is inaccurate and misleading – see discussion of this point at para. 22(D), below). [ 11 ] The affiant then states that he conducted searches on databases for 128 Mercury Road that showed the property was purchased in January 2003 by ‘Pham, My Kieu Thi’.

Further results show that ‘Pham, My Kieu Thi’ had no interaction with the police in the past and was not currently charged with any offences. [ 12 ] The ITO then states that on August 27, 2009 at 5:29 pm the Affiant along with Officer Carleton attended 128 Mercury Road and made the following observations: (a) “the residence is a detached two-storey dwelling unit located on a south side of the street and facing north;” (b) “the front door is enclosed in a glass sun room”; (c)”the second floor is covered in beige siding which appears to be “Handy Man Special” in design;” (d) “there are three windows in line on the second floor”; (e) “there is an OBVIOUS (text in capitals) addition on the Westside of the house that appeared to be utalized (sic) as a garage;” (f) “the garage is covered in a yellowish beige siding”; (g) “the entire house is accented with a very dark brown, non-maintained eavestrough (sic) and sofets (sic);” (h) “the front yard is well-maintained;” (

i) the shingles on the roof are in good order;” (j) “the interior blinds were open and appear to be yellow and brown in colour, with patterns that appear to be of the 1970’s era.” (There was nothing sinister or even suspicious about any aspect of the residence under surveillance). [ 13 ] Officer Meredith then proceeds to summarize the grounds, as follows: (page 18): “the premise has numerous characteristics of an illegal marijuana grow operation including the high hydro consumption, the usage pattern shown by ‘hydro smart meter’ and the observations made at the premise.” “This leaves little doubt that the premise located at 128 Mercury Rd. in the city of Toronto is being utilized for the facilitation of growing marijuana.” (This statement is inaccurate and misleading – see discussion of this point at paras. 22(B), (C), (D), and (

F) below). [ 14 ] On page 19 of the ITO, Officer Meredith states his belief that: the address at 128 Mercury Rd. is believed to be an active marijuana grow operation. “The power usage as reported by Toronto Hydro, shows that this particular premise is using far more electricity than average and comparable house (sic) would need for legitimate daily operation (emphasis added). The power usage is indicative of a premise mimicking an outdoor plant growing environment cycle, indoors (emphasis added).

It is the affiant’s belief that this premise does contain a quantity of marijuana and equipment required to produce it. And further, efforts have been made to conceal and protect this operation. ” (emphasis added). (This statement is inaccurate and misleading – see discussion of this point at paras. 22(B), (C), (D), and (

F) below). Vive Voce Evidence and Amplifications [ 15 ] DC Meredith testified that he had been a member of the Toronto Police drug squad since February 16, 2009. In the six months he had been with the drug squad prior to the search of 128 Mercury Road, he had prepared 15 to 20 search warrants for various locations in Toronto. All search warrants resulted in the discovery of clandestine drug operations, all relying on hydro utilization. He stated that the power usage pattern at 128 Mercury Rd. followed a 12 hour cycle.

He testified that of the number of warrants that were executed in respect to properties with higher hydro use, all turned out to be marijuana grow operations.

He indicated that in respect to a typical investigation what would tip the scales towards obtaining a search warrant would be (1) hydro use and (2) indications of moisture inside the house and (3) indications of hot air inside the house, causing roofing shingles to lift. [ 16 ] Under cross examination, DC Meredith indicated that the shingles at 128 Mercury Rd. were in good shape and agreed that he should have said that these observation were inconsistent with a grow operation. He agreed as well that the fact the windows were not covered was inconsistent with a grow operation.

