Provincial Court

PROVINCIAL COURT OF NOVA SCOTIA

Citation: R v Dorey, 2026 NSPC 15

Date: 20260410

Docket:  8849230 - 8849242

Registry: Kentville

Between:

The King

v.

Brandon Allen Dorey

By the Court (orally):

Introduction

[1]             The RCM Police executed a search warrant at a cannabis dispensary located at 3129 Hwy #12 in Weldon Landing [the Place] on July 31, 2024. As a result, Mr. Brandon Dorey was charged with, among other things, various Cannabis Act offences.

[2]             The Information to Obtain [ITO] sought three warrants, but only the one related to the aforementioned Place is the subject of this proceeding.

[3]             Mr. Dorey argues that his right to be free of unreasonable search and seizure under s. 8 of the Charter was breached because the affiant incorrectly described the Place to be searched as a business operated by Mr. Cory Ward, and not Mr. Dorey. As such the affiant failed to establish reasonable grounds for issuance of the Warrant. He seeks exclusion of the seized items under s. 24(2) of the Charter. The Applicant also seeks leave to cross examine the affiant about the background investigation involving Mr. Ward and more.

[4]             The Crown does not dispute that Mr. Dorey has standing to raise the Charter application but says the Applicant’s agents have failed to establish grounds to set aside the warrant. It is irrelevant that Mr. Ward was the subject of investigative interest, warrants are issued to search a place, and this one was properly issued.

[5]              Mr. Dorey’s application for leave to cross examine the affiant of the ITO, necessitates a Garofoli application. The Applicant identifies the focus of the application as ascertaining what was known about ownership of the Place. The Crown says the Applicant’s agents have likewise failed to establish a foundation for the Court to grant leave to cross examine the affiant on irrelevant topics.

[6]             At the start of the hearing, I was provided a copy of the vetted ITO, the Warrant to Search [Warrant], and an affidavit of Mr. Dorey’s father Laurie Dorey the purported owner of the land on which the searched Place is located. I also reviewed previously filed briefs from the Applicant and the Crown.

[7]             The ITO was vetted to remove dates of birth and last known addresses of various people spoken to by police. The Crown concedes Mr. Dorey’s address and date of birth particulars should not have been redacted noting that may have occurred because the ITO also relates to a different prosecution of a different individual.

[8]             All matters were addressed in the one hearing.

Decision:

[9]             Both applications must fail. These are my reasons for reaching these conclusions, but first I will set out the law.

Legal Principles:

[10]         A search will be reasonable if it is authorized by law, the law is reasonable, and the search is carried out in a reasonable manner. [R v Collins [1987], 1 SCR 265 at para. 23]

[11]         The Court starts from the presumption that issued warrants to search are valid, and the burden is on an applicant to establish, on a balance of probabilities, that the search was unreasonable.

[12]         In these applications, the Court starts by reviewing the vetted ITO, recognizing that the issuing justice reviewed an unvetted product, and considers the sufficiency of the grounds presented, in this case, to the Presiding Justice of the Peace [PJP].

[13]         The Court considers whether there was a basis upon which the issuing PJP, acting judicially, could have granted the authorization. The Court does not substitute its view. There may also be an opportunity to amplify on review, in this case that was done with Mr. Dorey’s affidavit. I must ask could the addition of that material have resulted in a decision to grant the authorization, if not this Court will not interfere with the PJPs decision.  

[14]         The question is not whether this Court would have authorized the issuance of the warrant to search, or whether the issuing PJP should have done so, but whether it could have been issued because the standard for issuance was present in the ITO.

[15]         This Warrant was obtained under section 87 of the Cannabis Act, CS 2018 c. 16. That section permits a justice to issue a warrant to search and seize if satisfied by information on oath that there are reasonable grounds to believe there are in a place cannabis, among other things.

[16]         While the affiant stated he held “reasonable grounds to believe”, I am required to conduct a review to determine whether I am satisfied the provided information reached that level. My review asks whether the affiant’s belief was both objectively reasonable and built on a foundation of credible and reliable information. That is more than mere suspicion and requires that a person subjectively believes the fact is probable and has information that would lead a reasonable person, in their position, to reach the same conclusion: Hunter v. Southam Inc., [1984] 2 SCR 145 at p. 167.

[17]         As is the case with many ITOs an affiant’s belief can be based on hearsay from other sources that the affiant believes and that the authorizing justice can assess for reasonableness grounded in credible and reliable information. In this case the affiant says he finds support in the reviewed work of his enforcement colleagues. (There were no confidential informants involved or mentioned in the investigation.)

[18]         The Court must assess the ITO as a whole and consider each piece of information in the context of the whole. This necessarily involves the material aimed at seeking the two additional warrants should it assist.

