IN THE SUPREME COURT OF NOVA SCOTIA
Citation: R. v. Lane, 2007 NSSC 15
Date: 20070110
Docket: CR 268718
Registry: Halifax
Between:
Her Majesty The Queen
v.
Basil Richard Lane
Judge: The Honourable Justice M. Heather Robertson
Heard: December 19, 2006, in Halifax, Nova Scotia
Written Decision: January 16, 2007 ((Voir Dire) Orally: January 10, 2007)
Counsel: Susan Y. Bour, for the Crown
Roger A. Burrill, for the defendant
Robertson, J.: (Orally)
[1] The applicant seeks the exclusion of evidence by reason of alleged breaches of sections 8 and 24(2) of the Charter of Rights and Freedom, resulting from the execution of a general search warrant under section 487.01 of the Criminal Code and a warrant under section 11 of the Controlled Drugs and Substances Act (CDSA).
[2] The applicant’s residence at 21 Doyle Street in Bedford, Nova Scotia was searched where 147 marijuana plants were located in the basement along with marijuana production paraphernalia. The applicant subsequently gave a statement at the police station following his arrest. He was charge with possession for the purpose of trafficking contrary to s. 5(2) of the CDSA and the unlawful production of cannabis (marijuana) contrary to s. 7(1) of the CDSA.
[3] The applicant’s counsel Mr. Roger Burrill makes this Charter application on the strength of the Crown evidence agreed to be admitted by consent, i.e. the search warrants and associated documents - Exhibit 1 of the court record. No evidence was called by the Crown on the Voir Dire.
CHRONOLOGY OF EVENTS AND INFORMATION TO OBTAIN:
[4] The Information to Obtain a Search Warrant may be summarized as follows.
[5] The police believed that Basil Richard Lane was producing cannabis marijuana at his residence at 21 Doyle Street in Bedford, Nova Scotia. On November 18, 2005, Constable Willett, the Informant received information via Detective Constable Longley, that a human source (Source “A”) provided the following information pertaining to a grow operation at 21 Doyle Street, Bedford.
1. Basil Last Name Unknown (hereafter referred to as Basil LNU) is a white male approximately 30 years of age.
2. Basil LNU lives at 21 Doyle Street, Bedford
3. Basil LNU has a marijuana grow operation in the basement of his residence at 21 Doyle Street, Bedford.
4. Source “A” has observed a large marijuana grow in the basement of 21 Doyle Street, Bedford.
5. Source “A” indicated that to access the grow entry must be made at the rear of the residence through an exterior basement door.
[6] On November 22, 2005, the Informant and another police officer Detective Constable Hovey conducted surveillance at 21 Doyle Street. They observed a Blue Dodge Caravan, license DZF 629 in the driveway. They queried the Provincial Motor Vehicle Registry (“PRMV”) and confirmed that the vehicle belonged to Jennifer Moore.
[7] On November 24, 2005, the Informant was advised of a further conversation Constable Longley had with Source “A” in which Source “A” stated that he had observed the large marijuana grow operation in the basement of 21 Doyle Street with six lamps operated on a timing system 12-hours on, 12-hours off and that by his estimate there were over 200 plants contained in potted plants. He also noted a ventilation system circulating air to the plants. Lastly, he noted that Basil drove a navy blue Caravan.
[8] On November 25, 2005, the Informant was told by Constable Longley that Source “A” had an established track record as a tipster and had provided reliable information in the past that resulted in arrests and charges being laid. Source “A” has a criminal record and has been paid for information provided in the past.
[9] On November 28, 2005, the Informant and another police officer conducted further surveillance at 21 Doyle Street and observed the blue Caravan from the Bedford Highway. They could partially view the rear of the residence, but a full view was obstructed by foliage and a small hill. They did however see basement level windows on the rear of the residence plus an exterior entrance corroborating Source “A” ’s information in that regard.
[10] The Information to Obtain also outlines the various investigative tools used by the police being a RAPID query showing that Basil Lane was the boyfriend of Jennifer Lynn Moore, a Versadex query showing that Basil Lane drove the blue Caravan owned by Jennifer Moore while his license privileges were revoked and a PRMV query showing that the blue Caravan was registered to Jennifer Moore, as well as a JEIN query confirming the same details.
