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Judge Klebuc: Fiat

QB 17/94: Sheila Steele v. Her Majesty the Queen-Dec. 22/95-Klebuc J:Judgment

Nature of Application

Ms. Steele is charged with a numberof offences under the Narotics Control Act, R.S.C. 1985, c N-1. By notice of motion, she seeks to quash a search warrant and to exclude the evidence obtained by the Crown while exercising such warrant. Her application requires a determination of the following issues:

(1) Did the search under the warrant violate s. 8 of the Charter?

(2) If the answer to question (1) is "yes", should the evidence obtained during the exercise of the impeached warrant be excluded?

Facts

Constable S.L. Maxwell, a member of theSaskatoon City Police, applied to a justice of the peace for a search warrant under s.487 of the Criminal Code authorizing, inter alia, a search of the accused's residence located in the City of Saskatoon. In connection with the application she swore an information which in part reads:

4) On June 7, 1993 I spoke to a confidential source, whom I believe to be truthful, who stated that for the past six months, an unknown woman owns and/or rents at least one house that has a hydroponic marihuana grow in it and that she pays other people to tend the plants for her.

This woman was renovating the basement of a house for a grow.

Source said her middle man was a male cab driver with a prior drug record.

5) On July 27, 1993 I again spoke to this confidential source who advised me that the woman involved was a SHEILA STEELE living on 26th Street West in Saskatoon, Sask. and that she is an associate English professor at the University of Sask.

Source also stated that STEELE has a male friend ZAK (last name unknown) who is also involved in the operation.

. . .

7) City Hall utility check shows S. STEELE as the owner of 216 26th Street West, Saskatoon, since 1973 with a phone number there of 652-7833. Over the past year, the average electrical consumption is $164.57 per month, which when compared to other similar sized houses in the area is three times higher. Such large readings are consistent with equipment (such as grow lights and ballasts) used in hydroponic operations.

. . .

9) Cst. Wylie advised me that on August 10, 1993 he spoke to a confidential and reliable source (separate from the source mentioned in paragraphs 4 and 5) who has provided accurate drug information in the past toCst. Wylie and who stated:

A female who teaches English at the University of Saskatchewan is living in 216 26th Street West, Saskatoon and is growing marihuana in the basement of that residence.

10. The source has not personally seen the plants but has (sic) told of it by a close and trusted friend who did see the grow. Approx. 5 weeks ago this friend was involved with several other p[ersons in a break, enter and theft to the residence of 216 26th Street West, Saskatoon. While in the house these persons observed numerous marihuana plants - approx. 8" to 10" tall growing in the basement. . . .

The friend also advised the source that the plants would be ready to harvest approx. 45 days after the date of the break and enter. The friend stated that the plan was to steal the plants and all the equipment - at gunpoint if necessary - before the marihuana was harvested within the next two weeks. The friend went on to say that he and his associates were doing surveillance on the residence to determine STEELE's habits.

The justice of the peace issued the requested search warrant on August 11, 1993. Shortly thereafter, Cst. Maxwell and other officers executed the warrant at Ms. Steele's residence. During their search, they discovered a quantity of marijuana, equipment for hydroponic growing of plants, written material allegedly relating to the growing of marihuana hydroponically, material allegedly relating to profits earned by the growing of marihuana, and other items having no relevance to the charges before me.

Analysis

The provisions of ss. 8 and 24(2) of the Charter, and their application to factual circumstances similar to those before me, are fully canvassed in R. V. Collins [1987], 1 S.C.R. 265, [1987] 3 W.W.R. 699, 56 C.R. (3d) 193, 33 C.C.C. (3d) 1, 38 D.L.R. (4th) 508; R. v. Jacoy [1988], 2 S.C.R. 1140, 73 C.R. (3d) 46; R. v. Debot [1989] 1140, 73 C.R. (3d) 46 129, 52 C.C.C. (3d) 193; R. v. Grant [1993], 3 S.C.R. 223, 8 W.W.R. 257 (S.C.C.), 84 C.C.C. (3d) 173, 24 C.R. (4th)1; R. v. Wiley [1993], 24 C.R. (4th) 34 (S.C.C.);R. v. Plant, (1993) 24 C.R. (4th) 47 [1993] 3 S.C.R. 281, [1993] 8 W.W.R. 287 (S.C.C.), 84 C.C.C. 93d) 203; R. v. Richter, [1994] 7 W.W.R. 753 (Sask. C.A.), (1994), 120 Sask R. 257 . To the extent the decision of the Saskatchewan Court of Appeaal in R. v. Pepin (1994), 116 Sask R. 275 (C.A.) and the decisions referred to therein conflict with Grant, Wiley and Plant, the later prevail. Given that the governing principles are clearly stated in Collins, Grant, Wiley and Plant and Richter are binding on me, I see no useful purpose in discussing the same at length.

Issue 1 - Violation of s.8

In order to assess whether the search and seizure conducted under the warrant in the instant case violated Ms. Steele's rights under s. 8 of the Charter, a determination must be made as to whether Cst. Maxwell had reasonable grounds to believe that Ms. Steele's residence contained marijuana contrary to the Narcotics Control Act. Such grounds must be founded on the evidence set out in Cst. Maxwell's information and that evidence must be reliable and relevant.

