R. v. Dewolfe, 2011 NSPC 1

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Dewolfe, 2011 NSPC 1 Date: 2011 January 07 Docket: 2018372-3 Registry: Halifax Between: Her Majesty the Queen v. Leo Arthur Dewolfe LIBRARY HEADING Judge : The Honourable Judge R. Brian Gibson, J.P.C. Heard: November 12, 2010 Date of Decision: January 7, 2011 Subject: The Charter of Rights and Freedoms

Summary: The police executed a search warrant at the residence of the Accused. To protect the identity of a confidential source, the Crown relied entirely upon a redacted Information to Obtain to establish the necessary grounds authorizing the issuance of the warrant. Issue:Did the redacted I.T.O. provide the necessary grounds to authorize the warrant relied upon by the police? If not and there was a resulting S.8 Charter breach, should the evidence be excluded pursuant to S.24(2) of the Charter?

Result:The Accused’s S.8 Charter rights were violated, however evidence seized in the course of the search found to be admissible after a S.24(2) analysis. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET .

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Dewolfe, 2011 NSPC 1 Date: 2011 January 07 Docket: 2018372-3 Registry: Halifax Between: Her Majesty the Queen v. Leo Arthur DEWOLFE Judge: The Honourable Judge R. Brian Gibson, J.P.C. Heard: November 12, 2010 Date of Decision: January 7, 2011 Charges: That he, on or about the 4 th day of March, 2009 at or near Halifax Regional Municipality, Nova Scotia, did unlawfully producing a controlled substance, to wit: Cannabis Marijuana, 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 Section 7(1) of the said Act. AND FURTHER have in his possession for the purpose of trafficking, Cannabis Marijuana, 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 Section 5(2) of the said Act. AND FURTHER between April 5, 2005 and March 5, 2009 at or near Middle Sackville, Nova Scotia, did fraudulently consume electricity, the property of Nova Scotia Power, a value exceeding five thousand dollars, and did thereby commit theft, contrary to Section 326(1) (

b) of the Criminal Code of Canada . Counsel: Angela Nimmo, for the Crown Michael Taylor, for the Defence By the Court :

[1]Leo Arthur Dewolfe, herein referred to as the Accused, is charged that he committed offences contrary to S.5(2) and S.7(1) of the Controlled Drugs and Substances Act and S.326(1)(

b) of the Criminal Code on or about the 4th day of March, 2009 at or nearDartmouth in the Province of Nova Scotia. In the course of the investigation that led to these charges, the Accused alleges that his S.8Charter rights were violated when the police conducted a search of his residence at 212 Lakecrest Dr., Lr. Sackville, Nova Scotia hereinreferred to as the Property, on March 4, 2009, and herein referred to as the search. As reiterated in R. v. Cornell, 2010 SCC 31 ,2010 S.C.C. 31 (Can.

LII) at para. 16 and 17: “To be reasonable under S.8 of the Charter, a search must be authorized by law, the authorizing law must itself be reasonable, and thesearch must be conducted in a reasonable manner. R. v. Collins, 1987 Can. LII 84 (S.C.C.), [1987] 1 S.C.R. 265, at p.278. The onus is on the party alleging a breach of his Charter rights to prove that the search contravened S.8 of the Charter.” [2]The search was carried out pursuant to a S.11(1) Controlled Drugs and Substances Act (CDSA) search warrant, issued by aPresiding Justice of the Peace on March 4, 2009 herein referred to as the warrant.

The basis for issuing the warrant is found in a swornInformation to Obtain dated March 4, 2009. In the Information to Obtain, Constable David P. Lane stated that he had reasonablegrounds to believe that the Accused was producing cannabis marijuana at the property, thereby committing an offence contrary to S.7(1)of the CDSA and that on March 4, 2009, a controlled substance or other evidence in respect of that alleged offence existed at theproperty. [3]Details which could possibly identify the confidential source who supplied information relied upon by Constable Lane were redactedfrom the Information to Obtain.

The Crown relies upon the redacted Information to Obtain, herein referred to as the redacted ITO, asbeing sufficient to provide the requisite reasonable grounds of belief to support the issuance of the warrant. The Crown and Defenceagreed, with respect to this Charter Voir Dire, that the evidence to be relied upon would consist solely of the redacted ITO. It is theposition of the Accused that the redacted ITO fails to provide the requisite reasonable grounds of belief to support the issuance of the warrant thus rendering the search unreasonable and thereby unauthorized by law.

