R. v. Hennessy

2005 BCSC 408 R. v. Hennessy Citation: R. v. Hennessy Date: 20050218 2005 BCSC 408 Docket: 40006-1 Registry: Vernon IN THE SUPREME COURT OF BRITISH COLUMBIA Oral Reasons for Ruling on Voir Dire The Honourable Mr. Justice Barrow February 18, 2005 Regina Against Michael Dean Hennessy Counsel for the Federal Crown: N.A. Vlahos Counsel for the Accused: P. Jensen Place and Date of Hearing: Vernon, B.C. February 17, 2005 [1] THE COURT: The accused is charged with several offences, including the cultivation of cannabis marijuana. The sole issue on this voir dire is whether the search warrant that was executed on the premises at 3194 Salmon River Road was validly issued. The accused takes the position that, on its face, the information to obtain, which was the basis upon which the search warrant was issued, does not support the conclusion that the officer who swore it had reasonable and probable grounds to believe that evidence of the offence he sought to investigate would be found through the search of the residence in question. [2] There are two specific matters in issue. The first relates to the effect of the officer misstating the year in which he made the observations that he relied on. The second is whether the observations that are in the information are adequate to ground the issuance of the warrant. FACTS [3] The affiant of the information to obtain is Constable Lange. At the time in question, that is February 29, 2004, he was a member of the Royal Canadian Mounted Police with some three years' experience. Despite the limited duration of his tenure, he had, as disclosed in the information to obtain, significant experience in the investigation of marijuana related offences. He had been the affiant on 13 prior search warrant applications involving marijuana cultivation. He had been involved in the disassembly of over 20 such operations. [4] In the course of those investigations, he had observed marijuana being cultivated both indoors and outdoors. He deposed that he was very familiar with the distinct odour of marijuana in both its vegetative state and its burned or burning state. [5] In the information to obtain, he set out his understanding of the manner in which marijuana is grown inside. His understanding of that process was such that he believed it is necessary to vent grow operations in order to create the conditions necessary to permit plant growth. [6] From the information to obtain, it is apparent that the Salmon River Road in the vicinity of the residence in question is in a rural area. Constable Lange appended to his information a map showing the locations of various residences in the area. From the narrative information he provided, and the map, it is reasonable to draw several conclusions. [7] Salmon River Road runs generally north and south, it is parallel to and about 400 metres west of the Salmon River. The residence at 3194 is set back about 25 metres from the west side of the road. There are no other residences within approximately 350 metres. Within about a 400 metre radius of the residence there are only four residences. Two of those residences are south of the residence in question and one is about 400 metres due east. There is one residence about 350 metres north and there are no residences within at least three kilometres to the west or northwest of the house. The residence at 3194 Salmon River Road backs onto a mountain slope or ridge. The base of that ridge is about 20 metres from the back of the house. The mountain ridge runs from the southwest to the northeast and passes between the residence in question and the nearest dwelling to the north. [8] The information to obtain discloses that on February 29th, at about 6:28 p.m., the officer was driving a marked police car northbound on the Salmon River Road. The windows of his car were rolled up. In spite of that, as he passed the residence at 3194 he detected "a very strong, pungent smell of marijuana in its vegetive state". He continued northbound for a further 250 metres and noted no other houses. He made a U-turn and drove back past the residence in question. [9] At a point about 25 metres south of the house he again noted a strong smell of vegetative marijuana. He proceeded a further 25 metres south and parked. He got out of his car and was immediately aware that the wind was blowing generally from the direction of the house. He left his car idling and noted that the exhaust fumes confirmed his observations of the wind direction. He walked back towards the house and when he was about 25 metres from it, the smell, which had been constant, became "overwhelmingly strong" and was coming from the direction of the house. [10] He then returned to his car and again drove north past the residence and as he did so, this time with his window open, the odour could again be detected. He drove north for about a half a kilometre before he saw another house. The wind was blowing from the northwest. It was blowing down the mountain ridge behind the house. The officer deposed, in effect, that there was no possibility that the smell he described was coming from anywhere but the house in