R. v. Choisnet, 2012 NSSC 328

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Choisnet, 2012 NSSC 328 Date: 20120831 Docket: AmhSC377660;377643;377644 Registry: Amherst Between: John Alan Choisnet Applicant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Simon J. MacDonald Heard: in Amherst, Nova Scotia Oral Decision: August 31, 2012 Counsel: Jim O ’ Neil, for the Applicant Douglas Shatford Q.C. and Catherine M.

Hirbour, for the Crown By the Court: (Orally) Introduction: [ 1 ] John Choisnet is charged in the Indictment with: 1) unlawfully producing marijuana, contrary to s.7 of the Controlled Drugs and Substances Act ; (CDSA). 2) charged with trafficking in marijuana for purpose of trafficking, contrary to s. 7(2) of CDSA and 3) possession of marijuana, contrary to s.4 (1) of the CDSA.

[ 2 ] Mr. Jim O ’ Neil, counsel for Mr. Choisnet made a Voire Dire application claiming Mr. Choisnet ’ s

Section 8 Charter Rights against unreasonable search and seizure pursuant to the Charter of Rights and Freedoms (Charter) were violated and he seeks to have the evidence seized during the search, excluded pursuant to s.24 (2) of the Charter. [ 3 ] Mr. O ’ Neil and Mr. Douglas Shatford, Q.C., Crown Counsel in this matter, agreed for purposes of the Charter Application, that a clean copy of the Information to Obtain (ITO) be provided to the court. [ 4 ] In addition, for purposes of the Voire Dire all jurisdictional issues were agreed upon.

Further, counsel agreed marijuana was seized at the Wyndham Hill property and in a trailer at the Klondike Road property, a grow operation was seized. Exhibit VD1 showed what was found at both locations. Facts: [ 5 ] Cst. Paul Vincent, of the RCMP obtained the CDSA warrant from the Justice of the Peace by way of application supported by his ITO. At the Voire Dire before me, he testified he received information from a confidential informant who gave him reliable information in the past that the applicant was growing marijuana at his residence in Wyndham Hill.

This confidential source had learned this information from a person who witnessed the grow and whom he believed. Cst. Vincent said his confidential informant told him the applicant was stealing power at his property on Wyndham Hill Road, to power a marijuana grow operation in the garage located on that property. Cst. Vincent said that members of the RCMP did a background check on the information supplied, and it corroborated the source ’ s informations . [ 6 ] Cst. Jackson, of the Amherst Police Department, accompanied by Cpl. Baldwin and Cst.

Vincent did a FLIR test on the buildings on the Wyndham Hill Road property, including the garage on July 11, 2011. As a result of the FLIR test, Cst. Jackson concluded there was a positive heat signature coming from the garage. He said the garage had a venting system to allow heat to escape but he still received very hot readings. He testified he then pointed the FLIR device at the house on the property and there was no heat generating from the house. [ 7 ] Cst. Vincent testified further that as a result of the positive heat readings from the garage, obtained by Cst.

Jackson, he concluded there could be a possible grow operation in the garage at 2353 Wyndham Hill Road and it was confirmation of the information provided to him by his reliable informant. [ 8 ] He then contacted Nova Scotia Power and spoke with Diane Dyer to have her see if there was a theft of power at the 2353 Wyndham Hill Road location. She attended there and advised Cst. Vincent that there was power being stolen at that location.

He said with that information, as well as the information regarding the FLIR and the source information, he prepared the ITO to obtain a Search Warrant for 2353 Wyndham Hill Road, Wyndham Hill, Cumberland County, Nova Scotia. [ 9 ] The Search Warrant was obtained and executed on the property at 2353 Wyndham Hill Road. When the RCMP arrived at the residence, they found there was no one living there and proceeded to go to a two storey garage where the FLIR gave a reading of heat.

The building was locked but the RCMP gained entry and located a significant amount of marijuana grow of approximately 49 marijuana plants between 3 to 4 months old on the second floor of the garage. They also found corresponding equipment needed for the grow. [ 10 ] It was agreed by counsel after this search, a second search warrant was obtained for the home where Mr. Choisnet lived at Klondike Road in Leichester. There Cst. Vincent said they found two trailers with underground wiring and water running from his house. In one trailer they found 350 marijuana plants in various stages of growth.

In the second trailer they found equipment used for growing marijuana as well as some quantity of dried marijuana.