He stated that on August 27 at 5:39 PM. he made observations on site for 13 minutes, and he agreed that there was nothing he observed that indicated characteristics of a marijuana operation. DC Meredith testified that at this location, 128 Mercury Road, the hydro utilization pattern followed a 12-hour cycle and he stated that he was in error in claiming in

the ITO that what was indicated was a 24-hour cycle. He testified that he was prepared to retract that evidence. The officer then furtherexamined the graphs on the witness stand and testified that he now thought it was an 18-hour cycle at 128 Mercury Road. The officeragreed that at the time of his observations in late August, the constant higher power draw could be explained by air conditioners.

Theofficer also agreed that there could have been some completely legal function taking place at 128 Mercury such as a workshop that couldhave resulted in the higher electricity draw than in a neighbouring home. [17] The officer was then asked about the three “comparable properties” on Mercury Road, numbers 126, 128 and 130. The officeragreed that they were all on the same side of the street and he agreed that he had said they were the same size in the ITO. He thenconfirmed that he was there on site and made observations of the properties to be used for comparables.

He was then asked: if you putthat information in the ITO, you would have checked it out? DC Meredith testified that “yes, if I wrote that in the ITO I would'vechecked it out”. [18] He was then shown a photograph of 126 Mercury Road (exhibit 1 on the voir dire), and he agreed that it was a bungalow, asmaller house that was unlike the two-story house at 128 Mercury Road. The officer agreed that the size of the house at 126 MercuryRoad was contrary to what he had stated in the ITO ― “residences are detached two-story units and are the same size”.

The officer hadno explanation as to why he had made that statement in the ITO and agreed that it was factually incorrect. He agreed that the differencein size of the two properties at 126 and 128 Mercury Road could explain the difference in power usage that had been referred to in theITO. Analysis (

A) Legal Framework [19] The legal framework for the review of a search warrant is outlined in R. v. Morelli 2010 SCC 8 ; [2010] 1 S.C.R. atparas. 39 to 62: [39] Under the Charter, before a search can be conducted, the police must provide “reasonable and probable grounds,established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of thesearch” (Hunter v. Southam Inc., (S.C.C.), [1984] 2 S.C.R. 145, at p. 168).

These distinct and cumulative requirementstogether form part of the “minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure” (p. 168). [40] In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that mightreasonably be believed on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65 , 2000 SCC 65,[2000] 2 S.C.R. 992, at para. 54 (emphasis in original)).

The question is not whether the reviewing court would itself have issued thewarrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probablegrounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place. [41] The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, “the reviewing court must exclude erroneous information” included in the original ITO (Araujo, at para. 58).

Furthermore, thereviewing court may have reference to “amplification” evidence — that is, additional evidence presented at the voir dire to correct minorerrors in the ITO — so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberateattempts to mislead the authorizing justice. [42] It is important to reiterate the limited scope of amplification evidence, a point well articulated by Justice LeBel in Araujo.

Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that wasnot initially supported by reasonable and probable grounds.

The use of amplification evidence cannot in this way be used as “a means ofcircumventing a prior authorization requirement” (Araujo, at para. 59). [43] Rather, reviewing courts should resort to amplification evidence of the record before the issuing justice only to correct “some minor,technical error in the drafting of their affidavit material” so as not to “put form above substance in situations where the police had therequisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made” such errors (para.59).

In all cases, the focus is on “the information available to the police at the time of the application” rather than information that thepolice acquired after the original application was made (para. 59). [58] In failing to provide these details, the informant failed to respect his obligation as a police officer to make full and frank disclosureto the justice. When seeking an ex parte authorization such as a search warrant, a police officer — indeed, any informant — must beparticularly careful not to “pick and choose” among the relevant facts in order to achieve the desired outcome.

The informant’sobligation is to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant orinsignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of knownfacts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts weredisclosed.

[59] The relevant question here is whether the ITO was misleading, not whether it was intentionally misleading. Indeed, in the Court ofQueen’s Bench, the judge who had the benefit of observing the Crown’s witnesses on the voir dire found no deliberate attempt tomislead. That conclusion should not be disturbed.

