CITATION: R. v. Just, 2017 ONSC 5178
COURT FILE NO.: 39700-17-51
DATE: 20170901
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Alexander Just
Defendant
Paul Syrduk and M.Dunn, counsel for the Crown
Leonardo S. Russomanno, counsel for the Defendant
HEARD: July 31st, August 1st, and August 2nd, 2017
Ruling on pre-trial Application
lacelle, J.
Introduction
[1] Alexander Just is a vegetable farmer who lives in a rural area. He is alleged to have unlawfully produced and trafficked in marijuana. These charges arose following an investigation after police discovered the cultivation of marijuana on farm land the accused was renting from another farmer.
[2] The marijuana was discovered on the farm of Marty MacDonald. Police first became aware of the marijuana plants on his farm in late summer of 2013. An off-duty police officer (PC Robertson), who was a friend of Mr. McDonald’s and routinely hunted on the acreage owned by Mr. McDonald, came across some plants he suspected were marijuana while he was out scouting for deer. This officer passed on the information to another officer in the drug enforcement unit (Sgt. Lamontagne). The area where the plants were discovered was added to the list of eradication targets for that September. No further investigation occurred at the time.
[3] In early August of 2014, D/Cst MacCulloch took over Sgt. Lamontagne’s position in the drug unit. He received information from Sgt. Lamontagne to the effect that the accused was renting land from Mr. McDonald and that it was being used to grow marijuana. D/Cst MacCulloch decided to investigate further. He knew Mr. McDonald personally and obtained his permission to enter onto his land.
[4] Once on the land, D/Cst MacCulloch went to an area that he says he believed was on the border of the fields rented by the accused. The accused says the officer was in fact on his rented land. Regardless, from this vantage point, D/Cst MacCulloch made observations of an area containing fourteen rows of marijuana plants. This observation was included in the Information to Obtain (ITO) for a general warrant to search. After this warrant was obtained, a further search warrant was obtained and executed on the accused’s personal property as well as on the McDonald farm. This led to the seizure of the evidence at issue in this case and the arrest of the accused. The evidence included over 3700 marijuana plants, 185 pounds of marijuana bud, 236 pounds of marijuana “shake”, as well as machinery used in the processing of the marijuana plants.
The positions of the parties
[5] The accused says that the evidence obtained by police as a result of their investigation should be excluded from the trial. He argues that the investigation is founded on the warrantless search of D/Cst MacCulloch during his trespass onto the farmland rented by the accused which violated the accused’s rights under s. 8 of the Charter. Once the observations from this search are excised from the ITO for the general warrant, insufficient grounds remain for its issuance. Without the observations made pursuant to the general warrant, the further search warrant could not have been obtained. The accused also argues that the court should quash the warrant given the failure by police to be full, frank and fair in the ITO, and because they have deliberately misled the issuing justice. Given the seriousness of the breach of the accused’s rights and other police conduct which showed a pattern of disregard for his rights, the accused argues that the evidence should be excluded pursuant to s. 24(2) of the Charter.
[6] While the Crown conceded in written correspondence following the hearing of the application that the accused did have a reasonable expectation of privacy in the rented farmland, the Crown maintains that all the search warrants issued in this case were valid. The Crown argues that even if the observations following any trespass by police are excised from the ITO for the general warrant, sufficient information remains to justify its issuance. In the event the court finds the accused’s Charter rights were breached, the Crown says that the s. 24(2) analysis favours admitting the evidence at trial.
The issues in this case
[7] The issues to be decided in this case are as follows:
Did police breach the accused’s s. 8 Charter rights by entering onto his leased land?
If police breached the accused’s s. 8 rights, could the general warrant have been issued without the information in the ITO that was obtained in violation of the accused’s s. 8 rights?
Did police fail in their duty to make full, frank and fair disclosure, and deliberately mislead the justice in the ITO?
In the event of a breach of the accused’s Charter rights, should the evidence be excluded under s. 24(2) of the Charter?
Issue #1: Did the police breach the accused’s s. 8 Charter rights by entering onto his leased land?