question. [11] The residence at 3194 Salmon River Road is separated from the road by a high cedar hedge. Although the driveway and the detached garage, located about 15 metres from the house, could plainly be seen from the roadway, the house itself was obscured from view by the hedge. The officer could see another small outbuilding near the garage, but he could not tell if there were other outbuildings beyond the house. The officer could see lights coming from the residence through gaps in the hedge row. The officer deposed that given the temperature, and presumably the time of year, there was no likelihood that the marijuana he smelled was being grown outside. [12] After making these observations, Constable Lange returned to the Falkland detachment where he was stationed and made a number of inquiries on the various police and Motor Vehicle Branch computer information systems available to him in order to attempt to identify the owner or occupant of the property. He discovered that Amie Eisner was the owner of a vehicle, the registration of which contained an address of 3194 Salmon River Road. Ms. Eisner's driver's licence also showed that address. He deposed that Ms. Eisner had, in 1996, been a suspect in a marijuana grow-operation at a different location, but that no charges or arrests had been made in relation to that investigation. [13] Upon completing the information to obtain, Constable Lange went off shift leaving the document for his partner to make an application by telephone for a warrant the following morning. The application was submitted on March 1, 2004, and was received by Judicial Justice of the Peace Blackstone at 8:49 a.m. The Judicial Justice of the Peace issued the warrant at 8:57 a.m., some eight or nine minutes later. [14] In summary, the sole basis for the issuance of the warrant was the strong or overwhelming smell of vegetative marijuana detected over the course of several minutes on one occasion emanating from or isolated to the residence at 3194 Salmon River Road. With one exception, about which I will say more in a moment, there is no suggestion that the information to obtain contained any errors, misstated or overstated any fact, or omitted any relevant information. Constable Lange gave evidence on the voir dire and even as amplified on cross-examination, there is no evidence which casts any doubt on the information set out in the information to obtain. It is as against this background that the validity of the warrant falls to be determined. MISSTATEMENT OF THE YEAR [15] The only error in the information to obtain is the misstatement of the year in which Constable Lange made the observations about which he deposed. He wrote that on "2002-02-29" he did the things described above. On the voir dire he testified that he, in fact, made his observations in 2004 and that although he read over the information to obtain prior to signing it, he simply overlooked a typographical error in the date. [16] The Crown argues that this was a "good faith" error on the part of the officer and thus is amenable to correction on amplification. Authority for this proposition is found in R. v. Araujo, [2002] 2 S.C.R. 992 where, at para. 58, LeBel J. wrote: ...in looking for evidence that might reasonably be believed on the basis of which the authorization could have issued, the reviewing court must exclude erroneous information. However, if it was erroneous despite good faith on the part of the police, then amplification may correct this information. [17] In Araujo, LeBel J. pointed out the danger to the process of prior authorization which arises if police have, in effect, carte blanche to correct errors made in the course of obtaining a search warrant through ex post facto amplification. He said this at para. 59: The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement. Since a prior authorization is fundamental to the protection of everyone's privacy interests..., amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham. On the other hand, to refuse amplification entirely would put form above substance in situations where the police had the requisite reasonable and probable grounds...but had, in good faith, made some minor, technical error in the drafting of their affidavit material.... [18] I am satisfied, and indeed it is not and cannot seriously be contended otherwise, that the error in question was made in good faith. Given that it was a single error in an otherwise detailed and balanced description of the officer's investigation, I am satisfied that it can be corrected on amplification without putting the prior authorization process at risk. To put rectification of an error of this sort beyond the reach of correction through amplification would be, I am satisfied, to put form over substance. The issue that remains is whether, once corrected, the information to obtain is capable of grounding the issuance of the warrant. I will deal with that issue below. [19] On behalf of the accused, Mr. Jensen argued that even if the error can be corrected on amplification, the error was not detected by the Judicial Justice of the Peace and, as presented, the