It is nonetheless evident that the police officer’s selective presentation of the factspainted a less objective and more villainous picture than the picture that would have emerged had he disclosed all the materialinformation available to him at the time. [60] The facts originally omitted must be considered on a review of the sufficiency of the warrant application. In Araujo, the Court heldthat where the police make good faith errors in the drafting of an ITO, the warrant authorization should be reviewed in light ofamplification evidence adduced at the voir dire to correct those mistakes.

Likewise, where, as in this case, the police fail to dischargetheir duty to fully and frankly disclose material facts, evidence adduced at the voir dire should be used to fill the gaps in the original ITO. V [61] The admissibility of the evidence obtained pursuant to the search and seizure of the appellant’s computer depends on twoconstitutional considerations.

The first is whether the search and seizure were unreasonable, within the meaning of s. 8 of the Charter;the second is whether admission of the evidence thereby obtained would bring the administration of justice into disrepute, and shouldtherefore be excluded pursuant to s. 24(2). [62] The second question is only reached, of course, if the first is resolved in the appellant’s favour.

And that depends on whether theITO, stripped of its erroneous and tendentious assertions, and amplified as indicated, provides sufficient credible and reliable evidence tohave permitted the justice of the peace to find reasonable and probable grounds to believe both that the appellant was in culpablepossession of child pornography and that evidence of that crime would be found in his computer. [20] The task of redacting erroneous and tendentious assertions must be subjected to a forensic determination as to whether erroneousassertions may be salvageable by a later demonstration that they survive as appropriate amplification.

A fuller discussion of what thatentails is found in R. v. Araujo 2000 SCC 65 ; [2000] 2 S.C.R. 992 at para. 58: 58 Thus, in looking for evidence that might reasonably be believed on the basis of which the authorization could haveissued, the reviewing court must exclude erroneous information.

However, if it was erroneous despite good faith on the part of thepolice, then amplification may correct this information. 59 When using amplification, courts must strike a balance between two fundamental principles of search and seizurelaw that come into a rather unique tension in these kinds of situations: see Morris, supra, at pp. 567-68. As a result of this tension, thecases disclose divergent attitudes to incomplete or incorrect affidavits and amplification thereof: see Morris, at pp. 560-67; cf. R. v.Madrid (1994), (BC CA), 48 B.C.A.C. 271, at pp. 285-90, and R. v.

Harris (ON C.A.), (1987), 35C.C.C. (3d) 1 (Ont. C.A.), at pp. 23 and 27 (leave to appeal refused, [1987] 2 S.C.R. vii). The danger inherent in amplification is that itmight become a means of circumventing a prior authorization requirement. Since a prior authorization is fundamental to the protectionof everyone’s privacy interests (Hunter v. Southam Inc., supra, at p. 160), amplification cannot go so far as to remove the requirementthat the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham.

On the other hand, to refuseamplification entirely would put form above substance in situations where the police had the requisite reasonable and probable groundsand had demonstrated investigative necessity but had, in good faith, made some minor, technical error in the drafting of their affidavitmaterial.

Courts must recognize (along with investigative necessity) the two principles of prior authorization and probable grounds, theverification of which may require a close examination of the information available to the police at the time of the application for awiretap, in considering the jurisprudence on amplification. The approach set out earlier to erroneous information in an affidavit on awiretap application attempts to reconcile these principles. Courts should take a similar approach to amplification. Analysis (

B) Evaluating the Information in the ITO [21] The task at hand is therefore to analyze the flaws in the ITO and determine, once these flaws are taken into account, whetherthe ITO, as reduced and amplified, could possibly have afforded reasonable and probable grounds to believe that the accused wereproducing a controlled substance or had possession of a controlled substance for the purpose of trafficking at 128 Mercury Road.