[11] Both counsel agreed that the decision on the first search warrant’s validity would apply to the second search warrant as well. Issues: 1) Was there sufficient evidence in the Information to Obtain to have a Search Warrant authorized by law? If not, were Mr.Choisnet’s

Section 8 Charter Rights breached? 2) If there was a violation of Mr. Choisnet’s

Section 8 Charter Rights, should the evidence seized during the investigation beexcluded at trial under s.24(2) of the Charter? Law: [12] Chief Justice Michael MacDonald of the Nova Scotia Court of Appeal wrote about a Judge’s role in reviewing a Justice of thePeace decision to issue a Search Warrant in R. v. Durling, 2006 NSCA 124. That case involved an anonymous Crime Stopper’s tip. Hesaid at paras. 15 to 19: 15. What then was the judge's role when reviewing the JP's decision to issue a search warrant?

Simply put, he was to considernot whether he would have issued the warrant but instead whether the warrant could have been issued based on the relevant informationprovided. 16. This test can be traced back to the Supreme Court of Canada decision in R. v. Garofoli, (SCC), [1990] 2 S.C.R.1421, where in the analogous context of a wiretap authorization, Sopinka, J concluded: 56. The reviewing judge does not substitute his or her view for that of the authorizing judge.

If, based on the record which was beforethe authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and newevidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to beany basis for the decision of the authorizing judge. 17. In what circumstances could a warrant be justified? The prescribed test is an objective one.

The issuing JP would have to havereasonable and probable grounds that an offence had been committed and that the search would uncover material evidence. In otherwords, a credibly-based probability must replace suspicion. Thus, in Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R.145 at pp. 167-168, the Supreme Court concluded: Anglo-Canadian legal and political traditions point to a higher standard. The common law required evidence on oath which gave "strongreason to believe" that stolen goods were concealed in the place to be searched before a warrant would issue.

Section 443 [now s. 487] ofthe Criminal Code authorizes a warrant only where there has been information upon oath that there is "reasonable ground to believe" thatthere is evidence of an offence in the place to be searched. The American Bill of Rights provides that "no Warrants shall issue, but uponprobable cause, supported by Oath or affirmation ..." The phrasing is slightly different but the standard in each of these formulations isidentical.

The state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at thepoint where credibly-based probability replaces suspicion. History has confirmed the appropriateness of this requirement as the thresholdfor subordinating the expectation of privacy to the needs of law enforcement.

Where in the state's interest is not simply law enforcementas, for instance, where state security is involved, or where the individual's interest is not simply his expectation of privacy as, forinstance, when the search threatens his bodily integrity, the relevant standard might well be a different one. That is not the situation inthe present case. In cases like the present, 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 the search, constitutes the minimum standard, consistent with s. 8 of theCharter, for authorizing search and seizure. In so far as subss. 10(1) and 10(3) of the Combines Investigation Act do not embody such arequirement, I would hold them to be further inconsistent with s. 8. [Emphasis added.] 18. These same principles would apply to this case where the search warrant was sought under s. 11 of the Controlled Drugsand Substances Act (1996, c. 19). 19.

This reference to the issuing judge having a "credibly-based probability" has been the subject of much judicialdiscussion over the years. In R. v. Morris, 1998 NSCA 229 , [1998] N.S.J. No. 492 (C.A.), Cromwell, J.A. of this courtprovided the following guidance: 30. Without attempting to be exhaustive, it might be helpful to summarize, briefly, the key elements of what must be shown to establishthis "credibly based probability": (

i) The Information to obtain the warrant must set out sworn evidence sufficient to establish reasonable grounds for believing that anoffence has been committed, that the things to be searched for will afford evidence and that the things in question will be found at aspecified place: R. v. Sanchez (1994), (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen.

Div.) at 365). (ii) The Information to obtain as a whole must be considered and peace officers, who generally will prepare these documents withoutlegal assistance, should not be held to the "specificity and legal precision expected of pleadings at the trial stage." (Sanchez, supra, at364) (iii) The affiant's reasonable belief does not have to be based on personal knowledge, but the Information to obtain must, in the totalityof circumstances, disclose a substantial basis for the existence of the affiant's belief: R. v.

