COURT OF APPEAL FOR ONTARIO
Strathy C.J.O., Miller and Trotter JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Alexander Just
Appellant
Fady Mansour and Solomon Friedman, for the appellant
Allyson Ratsoy, for the respondent
Heard: March 5, 2020
On appeal from the conviction entered on May 24, 2018 and the sentence imposed on June 28, 2018, by Justice Laurie Lacelle of the Superior Court of Justice, sitting without a jury.
A. introduction
1The appellant, a vegetable farmer, was convicted of unlawful production of marijuana and possession of marijuana for the purpose of trafficking, contrary to ss. 5(2) and 7(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA).
2The appellant farmed on land he leased from another farmer. The police suspected that he was running a marijuana grow operation on the land. While investigating the appellant by traversing another part of the owner’s land, the police unintentionally trespassed onto the leased lands. The trial judge found that this infringed s. 8 of the Charter and invalidated the two warrants that the police subsequently obtained to conduct searches on the property. Applying R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, she found that the original infringement did not warrant exclusion of the evidence under s. 24(2) of the Charter.
3This appeal concerns the correctness of the trial judge’s s. 24(2) analysis. The appellant submits that the trial judge misjudged the seriousness of the breach (the first branch in Grant) and erred in the scope of her inquiry into the impact of the breach on the appellant’s Charter-protected interests (the second branch). The respondent concedes that the trial judge erred on the second branch, but contends that, on a fresh Grant analysis, the evidence should be admitted.
4I would dismiss the appeal. I accept that the trial judge’s analysis of the impact on the appellant’s Charter-protected interests was incomplete. Nonetheless, after undertaking a fresh s. 24(2) analysis, I would admit all of the evidence seized by the police, with the exception of items seized from the residence. After excluding this evidence, there still remains sufficient evidence to sustain the appellant’s convictions and I would dismiss the appeal.
B. factual background
5Martin McDonald owned 330 acres of land in South Glengarry Township. Based on a verbal agreement, McDonald leased approximately 12 acres to the appellant, consisting of “two fields right beside each other.”
6On August 20, 2012, Sgt. Lamontagne, a drug investigator with the Ontario Provincial Police (OPP), responded to a neighbour’s complaint that the appellant was growing marijuana on the property. The neighbour took the officer to the location where he claimed marijuana was being grown. Both men briefly and unintentionally trespassed on the leased lands, although no marijuana was seen.
7Some time later, an off-duty police officer was hunting on the property with McDonald’s permission. He saw some marijuana plants and passed this information onto Sgt. Lamontagne.
8In 2014, Detective Constable MacCulloch took over Sgt. Lamontagne’s position in drug enforcement. He received information from Sgt. Lamontagne that the appellant was growing marijuana. D.C. MacCulloch obtained McDonald’s consent to enter onto his property to view the leased lands.
9On August 11, 2014, D.C. MacCulloch met McDonald at the property. He planned to travel on the non-leased portion of the land to get close enough to the leased portion to see whether the appellant was growing marijuana.
10Without the aid of a map, McDonald explained to D.C. MacCulloch how he could get to a good vantage point on the non-leased lands. D.C. MacCulloch drove his truck to the area in accordance with McDonald’s instructions. McDonald did not accompany him. Unbeknownst to D.C. MacCulloch, he trespassed onto one of the leased fields. He saw 14 rows of marijuana plants.
11The investigation continued. On August 14, 2014, D.C. MacCulloch and another officer visited McDonald’s farm. From McDonald’s barn, and with the use of binoculars, the officers could see the leased fields. However, they could not identify any marijuana plants. On August 19, 2014, D.C. MacCulloch took part in a “fly over” of a number of rural properties, including the McDonald acreage. They were unable to see any marijuana plants from the sky.
