2012 NBQB 312, 2012 NBQB 312

Lewis vs. R. 2012 NBQB 312 Court File No. C/CI/4/2012 IN THE COURT OF COURT OF QUEEN'S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF CAMPBELLTON B E T W E E N: CHRISTOPHER LEWIS, Applicant, - and - HER MAJESTY THE QUEEN, Respondent. Before: The Honourable Justice Tracey K. DeWare Place of Hearing: Campbellton, New Brunswick Date of Hearing: September 17, 2012 Date of Decision: September 24, 2012

Appearances: Leslie F. Matchim, for the Applicant Patrick Murchison, for the Respondent Reasons for Decision DEWARE, J: INTRODUCTION : [ 1 ] This is a decision stemming from a voir dire heard on September 17 th , 2012. The Applicant in the above- noted matter is charged with the following offence: On or about the 5 th day of August, 2011, at or near Dawsonville, in the County of Restigouche, New Brunswick, he did unlawfully produce Cannabis (marihuana), a substance included in

Schedule II of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 , and did thereby commit an offence contrary to and in violation of Section 7(1) of the said Act. [ 2 ] The Applicant seeks an order as follows: (

a) That the Warrant To Search issued by Judge Pierre Dubé on August 5, 2011 be quashed; (

b) That all evidence gathered as a result of the issuance of the above search warrant be excluded from admissibility at trial; and (

c) Alternatively, that, at trial, there shall be excluded from evidence any opinion evidence regarding tire tracks and unseized or untested plants. [ 3 ] The grounds set out in the Applicant’s Notice of Motion are as follows: (

a) There were substantive errors in the Information To Obtain A Search Warrant. According to law these errors must be excised, following which there would remain no reasonable grounds to justify the issuance of a Warrant To Search; (

b) The applicant relies upon

Section 8 and Subsection 24(2) of the Charter Of Rights And Freedoms; and (

c) It would be prejudicial to allow opinion evidence from an unqualified expert.

[ 4 ] At the hearing of the voir dire , the Applicant withdrew the request for consideration of opinion evidence in regard to the tire tracks and unseized or untested plants. The Applicant intends to raise these two issues as preliminary matters at the outset of trial. BACKGROUND : [ 5 ] Judge Pierre Dubé issued a Warrant to Search on August 5 th , 2011, which provided for a search of a property described in the warrant as civic address 1034 Evergreen road / PID 50039874. Judge Dubé’s Warrant to Search was issued based on an Information to Obtain a Search Warrant sworn by Cst.

Stephane Gagnon on August 5 th , 2011. [ 6 ] On August 5 th , 2011, Cst. Gagnon was traveling in a helicopter with two other officers conducting aerial observations of various crown lands. The RCMP officers were conducting aerial observations in an effort to locate illegal marihuana grow operations on crown lands. As the helicopter was traveling over the Dawsonville area, they observed what appeared to be marihuana plants on a private lot. [ 7 ] In the sworn Information to Obtain a Search Warrant (ITO), Cst.

Gagnon describes the work he and officers Yves Desroches and Larry Labadie were doing on August 5 th , 2011 when they noticed what appeared to be marihuana plants on a private property. In describing their viewing of the plants, Cst. Gagnon explained the sequence of events at para. 2.2 of the ITO as follows: 2.2 Que le 5 août 2011, le dénonciateur, le gend Yves DESROCHES et le pilote Larry LABADIE, des membres de la Gendarmerie Royale du Canada, ont effectué une patrouille aérienne abord de l’hélicoptère de la GRC sur les terre(sic) de la couronne dasn(sic) le secteur de Dawsonville.

Durant cette patrouille, le dénonciateur a observé plusieurs plants de marihuana sur un terrain semi boisé derrière une grange.

De l’hélicoptère en mouvement, le dénonciateur a pris les coordonnées GPS de la location (N47 55.492, W066 53.499) et des photgraphies(sic). 2.2.a Que le dénonciateur a observé plus de trente plants de marihuana et que ces plants étaient derrière une vieille grange; 2.2.b Une résidence à(sic) été observé(sic) environ 100 mètres de cette grange; 2.2.c Que le dénonciateur a, pendant les trois dernières années, participé à plusieurs projets impliquant des recherches de plantation de marihuana.