Yorke (1992), (NS CA),115 N.S.R. (2d) 426 (C.A.); aff'd (SCC), [1993] 3 S.C.R. 647. (iv) Where the affiant relies on information obtained from a police informer, the reliability of the information must be apparent and isto be assessed in light of the totality of the circumstances. The relevant principles were stated by Sopinka, J. in R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421 at pp. 1456-1457: (

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

a) the degree of detail of the "tip"; (

b) the informer's source of knowledge;

c) indicia of the informer's reliability such as past performance or confirmation from other investigativesources. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information. 31. The fundamental point is that these specific propositions define the basic justification for the search: the existence of "credibly-based" probability that an offence has been committed and that there is evidence of it to be found in the place of search.

[13] One might also see also R. v. Greffe, (SCC), [1990] 1SCR 755, R. v. Wiley (SCC), [1993] 3SCR 263 and R. v. Campbell (2003) 2003 MBCA 76 , 175 CCC (3rd) 452. [14] The applicant has argued that the source information provided in support of the search warrant in the ITO is substantiallydeficient. He argues the information contains no credibly based probability that an offence has been committed and that there would beevidence found at the Wyndham Hill location. [15] He refers to the following paragraphs of the ITO: 8.

In this search warrant application it will be detailed through information obtained from a reliable and confidential source, througha review of a police investigation and speaking to other officers that John Alan Choicnet (Choisnet) that living at 9 Gray, Springhill,Cumberland County, Province of Nova Scotia, is actively involved in the production of cannabis marijuana and is currently growingcannabis marijuana at the property he owns in Wyndham Hill. 9.

On June 2, 2011, source A told me that: a John Choisnet Jr. is growing and selling marijuana; b Choisnet used to live in Wyndham Hill, but now lives in Leichester. 10. July 5, 2011, Source A told me that: a John Choisnet Jr. is growing marijuana in his garage in Wyndham Hill b The garage is next to the house, which has a big Canada flag painted on the roof; c Choisnet no longer lives there; d Source A learned this from a person who witnessed the grow who the source believes 11 on July 7, 2011 Source A told me that: a John Choisnet Jr.

Is growing marijuana in his garage at Wyndham Hill, and is stealing electricity to power the grow b the source learned this from a person who witnessed this information, who the source believes [16] The applicant argues from the above that the source, after the investigation referred to in the ITO, had the wrong name andtherefore incorrectly identified the accused. The evidence indicated there was a Mr. John William Choisnet who resides at 9 Gray Streetin Springhill. [17] Cst. Vincent testified there was a Mr. Choisnet at 9 Gray Street, Springhill, who was investigated under the CDSA, and he said

that person was searched some time ago. [ 18 ] Mr. O ’ Neil, on behalf of the applicant, also argues this mis-identification by the wrong address was reinforced by describing his client as John Choisnet, Jr. [ 19 ] In essence, Mr. O ’ Neil argues these errors in identification are so profound that virtually none of the source information is even minimally reliable. [ 20 ] Cst. Vincent, in his evidence, testified that the address, 9 Gray Street was a typo in the ITO. Cst. Vincent said it was an error in the preparation of the ITO. He had previously been involved in the `investigating another Mr.

Choisnet at that address and a review of the whole ITO reveals this is the only reference to that address. [ 21 ] It is clear from the law quoted above it is not my task to re-hear the matter or to substitute my views for those of the issuing Justice of the Peace. This court must look at the contents of the ITO to see whether reasonable inferences can be drawn from it, which would establish reasonable, probably grounds to determine if evidence of a crime had been committed at the place alleged in the ITO. [ 22 ] The whole of the information and the totality of the circumstances must be considered.

This court must review the ITO to see if there was sufficient evidence contained therein which is credible and probative to establish a probability for the issuing Justice of the Peace to conclude that at the place named in the ITO, evidence of a crime can be found. [ 23 ] I am satisfied, as I review the other paragraphs of Cst.

Vincent in the ITO presented to the issuing Justice of the Peace and particularly paragraphs 8, 9, 10, 11, 12, 14, 15, and 16, it is clear that the officer was clearly investigating John Alan Choisnet who lived at 2353 Wyndham Hill Road, Wyndham Hill, Nova Scotia. [ 24 ] The applicant argued the source ’ s use of the name John Choisnet, Jr. as a mis-identification. I do not have any evidence it was in fact a mis-identification before me. The evidence on that point came in an exchange between Mr. O ’ Neil and Constable Vincent during cross examination as follows: “ Q.