[ 22 ] To put it succinctly, “the question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place”: R. v. Morelli , supra, at para. 40 . [ 23 ] The following are examples of materially misleading and factually inaccurate and incomplete statements in the ITO: (

A) For the purposes of comparing daily hydro consumption over a fixed period, the ITO referred to comparable residences that were “detached 2 story (sic) units and are the same size”. Under cross-examination on the voir dire, the affiant was asked: if you put that information in the ITO, you would have checked it out? DC Meredith testified that “yes, if I wrote that in the ITO I would've checked it out”.

He was then shown a photograph of 126 Mercury Road (exhibit 1 on the voir dire), and he agreed that it was a bungalow, a smaller house that was unlike the two-story house at 128 Mercury Road and agreed that the size of the house at 126 Mercury Road was contrary to what he had stated in the ITO. (

B) DC Meredith concluded (on p. 6 of the ITO) that daily hydro consumption over a period of eight to ten months was as follows: “the premise (sic) located at 128 Mercury Road … is using more than 3 times the amount of electricity of 126 Mercury Road (the single-storey bungalow) and more than twice the amount of electricity of 130 Mercury Road.” “The residence located at 128 Mercury Road would have no legal reason to use so much more electricity.” Under cross-examination on the voir dire, the officer agreed that there may have been lawful reasons for the higher power usage at 128 Mercury Road during the period in question.

Question: “You say there was no lawful reason for the use of more electricity – (at 128 Mercury Road) that was incorrect?” Answer: “There could be other lawful reasons……” (

C) In terms of the hourly hydro consumption pattern at 128 Mercury Road (pages 7 to 15 of the ITO) DC Meredith concluded that over a twelve day period in August, 2009, the hydro usage pattern followed a 24-hour cycle. “The hydro presents a 24- hour cycle which appears to be utilized to grow the marijuana plants in several different rooms at the same time.” However, at trial, DC Meredith, gave evidence that at this location, 128 Mercury Road, the hydro utilization pattern followed a 12-hour cycle and he stated that he was in error in claiming in the ITO, that what was indicated was a 24-hour cycle.

He indicated that he was prepared to “retract that evidence”. The officer then examined the graphs on the witness stand and testified that he now believed it was an 18-hour cycle at 128 Mercury Road. This is not proper amplification within the meaning of that term in Araujo , supra, i.e. some minor, technical error in the drafting of their affidavit material. The daily hydro use pattern was one of the three main grounds for the warrant.

Further, t he bar graph for 128 Mercury Road shows a very low KW/H usage pattern for some period of time followed by a period of intermittently higher and lower power usage averaging 2 to 2.5 KW/H. Bar graphs compare quantities of hydro usage over time but without a properly delineated 24-hour gradation of the “x-axis” of the bar graphs in the ITO, it is not possible to readily ascertain hourly use patterns. In any event, the officer agreed that at the time of his observations in late August, the regular higher power draw could be explained by air conditioner usage.

The officer also agreed that there could have been some completely legal function taking place at 128 Mercury such as a workshop that could have resulted in the higher electricity draw than in a neighbouring home. (

D) In his comparison of the hourly hydro consumption pattern at 128 Mercury Road with a neighbouring property (no address given) there are what could only be described as gross inaccuracies in the ITO. DC Meredith made the following statement: “The neighbouring house has a standard operational usage of under .05 Kilowatts / hour where as 128 Mercury Rd. run (sic) at 6 KW/H up to 5.6 KW/H”. This statement is inaccurate and misleading. In the 12 day period under scrutiny, there were only two hours of kilowatt/hour usage over 5 KW/H and below 6 KW/H (see page 8 of the ITO).