[19]         Our Court of Appeal reminds reviewing judges that the affiant is not a lawyer and so should not be held to a lawyer’s level of drafting. [R v Durling, 2006 NSCA 124 at para 19]

[20]         A search warrant is considered and issued ex parte- in the absence of those who may have an interest in a proposed search location or its contents. As a result, the reviewing justice can expect full and frank disclosure from the affiant. [R v Morelli, 2010 SCC 8 at para. 58]

[21]         That said, even if an ITO contains fraudulent, misleading, or otherwise bad faith errors this does not automatically invalidate a warrant. [R v Morris, 1998 NSCA 229 at para 42-43]

[22]         A reviewing court can correct an ITO by adding in/reading in information that should have been before the issuing justice. [Morelli at para 60]

[23]         Finally, the ITO review for sufficiency necessarily involves critiquing it, however the issue is not whether more could have been done by the investigators. Instead, the question is whether what is present could have met the standard for issuance.

Contents of the ITO and Affidavit of Mr. Laurie Dorey:

[24]         This application is based entirely on a review of the ITO and the affidavit of Mr. Laurie Dorey. However, during submissions Mr. Dorey’s agent also proposed the existence of an agreement of sorts between the RCMP and the Sipekne’katik First Nation agreeing that the RCMP would not enforce the Cannabis Act as it relates to members of that community. The Applicant says the addition of that information, not included in the ITO, would have detracted from the grounds. The Crown raised an eyebrow and submitted he is completely unaware of any such agreement, doubts one exists, and says that bald assertion should simply not be accepted to grant either leave to cross examine the affiant or render an authorized search unwarranted.

The review:

[25]         The affiant, Cst. Nick Melanson, attests that he has “reasonable grounds for believing” that cannabis and derivatives, etc., as well as “documents showing occupancy or ownership of the premises, including deeds, leases, rental agreements, financial agreements, utility bills, mail addresses, receipts, invoices and any documents pertaining to the purchase, storage, production and sale of cannabis” in regard to Cannabis Act offences involving Cody Ward of possess more than 30 grams of cannabis, possess cannabis for purpose of distribution, and for the purpose of selling, contrary to s. 8(1), 9(2), and 10(2), will be found at 3129 Hwy #12 Welton Landing, Kings County- a single story, single room structure, commonly referred to as a ‘shed’, photographed by Cst. McPherson on July 12, 2024, and pictorially depicted at paragraph 4.2.1 of the ITO.

[26]         He says his grounds are based on personal belief, other officers with whom he spoke, reading reports and files, and conducting computer database searches. He believes all the information to be true.

[27]         His grounds for holding such a belief arise from the following:

The ITO also detailed Mr. Cory Ward’s connection to the other two places. Having read those relevant portions of the ITO, I find there is no need to detail all that information other than to say it was clear that Mr. Ward was directly connected to each of those other two properties that were also investigated and determined to be offering cannabis for sale. The essence of the grounds to search the relevant Place are set out above. 

[28]         The Applicant’s agent says the Applicant does not deny the police and compliance officers observed cannabis and contraband related activity at the Place in July 2024. The issue, they say, is different and narrower:

[29]         The Applicant says the information in the ITO was stale, insufficiently verified, and incomplete and that “material contrary information” was not fairly addressed. That is because the ITO was framed around Mr. Cory Ward and his businesses believed to be associated with Greenwolf Cannabis. The ITO identified Mr. Ward as the subject of the investigative interest, and all was focused on his alleged illegal activities. It also described the Applicant as an associate and not a suspect at the time.

[30]         The Crown submits that the application demonstrates a lack of legal understanding that the identity of the owner/operator of the business is not a necessary element/precursor that must be satisfied in order for an issuing justice to grant an authorization to search. That is simply not the legal standard. Instead, a warrant authorizes the search of a place to obtain evidence of an offence, in this case a place that was observed to be operating as an illegal cannabis dispensary. And the grounds for such a search need establish only credibly based probability that evidence of an offence will be found in the place sought to be searched. Who owns or operates the place or any connection to any person at all is legally unnecessary. Only evidence of a crime, and not even the crime itself, need be linked to the place to be searched [R v Lubell, 1973 11 CCC (2d) 188 and R v Ilia, 2023 ONCA 75 at para. 19]

[31]         Here the police visited the dispensary 16 days prior to obtaining the Warrant and found it operating and dispensing cannabis. That is reasonably credible and compelling information. It is not always the case that a warrant is sought following direct police observation of offending actions, as was the case here. The observations were also recent and formed the foundation for the conclusion evidence of Cannabis Act offences would be found at that place. That, I find, to be a reasonable inference for the issuing PJP to draw in the circumstances. While the Applicant argues the building from 2023 was different and the information about ownership also differed, what remained the same was an operating cannabis dispensary at the Place to be searched based on recent credible evidence of visiting police officers.