Now, are you aware that my client does not go by the name, Jr. A. I do not know that. No. Q. O.k. But the source gave you John Choisnet, Jr. as the name of the person, right? A. Yes. Ah, John Choisnet, Jr. is growing and selling marijuana, um, that ’ s what ’ s indicated...that ’ s what I was told and that ’ s what ’ s in the ITO. But it also indicates that Choisnet used in live in Wyndham Hill, but now lives in Leichester.

There ’ s I believe 4 paragraphs, 3 paragraphs of source information in there with some sub-paragraphs. ” [ 25 ] The source said he used to live at Wyndham Hill and now lives in Leichester which describes where in fact, the named person in the ITO used to live and does in fact, now live. [ 26 ] One cannot help but conclude and I find the 9 Gray Street address was a typo error and in fact, the ITO has numerous references to the correct address. As well, there is no evidence before me whether John Choisnet goes by the name, John Choisnet, Jr., or not.

In any event, I find the applicant is the named person, for whom the officer was seeking the Search Warrant before the issuing Justice of the Peace.

[27] I conclude and find therefore, there was sufficient information presented to the Justice of the Peace on the proper name beingJohn Choisnet and the address being 2353 Wyndham Hill Road, Wyndham Hill, Nova Scotia for the issuing Justice of the Peace toconclude that that is the person and location that was the subject matter of the Search Warrant. [28] The applicant further argued that there was no way to meaningful assess the reliability of the Information provided.

In supportof this argument, the applicant argued that even if the court were to conclude that the address of 9 Gray Street, Springhill, Nova Scotiawas a typo or done in error, there was still unreliable and unacceptable source information to form the basis of a lawful justification for aSearch Warrant to be issued by the Justice of the Peace. [29] In this application, the applicant argues the source information put forward by source A and told to Cst. Vincent was sourceinformation received from another person, that is, a third party.

The applicant argues the second person is not described nor has therebeen any indication or proffering of evidence to assess the reliability of that other person. [30] In paragraphs 9, 10 and 11 of the ITO, Cst. Vincent states that John Choisnet, Jr. is going to sell marijuana and he used to liveat Wyndham Hill but now lives at Leichester. In paragraph 10 he went on to say that Source A told him Mr. Choisnet is growingmarijuana in his garage in Wyndham Hill, which was located next to his house and that it had a big Canada Flag painted on the roof. [31] Source A also told Cst. Vincent, Mr.

Choisnet no longer lives there and that Source A obtained this information from the thirdparty who witnessed the grow and who Source A believed. [32] Source A added to his earlier information by saying that Mr. Choisnet was stealing electricity to power the grow and again, helearned this from the third party who witnessed the information and he believed him. [33] The tip could be, as some cases say “gossip or rumour”. The tip from the third party, in and of itself, could be considered asinsufficient to establish reasonable and probable grounds.

I would have a difficult time accepting this tip would qualify under the law tobe valid for Cst. Vincent to pursue a search warrant and sufficient for the Justice of the Peace to come to a conclusion, if that was all hehad. I am satisfied the test here is to look at the reliability of the tip in context of the “totality of circumstances.” I am also satisfied thisinformation received by Cst. Vincent was sufficiently specific to cause him to investigate further. [34] In R. v. Debot (SCC), [1989] 2 SCR 1140, Wilson, J. for the Court stated as follows at page 1168: 53.

In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantlesssearch. First, was the information predicting the commission of a criminal offence compelling? Second, where that information wasbased on a “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated bypolice investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test.

Rather, I concur with Martin J.A.’s view that the “totality of the circumstances” must meet the standard of reasonableness. Weaknessesin one area may, to some extent, be compensated by strengths in the other two. [35] I conclude the source information in and of itself, is only one factor to be considered. In assessing the standard of reasonablegrounds one must look at other information provided, the quality of the corroborative evidence and assess same to see if it compensatesfor the inability to assess the credibility and reliability of the tip. [36] The court in R. v.

Durling, supra confirmed the test set forth by Fichaud, J.A. and R. v. Shiers, [2003] NSJ No. 463 (C.A.) atpara. 15, where the court said:

15. “Incorporating these principles, the reviewing judge should have applied the following test. Could the issuing judge, on the material before her, have properly issued the warrant? Specifically, was there material in the Information from which the issuing judge, drawing reasonable inferences, could have concluded that there were reasonable grounds to believe that a controlled substance, something in which it was contained or concealed, offence-related property or any thing that would afford evidence of an offence under the CDSA was in Mr. Shiers' apartment?” [ 37 ] Cst. Vincent agreed with Mr.