[11] The Information to Obtain then outlines the expert opinion of Constable Caume relating to marijuana grow operations, i.e. the cultivation cycle, and necessity for lamps and timers, also noting that a grow window of 90 days was available before plants would be ready for harvest.
[12] Based on the above information the Informant sought a general warrant under s.487.01 to allow the police to enter onto the property of 21 Doyle Street to allow them to view any modification to the structure that would be consistent with those found at a grow site, make observations about the windows and other observations such as fans, ventilation systems, running waters, detect strong odours of cannabis, or find discarded pots or grow production materials.
[13] The subsequent general warrant issued on December 14, 2005, by a Provincial Court Judge permitted the perimeter search of the property that I have just outlined.
[14] The perimeter search of the property thus authorized was conducted on December 15, 2005, in the early morning hours and based on the results of that search an Information to Obtain a Search Warrant was presented to a Justice of the Peace later on December 15, 2005, to obtain a warrant under s. 11 of the CDSA.
[15] The grounds for belief of this warrant outlined their observations made pursuant to the general warrant. They observed:
1. The dwelling house situated at 21 Doyle Street, Bedford, Halifax Regional Municipality, Province of Nova Scotia appears to be lived in. There was a Blue Dodge Caravan located in the attached garage of the residence.
2. Florescent lighting was on in the garage area of the residence.
3. Some of the basement windows were covered.
4. Numerous garbage bags were located under the patio at the rear of the dwelling. The garbage bags were found to contain the following contents:
A. Discarded potting soil
B. Various sized planting Pots
C. Insulation materials
5. During the execution of the warrant the conditions were windy. While on the property the peace officers could detect the smell of marijuana.
[16] The CDSA warrant was executed, Basil Richard Lane was arrested and the charges laid as earlier outlined.
ISSUES:
1. Are the search warrants issued under s. 487.01 of the Criminal Code and s. 11 of the CDSA valid?
2. Does s. 487.01 (1) (c) prohibit the use of a general warrant in these circumstances when a warrant under s. 11 of the CDSA was available, i.e. the use of a general warrant where “there is no other provision that would provide for a warrant ... permitting ... the thing to be done”?
3. If there has been a breach of s. 8 of the Charter, whether the evidence obtained by the police should be excluded under s. 24 (2) of the Charter?
LAW AND ARGUMENT - BURDEN OF PROOF:
[17] Mr. Burrill agrees that he bears the burden on the balance of probabilities to prove that there has been a s. 8 Charter infringement such that a remedy under s. 24(2) of the Charter should be invoked, having satisfied the court the admission of evidence would bring the administration of justice into disrepute.
STANDING:
[18] Both Crown and defence counsel agree that the applicant’s standing has been established. It is an agreed fact that the applicant, Basil Richard Lane and his common law spouse Jennifer Lynn Moore, have resided at 21 Doyle Street with their two young children, for over one year. (R. v. Edwards (1996), 104 C.C.C. (3d) 136).
CHALLENGE:
[19] The applicant must overcome the presumption of the validity that exists with respect to a search warrant and the sworn information supporting the warrant R. v. Collins (1989), 48 C.C.C. (3d) 343 (Ont. C.A.); Hunter et al v. Southam Inc., [1984] 2 S.C.R. 145.
[20] The well accepted test for determining the sufficiency of the information underlying a warrant was established in R. v. Garofoli (1990), 60 C.C.C. (3d) and subsequently applied in R. v. Grant, [1993] 3 S.C.R. 223.
Sopinka, J. states:
The constitutional test for the sufficiency of information underlying a warrant was stated by this court in R. v. Garofoli (1990), 60 C.C.C. (3d) at p. 188 [1990] 2 S.C.R. 1421, 80 C.R. (3d) as follows:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.
[21] There must be some evidence sufficient as a matter of law to provide reasonable grounds to believe the underlying information that will afford evidence to the commission of an offence. Re: Church of Scientology (No. 6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.) and R. v. Durling 2006 NSCA 124.