[32]         Incidentally, the police also sought authorization to search for information regarding the operator of the dispensary in the form of documents. While they understood Mr. Cody Ward was the operator, based on the report from the employee one year earlier, it was also based on the other grounds in the ITO wherein Mr. Ward told police he was operating dispensaries across the province. The key is, of course, the officer’s observations while in the store call Weeds n’ Needs and that they were offered cannabis by Mr. Dorey from behind the counter before he sold the officer a vape and issued a receipt.   

[33]          The Applicant also argues that the police should not have executed the Warrant when an employee at the Place told them Mr. Ward did not own it. This argument does not warrant consideration. The police were in possession of a presumptively valid Warrant and words spoken by a person found in the place cannot stop its execution. There is no legal authority for such a conclusion, the Applicant advanced no legal foundation. The address was clear, the building was located at the address, and the police had been in the place and taken a photograph of it that they included in the ITO. The Place investigated was the same Place searched. The Crown submits, and I agree, that the proposition a person at a place to be searched can simply tell an officer that they cannot search the place, or it is the wrong place, with nothing more, would suspend the power of an issued Warrant and is both untenable and unsupportable.

[34]         Mr. Laurie Dorey’s affidavit attests that the building operated by Mr. Ward in 2023 is not the same building located on his property in 2024.  That may well be the case, but the building visited by police 16 days prior to search is the same building that was searched.

[35]         The law is clear, even if there is information in the ITO that is inaccurate, it does not negate the lawfully issued warrant. It would have to be shown that the police knew or ought to have known it was not accurate. The ITO mentions a PROS report of police visiting a dispensary at the subject property, it does not describe it other than to say it is a dispensary reported to be operated by Mr. Ward. That police attended the same address and found an operating dispensary was sufficient to support the issuance of the Warrant. It matters not what the building structure looked like, there was a building where cannabis was being dispensed in 2023 and again in 2024.

Leave to cross examine the affiant:

[36]         The Applicant seeks leave to cross examine the affiant. He says the proposed cross examination is focused, material and realistically capable of assisting the Court in determining the validity of the authorization. The focus is as follows:

[37]         The Crown says the Court should not grant leave to cross examine the affiant. It is not necessary to allow the Applicant to make full answer and defence. No basis has been established for the view that a cross examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds. [Garofoli, at para. 88]

[38]         The right to cross examine is fundamentally important in the criminal context, but the right is not absolute. Context is important. The Garofoli test is a threshold one that requires the applicant to demonstrate a reasonable likelihood that it will produce information of probative value for the reviewing court. There is no right to adduce irrelevant and immaterial evidence. Requiring leave strikes a balance between entitlement and the public interest in the fair and efficient use of judicial resources and the timely determination of criminal matters. [R v Pires; R v Lising, 2005 SCC 66]

[39]         The Crown argues there is no reason to permit cross examination. The affiant had grounds to believe cannabis would be found in the place, which found strong support in officer attendance there a mere 16 days prior. Ownership is not relevant or material; the affiant established the existence of an operating cannabis dispensary. What the officers learned while executing the warrant is irrelevant.

[40]         I agree with the Crown. The Warrant was obtained on the basis of relevant recent information gathered by police officers, and at the place to be searched where they were offered cannabis for sale. It was sufficiently reliable and credible to provide reasonable grounds to believe cannabis would be found in the Place to be searched. Concluding there was a link to Mr. Ward, while perhaps true for the other locations, bears nothing on the analysis of the Place that this Court is considering. It is reasonable to include all the information about suspected or reported ownership, but having no information at all about ownership is not a bar to the authorization of a warrant to search the Place. Nothing will be gained by granting leave to address irrelevant matters. There is no reasonable likelihood that granting leave will produce information of probative value for the reviewing Court.

[41]         In addition, the unsupported and lately raised assertion that there exists an agreement between Sipekne’katik First Nation and the RCMP to not enforce the Cannabis Act as it relates to members of that community will also not result in granting leave. If there exists such an agreement, the issue can be raised at trial. I would add that if the Crown is unaware of such an agreement, it is reasonable and highly likely that the affiant was also not aware. Finally, the Applicant’s agent also advanced a novel legal statement/argument that a different legal standard should be applied by law enforcement and/or issuing justices when considering warrants to search the property of aboriginal people due in large part to the concept of “the honour of the Crown”. There is no such legal requirement.

[42]         The applications are denied.

ACJ van der Hoek,  PCJ