O ’ Neil on cross-examination, when a representative of Nova Scotia Power went on the property and determined that the power was stolen, it would be a major piece of information in this particular ITO. Diane Dyer was the person from Nova Scotia Power who testified by agreement of Counsel as an expert in being able to resolve issues regarding the theft of power. She said in her experience she had investigated some 300 thefts of power.

She said as well she investigated approximately 20 marijuana grow operations. [ 38 ] She felt there was a theft of power at that location because the amount of power purchased was less than the amount of power one would expect to be purchased for a marijuana grow operation. After a visible examination, including the use of binoculars, she told the police a theft of power had taken place. Ms. Dyer based that on, she said, from looking up at the meter box, seeing wires coming out the other side of the mask and the fact that the security band had been cut. [ 39 ] On cross examination, Ms.

Dyer described the roofing on the building as a “ plastic, transparent ” type of roof. In response to questioning, she did agree that if there were sunny days, the plants would be getting sunlight from the sun which could provide the necessary heat required for the grow. [ 40 ] Mr. O ’ Neil questioned Ms. Dyer thoroughly on whether or not, in her assessment, she was correct to say “ there was a theft of power taken place ” after making a visual inspection only during her first visit. [ 41 ] Ms.

Dyer that made a second visit to the Wyndham Hill property after the search warrant was obtained and told the Court there was no theft of power. [ 42 ] In hindsight she said after the second visit, she should have told the police that in her opinion she ” suspected ” there was a theft of power. After vigorous cross examination by Mr.

O ’ Neil, when she told the police there was a theft of power she, at the end of her cross examination, said “ at the time I was there, I felt strongly there was a theft of power. ” However, she did say there was no theft of power. [ 43 ] This evidence, the applicant argues, being relied upon by Cst. Vincent so much was in fact, defective at the time Cst. Vincent prepared his ITO and obtained the search warrant. [ 44 ] The evidence of Ms. Dyer on review is contrary to what she told Cst. Vincent and contained in his ITO. She told Cst.

Vincent there was a theft of power taking place, whereas on review she said there was no theft of power. Thus, her evidence in the ITO is fundamentally defective because it could mislead the Justice of the Peace on a material fact and should be struck. [ 45 ] The applicant further argues the FLIR evidence would not be sufficient to justify the issuance of a search warrant. He argued a pattern of heat in a closed building would not amount to credibly based probability that marijuana was growing in that building. He argued the test in this particular case had no evidentiary value whatsoever. [ 46 ] Cst.

Ken Jackson of the Amherst Police Services did a FLIR test on 2353 Wyndham Hill Road. He said Cst. Vincent and Cpl. Baldwin were with him at the time he did the test. He did it on the garage and found heat. He said the garage had a venting system to allow heat to escape and the readings were still very hot. He then said he aimed the FLIR device at the house and it did not generate any heat. As stated in the ITO a significant amount of heat in a structure is consistent with a marijuana grow operation where artificial lighting emits significant heat. [ 47 ] During a thorough cross examination Cst.

Jackson stated he attended a training course in the operation of the FLIR device and

[ 47 ] During a thorough cross examination Cst. Jackson stated he attended a training course in the operation of the FLIR device and he received instructions as to the basic operation of the machine. He agreed, in cross examination, the machine he was trained on was not the one he used in this instance. He testified he used the FLIR device from Springhill. He further testified this device was operated at least 6 to 8 times in the past by him. He went on to say he had hands-on training from Sgt. Hunter but he attended no course on the machine he used.

He said all these machines operated in the same manner as the one on which he was trained because they were all fundamentally the same. [ 48 ] He testified on cross examination the machine was okay and there was no visible damage on it. He said he wasn ’ t aware of the technology of the machine. He said when you work it, it shows up as white when hot and black when cold. He further said he was not aware it had to be calibrated on cross examination. [ 49 ] In his cross examination he told Mr. O ’ Neil he was instructed to do these tests in the late evening in order to give the days heat a chance to cool off.