[22] In R v. Debot (1989), 52 C.C.C. (3d) 193 (S.C.C.), Wilson, J.:
In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Secondly, where that information was based on a “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by police 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. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.
[23] In Durling (supra), MacDonald, C.J.A. at para. 19 addressed the key elements that must be shown to achieve a “credibly based probability” as outlined by Cromwell, J.A. in R. v. Morris, [1998] N.S.J. 492 (C.A.):
Without attempting to be exhaustive, it might be helpful to summarize, briefly, the key elements of what must be shown to establish this "credibly based probability":
(I) The Information to obtain the warrant must set out sworn evidence sufficient to establish reasonable grounds for believing that an offence has been committed, that the things to be searched for will afford evidence and that the things in question will be found at a specified place: (R. v. Sanchez (1994), 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 without legal assistance, should not be held to the "specificity and legal precision expected of pleadings at the trial stage." (Sanchez, supra, at 364)
(iii) The affiant's reasonable belief does not have to be based on personal knowledge, but the Information to obtain must, in the totality of circumstances, disclose a substantial basis for the existence of the affiant's belief: R. v. Yorke (1992), 115 N.S.R. (2d) 426 (C.A.); aff'd [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 is to be assessed in light of the totality of the circumstances. The relevant principles were stated by Sopinka, J. in R. v. Garofoli, [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 from an 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 of the 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 investigative sources.
(iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information.
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.
Incorporating these principles, Fichaud, J.A. in R. v. Shiers, supra, succinctly summarized the test:
Based on 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?
[24] As noted earlier, I do not have the benefit of any additional evidence presented on a Voir Dire. I have before me exactly as much information as did the Judge and Justice of the Peace in issuing the warrants.
[25] The applicant urges the court to find that the Information to Obtain for the issuance of a general warrant under s. 487.01 was insufficient to conclude there were reasonable and probable grounds, that is to say reasonable and probable grounds to support the issuance of the warrant where “credibly based probability replaces suspicion.” Hunter et al v. Southam Inc. (supra).
[26] The applicant argues that quite the contrary, the police did not have enough information to go on and could not confirm or corroborate their tipster’s information. The police were able to confirm some details, none indicative of criminal activity:
1. Basil’s full name;
2. His residency at 21 Doyle Street;
3. His relationship with Jennifer Moore;
4. Her ownership of the blue Caravan van;
5. That he had been the driver of this van;
6. That the residence at 21 Doyle Street did have a rear entrance; and
7. That there were basement windows seen from the rear of the rear of the property.
[27] The police due to the secluded location of the property could not see anything that was consistent with a marijuana grow operation.
[28] The Crown asks the court of consider the information provided by the tipster with respect to his or her own observations of the grow operation, while in the residence, to be of a compelling nature. Those specifics are that the tipster observed 200 plants lit by 6 lamps operated by timers on a 12-hour on 12-hour off cycle.
[29] The applicant argues that this is hardly compelling information and is in fact pretty generic in nature a description of any small grow operation that a person intent on malice or mischief could describe easily to the police.
[30] The applicant asks the court to look at five cases in particular to examine the level of detailed information that is required to reach the threshold level of reasonable and probable grounds upon which a warrant can be issued.
[31] In R. v. Wiley, [1993] 3 S.C.R. 263, the tipster was a paid informant and had provided previously reliable information to the police. The tipster gave a detailed description of the residence and its location and said that some seven months before he or she had seen 60 marijuana plants growing in a bunker in the backyard, below a hot tub. The tipster described the size of the room and manner in which it was lit. The police could see the vented bunker at the rear of the property from the road. However, they entered onto the property without legal authorization to further investigate, where upon they saw and heard vented fans in operation, felt the condensation flowing from them, as well as the smell of marijuana. On the basis of all of this information, they sought and secured a search warrant pursuant to s. 12 of the Narcotics Control Act.
[32] In R. v. Tessling, [2004] 3 S.C.R. 432, the police received information from two informants, one of the informants whose credibility was untested said that Tessling and a man called Ken were growing and trafficking in marijuana. The second informant, a proven source said that a known drug dealer was buying drugs from a man name Ken, in the area. He did not directly implicate Tessling.