[8] Extensive evidence was presented during the voir dire about the location of D/Cst MacCulloch as he travelled across Mr. McDonald’s farmland and where he made his initial observations of the marijuana plants on the accused’s rented farmland. That evidence, and particularly the evidence of Mr. McDonald on this issue which I accept, satisfies me that D/Cst McCulloch was on the portion of the land rented by the accused when he made his observations. Based on this evidence, I conclude that D/Cst MacCulloch was within a “wind row” adjacent to the marijuana field at the time of his observations of what was in the field, and that this location was well within the parcel of land leased by the accused. It was not on the border, or the periphery, of the rented parcel.
[9] There is no dispute that the accused had a reasonable expectation of privacy in the land he was leasing (see R. v. Lauda, 1999 CanLII 970 (ON CA), [1999] O.J. No. 2180 (C.A.) at paras. 72-76). Therefore, when police entered onto that land without a search warrant, the subsequent observations made constituted an unreasonable search, and the accused’s rights under s. 8 of the Charter were breached.
Issue #2: Could the general warrant have been issued without the information in the ITO that was obtained in violation of the accused’s s. 8 rights?
The legal principles
[10] A judge conducting a review of the sufficiency of an ITO does not substitute his or her view for that of the justice who issued the warrant. The task of the reviewing judge is to consider whether the record before the issuing justice contains sufficient credible and reliable evidence to permit the issuance of the warrant, once the ITO is “trimmed of any extraneous or unconstitutionally obtained information, but amplified by evidence adduced on the hearing to correct minor or technical errors in drafting the ITO”: see R. v. Mahmood, 2011 ONCA 693 at para. 99; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at paras. 40-42; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at paras. 54 and 59.
[11] Information obtained unconstitutionally must be excised from the ITO and what remains, as amplified on review, must be assessed to determine whether the warrant could have issued: Mahmood at para. 116, Araujo at para. 52. Prior unconstitutional conduct may also be relevant to the decision about the admissibility of evidence obtained by later Charter infringement where there is a sufficient nexus between the prior infringement and the later gathering of evidence: Mahmood at para. 117; R. v. Grant, [1993] S.C.R. 223 at p. 251.
[12] Once the record for the review is determined, the reviewing judge must undertake a contextual analysis that examines whether the ITO contains sufficient reliable information (that might reasonably be believed) in the totality of the circumstances to support the issuance of the warrant: Araujo at para. 54.
The principles applied
[13] As I have indicated, the police trespassed on the accused’s rented land when the observations were made of marijuana growing in the field, and his rights under s. 8 of the Charter were violated. This was unconstitutional conduct and all evidence flowing from it is excised from the ITO for the purposes of my review.
[14] The Crown maintains that the general warrant could properly have been issued nevertheless. He points to subsequent observations made by police a few days later from a different point of land on Mr. McDonald’s farm, as well as observations made during aerial surveillance, as providing sufficient grounds for the warrant. No argument was made that the record should now be amplified.
[15] I do not agree that the general warrant could have issued once the evidence flowing from the trespass on the rental land is excised. The observations made during the trespass onto the accused’s rented land were central to the grounds for the warrant. Those observations provided the only clear evidence that marijuana was the plant being grown in the area rented by the accused. D/Cst MacCulloch confirmed that his first visit to the McDonald farm and the observations of the accused’s leased fields were the only opportunity he had to make direct observations that marijuana plants were growing. He could not discern what was growing in the field on the subsequent trip to the farm with D/Cst MacPherson or during the aerial fly-over.
[16] The only other information that suggested that the plants on the McDonald farm were marijuana came from the conversation between Sgt. Lamontagne and PC Robertson set out in the ITO. The language used in the ITO is that PC Robertson “observed anomalies amongst what was supposed to be a vegetable field”, and that he “suspected it to be a marihuana grow operation”. The information provided by PC Robertson to Sgt. Lamontagne was later described in the ITO as “display[ing] suspicious circumstances and signs of a grow operation”. The language used throughout is that of suspicion, and falls short of establishing the affiant’s belief, or even PC Robertson’s belief, that marijuana was being grown by the accused. Leaving aside the additional issue of whether PC Robertson was also trespassing on the land rented by the accused when he made his observations while hunting in 2013, I am not satisfied that the information gleaned from PC Robertson was sufficient, even considered alongside the remaining information in the ITO, to amount to reasonable grounds to believe, and not just suspect, that an offence was being committed by the accused in August of 2014.