Durant ces années, il a localisé plusieurs site(sic) de plantations de marihuana et ce à partir d’un hélicoptère ou d’un avion; (Emphasis mine.) [ 8 ] Cst. Gagnon goes on at para. 3 of the ITO to explain his grounds for believing that the property to be searched is as described in the warrant: 3. Mes motifs de croire que le lieu à perquisitionner est celui décrit dans le mandat sont les suivants : 3.1 Que le 5 août 2011, le dénonciateur a consulté les recherches effectuées sur le système PLANET et que le dénonciateur considère comme étant de bonne foi.

Cette recherche a démontré que les coordonnées GPS (N47 55.492, W066 53.499) et les photos prisent correspond(sic) à la propriété identifié(sic) par le numéro 50039874, propriété qui est situé(sic) sur le chemin Evergreen à Dawsonville au Nuoveau(sic)-Brunswick; 3.2 Que PLANET : Service d’enregistrement et de cartographie de Service Nouveau-Brunswick est un système informatique contenant l’utilité et la valeur d’un terrain : Le propriétaire, l’endroit et référence à l’enregistrement de documents et de plans; et une représentation graphique de tous les terrains de la province du Nouveau-Brunswick.

Les propriétés sont identifé(sic) à l’aide d’un Numéro d’Identification. (NID); 3.3 Que le 4 août 2011, le dénonciateur a été effectué des vérifications sur le SIRP (Système d’incident et rapport de police) sur Christopher James LEWIS (DDN 1977-11-14) et ces vérifications ont révélé que LEWIS demeure au 1034 chemin Evergreen à Dawsonville au Nouveau-Brunswick.

3.4 Que SIRP est le système d’incidents et de rapports de police (SIRP), un répertoire de données informatisé(sic) entretenu(sic) par la GRC. Il n’y a que le personnel autorisé, en particulier la GRC, qui peut le consulter par l’entremise de terminaux autorisés et d’accès restreint. Les renseignements recueillis dans le cours normal d’une enquête sont consignés dans ce répertoire, notamment les noms, adresses, véhicules et dates de naissance, de même que la nature de l’enquête menée.

Lorsque je mentionne que les renseignements ont été obtenus à la suite de recherches sur le SIRP, je crois que ces renseignements sont exacts; 3.5 Le dénonciateur a observé de l’hélicoptère, une résidence de couleur rouge foncé avec un toit gris à deux étage(sic) qui est la seule résidence sur une grande courbe sur le chemin Evergreen [ 9 ] Judge Dubé issued the Warrant to Search, which was executed on the same day, August 5 th , 2011. [ 10 ] A preliminary inquiry into the charge against the Applicant was held on January 31 st , 2012.

Subsequent to the preliminary inquiry, there were errors discovered in the ITO as sworn by Cst. Gagnon. Cst. Gagnon testified both at the preliminary inquiry on January 31 st , 2012 and at the voir dire on September 17 th , 2012. [ 11 ] The errors in the ITO are threefold:

I) In para. 3.3 of the ITO, there is an error in the date. August 4 th , 2011 is indicated when clearly the date should have been August 5 th , 2011. At the hearing of the voir dire , the Applicant’s counsel conceded that this was a typographical error which could be corrected. II) The more substantive error is found in paras. 2.2 and 3.1 of the ITO. Cst. Gagnon describes the GPS coordinates taken over the property where the marihuana plants were observed. The GPS coordinates listed in the ITO do not correspond to the Applicant’s property but rather an adjacent property.

The Applicant points out that at the preliminary inquiry, Judge Dubé specifically asked Cst. Gagnon if he was certain those coordinates pertained to the Applicant’s property. At the preliminary inquiry, Cst. Gagnon confirmed that they did. Cst. Gagnon states in the ITO that he used these GPS coordinates and the photographs to confirm the PID number of the property which was then identified as belonging to Christopher Lewis. III) Finally, in para. 2.2, the manner in which the ITO is drafted clearly leads to the conclusion that the deponent, Cst. Gagnon, took the photographs from the helicopter.

This is not the case. The photographs were taken by one of the other officers present. [ 12 ] In the course of the preliminary inquiry, Cst. Gagnon testified to various maps he had consulted following the aerial surveillance. These materials were not in the Crown file and had not been disclosed to the Applicant. In searching for these documents subsequent to the voir dire , Cst. Gagnon discovered that the GPS coordinates referenced in the ITO were incorrect. Cst.