Exclusion of evidence seized during the search issought by the Accused pursuant to S 24(2) of the Charter [4]As stated in R.v. Liepert, (SCC), [1997] 1 S.C.R. 281 at para.38, and reiterated in R. v. Blake 2010 ONCA 1, [2010] O.J. No. 48 (Ont.C.A.) the Crown is entitled to do limit its defence both of the reasonableness of the warrant and thesubsequent search to particular grounds. That is so because of the legal obligation the police and the Crown have to protect the identityof confidential informants as set out in R.v. Liepert, and R. v. Blake.

Therefore the task before this Court is to determine whether therewas the requisite basis for the search as disclosed by the redacted ITO. (See R.v. Blake at para.16). [5]In the course of carrying out the task before me I have focused upon the ITO relative to whether it provides a sufficiently particulardescription of certain relevant matters and upon the hearsay evidence contained in the ITO, being information provided by theconfidential informant identified therein as Source A. That information might otherwise be regarded as tip information.

I haveconsidered the totality of circumstances disclosed in the ITO and in so doing, my analysis has been driven by answers to three questions:1) Is the tip compelling? 2) Is the source credible? 3) Has the information from Source A been confirmed through independentinvestigation? The foregoing in my view represents a

summary of the analysis required and prescribed in the case of R. v. Debot(1989) (SCC), 52 C.C.C. (3d) 193 which is set out in paragraph 60 therein. [6]In R. v.

Debot the Supreme Court of Canada also confirmed the following principles when considering the grounds of belief: 1) theappropriate standard of proof is one of “reasonable probability” rather than “proof beyond a reasonable doubt” or “prima facia case”; 2)hearsay evidence may contribute to the establishing of probable cause; 3) the basis of informant information must not consist only of“bald conclusory statements” or be based upon “mere rumor or gossip”. [7]Having employed the analysis required in R.v Debot, to the redacted ITO, I have concluded that, objectively assessed, the redactedITO failed to provide sufficient grounds to form the requisite belief to authorize the search at the property.

I therefore find that theAccused’s

Section 8 Charter rights were violated or breached by the search. What follows is a more detailed analysis which led to thisconclusion.

[8]Firstly I examined the detail of the source information to determine how compelling that information was relative to ConstableLane’s belief stated in the ITO. In so doing I found that the only reference about when Source A may have been at the Accused’sproperty is found in clause 3 of the ITO where Constable Lane states that he received Source A information on March 4, 2008 fromanother peace officer who apparently dealt with Source A. However that information is not very time specific about when Source A hadbeen at the property.

The peace officer who dealt with Source A reported to Constable Lane that “he had been speaking to Source A inthe past few weeks who advised him the following: things are still status quo at 212 Lakecrest Drive.” Use of the words “past fewweeks” could mean as few as three weeks or some other number of weeks greater than three weeks.

More specific detail about SourceA’s most recent visit to the property would have been helpful to determine whether, objectively assessed, there could have been areasonably grounded belief that evidence of the criminal activity, suspected to be occurring at the property, would have been found at theproperty on March 4, 2008. [9]Aside from an inability to determine the date of Source A’s last reported visit to the property prior to March 4, 2008, it was notpossible to determine the frequency of Source A’s visits to the property from the redacted ITO.

Absent detail about the frequency ofSource A’s visit to the property and when they occurred deprived this Court from having the ability to assess whether certain statementsin the ITO, attributed to Source A, were anything more than bald conclusory statements based upon mere rumour or gossip.

Thestatements in the ITO attributed to the Accused, which appear to be bald conclusory statements, are those where Source A states that theAccused “always has a marijuana grow in one stage or another going on at any given time” and “he grows marijuana in the house allyear long and never stops”. [10]The lack of more specific detail about time and frequency of visits to the property by Source A may have been compensated bygreater detail about the alleged grow operation.

However the only detail that Source A provided was that it was “a large grow set up inthe basement... in several stages”, “the basement windows... covered up with tarp” and that “Leo has a marijuana grow in one stage oranother going on at any given time”. The fact that Source A failed to provide greater detail about the grow operation, reportedlyobserved by him at the property, increases the possibility that the information provided by Source A could have been based upon rumourand gossip rather than his actual observations.

