Two acquitted over improper warrant

By Graeme McNaughton/The Oshawa Express

Two Ajax residents have been acquitted of charges stemming from the discovery of a marijuana grow-op after the judge found the warrant issued to search the home should not have been granted in the first place, as it violated the defendants’ Charter rights.

According to the reasons for judgment filed by Justice Michael Block in the Ontario Court of Justice in Oshawa, Durham police first began investigating the residence in July 2013 after receiving an anonymous tip.

Police, however, did not do their due diligence in investigating the property, Block wrote.

“It would appear that the affiant made but one surveillance visit to (the address) on July 3, 2013. The products of this visit do not corroborate the information supplied by the anonymous source except for the presence of a truck, a fact that does not support the inference of criminal activity at this address, and the observation that the basement windows were covered up,” Block writes.

Block also writes that to obtain the warrant, police showed hydro results that showed the house was consuming more power – 38.05 k/W, versus 23.13 k/W and 25.49 k/W for nearby houses – indicating that it could be a grow-op. However, Block writes, police failed to inform the justice that issued the warrant that this was an atypical spike in power usage, and that the power could have been higher as it was a multi-resident dwelling.

Other factors, such as police not contacting the property owner – which would’ve given police the opportunity to learn the house was a multi-resident dwelling – and water usage readings led to Block ruling the warrant as invalid. Because of this, the marijuana found on the property was ruled as inadmissible as evidence.

“The police cannot claim good faith when they defy this venerable body of law. In this case, there was none of the necessary diligence we must expect,” Block writes. “The corroborative efforts consisted of one visit to the target address and a very limited and wholly insufficient request for utilities data which was filtered by the affiant to support the inference sought.”

David Selby, spokesperson for DRPS, said the police will not comment on this case or the court’s decision.