Gagnon immediately alerted the Crown to this error. [ 13 ] The Crown’s position is that amplification evidence may be tendered to rectify the three errors in Cst. Gagnon’s ITO. The Applicant maintains that amplification evidence can only be considered when the error to be rectified is a minor technical error or drafting error. A dispute arises between the parties as to whether or not the errors in the GPS coordinates and the description of who took the photographs fall under the umbrella of minor technical drafting errors. ISSUES : [ 14 ] There are two issues before the Court:

I) Can the errors in Cst. Gagnon’s ITO of August 5 th , 2011 be rectified with Cst. Gagnon’s amplification evidence tendered at the voir dire or do the errors require excision from the ITO? II) Following a review of the ITO subsequent to any excision or amplification, could the issuing judge have issued the warrant on the basis of the remaining information provided in the revised ITO? ANALYSIS AND DECISION :

[15] The error with respect to the date as found in para. 3.3 of the ITO is clearly a typographical mistake. This isthe type of mistake that unquestionably falls under the ambit of a minor technical error and can be corrected by the amplification evidence of Cst. Gagnon that indeed this was a typographical error and that the date should read August 5th, 2011. [16] Sections 2.2 and 3.1 of the ITO require a more critical review. Cst. Gagnon is forthright in admitting the GPScoordinates he cited as representing the Applicant’s property are inaccurate. Cst.

Gagnon now realizes that the GPS coordinates set outin the ITO actually pertain to an adjacent property. There are two problems with para. 2.2 of the ITO; the improper description of theGPS coordinates as well as the insinuation that Cst. Gagnon personally took the photographs. In the last sentence of para. 2.2, Cst.Gagnon states as follows: De l’hélicoptère en mouvement, le dénonciateur a pris les coordonnées GPS de la location (N47 55.492, W066 53.499) et desphotgraphies(sic). [17] There is no suggestion whatsoever in this matter that Cst.

Gagnon intended to mislead the issuing judge or theCourt at the preliminary inquiry. I accept that Cst. Gagnon prepared his ITO in good faith. The ITO contains an error both in thedescription of the property and is also misleading in that Cst. Gagnon himself did not take the photographs. The sentence clearly leads tothe conclusion that the GPS coordinates represent the property of the Applicant and that Cst. Gagnon took photographs of the property. At the voir dire, Cst.

Gagnon clarified that he did not take the photographs but that one of the other RCMP officers present in thehelicopter did. [18] The description of the GPS coordinates and the identity of the photographs are in error and require excision. The only manner with which excision can be avoided is if the information could reasonably be corrected with amplification evidence. Cst. Gagnon did provide amplification evidence to the Court to describe how he identified the Applicant’s property in preparing the ITOas well as how the photographs were taken. [19] The Supreme Court of Canada in R. v.

Morelli, 2010 SCC 8 , [2010] 1 S.C.R. 253, provides cleardirectives to when and how amplification evidence is to be received. At paras. 41, 42, 43 and 44, Mr. Justice Fish writing for the Courtcomments as follows: 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 correctminor errors in the ITO – so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather thandeliberate attempts 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 “someminor, technical error in the drafting of their affidavit material” so as not to “put form above substance in situations where the policehad the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made” sucherrors (para. 59).

In all cases, the focus is on “the [page273] information available to the police at the time of the application” ratherthan information that the police acquired after the original application was made (para. 59). 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. (Emphasis mine.)

[20] The Applicant maintains that the error in the GPS coordinates does not amount to a minor technical draftingerror. Further, the Applicant points out that the critical question is the information and knowledge of Cst. Gagnon at the time the ITOwas prepared. The Applicant points out that Cst. Gagnon mistakenly believed he was accurate in setting out the GPS coordinates andcontinued to maintain that mistaken belief at the time of the preliminary inquiry in January 2012.

The Applicant directs the Court to Cst.Gagnon’s evidence at the preliminary inquiry where he confirms that the GPS coordinates were taken directly over the property of Mr.Lewis. While the Applicant does not suggest any misfeasance on behalf of Cst. Gagnon, they do point out that he was mistaken at thetime he swore the ITO as well as during his evidence at the preliminary inquiry. The Applicant further maintains that amplificationevidence cannot be used to correct these mistakes at this time. The Applicant submits that Cst.

Gagnon cannot now, several monthslater, come to the Court and attempt to correct his mistake. The Applicant’s position is that the errors, while they are errors, are fatal tothe warrant. [21] The Applicant further points out that the police officer did not have the requisite knowledge at the time theITO was sworn. The Applicant points the Court to the Supreme Court of Canada’s discussion of amplification evidence in R. v.