12On August 25, 2014, the police obtained a general warrant under s. 487.01 of the Criminal Code, R.S.C. 1985, c. C-46, to search the leased fields. Based largely on the observations made while executing the general warrant, the police later obtained a warrant under s. 11 of the CDSA to search the outbuildings, the residence, and vehicles on the leased land.
13As a result of these two warrants, the police discovered: (a) 3775 marijuana plants in the field; (b) a marijuana processing operation in the barn (including machinery to strip the bud from marijuana plants, packaging materials, and storage freezers); (c) 185 pounds of marijuana bud and 236 pounds of marijuana “shake”, also in the barn; (d) trays of small marijuana plants in a greenhouse; and (e) a single gram of marijuana and a can of bear spray in the appellant’s house.
C. the Charter application and the trial judge’s findings
14The appellant applied under s. 8 of the Charter to exclude the evidence seized on the authority of the warrants. The defence advanced two main arguments: (1) the warrants were invalid because they were based upon a trespass; and (2) the police provided misleading content in the information to obtain the general warrant and in the information to obtain the CDSA warrant.
15The application focused almost exclusively on the marijuana discovered in the fields. None of the police officers who testified on the voir dire were cross-examined on the searches of the outbuildings or the residence. Indeed, defence counsel at trial objected to the trial judge viewing a video recording of the search of the barn and residence, claiming they were irrelevant. Defence counsel made only brief reference to the search of the residence in his submissions. That search has assumed great prominence in the appellant’s submissions on appeal.
16The trial judge provided very detailed reasons on the application: R. v. Just, 2017 ONSC 5178. They were responsive to the issues pressed by counsel. The trial judge found that the appellant’s s. 8 Charter rights were infringed as a result of D.C. MacCulloch’s trespass. This breach undermined the validity of the warrants that authorized the search of the land, the outbuildings, and the residence, rendering all of the searches warrantless. However, the trial judge rejected the submission that the police failed in their duty to make full and frank disclosure in obtaining the warrants. That issue was not pursued on appeal.
17The trial judge did not exclude any evidence under s. 24(2) of the Charter. In assessing the seriousness of the breach, the trial judge found that it was “neutral” in terms of whether it favoured exclusion. She held that the impact on the appellant’s Charter-protected interests was minimal because the breach only involved the search of fields, over which the appellant had a reduced expectation of privacy. As to society’s interest in the adjudication of the case on its merits, the trial judge held that exclusion was not warranted, based on the reliability of the seized evidence and that it was crucial to the Crown’s case.
18Following the trial judge’s decision, the appellant entered a plea of guilty to all counts on September 18, 2017. However, on May 24, 2018, the appellant successfully moved to set aside his guilty plea for the purpose of preserving his right to appeal the trial judge’s Charter ruling: see R. v. Faulkner, 2018 ONCA 174, 407 C.R.R. (2d) 59. He was found guilty based upon agreed facts and sentenced to two years’ imprisonment with various ancillary orders.
D. analysis
(1) Introduction
19The appellant submits that the trial judge misapplied Grant. He contends that the trial judge ought to have found that the first branch (seriousness of the breach) favoured exclusion. On the second branch (impact on Charter-protected interests), the trial judge erred by limiting her analysis to the search of the fields and failing to consider the searches of the outbuildings and the residence.
20The respondent disputes that the trial judge misapplied the first branch; however, it concedes that the trial judge erred on the second branch, but that her ultimate conclusion under s. 24(2) remains valid.
21Where a trial judge has considered the proper factors under s. 24(2) and has not made any unreasonable finding, “appellate courts should accord considerable deference to his or her ultimate determination”: Grant, at para. 86; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 82; R. v. Adler, 2020 ONCA 246, at para. 40; R. v. Thompson, 2020 ONCA 264, at para. 73. In R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, Doherty J.A. held, at para. 64, that this deference may be displaced by an error in principle, a palpable and overriding factual error, or an unreasonable determination. In these circumstances, an appellate court must undertake the s. 24(2) analysis anew.