The fact is that the standard or regular kilowatt/hour usage for 128 Mercury Road varied from .5 KW/H to 2.5 KW/H over that period.) (

E) DC Meredith stated in the ITO that “ ballasts used in a grow operation working on 24-hour cycles are not allowed any time to be turned off and with no internal cooling mechanism are operating at an extremely hazardous level.” It is apparent from this statement that the officer thought there was no 24-hour cycle at all (i.e. 24 hrs. off/24 hrs. on) ― but simply a constant “on” cycle. On the basis of his variable evidence on the “hourly pattern” issue (see para. 3 above), one could conclude that the affiant misstated the evidence to create the impression of extreme danger. (

F) Officer Meredith, in the ITO, summarized the grounds for the search warrant, as follows: (page 18): “the premise has numerous characteristics of an illegal marijuana grow operation including the high hydro consumption, the usage pattern shown by ‘hydro smart meter’ and the observations made at the premise.” “This leaves little doubt that the premise located at 128 Mercury Rd. in the city of Toronto is being utilized for the facilitation of growing marijuana.” Contrary to what he stated in the ITO, DC Meredith agreed under cross-examination that the hydro consumption at 128 Mercury Road was consistent with other lawful uses of the property, he retracted his statement that the hydro consumption pattern was a “24-hour cycle” and appeared unsure as to whether there was an identifiable pattern, and he agreed that he made no observations of any aspect of the building at 128 Mercury Rd. that would indicate a grow operation was inside. (

G) Perhaps the most inaccurate and misleading statements are found on p. 19 of the ITO where the affiant stated that “the power use (at 128 Mercury Road) is indicative of a premise mimicking an outdoor plant growing environment cycle, indoors.” This statement is patently incorrect. This colourful phraseology seems to have been cut and pasted from another “grow op” case with a “day and night” pattern of hydro consumption. In the ITO, DC Meredith repeatedly stated the hydro use conformed to a 24-hour cycle. As a

blinding glimpse of the obvious, one can fairly conclude that the natural environment does not operate on a 24-hour daylight / 24-hournight cycle. Subsequently, at trial, the best that could be said was that DC Meredith was indecisive about any particular hourlyconsumption pattern. He retracted the 24-hour cycle in favour of a 12 or an 18 hour cycle and it became readily apparent that he did notknow how to interpret the “hourly” bar graphs without an “x axis” measured into 24-hour periods.

In any event, the most troublingstatement in the ITO was the following (at p. 19): “And further, efforts have been made to conceal and protect this operation.” This issimply untrue. Since there were no unusual observations made of the property in question, it became apparent that DC Meredith hadbeen carelessly using a computerized template ITO without regard for the facts of this case. Conclusion Respecting

Section 8 Charter Violation [24] Having heard DC Meredith’s testimony, I have concluded that he was not intentionally and deliberately attempting to mislead theauthorizing Justice who allowed the search. It was evident, however, that he was oblivious to the constitutional requirements for a searchwarrant. He candidly retracted virtually every assertion he made in the ITO.

In fact, based on the record before the authorizing Justice, asamplified on the review, there is nothing left that could possibly have afforded reasonable and probable grounds to believe that theaccused were producing a controlled substance or had possession of a controlled substance for the purpose of trafficking at the address inquestion, once the statements that were incomplete, inaccurate and misleading, were redacted. [25] As Fish J., writing for the majority, stated in Morelli, supra: [44] The deficiencies of the ITO in this case must be addressed in some detail before determining whether it could support the issuanceof the warrant.

In particular, there are erroneous statements that must be excised, and there are numerous omissions that violate “[t]helegal obligation on anyone seeking an ex parte authorization [to make] full and frank disclosure of material facts” (Araujo, at para. 46(emphasis in original)).

Once these flaws are taken into account, it becomes clear that the ITO, as reduced and amplified, could notpossibly have afforded reasonable and probable grounds to believe that the accused possessed child pornography and that evidence ofthat crime would be found on his computer at the time the warrant was sought or at any time. [26] The essential elements of the ITO vanished under close scrutiny. In respect to the ITO evidence of higher power usage at 128Mercury Road during the eight to ten month period under review, DC Meredith agreed that there may have been lawful reasons for theadditional consumption.