[17] I further find that the observations that were made by D/Cst MacCulloch subsequent to the trespass on August 11, 2014, did not suffice on their own, or collectively, when con-sidered in the context of all the information in the ITO, to provide the affiant with the “reasonable grounds to believe” necessary to justify the issuance of the general warrant.
[18] The general warrant led to the observations that provided the grounds for the subsequent search warrant in relation the accused’s residential property and the rented farmland. The grounds for both warrants were thus tied to the illegally obtained evidence from the unlawful trespass by D/Cst MacCulloch. This rendered the subsequent searches warrantless, unreasonable, and in violation of the accused’s s. 8 Charter rights.
Issue #3: Did the police fail in their duty to make full, frank and fair disclosure, and deliberately mislead the justice in the ITO?
[19] The accused argues that there were omissions in the ITO, as well as misleading or incorrect information, and seeks to have the subsequent warrants quashed based on the court’s residual discretion. He says the police conduct was deliberately misleading and has undermined the court’s function. I take the accused’s position on this issue to be that in addition to the allegation of deliberate deception, the failure of the affiant to be full, frank and fair is so egregious that it amounts to a subversion of the pre-authorization process.
The legal principles
[20] An applicant for a search warrant has a duty to make full, frank and fair disclosure of all material facts in an ITO: Araujo at para. 46; Morelli, at paras. 44, 55 and 58-60. The affiant must also not omit material facts. As indicated in Morelli at para. 58, the affiant must be careful not to “pick and choose” among the relevant facts in order to achieve the desired outcome. The informant’s obligation is to present all material facts, favourable or not” [emphasis in original].
[21] With respect to omissions of material facts, in “most cases, the absence of a reference to something not seen, not heard, or not done, will lead to the sensible inference that whatever it is was not seen, not heard or not done”: R. v. Nguyen, 2011 ONCA 465 at para. 50. Further, as the court confirmed in Nguyen at para. 51, the obligation of the affiant is not to commit the error of material non-disclosure:
“Materiality” is the something that bears on the merits or substance of the application rather than on its form or some other inconsequential matter [citations omitted]. There is no obligation on applicants to anticipate, and to explain away in advance, every conceivable indicia of crime they did not see or sense and every conceivable investigative step they did not take at the time …
The court’s residual discretion
[22] While a failure to be full, frank and fair may undermine the issuance of the warrant on review, a warrant may also be quashed even where grounds remain for its issuance “where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like”: R. v. Paryniuk, 2017 ONCA 87 at para. 69; R. v. Kesselring, 2000 CanLII 2457 (ON CA), [2000] O.J. No. 1436 (C.A.) at para. 31. The threshold for setting aside a warrant in these circumstances will be high: Paryniuk at para. 62. The conduct necessary to engage this discretion must be “so subversive of the search warrant process as to, in effect, amount to an abuse of process”: R. v. Vivar, 2009 ONCA 433 at para. 2, Paryniuk at para. 61. The authorities limiting the availability of a stay of proceedings to the clearest of cases may be applicable: Paryniuk at para. 65.
The principles applied
[23] I am not satisfied that police did engage in deliberate deception in preparing the ITO, or that the affiant was less than full, frank, and fair. I will deal with the deficiencies the accused raises in turn.
[24] The accused says that the information PC Robertson provided to Sgt. Lamontagne about his observations of marijuana plants while scouting for deer were inaccurately stated. In particular, while PC Robertson testified that he had not mentioned the accused’s name to Sgt. Lamontagne, the ITO suggests that the grow observed by the officer was on the accused’s rented portion of the property. The accused says this was a deliberate attempt to mislead.
[25] I am not persuaded that it is. I accept that what was included in the ITO was the information given by Sgt. Lamontagne to D/Cst MacCulloch. There is no material discrepancy between these officers about what was communicated by Sgt. Lamontagne to D/Cst MacCulloch.
[26] I further find that PC Robertson and Sgt. Lamontagne have different recollections of a conversation they had a number of years ago. The evidence of PC Robertson is that he was aware that someone had rented land from Mr. McDonald. At one point in his evidence, he said that he had met the accused once with Mr. McDonald, and that Mr. McDonald had told him that the accused was going to be the “boss of the renting”. Later in his evidence when asked if Mr. McDonald had used the accused’s name when he told him about the rental of his land, PC Robertson said he could not recall if he used the exact name. While PC Robertson says he did not pass on the name of the accused to Sgt. Lamontagne, this seems likely to be a failure to recall the specifics of the conversation.