In the course of making that observation I infer that the police, knowing the need toprotect the identity of Source A through the redaction process, would likely have sought as much detail as possible from Source A aboutthe grow operation to compensate for the details that they likely knew would have to be redacted from the ITO.

Some of the details ofthe alleged grow operation which Source A could reasonably be expected to provide as an eyewitness of the alleged grow operationmight include the approximate number of plants, the stage of their growth or approximate height, or a description of the equipment,materials or procedures employed such as lighting, fans, potting soil, fertilizer, the existence of venting or exhausting equipment orwhether the plants were growing in pots, hydroponically or in some other manner.

Some of the details provided by Source A such as theresidential address of the accused, his approximate age, the exterior appearance of the house and the number of vehicles in the drivewayof the property, could have been observed and provided by almost anyone. [11]As to the credibility of Source A, aside from the general description that he is a past, proven, reliable source, known to ConstableTrevor (redacted last name) for about a year, there was no confirmation as to whether past information provided by Source A had led toarrests or convictions.

Although the ITO does indicate that the reliability of Source A has been tested 8 times by way of positivesearches, it is not clear whether those searches were in the last year or sometime earlier. Factors that detract from Source A’s reliabilityinclude the fact that he is paid for information provided to the police and that he freely associates with person’s involved in criminalactivity. However whether or not he has a criminal record or outstanding charges is not disclosed.

The provision of that detail wouldlikely have been of assistance to better assess whether Source A might have a motive to fabricate such as a hope for leniency on pendingcharges. [12]The third aspect of the analysis, which is concerned with independent confirmation, did little more than confirm neutral or readilydiscernible details which could have been known or observed by anyone. The basement windows were found to be covered with “somesort of material”, however such coverings would have been readily discernible to anyone from the outside.

Moisture on a window wasobserved by the police but there is no specific reference to the relevance of the moisture on the window to the suspected criminalidentity. Absent some information about the significance of moisture on the window, I do not believe that I can infer that it is a factorrelevant to a suspected grow operation. The existence of moisture, without explanation as to its significance is not so well-known in myview to be associated with a marijuana grow operation to allow me to take judicial notice that it is a reliable factor confirming theexistence of a grow operation.

There are many reasons why moisture may form on a window. [13]I also considered the information in the redacted ITO provided by the police that theft of electricity appeared to be occurring at theproperty. While I accept the assertion by Constable Lane, that theft of electricity is commonly associated with grow operations toincrease profits and avoid police detection through power records, it was not clear whether the rate of power consumption at the propertywas in excess of the power consumption that might reasonably be expected for a property similar to the property of the accused.

I realizethat the rate of power consumption was found to be 8 times that being registered by the meter. However neither rates of consumption,being amount registered by the meter, or that detected by N.S.P.I. security officers were compared to what would be a normal rate ofconsumption by other similar properties as was done in R.v. Plant (SCC), [1993] S.C.J.

No. 97 Further with respect tothe relevance of the theft of electricity to the necessary grounds of belief in this matter before me, the absence of any detail from SourceA about the use of lights gives rise to a certain level of apparent disconnect between the alleged theft of electricity and the suspected

grow operation. I accept that theft of electricity is commonly associated with grow operations, however it is also reasonable to infer thatelectricity is stolen for reasons other than those related to a grow operation. [14]Ultimately I found that neither the level of credibility attributable to Source A, nor the extent of confirmation through policeinvestigation were sufficient to compensate for the failure of the Source A information to be compelling that evidence of the suspectedoffence would be found at the property on March 4, 2008. [15]Having found that there was a breach of the Accused’s

Section 8 Charter rights for the reasons above, the next issue to bedetermined is whether evidence seized in the course of the search should be excluded pursuant to the provisions of Section 24(2) of theCharter. [16]The analysis required under Section 24 (2) is that now prescribed by the Supreme Court of Canada in the case of R. v. Grant (2009),2009 SCC 32 , 245 C.C.C. (3d) 1. The circumstances in this matter before me are similar to those in R. v.

Blake (supra) inwhich case the Ontario Court of Appeal reviewed a decision of the trial judge who had, after considering a redacted ITO, concludedthat the redacted ITO failed to disclose sufficient grounds of belief upon which to conduct a search. [17]In R .v.