22Given the Crown’s concession that the trial judge failed to fully consider the impact of the s. 8 breach on the appellant’s Charter-protected interests, a concession that I would accept, a fresh s. 24(2) analysis must be conducted. I conclude that, with the exception of the items seized from the residence, all of the evidence should be admitted.
(2) The Grant Framework
23The trial judge commenced her s. 24(2) analysis by outlining the general approach mandated by Grant. As she said, at paras. 35-36:
Following consideration of these lines of inquiry, a trial judge must "weigh the various indications". Ultimately, the balancing inquiry is qualitative in nature and not to be subjected to a mathematical formula. That is, it is not simply a question of whether the majority of the relevant factors favour exclusion or inclusion in a particular case. The ultimate issue is whether, considering all the circumstances, on balance, the admission of the evidence would bring the administration of justice into disrepute: see Grant at paras. 85-86, and 140.
To the extent that a general rule could be formulated, the Supreme Court provided the following guidance in Grant at para. 127: where reliable evidence is discovered as a result of a good faith infringement that did not greatly undermine the accused's protected interests, the trial judge may conclude that it should be admitted under s. 24(2). On the other hand, deliberate and egregious police conduct that severely impacted the accused's protected interests may result in exclusion, notwithstanding that the evidence may be reliable. [Emphasis added.]
24The trial judge then addressed the three branches in Grant.
(a) The Seriousness of the Breach
25As noted already, the trial judge made detailed findings on the evidence heard on the voir dire. A major focus of the evidence, and the trial judge’s reasons, was on the August 11, 2014 meeting of D.C. MacCulloch and McDonald at the property and the consequent trespass. I set out her findings in summary form:
a. In terms of the extent of the trespass, in terms of distance, the trial judge found that D.C. MacCulloch was, “well within the parcel of land leased by [the appellant]. It was not on the border, or the periphery, of the rented parcel”: at para. 8.
b. “On the totality of the evidence, I accept that D/Cst MacCulloch made inquiries about where the rented parcel of land was located and that he was given some direction from Mr. McDonald about how to get there”: at para. 47. The trial judge also accepted the “sincerity of his belief” that he was not trespassing at the time he made his observations: at para. 48.
c. Noting that the lease of the lands was based on an oral agreement between the appellant and McDonald, the trial judge found that the police “cannot be faulted” for having relied on Mr. McDonald’s direction as to the location of the leased land, nor would this have been clarified by “other investigative searches.” The trial judge also said, “I find that the police acted in good faith in relying on the description given by Mr. McDonald”: at para. 49.
d. On the other hand, the trial judge found that, had D.C. MacCulloch been more precise in questioning McDonald, he likely would have obtained a better description. Moreover, he could have asked Mr. McDonald to accompany him onto the land. The trial judge concluded that “the importance of respecting the boundary of the rented land was not at the forefront of his considerations when he obtained directions from Mr. McDonald about how to make his way to the rented parcel. I find that if the officer had been more focused on the accused’s privacy interests at this stage, and more careful about how he approached the rented portion of the land, the breach could have been avoided”: at para. 50.
e. The trial judge found, “While that belief was mistaken, I accept that it was honestly held. I find that the conduct of D/Cst MacCulloch in trespassing on the accused's rented land was at most the product of carelessness in not obtaining clearer instructions about the boundary of the rented parcel. I would characterize it as a breach in the middle range of gravity”: at para. 51. [Emphasis added.]
26The trial judge’s findings cut both ways in terms of the seriousness of the breach. On the one hand, she found that D.C. MacCulloch did not have the appellant’s privacy in the forefront of his mind, even though he met McDonald at the property and received directions from him. On the other hand, the trial judge found that D.C. MacCulloch honestly believed that he had avoided trespassing on the leased lands during this part of his investigation. I note that the trial judge found McDonald’s evidence was “somewhat confusing” concerning the direction he provided to D.C. MacCulloch that day: at para. 47.