[27] I prefer the evidence of Sgt. Lamontagne on this issue for several reasons. While neither officer made a note of their conversation, Sgt. Lamontagne received it in his capacity as a drug enforcement officer whereas PC Robertson made clear that he simply did his “due diligence” by passing along the information he obtained when off-duty. PC Robertson gave every indication he wanted nothing more to do with any further effort to address the issue, and in these circumstances, he had arguably less reason to recall the details of the conversation with Sgt. Lamontagne. I also consider that Sgt. Lamontagne said that he viewed a google map on his computer with PC Roberston when they discussed his observations which permitted Sgt. Lamontagne to identify the approximate location of the grow observed by PC Roberston. Sgt. Lamontagne further acted on the information and added the property to his list of eradications for 2013. The eradication process did proceed with a fly-over of the property, and the general timeline for the eradication season that year was recorded in Sgt. Lamontagne’s notes. Because of his notes, he places the conversation in 2013, and not 2012 as did PC Robertson.
[28] In all the circumstances, I accept that Sgt. Lamontagne has a better recollection of the conversation. I also accept his evidence that he was given the name of the accused in that conversation with PC Roberston. It makes sense that if PC Robertson knew the accused was renting land or responsible for rented land in the vicinity of where he observed the marijuana plants that he would pass this information on to his colleague, since it is clear he believed someone other than Mr. McDonald was responsible for growing the plants. Given the totality of the evidence from PC Roberston on this issue, I am not satisfied that he did not pass on the name of the accused to Sgt. Lamontagne.
[29] The accused also complains that the ITO included information from the “Niche RMS” police database but failed to provide the complete facts because it did not also clarify that the facts outlined in the history from that database had never led to charges, let alone convictions. In Paryniuk, the court found that the failure of the affiant to say that the accused had never been convicted in respect of allegations referenced in the ITO that had been obtained from a police database was a “serious deficiency”. However the court also found that the obvious lack of reference to the fact that the accused had been convicted in relation to the facts in each entry “could scarcely have gone unnoticed”. It was also clear from the ITO that the police database at issue included records arising from “mere criminal charges”: see paras. 78-79.
[30] Similarly here, while I agree that an affiant should be crystal clear about the outcome of any allegations of prior criminal conduct contained in an ITO, I also consider that the judicial reader of any ITO for a general warrant to search is informed about the difference between suspected activity and proven conduct. In this case, the ITO also disclosed that the Niche RMS (“Records Management System”) compiled information collected during the course of police during the course of investigations. The entries referenced in the ITO expressly indicate that the accused was suspected of certain criminal activity. As stated in Nguyen, in most cases, the absence of a reference to something done will lead to the sensible inference that whatever it is was not done. I find that to be the case here, where there is reference to suspected activity, but no suggestion of charges laid or convictions registered. In the circumstances, I do not agree that the information contained in the ITO would mislead a judge to believe the conduct described was anything more than suspicion. I also do not find that the officer intended the omission of clarifying information to mislead the justice.
[31] Additional deficiencies were identified by the accused in his Notice of Application, but not argued during submissions at the close of the hearing. The accused has not satisfied me that any of these additional complaints demonstrates that D/Cst MacCulloch was not full, frank and fair in the preparation of the ITO. As regards the complaint that a conversation between D/Cst MacCulloch and Mr. MacDonald were not included in the ITO, the complaint is that this omission resulted in exculpatory information about the accused’s vegetable farming not being placed before the justice. However, the ITO does include reference to Mr. MacDonald telling D/Cst MacCulloch that the accused told him he was using the land to grow vegetables. It also references the officer’s own observation of vegetables being grown - he states in the ITO that the marijuana plants he observed were in the “vegetable growing area”. In the circumstances, I am not persuaded that D/Cst MacCulloch’s failure to outline the entirety of his conversation with Mr. MacDonald amounted to an attempt to mislead the justice, or that he was less than full, frank and fair. A more detailed account of that conversation would not have changed anything since it would not have undercut the grounds presented in the ITO: Nguyen, at para. 55.