[33] In corroborating the tipster’s information, the police contacted Ontario Hydro to check on the electrical consumption of this property, but they could not establish that it was unusually high. They then used FLIR technology by flying over the property in an RCMP plane and were able to record high rates of thermal energy of heat radiating from the building.
[34] On the basis of this additional corroborating evidence they sought and received a search warrant to enter the premises. The Supreme Court of Canada ruled that the use of FLIR technology was not equivalent to an entry unto the premises and because of the informational aspect of the technology, this fell within the reasonable aspect of searches and seizures than can be tolerated in the context of s. 8 of the Charter.
[35] In R. v. Plant, [1993] 3 S.C.R. 281, the police received an anonymous tip that marijuana was being grown in the basement of a house within a specific block. The tipster could describe the “cute” house on the block. Once the police easily located the house they initiated an electrical utility consumption check and found that the consumption was four times greater than that of a house of comparable size. The police also entered on the property and confirmed that certain basement windows were covered with something opaque and that a vent was plugged with plastic. On the basis of all this information a search warrant was issued and an arrest made.
[36] In holding that the information provided by the anonymous tipster was properly considered by the Justice of the Peace in deciding whether there were reasonable ground to issue a search warrant Sopinka, J. said at page 216:
The tip itself, therefore, was compelling enough in its specification of the place in which the offence was occurring for the police to readily locate the exact address of the appellant's residence and corroborate the report of the informant. I conclude that 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. Therefore, I would not excise that piece of evidence from the warrant.
[37] In R. v. Grant (1993), 84 C.C.C. (3d) 173 (S.C.C.), the police had found in a routine roadblock check, that a truck driven by David Grant contained a number of items consistent with a marijuana grow operation (pots, soil, tubing). A few weeks later a police officer received information from a previously reliable and confidential informant that at the time of the roadblock Grant was on his way to set up the marijuana grow operation.
[38] The police then conducted surveillance on Grant and by two unauthorized perimeter searches of the property found evidence of a grow operation (covered windows wet with condensation, sounds of fans and newly installed air vents).
[39] The police also made inquiries of B.C. Hydro. They obtained a search warrant under s. 487 of the Criminal Code including within the grounds to obtain, the information gleaned from the two warrantless perimeter searches relying on s. 10 of the Narcotics Control Act.
[40] The Supreme Court of Canada found that the exigent circumstances did not exist where it would be impracticable for the police to have sought a warrant. However, in an analysis of s. 24(2) the negative effect of the exclusion of the evidence and good faith of the officers outweighed the seriousness of the s. 8 Charter infringement. The evidence was admitted and a new trial ordered.
[41] In R. v. Durling, [2006] N.S.J. 28, 2006 N.S.C.A. 124, the police received a tip from Crimestoppers, that Durling was growing marijuana in her home. The tipster described marijuana plants under huge lights plugged into outlets similar to appliance outlets for stoves or dryers. The tipster identified her by name, place of employment and provided her telephone numbers. The police conducted surveillance confirming the location of the property, details of Durling’s auto registration and place of work. The tipster called again telling the police that 150 plants would soon be harvested. The police used the FLIR technology and noted high degree of thermal heat emanating from the house. They could also observe basement windows in her home cover with opaque material. On this information the police sought and received a search warrant and executed it finding a grow operation in this residence.
[42] The trial judge found that the informants were anonymous and unproven sources and therefore not credible. He found that there was insufficient information upon which to issue a warrant.
[43] Cromwell, J.A. found that the trial judge fell into error by substituting his own view of the evidence for that of the Justice of the Peace, who was entitled to draw her own inferences so long as they were reasonable.
[44] The Crown has distinguished these cases and in particular Plant, Grant and Wiley on the basis that these cases involved warrantless perimeter searches. They argue that in this case, the police sought legal authorization to conduct covert surveillance on 21 Doyle Street.
[45] However, the sufficiency of the information and in particular the degree to which the police were able to corroborate the tipster’s information is the real issue before me, which these cases magnify.