27The trial judge also considered the event from two years earlier when Sgt. Lamontagne was led astray by the appellant’s neighbour who had complained about marijuana being grown on the leased property. The trial judge found that this earlier trespass was brief and inadvertent, and that the officer’s decision to have the neighbour accompany him was a “good faith effort”: at para. 56.
28After considering these factors and others, the trial judge summarized her conclusions on the seriousness of the breach, at para. 58:
In summary, with respect to the seriousness of the police conduct in this case, errors were made in this investigation and the accused's rights were breached. I am not prepared to characterize any of the police conduct as having been flagrant, deliberately violative of the accused's rights, or in bad faith. While these findings are not required before a court may dissociate itself from police conduct, even when I consider the cumulative impact of the conduct and the mid-level severity of the breach by D/Cst MacCulloch, in my view the conduct at issue here is not such that the court must disassociate itself. This factor in the Grant analysis does not clearly favour exclusion or admission of the evidence. It is, in effect, neutral. [Emphasis added.]
29In reaching her decision on this branch of the Grant framework, the trial judge relied on R. v. Lauda (1999), 1999 CanLII 970 (ON CA), 45 O.R. (3d) 51 (C.A.). The trial judge recognized that Lauda was a pre-Grant decision. As in this case, the police in Lauda trespassed on farmland that Lauda leased from the owner. Unlike this case, the police did not have the owner’s permission to be on the land in the first place. Because the police in Lauda were involved in a marijuana eradication exercise, they did not believe they required a warrant to search the land or the house on the land. They were wrong. This court found that the police infringed Lauda’s s. 8 rights. On the issue of seriousness of the breach, while the court was unable to find that the police acted in good faith, it was not prepared to find bad faith. Moreover, the court declined to find that the breach was flagrant, wilful or deliberate: Lauda, at paras. 87-89.
30The appellant submits that the trial judge made numerous errors in assessing the serious of the breach, none of which I find persuasive.
31First, the appellant submits that the trial judge was wrong to rely on the pre-Grant decision in Lauda in gauging the seriousness of the breach. I disagree. Recognizing that Lauda preceded Grant, the trial judge did not treat it as binding authority; she merely used it as a frame of reference for evaluating the seriousness of the breach. In my view, Lauda continues to give guidance in assessing the blameworthiness of police conduct in this context.
32The appellant contends that the trial judge did not give proper effect to her finding that D.C. MacCulloch’s trespass was not minimal and that he strayed well onto the leased lands when he made his initial observations. The trial judge was not required to measure the seriousness of the breach by the foot or yard. She correctly focused on the officer’s degree of blameworthiness. In hindsight, perhaps the officer could have obtained a map. He might have asked McDonald to accompany him onto the leased lands (although it is not known whether McDonald would have agreed). To the extent that D.C. MacCulloch’s topographical incursion was serious, it was mitigated by his genuine efforts to follow McDonald’s direction.
33Contrary to the appellant’s submissions, the trial judge did not err in failing to find “bad faith” on the part of the officers. Nor did she make the mistake of equating a lack of bad faith with the presence of good faith: Grant, at para. 75. Her further conclusion that the conduct was not flagrant or deliberately violative of the appellant’s rights was amply supported by the evidence.
34The appellant argues that the trial judge erred in not considering the “multiple trespasses” on the leased property as indicative of a pattern of abuses by the police: see R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 88; R. v. Strauss, 2017 ONCA 628, 353 C.C.C. (3d) 304, at para. 53. Again, I disagree. The brief trespass in 2012, committed two years earlier by a different officer who was no longer involved in the investigation of the appellant, was minor and inadvertent. It hardly formed a pattern for the purposes of this Grant factor.