Araujo,2000 SCC 65 , [2000] 2 S.C.R. 992, wherein Madam Justice LeBel comments at paras. 57, 58 and 59 as follows: 57 In Bisson, supra, at p. 1098, our Court gave very short reasons but also affirmed the reasons of Proulx J.A. in the Quebec Court ofAppeal, (QC CA), [1994] R.J.Q. 308, 87 C.C.C. (3d) 440. In his judgment, Proulx J.A. was clear that a court mustlook at non-disclosure of any material fact [TRANSLATION] “with respect to the affidavit considered as a whole, or even with respect tothe remaining parts of it” (p. 455 C.C.C.).

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

In Bisson, supra, of course, the recanted information obviously had to be excised entirely and theremaining information then assessed in the totality of the circumstances. Where the erroneous information results from a simple errorand not from a deliberate attempt to mislead the authorizing judge, amplification may be in order.

Nonetheless, there would be no needto seek to amplify the record if sufficient reliable material remains even after excising the erroneous material. 58 Thus, in looking for evidence that might reasonably be believed on the basis of which the authorization could have issued, thereviewing court must [page1021] 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 seizure law that comeinto a rather unique tension in these kinds of situations: see Morris, supra, at pp. 567-68. As a result of this tension, the cases disclosedivergent 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 (1987), (ON CA), 35 C.C.C. (3d) 1 (Ont.C.A.), at pp. 23 and 27 (leave to appeal refused, [1987] S.C.C.A. 395, [1987] 2 S.C.R. vii). The danger inherent in amplification is thatit might become a means of circumventing a prior authorization requirement. Since a prior authorization is fundamental to theprotection of everyone’s privacy interests (Hunter v. Southam Inc., supra, at p. 160), amplification cannot go so far as to remove therequirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham.

On the otherhand, to refuse amplification entirely 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 thedrafting of their affidavit material.

Courts must recognize (along with investigative necessity) the two principles of prior authorizationand probable grounds, the verification of which may require a close examination of the information available to the police at the timeof the application for a wiretap, in considering the jurisprudence on amplification. The approach set out earlier to erroneousinformation in an affidavit on a wiretap application attempts to reconcile these principles. Courts should take a similar approach toamplification. (Emphasis mine.) [22] The Applicant suggests that to allow Cst.

Gagnon to correct the errors with amplification evidence at thisjuncture would be allowing the police to provide additional information in order to retroactively authorize the search. The Applicantargues that such an approach flies in the face of the Supreme Court of Canada’s directives in Morelli and Araujo.

While I accept theApplicant’s submission that amplification evidence cannot be used at this juncture to correct the error in the GPS coordinates, I find it isappropriate to correct the misstatement concerning the photographs. [23] Considering the aforementioned authorities, the error in the date as found in para. 3.3 of the ITO is clearly a minor technical error which can and will be corrected to read August 5th, 2011. [24] I am also of the view that it is appropriate to allow correction as to who took the photographs withamplification evidence. Cst.

Gagnon ought to have more carefully drafted the ITO to identify exactly who took the photographs.

However, there is no issue that the photographs were taken and when they were taken. Furthermore, Cst. Gagnon was present in thehelicopter when the photographs were taken. There are no issues raised with respect to the authenticity of the photographs or when theywere taken. In my view, this is a minor technical error in the drafting of the affidavit that can be appropriately corrected. [25] The errors set out in paras. 2.2 and 3.1 pertaining to the GPS coordinates go beyond what could be consideredminor technical errors.

These errors are seminal to the warrant being the identification of the property in question and the manner withwhich it was identified. Therefore, the last sentence of para. 2.2 and portions of the last sentence of para. 3.1 will be excised from theITO. [26] The excised and amplified portions of the ITO would therefore read as follows: 2.2 Durant cette patrouille, le dénonciateur a observé plusieurs plants de marihuana sur un terrain semi boisé derrière une grange.

Del’hélicoptère en mouvement des photographies étaient prises. 3.1 Que le 5 août 2011, le dénonciateur a consulté les recherches effectuées sur le système PLANET et que le dénonciateur considèrecomme étant de bonne foi. Les photos prisent correspondent à la propriété identifiée par le numéro 50039874, propriété qui est situéesur le chemin Evergreen à Dawsonville au Nouveau-Brunswick. [27] The next question for the Court to consider is, in reviewing the ITO in its excised and amplified fashion, couldthe warrant still have been lawfully issued. Our Court of Appeal in R. v.