He said on the night he did the test, it was a bit cooler than normal. He did not know when the heat would have cooled down during the course of the day. He described the building as glowing but he saw no lights on and the chimney was cold. [ 50 ] He explained to Mr. O ’ Neil, the reason he pointed the FLIR gun towards the house was because he felt there may be another grow operation in the house. He also told Mr. O ’ Neil, on cross examination, he was satisfied with his reading of the heat directly coming from the garage.

He said the house had nothing to do with the heat source in the garage. [ 51 ] When questioned by Mr. O ’ Neil he did not agree with him that it was the hot, metal building from the day ’ s sun that caused a positive reading on the FLIR machine. [ 52 ] In his argument, Mr. O ’ Neil argues the court ought not to accept the evidence that the machine was properly functioning, it was not calibrated and that it was not the machine Cst. Jackson was trained on. Furthermore, he argued it was not the machine maintained by him but actually borrowed from Springhill. Mr. O ’ Neil argues Cst.

Jackson only did 10 such tests in his career and argues that was insufficient. [ 53 ] Mr. O ’ Neil raised arguments about how the machine should be operated, what standard practices should be followed, different readings between metal and wood structures. [ 54 ] He argues it is inconceivable for the court to conclude there would not be required standard operating procedures for this type of technology and that the machine was not calibrated, because the witness did not know the machine was required to be calibrated. [ 55 ] All these questions raised by Mr. O ’ Neil as to what should be done by Cst.

Jackson were answered by him, in his evidence where he gave to me satisfactory response that he knew how to operate the machine he was operating. It gave a reading indicating the garage was hot and the house was normal. He waited until the evening to take the reading. I find as a fact he was properly trained and he operated the equipment to his satisfaction. [ 56 ] I conclude there is no evidence presented before me to say the manner in which Cst.

Jackson operated the machine, not from his training, nor from the manner in which he conducted the FLIR test that would leave me to conclude and be satisfied he did not do a proper FLIR test. [ 57 ] I accept Cst. Jackson ’ s evidence that he had a training course in the operation of a FLIR device, he had hands-on training from Sgt.

Hunter and he stated , although he received no course on the particular machine he used in question, he said that they all operated in the same manner as the one he was trained on, because they were fundamentally the same. [ 58 ] I have no evidence before me to the contrary; for example, the need for calibration or the requirement of other courses or

training on the device he used. In any event, again, this is only one factor or portion of the material I have to consider the authorizing Justice of the Peace had before him at the time the ITO was presented in support of a search warrant. [ 59 ] In R. v. Campbell , supra , Scott, C.J.M. said at paras. 22, and 23 in dealing with the issue of anonymous informants as follows: 22.

In practical terms, it can be concluded that in cases where anonymous informants are used the standard of reasonable grounds will likely only be attained where the quality of the information provided by the informant and the quality of the corroborative evidence adequately compensates for the inability to assess the credibility and reliability of the source. 23. In such circumstances, the corroborative evidence obtained by the police should confirm both the credibility of the informant and of the tip itself.

In Plant, for example, Sopinka J., for the majority, concluded "the anonymous tip, although made by an unknown informant, was sufficiently reliable to have formed part of the reasonable grounds asserted in the information to obtain the warrant" (at p. 297) because independent information was available which tended to confirm that a crime was likely occurring at the location of an alleged cultivation operation. [ 60 ] From a review of the information contained in the ITO as supplemented by the evidence submitted at the Voire Dire, I conclude I must determine if there was enough evidence to establish a credibly based probability for the Justice of the Peace to issue the search warrant. [ 61 ] It is not whether I would do so or not, but rather if there was enough evidence contained in the ITO for the Justice of the Peace to issue the warrant.

I am satisfied there was. [ 62 ] I am satisfied when one considers the totality of the circumstances contained in the ITO, firstly, when you consider the tip given to Source A and ultimately to Cst. Vincent, the address was correct in that Mr. Choisnet used to live at Wyndham Hill and now lives in Leichster. Secondly, he described the garage where the marijuana was growing in some detail, as it was next to a house and it had a big Canada Flag painted on the roof. Third, said the house was empty. As well, the Third Party told Source A, he actually witnessed the marijuana growing in the garage at Wyndham Hill.