35More generally, the appellant submits that it was improper for the trial judge to conclude that the seriousness of the breach was “neutral”, favouring neither admission or exclusion. I disagree. Although the overall Grant analysis forces a trial judge to make a binary decision – either the exclusion or the admission of the evidence – this is not at each stage. The overarching question is whether the administration of justice would be brought into disrepute by the admission of the evidence. As Watt J.A. held in R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, at para. 88: “Section 24(2) eschews bright line or per se rules in favour of a contextual, fact-specific assessment.”
36In my view, the trial judge was entitled to characterize the seriousness of the breach in the manner that she did. With the exception of the search of the residence, the trial judge’s conclusion that the seriousness of the breach was a “neutral” factor supports her overall analysis.
37However, in undertaking a fresh s. 24(2) analysis, I would go further. With respect, the trial judge’s conclusion that the seriousness of the breach was “in the middle range of gravity” was overly generous to the appellant. The trespass was inadvertent and brief. It was an innocent mistake based upon the officer’s reasonable reliance on McDonald’s directions about how to navigate a property that had been in his family for decades. For the reasons I have outlined above, I conclude that the breach was not serious. It did not favour exclusion.
(b) Impact on Charter-protected Interests
38Both parties agree that the trial judge erred in applying this branch of the Grant framework by restricting her analysis to D.C. MacCulloch’s trespass and not considering the impact of the subsequent searches of the outbuildings and the appellant’s residence: R. v. Dhillon, 2010 ONCA 582, 260 C.C.C. (3d) 53, at paras. 55-56; see also McGuffie, at para. 70, in which the trial judge failed to conduct any analysis of the impact on the appellant’s Charter-protected interests.
39The trial judge referred to the residence at two points in her reasons. At para. 61, she found:
I find that the search which occurred during D/Cst MacCulloch's trespass did not engage the highest of privacy interests and was minimally intrusive. This was not a search of the accused's home, or his person, but of rented farmland. Nor did this search invade the accused's privacy in regards to private information. [Emphasis added.]
40The trial judge compared this case to Lauda, and said, at para. 63-65:
This analysis applies wholly to the facts here. In that regard, I accept the uncontradicted evidence that there were no signs or barriers erected on the property to alert anyone who might come upon it that the person who controlled the property was asserting a privacy interest. The property, while hidden from public view due to its location on the MacDonald [sic] farm, was not inaccessible to persons on the farm. This included PC Robertson, who over the time he hunted on the farm had occasion to notice workers in the fields rented by the accused and wave at them. Mr. MacDonald [sic] had also at least once travelled to the area of the rented property to see what a garden of that size would look like, and made easy observations of the fields.
I also accept that it was the accused who developed the pathways in and out of the fields and that he also used the land to farm vegetables. He made real and extensive use of the property over a number of years. His privacy interest was not trifling. All the same, in the totality of the circumstances, I find that the accused's expectation of privacy in the contents of his rented land was not high on the privacy scale.
I also find that the search conducted by D/Cst MacCulloch was minimally intrusive. It consisted of his visual observations of an open field. It did not involve invasive investigative techniques. It did not involve the accused's bodily integrity, his residence, or core biographical information. The search had a minimally intrusive impact on the accused's privacy interests. [Emphasis added.]
41The appellant does not take issue with the trial judge’s assessment of the appellant’s privacy interests in the fields. This conclusion is well-supported by the record. In Lauda, Moldaver J.A. attributed a low expectation of privacy in the fields that were searched. As he said at paras. 92-93:
[The] level of privacy attaching to the cornfield does not approach that of a private dwelling. A field is obviously more exposed to public intrusion than a home; steps taken by property holders to exclude the public from open fields will not always prove successful. Indeed, as the evidence in this case reveals, Sergeant Cardwell observed hunters on the property before giving the command to eradicate the marijuana.
It follows, in my view, that although the appellant was entitled to assert a privacy interest in the leasehold property, his expectation did not measure high on the privacy scale. This too serves to mitigate the seriousness of the violation. [Emphasis added.]