Blake, not only was the Crown content to have the reasonableness of the search determined exclusively on the basis of theredacted Information to Obtain, but the defence in that case did not challenge the validity of the confidential informant claims, seekaccess to the identity of the informants nor challenge the editing done by the Crown to protect the identity of those informants. TheAccused has taken a similar position in the matter before this Court. The Court of Appeal in R. v. Blake found that those positions takenby the defence on the voir dire had significance in the Section 24(2) analysis.

Prior to reaching that conclusion the Court in R. v. Blakestated the following at paragraph 15: “The police and the Crown were under a legal obligation to protect the identity of confidential informants: R. v. Liepert (SCC), [1997] 1 S.C.R. 281 at para. 15. Defence counsel did not suggest at trial that he could bring his case within the innocence atstake exception to the confidential informant privilege, thereby entitling him to access to the informant’s identity. This is the onlyrecognized exception to that privilege.: R. v. Liepert, at paras. 20-22.

Nor did trial counsel challenge the legitimacy of the confidential-informant claim advanced by the Crown. Counsel did not contend that any of the editing was unnecessary or otherwise improper. Hedid not ask the trial judge to examine the unredacted information, review the editing process and perhaps order further disclosure orprovide judicial summaries of the redacted contents: see R. v. Garifoli (SCC), [1990] 2 S.C.R. 1421 at p.p.1460-61.” [18]The decision in R. v.

Grant (supra) identified three lines of inquiry that are relevant to the identification and balancing of the interestsat play when S.24(2) is involved. These are the seriousness of the Charter-infringing state conduct, the impact of the Charter violationon the Charter protected interests of the Accused and society’s interest in the adjudication of the case on its merits. [19]Relevant to the first line of inquiry being the seriousness of the Charter-infringing state conduct, I find that the police acted in “goodfaith” by acquiring a legal authorization for the search.

There were required to make full disclosure to the Presiding Justice of Peace. There is no evidence or suggestion that they did not do so. The police and the Crown were legally obligated to protect the identity of theconfidential informant. They did that by removing all material from the ITO that could identify the informant before providing the ITOto the Defence. [20]Having acted in good faith and as required by the law there is no basis to find that there was any State misconduct. The absence ofany misconduct by police or the Crown favours admissibility. As found in R. v.

Blake, I also find that the absence of any challenge bythe Accused through the options open to him that would potentially have allowed further assessment of police conduct, makes it entirelyinappropriate to presume that the police did anything other than conduct themselves as required by applicable legal rules. [21]The second line of inquiry, which is the impact of the breach on the Charter-protected interests of the Accused, points stronglytowards exclusion of the evidence. That is because the search involved the Accused’s home where he had a high expectation of privacy.

Relative to the seriousness of the impact of the breach, I adopt the following statement found in R. v. Blake at para. 29: “The seriousness of the impact of the breach on the Appellant is not mitigated by the fact that the police may have had reasonable and

probable grounds when they obtained the warrant, but were unable to demonstrate those grounds at trial because of the confidential- informant privilege. The Crown chose to proceed on the redacted information. The assessments of whether there was a breach and the impact of the breach on the Appellant must be measured against the substance of that redacted information. Assessed from that perspective, this was an extensive, unjustified search of the Appellant’s home.” [ 22 ] The third line of inquiry mandated by R. v. Grant looks to the interest of society in an adjudication of a criminal trial on its merits.

As stated 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 its merits must therefore be weighed against factors pointing to exclusion, in order to ‘balance the interests of truth with integrity of the justice system’...” [ 23 ] The evidence sought to be excluded is entirely reliable and essential to the Crown’s case.

The charges are serious and society’s interest in adjudication on the merits is seriously undercut when such highly reliable and important evidence is excluded. [ 24 ] The nature of the State conduct and society’s interest in an adjudication on the merits strongly favour admission of the evidence.

Despite the important negative impact on the Appellant’s legitimate privacy interests, I conclude that the exclusion of reliable crucial evidence in circumstances where the police conduct stands unchallenged would, when viewed reasonably, and from a long-term perspective, have a negative effect on the repute of the administration of justice. [ 25 ] As suggested in R. v.

Blake , if there was a taint of impropriety, or even inattention to constitutional standards to be found in the police conduct, that might be enough to tip the scales in favour of exclusion given the very deleterious effect on the Accused’s legitimate privacy interest. None is apparent from the evidence before me. The evidence seized in the course of the search is therefore admissible pursuant to S.24(2) of the Charter . ________________________________ R. Brian Gibson, J.P.C. Judge of the Provincial Court