[32] In summary, I am not persuaded that D/Cst. MacCulloch failed in his duty to be full, frank and fair, or that he engaged in deliberate deception in the ITO.
Issue #4: Should the evidence be excluded under Section 24(2) of the Charter?
The legal principles
[33] R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 sets out the current approach to the analysis of the admissibility of evidence under s. 24(2) of the Charter. The re-iteration of the purpose of s. 24(2) at paras. 67-70 is worth repeating:
The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. …
The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.
Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.
Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.
[34] The court confirmed that a trial court should consider and balance three lines of inquiry in determining whether evidence obtained in breach of the Charter would bring the administration of justice into disrepute. In doing so, it must take a long-term, forward-looking and societal perspective: see Grant at para. 71. The lines of inquiry are:
The seriousness of the Charter-infringing state conduct;
The impact of the breach on the Charter-protected interests of the accused; and
Society’s interest in adjudication of the case on its merits.
[35] 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.
[36] 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.
The positions of the parties
[37] The accused argues that the breaches in this case were extremely serious, and that the court should strenuously disassociate itself from the conduct of the police by excluding the evidence. He argues that the indifference of D/Cst MacCulloch to the boundaries of the accused’s rented property is jarring, and that the misleading drafting of the ITO by him is aggravating. As regards the second branch of the Grant test, he emphasizes the extent to which the accused used the rented land for lawful purposes in growing vegetables. As for the third branch, while the accused recognizes that the evidence seized is reliable, he urges the court to consider the direction in Grant that the seriousness of the offence has potential to “cut both ways” in considering this factor. He argues that where offences are serious, it is that much more important for police to get it right.
[38] The Crown argues that the officers involved in the investigation acted in good faith and that any trespass onto the accused’s property cannot be described as blatant or flagrant. He also argues that the accused had a limited expectation of privacy in the rented farmland, and the impact of any breach on his privacy interests was minimal. He highlights that the evidence obtained following the execution of the search warrants is real and reliable, and urges the court to admit the evidence.
The seriousness of the Charter-infringing state conduct
[39] Under this line of inquiry, the court must consider the nature of the police conduct that infringed the Charter with a view to “whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct”. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct in order to preserve public confidence in and ensure state adherence to the rule of law. The main concern is to preserve public confidence in the rule of law and its processes: Grant at para. 72.
[40] As the jurisprudence makes clear, there is broad variation in the nature of state conduct resulting in Charter violations. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will have a negative effect on the public confidence in the rule of law and risk bringing the administration of justice into disrepute: Grant at para. 74.
[41] Various factors may attenuate the seriousness of police conduct that results in a Charter breach, including “good faith” on the part of police. However, ignorance of Charter standards must not be rewarded or encouraged and negligence and wilful blindness on the part of police will not be equated with good faith. Deliberate, wilful or flagrant disregard of established Charter standards by police will tend to support the exclusion of the evidence. Evidence that the Charter-infringing conduct was part of a pattern of abuse will tend to support exclusion: see Grant at para. 75.
[42] Where non-bodily physical evidence is concerned, the degree to which this inquiry weighs in favour of excluding the evidence will depend on the extent to which the conduct can be characterized as deliberate or egregious: Grant at para. 112.
The principles applied
[43] While it pre-dates Grant, the case of Lauda (1999) provides a helpful analysis of the seriousness of a s. 8 Charter breach in similar circumstances. In that case, the police also entered onto lands leased by the accused where he was growing marijuana. In contrast to this case, the police did not have the permission of the property owner to enter onto the land. The court accepted that the officer honestly and sincerely believed that because police were engaged in eradication of the marijuana and not an investigation, the Charter did not apply. In these circumstances, and given some uncertainty in the law at the time, while the Court of Appeal held that it could not be said that the police had acted in good faith, it was not prepared to find the police had acted in bad faith. The court also declined to find that the breach of the accused’s Charter rights was flagrant, willful or deliberate: see paras. 87-89.
[44] In this case, I find that the police did obtain permission from the property owner to enter onto the land. I also find that D/Cst MacCulloch took steps to ascertain where the accused’s rented portion of the land was located and to make his observations without trespassing on that land.