The “hourly pattern analysis” was misleading, inaccurate and incomprehensible. There were no tell-tale signs ofa “grow op” based on observations of the property by the investigating officers.

No only was there no basis for the warrant to have beenissued, DC Meredith was not candid and forthright about what was not observed – such as typical indicia like moisture condensing onthe windows, roof shingles lifting due to moisture damage, window coverings closed, or suspicious activity and odours about theproperty. [27] The most troubling aspect of the application for a search warrant was the cavalier approach to the inclusion of assertions in theITO that had nothing to do with the facts of this case.

Since there were no unusual observations made of the property in question, it wassimply untrue to say that “the observations made at the premise” was one factor that “leaves little doubt that the premise located at 128Mercury Rd. in the City of Toronto is being utilized for the facilitation of growing marijuana.” It was also inaccurate and misleading tosay that the hourly hydro consumption pattern was “indicative of a premise mimicking an outdoor plant growing environment.” Finally,there was absolutely no factual foundation for the assertion that “efforts have been made to conceal and protect this operation.” It becamereadily apparent that DC Meredith had carelessly adopted large portions of a computerized template from prior applications withoutregard for the facts of this case or the rights of individuals to be secure against unreasonable search and seizure in their own home. [28] Jurianz JA. in R. v.

Campbell 2010 ONCA 588 recently reviewed the considerations applicable to the question ofwhether a search warrant authorization should have been granted: [45] In carrying out that analysis it is important to keep in mind throughout the analysis that the warrant is presumed to be valid andthe correct question is whether the respondent has established that there was no basis for its authorization. This point cannot be stressedtoo much. The presumption means that the decision of the issuing justice must be upheld unless the applicant meets the burden ofdemonstrating its invalidity.

The Supreme Court has made this clear. [46] In Quebec (Attorney General) v. Laroche, 2002 SCC 72 , [2002] 3 S.C.R. 708, at para. 68, LeBel J., writing for themajority of the Supreme Court of Canada, indicated that: [T]he reviewing judge will assess the whole of the evidence submitted to him or her and to the authorizing judge, and will then decidewhether the authorization should have been given. The reviewing judge will begin the analysis by recalling that the law regards theauthorization as facially valid, and that it is the task of the applicant, on review, to demolish that appearance of validity.

If that attemptfails, the authorization will be upheld.

[47] Earlier in R. v.

Garofoli, (S.C.C.), [1990] 2 S.C.R. 1421 at para 62, Sopinka J., writing for the majority, said: [T]he reviewing judge should not set aside the decision [of the issuing justice] unless he or she is satisfied on the whole of the materialpresented that there was no basis for the authorization. [48] In Araujo at para. 54, LeBel J., writing for the whole court, said: An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need forjudicial finality and the need to protect prior authorization systems. [50] In the seminal case, Hunter v.

Southam Inc., (S.C.C.), [1984] 2 S.C.R. 145, Dickson J. first set the standard ofreasonable and probable grounds for search warrants to be consistent with s. 8 of the Charter.

He also offered the following guidance asto the application of the standard: The state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point wherecredibly-based probability replaces suspicion. [51] Later, in Debot, at p. 1166, Wilson J., without alluding to the term “credibly-based probability”, described the standard of proofas one of “reasonable probability” or “reasonable belief”. [52] Most recently the dicta of Deschamps J. in Morelli, at para. 129, are helpful in understanding the standard.

Although she waswriting for a minority of three out of seven justices of the Supreme Court of Canada, the following comments are not inconsistent withthe majority reasons: Determining whether evidence gives rise to a “credibly-based probability” does not involve parsing the facts or assessing themmathematically. Rather, what the judge must do is identify credible facts that make the decision to authorize a search reasonable in viewof all the circumstances. I therefore agree with the non-technical, common-sense approach taken by Rehnquist J. (as he then was) inIllinois v.