42The Crown accepts the appellant’s submission that the trial judge erred in failing to consider his privacy interests that were implicated by the search of the barn and residence. However, the Crown submits that the result would have been the same under s. 24(2).
43It is understandable why the trial judge took such a narrow approach to this question. This was the manner in which the case was litigated. The application to exclude evidence was focused on the events leading up to the trespass on the leased lands. The discovery of the 14 rows of growing marijuana formed the core of the case against the appellant. This evidence alone was sufficient to establish the appellant’s guilt on both charges. This is no doubt why counsel focused their submissions on the trespass onto the leased property.
44However, there was a broader context. Other breaches cascaded from the initial breach. The police obtained a general warrant and a CDSA warrant and conducted the searches on the outbuildings and the residence, as described above. Based on the connection of these warranted searches to the trespass, the warrants became invalid. The evidence obtained upon execution of the warrants was also “obtained in a manner that infringed or denied” the appellant’s Charter rights: see R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 50-61.
45The places that were searched – the fields, the barn, and the residence – were associated with different expectations of privacy. As noted above, in the discussion of Lauda, the appellant’s privacy interests, and the consequent impact of the Charter breach, was minimally implicated by the search of the fields where the growing marijuana was found.
46At the other end of the spectrum, the law has long recognized clearly that a search of a residence involves a serious invasion of privacy interests: see Grant, at para. 113; Côté, at para. 85; R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at para. 148; Dhillon, at para. 56; and Lauda, at paras. 97-98, 102.
47The appellant’s expectation of privacy in the barn and greenhouse received little attention on the application. As noted in para. 15, above, none of the officers who testified on the application were asked about these buildings. Counsel made no submissions about the level of privacy to be reasonably enjoyed in these structures. The matter was not clarified further by submissions on appeal. However, as a matter of common sense, the privacy interest in a barn and greenhouse is less than a house, and perhaps greater than the leased fields.
48The trial judge should have considered these features of the Charter infringements under this branch of Grant. Relying on Pino, the appellant submits that the impact on the appellant’s Charter-protected interests is evaluated solely based on the expectation of privacy the appellant enjoyed in his residence. That is, he attempts to isolate a single link in a chain of events – the search of the residence – and blanket the entire sequence with the heightened expectation of privacy that is inherent in this part of search. I disagree with this approach.
49Pino does not support the appellant’s position. That case is principally about the reach of the “obtained in a manner” threshold in s. 24(2). In this case, there is no question that all of the evidence that was seized was “obtained in a manner” that infringed the appellant’s Charter rights. This case involves the next step in the analysis.
50A single Charter breach, especially under s. 8, may impact on more than one Charter-protected interest. This is demonstrated in other cases. In R. v. Li, 2013 ONCA 81, 296 C.C.C. (3d) 408, leave to appeal refused [2013] S.C.C.A. No. 142, also a grow operation case, a s. 8 breach had been established by virtue of the fact that search warrants had been issued by a judge who lacked the authority to do so. Nonetheless, the trial judge did not exclude the evidence under s. 24(2). Both holdings were upheld on appeal. In addressing s. 24(2), Watt J.A. said the following, at para. 110:
The impact of the unconstitutional conduct on the appellant's Charter-protected interests was not significant, despite the fact that one of the searches involved a residence. The initial conduct consisted of observations of activities on property. Some of these activities could be seen from a public road. The residential search involved a home of which the appellant was neither the owner nor an occupant, thus one in respect of which he had, if any, a reduced expectation of privacy. The police conduct had no impact on the appellant's bodily integrity or personal dignity. This line of inquiry favours admission of the search evidence. [Emphasis added.]
51This case shares some of the same features as Li, although I acknowledge that the appellant in this case resided at the house that was searched.
52This differential approach was also reflected in Lauda. After considering the different privacy interests implicated by the places that were searched, Moldaver J.A. held that the fruits of the fields search should be admitted (Lauda, at paras. 100-101), whereas substances seized from the accused’s residence should be excluded (Lauda, at paras. 102-103).