[46] In R. v. Beauregard (1999), 136 C.C.C. (3d) 80 (Que. C.A.) the information was sworn by the police officer, who had been told by a “coded” informer:
1. that the respondent and another person were trafficking in cocaine on a regular basis in the apartment searched;
2. that the respondent and his presumed accomplice lived in the apartment;
3. that the informer, in the immediately preceding days, had personally seen cocaine in the apartment.
[47] The officer stated as well that this coded source had previously supplied him with information leading to the discovery of narcotics and to prosecutions; that the source had identified the two traffickers; that respondent, who was one of them, had previously been convicted for trafficking in narcotics; that the physical description of the premises and of the alleged traffickers corresponded to those furnished by the source; and finally, that undetected police surveillance of the premises to confirm “comings and goings” would be impossible without risking detection by the suspects.
[48] Fish, J.A. concluded:
The decisive question before the trial judge was not whether he would have authorized the search warrant on these grounds, but whether the issuing justice had "any basis for [his] decision" to do so.
Had the trial judge answered this question in the affirmative, he would have been bound to dismiss respondent's motion to exclude the evidence seized in his apartment.
In my respectful view, he erred in reaching the contrary conclusion.
[49] Each of these cases just reviewed rest on their own unique factual circumstances. In the case before me, the applicant was unknown to the police and had no previous criminal record.
[50] The five cases cited by the applicant (Wiley, Tessling, Plant, Grant and Durling) demonstrate the necessity for some corroboration of an informants’ story whether the informants were paid or not; whether they were previously reliable or anonymous.
[51] In all of these decision, reasonable and probable grounds are established not only by the information provided by the tipster, but by corroborative evidence in respect to the criminal aspects of the tips such as electrical consumption checks or the use of FLIR technology to confirm thermal heat emissions from growing plants. Surveillance can also provide corroborative evidence if it confirms for example, the presence of the bunker, the observation of unusual venting system, the covered windows or excessive condensation or other evidence that points to corroboration of the tipster’s story.
[52] In this case the policed provided very little corroboration in the information to obtain the general warrant other than personal details none of which relate to criminal conduct.
[53] Their attempts at surveillance from beyond the perimeters of the property were fruitless. Most houses do have rear entries and basement windows. The police were unable to see anything that would suggest a grow operation - no covered windows, no vents, no paraphernalia.
[54] Therefore, before seeking the general warrant, the information they could provide to the judge in support of the warrant did not relate to any criminal activity, except for the known paid informant’s briefly described observation of the grow operation. This information, however, was not corroborated.
[55] The police did not seek other corroboration, such as an electrical consumption check or use FLIR technology to confirm if plants were growing on the premises, both corroborative methods that do not occasion a s. 8 Charter infringement (Plant, Tessing (supra)).
[56] The Information to Obtain did contain Constable Caume’s expert opinion regarding the grow cycle of marijuana plants yet the informant’s observation was not confirmed by date of his or her observation or the stage of plant growth at the time of observation. Therefore, Constable Caume’s opinion did not tie into the Informant’s. One can therefore assume that no exigent circumstances prevailed, where the police would have reason to believe the plants would soon be destroyed or removed from the premises.
[57] The only corroborative evidence obtained by the police was obtained after the execution of the general warrant. I am in agreement with the applicant’s counsel that the only purpose of the general warrant appears to be to secure reasonable and probable grounds to conduct a private residence search.
[58] On the basis of the information before the Provincial Court Judge I do not believe that reasonable and probable grounds existed to warrant the perimeter search of the property conducted on December 15, pursuant to s. 487.01 of the Criminal Code. The information before her remained uncorroborated as to details of criminal activity and in my view did not rise above the level of strong suspicion.
[59] If you exclude the information illegally obtained by the warrantless perimeter search, the Justice of the Peace is similarly left with uncorroborated information of a marijuana grow operation when she issued the s. 11 warrant. Therefore both warrants were issued without sufficiency of information to achieve the threshold level of reasonable and probable, something amounting to credibly based probability rising above mere suspicion.
[60] The use of a general warrant also has a restricted application by operation of s. 487.01 (1)(c), a limitation enacted by Parliament following decisions rendered by the Supreme Court of Canada R. v. Wong (1990), 60 C.C.C. (3d) 460 and R. v. Duarte, 53 C.C.C. (3d) 1.