[45] In making this finding I have considered the discrepancy in the evidence between D/Cst MacCulloch and Mr. McDonald about the details of their conversation about how the officer knew where the rented portion of the farm was located. D/Cst MacCulloch testified that Mr. McDonald described to him where the rented portion was and how to get to it. No map was used to show him which portion of the acreage was rented. He believed he was told that the accused was renting two fields. There was discussion of a path that went to a fence line or field partition which would take him to the rented portion of the land, as well as a few markers along the way. The officer testified that Mr. McDonald’s description was that it would be obvious where the rental land was because the trail would end at that point.
[46] Mr. McDonald testified that D/Cst MacCulloch obtained his permission to enter the property. When asked how the officer knew where to go, Mr. McDonald testified that he guessed that D/Cst MacCulloch knew the path. When asked if he gave the officer directions as to where the two fields were (i.e. those fields rented by the accused), Mr. McDonald responded “I’m not sure, I’m thinking he knew where they were”. Shortly after this, he explained why he asked the officer to take a certain route, which seems to suggest that he did direct the officer in some fashion. He also testified that when he told the officer where to go, he did not tell him where not to go. When he was again asked how he delineated the rental property to D/Cst MacCulloch, he said “if I remember right I think he pretty well knew, just follow that path, and it woulda got him there”.
[47] On this issue, I found the evidence of Mr. McDonald somewhat confusing. His language in prefacing his evidence with language like “I’m not sure” and “if I remember right” also suggests his memory of the conversation is not as clear as it may once have been. To the extent that the evidence of Mr. McDonald differs from that of D/Cst MacCulloch, I prefer the officer’s evidence because it was cogent and consistent. In any case, there is overlap in their evidence in the suggestion that if the officer just followed the path it would “get him there”. 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.
[48] I also accept that at the time of the trespass, D/Cst MacCulloch believed he was on the McDonald farmland where it bordered the rented land. I accept the sincerity of his belief that given the description he was given about how to locate the land rented by the accused, he was not trespassing at the time he made his observations. I do not believe that he deliberately misled the issuing justice about what is now known to have been a trespass. The physical geography of the area of the wind row does function as a border to the adjoining fields and no farming is done within the wind row. This lends some support to the officer’s evidence that he did not believe the wind row was part of the land rented by the accused to grow vegetables or marijuana. In that regard, it appears that during the discussion with Mr. McDonald about the location of the rented land, they frequently referred to the rented parcel as the accused’s “fields”. It is understandable that the officer would conclude that the wind row was not included in the rented parcel.
[49] The rented land in this case was leased pursuant to an oral agreement between the accused and Mr. McDonald. To the extent that police relied on Mr. McDonald for direction as to the location of the rented land they cannot be faulted. This is not a situation where the precise boundaries of the rented land would have been clear from other investigative searches. I find that the police acted in good faith in relying on the description given by Mr. McDonald.
[50] However, it is likely that had D/Cst MacCulloch been more precise in his questions to Mr. McDonald he would have obtained a more complete description of the boundary of the rented land. Or, if he had asked Mr. McDonald to accompany him while he was on the farm he would have better ensured he did not misidentify the boundary of the rented land. This was his second investigation involving a grow-operation and his first as the investigating officer, which provides some context for his decision-making. I consider his evidence that “a little voice in his head said not to go further” when he was in the wind row because the accused might have an expectation of privacy in his rented parcel of land. This evidence makes it clear 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.
[51] In these circumstances, I would not describe the breach as inadvertent. However, I am also not convinced that it was the product of bad faith. The police conduct here did not amount to a flagrant, willful or deliberate breach of the accused’s rights. As I have said, I accept that the officer did make efforts to confirm where the rented portion was located. I accept that he considered the accused’s privacy interests in not going further when in the wind row and that he believed this to be outside of the rented parcel of land (see my additional reasons for this finding below). 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.
[52] The accused also points to other police conduct to suggest there was a pattern of breaches that shows a flagrant disregard for the accused’s Charter rights. I turn to those alleged breaches now.
[53] The accused urges the court to find that D/Cst MacCulloch could not have made the observations of the rows of marijuana he described in his evidence if he had been in the wind row as he says. He says the officer must have proceeded onto the field and flagrantly breached the accused’s rights. Further, he argues that the officer misled the court and the issuing justice for the general warrant about his location at the time he made his observations.