This I find to be more than just “ innocent and common place conduct ” and makes the tipster ’ s information more compelling. [ 63 ] This information was not just treated as gossip or rumour, but Cst. Vincent and Cst. Jackson checked it all out. They confirmed the identification and the type of building as described. Cst. Jackson saw Mr. Choisnet working on the house and knew him from being born and raised in Springhill, which was a community next to Wyndham Hill, Nova Scotia. [ 64 ] The description of the garage and house being empty was confirmed further by Cst. Vincent. [ 65 ] Cst.

Vincent went further and checked the police reporting and occurrence system (PROS) which keeps a record of persons whose information is collected through the normal course of an investigation, including names, addresses, vehicles, date of birth and the nature of the investigation by the Investigating Officer and Department Agency. He found there was an entry for a person known as John Alan Choisnet and the associated address was 2353 Wyndham Hill Road, Wyndham Hill, Nova Scotia. His date of birth was given as March 8, 1970.

He then said he also checked the Canadian Police Information Centre (CPIC) and he said it contains, among other things, criminal records of individuals and it showed that John Alan Choisnet, born March 8, 1970 had a criminal record involving drugs. [ 66 ] Cst. Vincent also checked the Justice Enterprise Information Network (JEIN), which tracks the operations of courts, corrections and related matters to justice and found as well, there was an entry for John Alan Choisnet with the same birth date.

The address listed was off by one number - instead of 2353 Wyndham Hill Road, the address associated to that file was 2354 Wyndham Hill, which Cst. Vincent said the number was entered incorrectly from his experience.

[ 67 ] Cst. Vincent as well, reviewed the Nova Scotia Property Records Database (NSPRD), which contained property owners and other information relating to properties and found the property located at 2353 Wyndham Hill Road, Wyndham Hill Cumberland County, Nova Scotia was a residential property held in the name of John Alan Choisnet. [ 68 ] From a review of all the evidence contained in the ITO I find as a fact, the police did not simply accept the Third Party information.

I find further they checked the accuracy of this information through various sources as discussed above and as well, by the use of the FLIR device. [ 69 ] I conclude and find as a fact, absence the power information provided by Ms. Dyer, the information supplied by Source A as told to him by the Third Party was corroborated in material aspects as to its authenticity, including the “ criminal ” aspect. [ 70 ] In a reply brief the Applicant argued the recent cases of R. v. Richards and MacLean 2012 NSSC 254 and R. v. Singer 2012 NSSC 238 .

He uses them as recent examples of standards that apply to searches of homes. [ 71 ] I do not accept that these cases apply to the matter before me. [ 72 ] Firstly, the Richards case was a warrantless search upon a private home conducted by the police which the Crown submitted fell under the common law police powers to protect life or safety of occupants and thus did not violate s.8 of the Charter . [ 73 ] Not only are the facts different here but the Court finds the search was conducted with a valid search warrant in this instance. [ 74 ] Secondly, the Singer case facts are also substantially different than those existing here.

Singer involved a tele-warrant not properly obtained and because para.20 of its ITO would have a “ tendency to mislead the justice on a material fact. ” [ 75 ] The Court concluded that once that information was removed which was an important part of the affidavit all that was left was the evidence of source B without corroboration. [ 76 ] In the application before me, I am satisfied and find there was sufficient, credible and reliable evidence corroborated in the ITO to allow the issuing Justice of the Peace to conduct a meaningful assessment of the sufficiency of the ITO as required. [ 77 ] The Richards and MacLean case as well as the Singer case further deals with police intrusions into the accused ’ s homes where people were living.

I have no evidence before me Mr. Choisnet lived at 2353 Wyndham Hill Road in Wyndham Hill. Quite the contrary the evidence reveals he moved from there and lives at Klondike Road in Leicester. [ 78 ] I am satisfied and find despite the arguments raised by Mr.

O ’ Neil, there was enough credibly based information before the issuing Justice of the Peace, drawing reasonable inferences could conclude there was reasonable grounds to believe a search warrant ought to issue on the property and there could be obtained therein, evidence of offence, under the CDSA at 2353 Wyndham Hill Road, Wyndham Hill, Nova Scotia. [ 79 ] The application therefore to exclude the evidence is denied. The search warrant was valid and therefore the search was lawful. There was no other allegations of Charter violations.

Thus the results of the search are admitted. [ 80 ] By agreement of counsel the conclusions reached herein apply to the second search warrant issued and the items seized. It too is held to be valid and the items seized are admissible at trial.

J. Amherst, N.S.