Savoy, 2012 NBCA 36, provides direction on the standard ofreview of an ITO in these circumstances. In explaining the process to be followed by the reviewing judge, Chief Justice Drapeaucommented at paras. 18 and 19 as follows: 18 Contrary to the view expressed in R. v. Allain (S.), the standard of review for the substantive sufficiency of an ITOis the same, whether it has been edited or not. The law on point was recently considered in Pitre v. R., 2011 NBCA 106 , 2011NBCA 106, 381 N.B.R. (2d) 203.

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

interpretation of the words used in the ITO is not appropriate, thereviewing court must guard against allowing tolerance for drafting errors or deficiencies to extend to material omissions with respectto substantive requirements; and (5) ultimately, where the ITO does not expressly or by implication disclose grounds upon which ajudge, acting judicially, could have issued the warrant, the latter cannot validate the search or seizure in issue. (Emphasis mine.) 19 In Pitre, the Court went on to the make incidental observations, which bear repeating: Needless to say, the reviewing court never knows what the warrant judge would have done if the atrophied ITO had been put to him orher.

For there to be a meaningful and principled review at trial of the sufficiency of the ITO in accordance with the Araujo test, the issuemust be whether the authorizing judge, acting judicially, could have given his or her imprimatur on the basis of what remains of theinformation on oath he or she was provided.

To my mind, the “acting judicially” component of the test brings into the mix an objectivestandard: could the issuing judge, acting judicially, have issued the warrant on the basis of the information provided in the atrophiedITO? […] [28] The Crown submits that taking a holistic approach to the assessment of the ITO leads to the conclusion that the warrant isvalid. The Crown points out that Cst. Gagnon is an experienced investigator who was known to Judge Dubé.

The Crown maintains thatthe totality of the excised ITO along with the inferences Judge Dubé was at liberty to draw confirm the validity of the warrant. [29] The Crown further points out that Cst. Gagnon’s ITO was based on direct evidence. Cst. Gagnon was himself in the

helicopter. Cst. Gagnon personally observed the presence of the marihuana plants. Cst. Gagnon is able to speak to exactly what he sawand what he did as he was there. The Crown suggests the fact that Cst. Gagnon was present and sets out direct evidence in the ITO isvery different from situations where the ITO was prepared based on information and belief. This is not a situation where Cst.

Gagnonwas preparing the ITO based on information received from an informant. [30] The Applicant argues that the excised ITO does not expressly or by implication disclose sufficient grounds upon whichJudge Dubé could have issued the warrant. The Applicant submits that there would be absolutely nothing in the excised ITO which tiesthe alleged illegal drugs to the property owned by Christopher Lewis. The Applicant points out that nowhere in the ITO has Cst.

Gagnonconfirmed that the PID number 50039874 relates to civic address 1034 Evergreen Road nor that the Evergreen Road property is ownedby the Applicant. [31] Applying the test, as set out by our Court of Appeal in Savoy and Pitre, I am of the view that the issuing judge, actingjudicially, could have issued the search warrant based on what remains in the ITO. The ITO prepared by Cst. Gagnon attests to what hesaw and did at the time the marihuana plants were spotted. Cst. Gagnon describes the property as observed from the helicopter.

Cst.Gagnon confirms that the photographs taken of the property coincide with the information obtained from the Planet system. Cst.Gagnon describes the property of the Applicant as spotted from the helicopter and the topography of the road where the Applicant’sresidence is located. [32] In R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421, Mr. Justice Sopinka confirms that the trial judge mustconsider not whether he or she would have granted the warrant but rather whether there is a basis upon which the issuing judge couldhave done so.

In the present circumstances, Judge Dubé could have authorized the search warrant based on the description of theproperty, Cst. Gagnon’s explanation of the officers’ activities, Cst. Gagnon’s personal observations and the confirmation that thephotographs of the property correspond to the PID number 50039874. I accept the Crown’s position that the issuing justice waspermitted to draw an inference that a PID number is uniquely identified to a particular civic address.

In this matter, it is reasonable toaccept that Judge Dubé could draw an inference that PID number 50039874 is uniquely identified to the Applicant’s property at 1034Evergreen Road. DISPOSITION: [33] The Applicant’s Motion to challenge the validity of the Search Warrant is denied and it is found to have been validlyissued. Consequently, I do not have to consider

Section 24 of the Charter. DATED at Campbellton, N.B. this 24th day of September, 2012. ___________________________ Tracey K. DeWare, judge Court of Queen’s Bench of N.B.