R v. S. was a case from the Surrey Provincial Court where the accused was charged with possession of marijuana for the purposes of trafficking along with unlawfully producing marijuana and another unrelated charge. The Prosecution’s Case The prosecution’s evidence in support of the charges had been obtained as a result of a search warrant. Search warrants are issued by a Justice of the Peace. In order to obtain a search warrant, the police provide a supporting document to the Justice of the Peace, who then determines whether there is sufficient evidence to issue a warrant. At issue in this case was whether the information provided by the police was sufficient. If not, the evidence obtained as a result of the search warrant could be ruled inadmissible by the judge. The police had obtained the search warrant on the basis of several factors in their supporting document including the following: 1) they had obtained a phone tip from an unknown source that there was a 1000 plant marijuana grow-op in the basement at the address in question; 2) that the police had inspected the exterior of the property and noted that all windows were covered with a white opaque material; 3) that the informant advised there was a hydro bypass to steal electricity for the operation; 4) that hydro inspectors had been to the property and had not detected any theft of electricity though the police document gave possible explanations why there could be electricity theft that the hydro inspectors would not detect; 5) that the informant advised there was an ozone system in place to get rid of any odours; and 6) the property was believed to be a rental property and the investigating officer’s experience was that rental properties are often used for grow-ops. The Case for the Defence On behalf of the defendant "S." Marvin Stern argued that the search warrant violated the Charter of Rights. The defence argument was that the police had failed to tell the Justice of the Peace important information that was unfavourable to the police case. This information included the following: 1) the white opaque material covering the windows may have been blinds and the police warn people not to leave their windows exposed when they are not home in order to avoid burglaries; 2) there was no evidence of hydro electricity theft although the impression left in the supporting document was that such a theft had occurred; 3) given the number of plants that were alleged to be in the house, an ozone system would not effectively mask the marijuana odour; 4) with an operation of the size alleged, the police would normally expect to see emissions of light and odour, but they found none in this case; and 5) the police did not confirm with the property owner whether or not the property was rented; 6) the omission of these unfavourable facts was deliberate, as the police officer who wrote the supporting document was trained only to include information which was favourable to the police case. The Result The trial judge concluded that not informing the Justice of the Peace of the above facts unfavourable to the prosecution’s case breached the defendant’s Charter rights in this case, and that the evidence obtained as a result of the search warrant was therefore inadmissible. The defendant was acquitted of all the charges. * To request a copy of the complete reasons for judgment in this case, please click here. Case Study Disclaimer: The case studies on this web site are intended to be illustrative of various legal situations for which Stern & Albert commonly appear as legal counsel. Every case is unique. Past results are not necessarily indicative of future results and litigation outcomes will vary according to the facts in individual cases. Back to Case Studies

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