53As I have already said, the trial judge should have considered the broader impact of the Charter. However, in fairness to the trial judge, defence counsel hardly focused at all on this aspect of the case. Instead, he placed great weight on his submission that the police were deceptive in obtaining the search warrants. This was rejected by the trial judge. Counsel’s other main submission – that D.C. MacCulloch’s trespass amounted to a wilful and flagrant breach of s. 8 – also failed to find traction with the trial judge. The focus on appeal, on the broader implications of the s. 8 breach, represents a major change in strategy.
54A fresh Grant analysis must consider the impact of the subsequent searches. Neither the record in this case, nor the jurisprudence, points clearly in one direction about the nature of the privacy interest the appellant enjoyed in the barn and greenhouse. On the other hand, the search of the house clearly had the greatest impact on the appellant’s Charter-protected interests. But the search of the house was only one part of the picture in this case. If the point had been pressed in front of the trial judge, she likely would have concluded that the impact of the residence search was so serious that it favoured exclusion of that search. That is the conclusion that I would reach. However, the impact of that search does not overwhelm the overall impact of the searches of the other locations. It is merely part of the constellation of factors to consider in evaluating the overall impact of the Charter-infringing conduct of the police. In my view, the application of this branch favours exclusion of the search of the residence; it does not favour the exclusion of any other evidence.
(c) Society’s Interest in Adjudication on the Merits
55The trial judge accurately identified the considerations that are relevant to this branch of Grant. She rightly considered that the evidence seized was reliable, the Charter infringement did not attenuate its reliability, and the evidence was essential to the Crown’s case: at para. 74.
56The trial judge gave less weight to the seriousness of the offence. On the one hand she observed that, in the hierarchy of drug offences, marijuana is less serious than other drugs; on the other, the appellant was involved in “a significant commercial grow-operation”: at para. 75. The trial judge determined that this factor favours admissibility because “[a]dmitting the evidence would enhance the truth seeking function of the trial”: at para. 76.
57I adopt the trial judge’s conclusion that this factor favours the admission of the evidence.
(d) The Final Balancing
58Grant requires a careful balancing of the three factors discussed above. As McLachlin C.J. and Charron J. held, at para. 86: “No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible.” In R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 36, McLachlin C.J. said that the balancing is “a qualitative one, not capable of mathematical precision”.
59As discussed above, this nuanced approach does not require that all evidence seized as a result of a Charter infringement be treated in the exact same way. In Manchulenko, at para. 76, Watt J.A. said: “[T]here is no per se or bright line rule that mandates exclusion of all evidence that follows a Charter infringement.” Consequently, “some evidence may be excluded as a result of a particular breach, and other evidence admitted”: The Law of Evidence, at p. 405.
60It is important to consider the big picture in this case. At the beginning of an investigation into what turned out to be a major grow operation, D.C. MacCulloch made a mistake – he strayed onto a leased farmer’s field when he should not have. This was after obtaining directions from the owner of this vast 330-acre property about how to get a look at the suspected grow operation without trespassing. The officer did not realize that he had trespassed until the matter was litigated. In the meantime, he had obtained not one, but two judicial authorizations to search the fields, and then, separately, the buildings associated with the leased land.
61On balance, the administration of justice would not be brought into disrepute by the admission of the evidence gathered from the fields and the outbuildings. The enhanced impact on the appellant’s privacy interests in his residence requires that evidence seized from that location be excluded. But even with this evidence excluded, the appellant’s convictions are still supported by the evidence that was properly admitted.
E. disposition
62I would dismiss the appeal against conviction. Although the appellant originally sought to appeal his sentence, it was not pursued in writing or during the oral hearing. Accordingly, it is dismissed as abandoned.
Released: “GRS” June 10, 2020
“Gary Trotter J.A.”
“I agree. G.R. Strathy C.J.O.”
“I agree. B.W. Miller J.A.”