Gates, 462 U.S. 213 (1983): The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth inthe affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fairprobability that contraband or evidence of a crime will be found in a particular place. [53] The Supreme Court and this court have referred to Illinois v. Gates in earlier cases. See Garofoli, at para. 61; R. v. Church ofScientology (ON C.A.), (1987), 31 C.C.C. (3d) 449 (Ont.

C.A.) (leave to appeal to SCC dismissed). [54] No matter what formulation is used, it is essential that the grounds for believing there is evidence in the place to be searchedare based on the operation of reason and not on mere suspicion. The standard is necessarily qualitative and reasonable people can differin some cases about whether the authorization should have been granted.

In this context the question for the reviewing court remainscould the justice of the peace have issued the warrant. [29] On the ultimate issue of whether the authorizing Justice had “sufficiently reliable information on which to have issued the searchwarrant” (see R. v. Morrison [1989] O.J. No. 1314 (Ont. C.A.), I have determined that the warrant should not have issued. Consequently,the Crown cannot rely on the search warrant as justification for the constitutionality of the search. Without the warrant, the search wasunreasonable and violated the defendant’s rights under s. 8 of the Charter.

This conclusion follows the Supreme Court of Canadadecision in R. v. Garofoli (S.C.C.), (1990), 60 C.C.C. (3d) 161, which directed trial judges as to how to proceed whenthey conclude that a search warrant ought not to have issued (at p. 187): If the trial judge, i.e. the reviewing judge, concludes that on the material before the authorizing judge that there was no basis upon whichhe could be satisfied that the preconditions for the granting of the authorization exist, then it seems to me that the trial judge is requiredto find that the search or seizure contravenes s. 8 of the Charter.

Section 24(2) Issue of the Admission of Real Evidence Seized Under a Search Warrant [30] The evidence to determine the admissibility of the seized items consists of DC Meredith’s testimony at trial and a redactedversion of the information he had sworn to obtain the search warrant. A redacted version of the ITO has not been prepared as it wouldessentially consist of little more than the introduction, the hydro consumption graphs, the officer’s observations and the identification ofthe owner of the home in question. [31] Doherty J. In R. v. Blake, 2010 ONCA 1 describes the new s. 24(2) admissibility test in R. v.

Grant (2009 SCC32, [2009] 2 S.C.R. 353 (SCC) as the taking of a “judicial wire brush to the 20 years of jurisprudential gloss that had built up around s.24(2) and scrubbed down to the bare words of the section”. He states that: Chief Justice McLachlin and Justice Charron, writing for the majority, observed at para. 67 that “[t]he words of s. 24(2) capture itspurpose: to maintain the good repute of the administration of justice”.

They continued at para. 68: The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of,and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s.24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system,viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable

person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidencewould bring the administration of justice into disrepute. [32] Three lines of inquiry are relevant to the identification and balancing of the interests at play when s. 24(2) is invoked.

According to the majority, the trial court must examine the seriousness of the Charter-infringing state conduct, the impact of the Charterviolation on the Charter-protected interest of the accused and society’s interest in the adjudication of the case on its merits. [33] As Doherty JA. states in Blake, at para. 23, “the inquiry into the nature of the state conduct that resulted in a Charter breachseeks to place that conduct along a continuum of misconduct.

As explained in Grant, at paras. 72-74, the graver the state’s misconductthe stronger the need to preserve the long-term repute of the administration of justice by disassociating the court’s processes from thatmisconduct. That disassociation is achieved by excluding the evidentiary fruits of the state misconduct”. [34] Grant, supra, suggests the seriousness of the violation may be mitigated by good faith on the part of the police. Clearly theCharter breach falls at the more serious end of the continuum given that the place searched was a dwelling house.