material could not have grounded a reasonable belief in the existence of evidence at the time the warrant was issued. He argues that, particularly when viewed in light of the eight or nine minutes the Judicial Justice of the Peace spent reviewing the material, what must have occurred was a mere rubber stamping of the material and that is not correctable on amplification. [20] I do not think it follows from the proven circumstances that the Judicial Justice of the Peace did not review the material, or even that he or she did not detect the error. The information to obtain discloses that the search warrant was being sought to investigate an offence the officer believed to have been committed on February 29, 2004. The information was sworn on March 1, 2004. In the course of narrating the events of his investigation, Constable Lange detailed his observations on the property in question and then deposed that "upon arrival at the Falkland RCMP detachment" he conducted a number of inquiries to determine the identity of the occupant of the residence. As noted above, those inquiries involved searches on a number of databases. The results of those inquiries were reported back to the officer by computer generated printouts which the officer appended to the information to obtain. The driver's licence inquiry indicates that it was responded to on February 29, 2004, at 11:21 p.m. The vehicle registration inquiry was responded to on February 29, 2004, at 11:44 p.m. Finally, I note that there is no such date as February 29, 2002, because 2002 was not a leap year. [21] From all of the foregoing, the Judicial Justice of the Peace may reasonably have concluded that the observations deposed to by the officer were made on February 29, 2004, and that the date which suggested otherwise was merely a typographical error. THE SUFFICIENCY OF THE GROUNDS [22] Stated in bald terms, the issue that arises on these circumstances is whether a strong smell of vegetative marijuana established to be emanating from a particular property in the middle of the winter can ground the issuance of a warrant to search that property. The test to be applied on review of a warrant is set out in R. v. Garofoli, [1990] 2 S.C.R. 1421 where Sopinka J. held on behalf of the majority of the court at para. 56: 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.... [23] If nothing else, the authorities dealing with the adequacy of the grounds for the issuance of a warrant all make clear the fact-sensitive nature of the exercise. A number of cases have commented on whether smell alone can ever be sufficient to ground the issuance of a warrant. In R. v. Monroe, [1997] B.C.J. No. 1002 Esson J.A. of the British Columbia Court of Appeal observed, in the course of considering the validity of the search warrant, at para. 24: I accept that reliable evidence of an odour of marihuana having been detected outside a building might be a sufficient basis to support the issuance of a warrant, although one would generally expect an explanation for other factors not being established.... [24] In R. v. Polashek (1999), 45 O.R. (3d) 434 the Ontario Court of Appeal was dealing with the issue of whether an arresting officer had requisite grounds to make an arrest. There the officer detected a "strong odour" of marijuana emanating from a vehicle in which the accused was the sole occupant. The officer did not see any smoke and could not tell if the odour was of burnt or unburnt marijuana. Based on the smell, the area and the time of night at which the vehicle was operated, the officer concluded he had grounds to arrest. Rosenberg J.A. said this about smell at para. 13: ...The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory, and thus largely incapable of objective verification. A smell will often leave no trace.... He carried on, however, to point out the following: ...I would not go so far as was urged by the appellant that the presence of the smell of marijuana can never provide the requisite reasonable and probable grounds for an arrest. The circumstances under which the olfactory observation was made will determine the matter.... [25] Bearing in mind the caution with which evidence of olfactory observations must be approached, the issue is whether, in the circumstances before the issuing Judicial Justice of the Peace, there was reliable evidence of a smell of vegetative marijuana, whether that smell was satisfactorily isolated to the house that the officer sought to search, and whether there was an explanation for the absence of any other indicia to support the application. More broadly put, the issue is whether these circumstances constitute a sufficient basis to issue a warrant. [26] The reliability of the evidence as to the presence of smell will be enhanced if it is confirmed by more than one person. It is not, however, in my view, necessary that there be more than one witness to a smell in order to conclude the detection has been reliably established. The information before the Judicial Justice of the Peace was to the effect that the smell of vegetative marijuana is distinctive. It is different from the smell of burnt