Ms. Maxwell's information is principally based on hearsay reports obtained from two confidential informants. The confidential informant referred to (in sic) Paragraphs 4 and 5 of Cst. Maxwell's information did not suggest that he or she personally saw the alleged "hydroponic marijuana grow" or otherwise disclose the source of his or her information. In my view, the report constitutes nothing more than a rumour, which standing along, is insufficient to found reasonable grounds on which to believe that marijuana was contained in Ms. Steele's residence. At best, it is akin to a tip received from an anonymous informant who professes no knowledge of the facts reported.

In R. v. Debot, the supreme court directed that the reliability if an informer's tip is dependent on the total of the circumstances and specified three areas of concern at p. 1168:

First, was the information preceding the commission of a criminal offence compelling? Second, were that information 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?

The reliability of the report received from Cst. Maxwell's informant is minimally corroborated by what appears to be an above normal consumption of electrical power within Ms. Steele's residence noted in para. 7 of Cst. Maxwell's information. The fact that Ms. Steele lives at 216 - 26th St. West, Saskatoon and owns a car, in my view corroborates nothing in the instant case. Similarly, the information relating to her son, his record and his occupation is also equivocal in that it bears no relationship to the growing of marihuana or trafficking therein. In the absence of some personal knowledge by Cst. Maxwell's informant, or a reference to a credible source, I conclude that the independent evidence produced is insufficient to corroborate the informant's report. Consequently, it could not form part of the grounds on which to conclude that a narcotic was contained at Ms. Steele's residence.

I now turn to the question of whether the evidence contained in paras. 9 and 10 alone, or in conjunction with the other reports and facts contained in Ms. Maxwell's information, is sufficient to constitute reasonable grounds for Ms. Maxwell to believe that marihuana was contained in Ms. Steele's residence in contravention of the Narcotic Control Act. In my opinion, the report described in paras. 9 and 10 cannot stand alone because it amounts to what counsel described as "triple hearsay." The facts were allegedly communicated by the actual observer of the grow, to an informer, who in turn communicated the observer's information to Cst. Wylie, who in turn made the same available to Cst. Maxwell. In the absence of any evidence as to the reliability of the observer, her or his communication must be given no greater status than that attributable to information received from an anonymous informant whose reliability cannot be assessed. The limited independent evidence presented to the justice of the peace, in my opinion, was insufficient to cloth the report received from Cst. Wylie's informant with the degree of reliability necessary to permit its use in determining that a narcotic was present in Ms. Steele's. To allow such information to be used render drastically undermine Ms. Steele's s.8 rights.

In summary, the reports provided by the informants in the instant case were too unreliable to form reasonable grounds, or part thereof, on which to conclude that marihuana was contained in Ms. Steele's residence. Consequently the search violated s. 8 of the Charter. I appreciate that the factual circumstance before me is similar to those in Plant where the Supreme Court found a similar tip to be sufficiently reliable to support the issuance of a warrant.

Section 24(2) Remedy

A violation of Ms. Steele's s. 8 rights having been established, I must consider whether the evidence obtained by Cst. Maxwell and the other peace officers during a warrantless search should be excluded under s.24(2) of the Charter. As previously mentioned, the application ofs. 24(2) of the Charter to factual circumstances similar to those before me is fully canvassed in Collins, Jacoy and Grant. Consequently, no useful purpose will be served in discussing the same at length.

The factors relevant to the determination of whether the evidence ought to be excluded pursuant to s. 24 (2) are succinctly set out in Jacoy at p. 558-559:

. . .First the court must consider whether the admission of evidence will affect the fairness of the trial. If this inquiry is answered affirmatively,"the admission of evidence would tend to bring the administration of justice into disrepute and, subject to a consideration of other factors, the evidence generally should be excluded." (p. 284). One of the factors relevant to this determination is the nature of the evidence: if the evidence is real evidence that existed irrespective of the Charter violation, its admission will rairly render the trial unfair.

The second set of factors concerns the seriousness of the violation. Relevant to this group is whether the violation was committed in good faith, whether it was inadvertant or of a merely technical nature, whether it was motivated by urgency to prevent the loss of evidence, and whether the evidence would have been obtained without a Charter violation.

Finally, the Court must look at factors relating to the effect of excluding the evidence. The administration of justice may be brought into disrepute by excluding evidence essential to substantiate the charge where the breach of the Charter was trivial. While this consideration is particularly important where the offence is serious, if the admission of the evidence would result in an unfair trial, the seriousness of the offence would not render the evidence admissable. [Emphasis in the original]

I am bound by the decisions of the Supreme Court in Collins and Grant and on applying those decisions in the instant case. I must conclude that the administration of justice would not be brought into disrepute by the admission of the real evidence obtained by Cst. Maxwell et al pursuant to a warrantless search. Accordingly, the application to exclude such evidence is dismissed.

(signed) Klebuc J.


John Klebuc: New head of Saskatchewan Appeal Court