[61] Section 487.01 provides:
487.01 (1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if
(a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;
(b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and
(c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done. (Emphasis added)
[62] The language of the warrant issued under s. 487.01 does not reflect an intended investigation permitting a “technique, procedure or device where no other provision of any other Act of Parliament would provide.”
[63] In R. v. Mero, [2003] B.C.J. No. 1499 2003 B.C.S.C. 964, the court noted that the authorized activity amounted to little more than gathering evidence believed to be present, when police entered a property pursuant to a s. 487.01 and observed two males on the property and also located a concealed generator and cables leading to a stairway to an underground bunker. Parrett, J. Noted at paras. 17-18:
In all but the case of a future offence it is difficult to see the circumstances in which the reasonable and probable grounds needed to justify a warrant under s. 487.01 would not also justify the issuance of a warrant under s. 11(1)(d).
In the present case that is particularly so where all of the evidence presented indicated the presence of an established and ongoing marijuana grow operation. The availability of a warrant under s. 11(1) of the Controlled Drug and Substances Act would preclude the issuance of a warrant under s. 487.01 by operation of s. 487.01(1)(c).
[64] In R. v. Brooks 178 C.C.C. (3d) 361, the Ontario Court of Appeal found a general warrant was unreasonable because it did not comply with s. 487.01 (1)(c) of the Code.
[65] The accused was charged with possession of cocaine for the purpose of trafficking, possession of marijuana and possession of a restricted weapon. The police had obtained a general warrant permitting them to conduct surveillance and if certain pre-conditions were met, permitting them to enter the accused’s residence to search for cocaine and drug related items. The warrant provided that the police could enter the accused’s residence only if they observed her to be engaged in behaviour consistent with reasonable and probable grounds to believe that she was making drug deliveries and that they found her to be the operator of or passenger in a vehicle where drugs were located or “ejected.”
[66] The police subsequently observed the accused engaged in activities that were consistent with drug trafficking. The accused was arrested and searched. Police then executed the search warrant at the accused’s residence and found 50 foil wrapped rocks of cocaine, some marijuana and a handgun. At trial, a police officer testified that he was aware that he could have arrested the accused and obtained a search warrant after the arrest, but that he relied on the general warrant for fear that someone interfere with or dispose of the evidence. The trial judge found that while the pre-conditions in the warrant were invalid, they were simply surplusage which did not affect its validity.
[67] On appeal, the Ontario Court of Appeal found that it was unnecessary for the court to determine the nature and type of conditions contemplated by s. 487.01(3) and stated at paras. 29 and 30:
In this case, having regard to Sgt. Ansari's evidence, the existence of exigent circumstances was the only possible basis for seeking a general warrant instead of one of the more conventional warrants. However, the Information to obtain the warrant made no mention of exigent circumstances and Sgt. Ansari's testimony did not fill that gap. On the contrary, he readily conceded that apart from conjecture, there was no reason to believe that the circumstances of this case differed from other cases of its kind. In other words, leaving aside mere possibilities, the police had no reason to believe that the appellant's arrest would trigger the destruction of drugs or other evidence at her residence before the police could obtain a conventional warrant to search it.
It follows, in my view, that the impugned warrant was invalid because it failed to comply with the statutory pre‑condition set out in s. 487.01(1)(c). That pre‑condition states, in part, that a general warrant can only be issued where "there is no other provision . . . that would provide for a warrant . . . permitting . . . the thing to be done". For reasons already stated, that is not this case. It follows that the general warrant was invalid and the search of the appellant's residence must therefore be treated as a warrantless search. As such, it amounted to a contravention of the appellant's privacy rights under s. 8 of the Charter.
[68] Accordingly, I find that both warrants were invalid and in breach of s. 8 of the Charter which provides that “everyone has the right to be secure against unreasonable search and seizure.”
[69] In my view the Crown has failed to demonstrate on a balance of probabilities that reasonable grounds existed to justify these warrantless searches, as no exigent circumstances existed to warrant the searches. There was no fear of removal or destruction of the evidence.