marijuana. It is a smell that Constable Lange deposed he was very familiar with. He set out the nature of his experience in that regard and it is substantial. The smell that he detected was in no way fleeting or even "moderate". He described it variously as "a very strong, pungent smell", and "overwhelming" smell, and "a distinct pungent odour". Further indication of the strength of the smell can be inferred from the fact that when he first detected it, he was driving by the residence in his police car with the windows rolled up. [27] A further consideration relevant to the issue of reliability is the opportunity that the witness had to detect the smell. Reliability may be enhanced if the smell is detected on a number of different occasions. However, it does not follow, in my view, that a smell detected on a single occasion will necessary be insufficient. Here the officer detected the smell on only one day and over a relatively confined period of time at that. He did detect the smell on that day, however, on three separate occasions while driving by the residence. He also detected it over the course of one or two minutes while standing on the road outside the residence. [28] Given the transitory nature of smells, their mobility and the fact that they cannot be seen, it is, as the cases make plain, necessary to determine whether the evidence is such that it can reasonably be inferred that the smell was emanating from the residence sought to be searched. In residential areas, for example, where there are several or many possible sources of the odour, isolating the source can be difficult and hence the practice that is sometimes referred to as "squaring". [29] In the information to obtain the officer described in some detail both the geography of the area surrounding the house in question and the number and approximate location of all other surrounding residences or buildings. He augmented his narrative with a map which graphically shows the location of the house and the other buildings in the area. He described the strength and direction of the prevailing wind and the basis upon which he reached his conclusions in that regard. He noted that the time of year and the ambient temperature was such that the odour he smelled could not reasonably be coming from an outdoor grow-operation. There is nothing in the information to obtain which would cast doubt on the reliability of the officer's observations, nor is there any evidence by way of amplification to that effect. [30] I am satisfied that on the basis of the material in the information to obtain, the Judicial Justice of the Peace could reasonably have concluded that there was reliable evidence of a smell of vegetative marijuana emanating from the residence sought to be searched. From that information I am satisfied that the Judicial Justice of the Peace could reasonably conclude that a controlled substance may be located on the property. [31] Although I am satisfied that smell alone can ground the issuance of a warrant, as Esson J.A. pointed out in Monroe: ...one would generally expect an explanation for other factors not being established.... I turn to that issue now. [32] Unlike authorizations to intercept private communications, there is no requirement of investigative necessity for the issuance of the search warrant. While I do not take Esson, J.A. to be suggesting that such a requirement be imported into the search warrant process, the approach to investigative necessity in the context of wiretap authorizations is helpful when addressing or assessing the absence of other factors that might ground the issuance of a search warrant. In Araujo, the Supreme Court of Canada discussed the requirement of investigative necessity and held that the issue must be approached practically and with an eye to the circumstances involved. A similar approach is appropriate in the present context. [33] The authorities reveal several common indicia of grow operations that are often relied on in support of search warrants, things such as otherwise unexplained presence of condensation on windows, windows that are boarded or otherwise obscured in an unusual way, evidence developed through the use of heat seeking devices, the unusual consumption of power, frequent comings and goings at odd hours by visitors, or the presence of evidence specifically related to grow operations such as soil nutrient containers and other kinds of agricultural or electrical products related to the production of marijuana. None of these things are in the information put before the Judicial Justice of the Peace. [34] While the isolated location of the residence in this case enabled the investigator to localize the origin of the smell he detected, that same isolation, coupled with the peculiar features of the house and its yard, foreclosed, from a practical perspective, the gathering of some of the other evidence that might otherwise be expected. Given the presence of the hedge surrounding the property, observations of the windows or a closer examination of the property itself generally could not practically be made without either trespassing upon the property or