While I am not surethat I can find the police officer acted in “good faith” in his attempt to acquire legal authorization for the search, because that implies anelement of “fairness”, I have concluded that he was not intentionally and deliberately attempting to mislead the authorizing Justice whoallowed the search. [35] The police seemed to be aware of the need to investigate and establish reasonable and probable grounds for a search. However, inmy view, the search warrant was issued on the basis of an ITO that was carelessly drafted, materially misleading and factually inaccurateand incomplete.

It became readily apparent that DC Meredith had carelessly adopted large portions of a computerized template (ITO)without regard for the facts of this case or the rights of individuals to be secure against unreasonable search and seizure in their ownhome. Warrants cannot be obtained by going through the motions and policing authorities cannot be casually inattentive to the seriouspublic responsibility in obtaining an ex-parte authorization to enter a private dwelling: R. v.

Jimmy Ma, unreported, Ont.C.J., January 6,2006. [36] A finding of “good faith” obviously reduces the need for the court to disassociate itself from the state conduct that resulted in theCharter infringement, and supports the admissibility of the challenged evidence. However according to Blake, at para. 33, “if there werea taint of impropriety, or even inattention to constitutional standards, to be found in the police conduct, that might well be enough to tipthe scales in favour of exclusion, given the very deleterious effect on the accused’s legitimate privacy interests”.

In this case, it did tipthe scales. [37] As to the impact of the violation on the Charter-protected interests of the defendants, it could be fairly contended that theimpact was considerable given the search took place in an area in which the defendants enjoy a high expectation of privacy even thoughit could not be claimed that the state intrusion demeaned either defendant’s dignity (see Grant, para. 78). The impact of the breach onthe Charter-protected interest of the accused – points strongly toward exclusion of the evidence. The defendant’s privacy wascompromised by an intrusive and extensive police search.

In terms of the (second) factor, Doherty JA concluded in Blake, supra, that“the powerfully-negative impact on the core of the appellant’s legitimate privacy interests creates the risk that the admission of the fruitsof the search could bring the administration of justice into disrepute: R. v. Grant, at paras. 76-78.” [38] The third factor in the inquiry required by Grant considers society’s interest in an adjudication of a criminal trial on its merits.

As indicated in Grant at para. 82: The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on itsmerits must therefore be weighed against factors pointing to exclusion, in order to “balance the interests of truth with the integrity of thejustice system”: R. v. Kitaitchik (ON C.A.), (2002), 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 47, per Doherty J.A. [39] Courts are aware that society’s interest in a trial on the merits is often undermined where highly reliable and importantevidence is excluded.

The evidence in issue here, the growing and dried marijuana, was highly reliable and essential to the Crown’scase. The charges are also serious particularly when large quantities of marijuana are involved ― with all the attendant violence that“grow ops” often introduce into residential neighbourhoods.

Real, non-conscriptive evidence that is of great value to the Crown’s casemost often favours admissibility as exclusion would exact too great a toll on the truth-seeking function of the trial. [40] I have conducted the inquiries mandated by Grant, and balanced the need to discover the truth and adjudicate cases such as thison its merits with factors pointing to exclusion, such as the seriousness and the impact of the violation ― and I have concluded that theevidence should be excluded pursuant to s. 24(2) of the Charter.

In this case the search warrant application was based on an ITO that wasso carelessly drafted, materially misleading and factually inaccurate and incomplete that it fell far below constitutional standards andconsequently the long term consequences on the administration of justice favoured exclusion. Here there was a failure to properlyappreciate and identify the privacy interests at stake and to relate the grounds on which the warrant was sought to those individualprivacy interests.

In my view, to do otherwise than exclude this evidence in circumstances where the propriety of the police conductwould stand unchallenged would, viewed reasonably and from a long-term perspective, bring the administration of justice into disrepute. [41] Accordingly, the evidence obtained as a result of the search of the defendant’s residence is excluded. The Crown havingindicated on the last Court date, December 22, 2010, that absent this evidence there was no basis for a prosecution, the charges werethen noted dismissed against both defendants. Released: January 11, 2011

Justice Peter Harris