[54] I am not persuaded that the officer deliberately misled anyone on this issue. D/Cst MacCulloch presented as a credible witness who was responsive to questioning by both counsel and acknowledged errors in his investigation. While testimonial demeanour is of limited value in assessing a witness’s credibility, the evidentiary record does not lead me to the conclusion that the officer lied to both the issuing justice and the court. I am unable to conclude on the evidence presented (which in addition to the officer’s evidence consisted of aerial and other photos taken from other locations) that he could not possibly have observed what he says he did from that vantage point. This issue was not put to Mr. McDonald, whose knowledge of the farm might have permitted him to testify as to what portions of the fields were visible from within the wind row. I also consider the evidence of D/Cst MacCulloch that he did not want to proceed further because he was concerned about the implications of trespassing, both from a Charter perspective and because he did not want to leave evidence that he had been in the field and in so doing compromise the investigation. This explanation for his conduct makes sense. I accept the evidence of D/Cst MacCulloch that he stopped his vehicle in the wind row, stepped forward to the front of the vehicle, and observed the field from that general location.
[55] The accused also urges the court to find that Sgt. Lamontagne also engaged in a deliberate and flagrant breach of the accused’s rights. This submission is made in view of the evidence which establishes that Sgt. Lamontagne was on the parcel of land where the accused’s residence is located to follow-up on a complaint from a neighbour about the accused growing marijuana on the neighbour’s land.
[56] I find that Sgt. Lamontagne was briefly on the property of the accused when he accessed the property of the neighbour. However, I also find that the breach in that instance was inadvertent. Sgt. Lamontagne attended at the neighbour’s property to follow-up on the neighbour’s complaint. The neighbour owned land across the road from his residence. It was on this parcel of land that he believed he found marijuana plants. This portion of land abutted the parcel of land on which the accused had his residence. I accept the evidence of Sgt. Lamontagne that he proceeded with the neighbour to access the neighbour’s property through a parcel of land he believed was owned by a third party. The neighbour gave him that information, and accompanied Sgt. Lamontagne to lead him to the location where he had observed the marijuana plants. As it turns out, Sgt. Lamontagne and the neighbour were at some point on the accused’s land, and not that of a third party, when they accessed the neighbour’s property in that fashion. I accept, however, that it was the officer’s intention to avoid the trespass that led to this circuitous route to the parcel of land owned by the neighbour. In the circumstances, relying on the neighbour’s information about who owned the land they were accessing to get to the neighbour’s parcel was not unreasonable. I also view Sgt. Lamontagne’s decision to have the neighbour accompany him as a good faith effort to avoid a trespass. I find that the police were acting in good faith in this instance.
[57] To the extent that a pattern of unconstitutional conduct or disregard for the accused’s rights may impact on the court’s analysis of the seriousness of the state conduct, I also consider D/Cst MacCulloch’s use of Niche RMS information in the ITO and his failure to expressly confirm that no charges or convictions resulted from the suspicions detailed in that database. I have already indicated that I do not believe the officer was intentionally misleading the issuing justice with this omission. I find that this conduct was due to lack of attention. I accept the officer’s evidence that it was an oversight. The officer indicated in the ITO that while other entries existed in the Niche RMS database, they were not included in the ITO because they were not relevant to the type of investigation he was conducting. I accept this as evidence that he was trying to be fair in his presentation of this material.
[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.
The impact of the breach on the Charter-protected interests of the accused
[59] This line of inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute: Grant at para. 76.
[60] With respect to s. 8 searches, the court observed in Grant that such searches may impact on the protected interests of privacy, and sometimes, human dignity. An unreasonable search that intrudes on an area in which an individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not: Grant at paras. 78 and 113-114.
The principles applied
[61] 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.
[62] In arriving at this conclusion, I have considered the analysis of these issues by the Court of Appeal in Lauda (1999). The court found that the search of the accused’s leased land was minimally intrusive. The officer “did not intrude upon the [accused’s] private dwelling. Rather, he ventured into a field in search of marijuana”. The court found that the minimally intrusive nature of the search mitigated the seriousness of the violation: see para 91. The court also found that the low level of the privacy interest mitigated the seriousness of the breach. While the accused was entitled to assert a privacy interest in the leased land, his expectation of privacy “did not measure high on the privacy scale”: para. 93. The court held at para. 92:
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.