[70] I now move onto a s. 24(2) analysis respecting the possible admission of the evidence illegally seized.
[71] The three part test outlined in R. v. Collins (1989), 48 C.C.C. (3d) 343 (Ont. C.A.) require the court to consider:
1. If the evidence will impact on trial fairness.
2. How serious is the Charter breach?
3. And what is the effect of the exclusion of evidence in the administration of justice?
[72] The evidence obtained in this case can be characterised as (1) conscriptive, i.e. the statement given by Basil Richard Lane to police at the police station and (2) non-conscriptive, i.e. the marijuana and grow operation paraphernalia seized by police.
[73] The conscriptive statement would effect trial fairness and is therefore inadmissible. (R. v. Stillman, [1997] 1 S.C.R. 607 pp. 364-365.)
[74] The material seized from 21 Doyle Street is non-conscriptive and would not invoke the same issue of trial unfairness. Yet, steps 2 and 3 of the Collins’ test may still preclude the admission of the evidence.
[75] The applicant’s counsel cautions the court that s. 24(2) is not an automatic inclusion rule. R. v. Buhay, [2003] S.C.J. No. 30, Arbour, J. at para. 71:
Admittedly, there are various precedents where non‑conscriptive evidence such as drugs was admitted on the basis that exclusion would bring the administration of justice into further disrepute than admission would, especially where the evidence was essential to the Crown (see, e.g., Mercer, supra; Kokesch, supra; Evans, supra). Section 24(2) is not an automatic exclusionary rule (see, inter alia, Dyment, supra); in my view, neither should it become an automatic inclusionary rule when the evidence is non‑conscriptive and essential to the Crown's case.
[76] Counsel for the applicant seeks a ruling on the admission of the non-conscriptive evidence on the basis of the information before the court, without benefit of the police officer’s evidence on Voir Dire.
[77] However, there is no suggestion that the police did not believe that at all times in the execution of the warrants they were acting in an appropriate and authorized manner. There is no suggestion of police misconduct in this case. I view the breach by the police as being more technical in nature.
[78] Although I would characterise the breach of the applicant’s rights under s. 8 of the Charter to be a serious breach, as the searches were in law warrantless, it is my view that the admission of the evidence would not bring the administration of justice into disrepute, indeed the contrary.
[79] Counsel for the applicant cites Buhay (supra); R. v. Mann, [2004] 3 S.C.R. 59 and R. v. Kokesck, [1990] 61 C.C.C. (3d) 207 S.C.C. in urging the court to find that police error or ignorance of their scope of authority should not be tolerated by the court.
[80] The decisions in Buhay and Mann (supra), he suggests breathes new life into Kokesch.
[81] In Mann, the police conduct, the pat down and search of a possible robbery suspects’ pockets on the street amounted to a significant and unwarranted interference and detention. The court found that the police may have had a reasonable cause for a protective pat down for their safety and that of others, but no reason for a more intrusive search of the suspects’ pockets in which marijuana was found.
[82] In Kokesch, the police admitted to the court they knew they were conducting a warrantless unauthorized search of the subject’s property and therefore demonstrably acted in bad faith.
[83] I do not find that the police asserted the kind of “casual attitude” that Sopinka, J. admonished in R. v. Kokesch (supra).
[84] In this case, the police sought and believed they had legal authorization on what they believed were reasonable and probable grounds that an offence was being committed. They were not acting in any bad faith nor can the police in my view be required to be abreast of every decision rendered by the courts, when those decisions all give rise to sets of unique facts open to wide spectrum of interpretation, by prosecutors who advise the police, and ultimately interpreted by the courts.
[85] The consideration of “acting in good faith” must rest on the circumstance of each case.
[86] I distinguish Buhay, Mann and Kokesch (supra), on their facts. The evidence seized is crucial to the Crown’s case. Its exclusion would lead to an automatic acquittal. The charges are serious charges, not the mere possession of a small amount of marijuana, but charges of cultivation of a significant amount of marijuana for the purpose of trafficking.
[87] The exclusion of the evidence would in my view result in the reputation of the administration of justice being diminished. The materials seized will be admitted in evidence.
Justice M. Heather Robertson