potentially alerting the occupants to the police officer's presence and thereby potentially compromising the investigation. For the same reason, but perhaps to a lesser extent, the use of a heat seeking instrument would also be difficult, as would surveillance at the residence. The police could, however, have sought to obtain power consumption records. The failure to do that is not, in my view, determinative of the issue. [35] On the circumstances of this case, there is an explanation in the information to obtain for the absence of other circumstances that might otherwise be expected to support the issuance of a warrant. [36] I have considered, in addition to those mentioned above, the various cases cited by counsel. In particular, I have considered R. v. Smith, 2002 BCSC 715; R. v. Hall 2003 BCSC 1433; R. v. Hallman 2001 BCSC 1355; R. v. Cortner, [1998] B.C.J. No. 3158 (S.C.); R. v. Ademec, Unreported, Vancouver Registry, December 22, 1995 (B.C.S.C.),; and R. v. Oakley, 2002 BCSC 1837. As noted earlier, these cases illustrate the fact sensitive nature of the review process. I propose to comment on only three of them, namely, Cortner, Ademec and Oakley. The Crown relies on Cortner and Ademec as authority for the proposition that smell alone can be sufficient for the issuance of a warrant. The accused relies on Oakley for precisely the opposite proposition. [37] In Oakley, the informant relied on smell and other evidence in support of an application for a search warrant in relation to a residence. The house there in question was in a residential neighbourhood (see para. 15 of the judgment of Mr. Justice Brooke). The officer did not localize the smell to the house. Rather, he relied on his knowledge of the neighbours from which he concluded that they would not be growing marijuana. In addition to smell, the officer pointed to a variety of other circumstances some of which were simply untrue. Once the inappropriate or false material was excised from the information to obtain, the court characterized what remained as "the odour of marijuana, which was not localized to the dwelling house by any reliable evidence" (see para. 21). [38] In the result, the court concluded there were insufficient grounds to support the warrant. This case is not authority for the proposition that smell alone can never ground the issuance of a warrant. Moreover, the facts at bar are distinguishable in at least two important respects. First, there is nothing in the information to obtain in the case at bar which casts doubt on the reliability of the officer's assertions. Secondly and most significantly, the odour in the case at bar was localized to the house in question. [39] In Cortner, a sheriff attended the accused's residence to serve a document. When the accused answered the door, the sheriff noted an odour of vegetative marijuana that he described as being so strong he could almost taste it. He reported his concerns to the local police, one of whom then went to the house and also smelled vegetative marijuana. The accused argued that the search warrant was issued on the basis of smell alone and that smell alone could never be sufficient to provide grounds to support a search warrant. Corroborating evidence, it was argued, should have been required. The court concluded otherwise and found that the warrant was validly issued. [40] In Ademec, the primary ground for the issuance of the warrant was also smell. There was some evidence that one or more of the basement windows in the residence in question had been obscured in a suspicious manner. The smell was noted by two police officers. The court held that the warrant was validly issued. [41] From the foregoing I am satisfied that there is no authority for the proposition that smell alone can never ground the issuance of a valid search warrant. As with all other indicia, the validity of the warrant will turn on the specific circumstances of the case under consideration. [42] It follows also from all of the foregoing that in the specific circumstances of this case I am satisfied that the authorizing judicial official could have reasonably concluded that grounds for the issuance of the warrant existed and I am not, in the result, prepared to interfere with that decision. [43] At the outset of this voir dire, Mr. Jensen indicated that he may wish to advance an argument that the Judicial Justice of the Peace lacked the requisite independence to properly act. That argument does not, to the extent I understand it, turn on the specific circumstances of this case, but rather on the general statutory framework within which Judicial Justices of the Peace are engaged to discharge their duties. The accused invited me, with the concurrence of the Crown, to address the specific factual and legal issues relating to the issuance of this particular warrant before deciding whether he wished to advance the more general argument regarding independence. [44] Subject to any argument on the question of independence of judicial justices of the peace, I find that the warrant was validly issued. Those are my Reasons. "G.M. Barrow, J." The Honourable Mr. Justice G.M. Barrow