[63] 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 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 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.
[64] 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.
[65] 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.
[66] With respect to the trespass and breach by Sgt. Lamontagne, I note that this trespass occurred in 2012 and produced no evidence at issue in this trial. The fact of the neighbour’s complaint and the observations made by Sgt. Lamontagne also did not figure in the Informations to Obtain for either warrant in this case. While this breach involved the accused’s residential property, which suggests a more serious breach, I find it was also not significantly intrusive. I arrive at this conclusion because the portion of the property traversed by the officer and the accused’s neighbour was well away from the accused’s residence and was visually separated from it by brush or woods. No observations were made of the accused’s residence or outbuildings, or of activity on the property. The accused’s bodily integrity and personal dignity were not impacted at all.
[67] With respect to the failure to clarify that the Niche RMS information did not result in charges or convictions, I have already found that this omission would not have misled the issuing justice in the circumstances of this case. I find that this conduct had little if any impact on the accused’s interests.
[68] On balance, this line of inquiry favours admission of the evidence.
Society’s interest in adjudication of the case on its merits
[69] As confirmed in Grant at para. 79, the third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.
[70] Various factors are relevant to this line of inquiry. The reliability of the evidence is an important factor. As explained by the Supreme Court, this is because the admission of unreliable evidence serves neither the accused’s interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute: Grant at para. 81.
[71] The importance of the evidence to the prosecution’s case is another factor that a trial court may consider, and is related to the issue of the reliability of the evidence. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution: Grant at para. 83.
[72] The seriousness of the alleged offence may also be considered, but this factor has the potential to cut both ways, and may not be of much assistance: see Grant at paras. 84 and 139.
[73] Where physical evidence is concerned, reliability issues will not generally be related to the Charter breach. Accordingly, this consideration tends to weigh in favour of admission of the evidence: see Grant at para. 115.
The principles applied
[74] In this case, the evidence obtained is reliable. Its reliability has not been “attenuated by any constitutional missteps”: R. v. Li, 2013 ONCA 81, [2013] O.J. No. 564 at para. 111. The evidence is also essential to the Crown’s case.
[75] With respect to the societal interest in an adjudication of this case on its merits, I consider the comments in the pre-Grant case of R. v. Tessling, 2003 CanLII 8861 (ON CA), [2003] O.J. No. 186 (C.A.) at para. 81. Our Court of Appeal has said that while the Supreme Court of Canada has previously stated that preventing marijuana growing is a compelling state interest, there has been public recognition since then that marijuana is at the lower end of the hierarchy of harmful drugs. Consequently, the Court of Appeal has directed that “in the speculative judicial balancing exercise inherent in determining how best to protect confidence in the administration of justice … the weight of this offence is lighter on the scales than other drug-related offences”. I also consider that the evidence here suggests the offence involved a significant commercial grow-operation.
[76] I find that the third line of inquiry favours the admissibility of the evidence. Admitting the evidence would enhance the truth seeking function of the trial.
Balancing the Grant factors
[77] Upon considering and balancing the various factors in the three lines of inquiry outlined above, I am satisfied that a reasonable person, informed of all the relevant circumstances and the values underlying the Charter, would not conclude that the admission of the evidence would bring the administration of justice into disrepute. I find the overall repute of the administration of justice, viewed in the long term, would be adversely affected by the exclusion of the evidence.
[78] While each case turns on its own facts, as was observed by the Supreme Court in Grant at para. 86, “patterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this way, a measure of certainty is achieved”. While it pre-dates Grant, I have considered that the court in Lauda (1999) at para. 101 held that the warrantless search by police on the accused’s leased land was not a serious breach of his s. 8 Charter rights and admitted the evidence. The evidence has also been admitted in other cases involving marijuana grow-ops post-Grant: see for instance Li at paras. 107-111, R. v. Nguyen, 2011 ONCA 465, [2011] O.J. No. 2787 (C.A.) at para. 62.
[79] I have also considered that exclusion has been ordered for similar types of evidence. This was the result in R. v. Edwards, 2016 ONCA 389, [2016] O.J. No. 2656 (C.A.), where there had been a pattern of disregard for the accused’s rights and the police were found to have misled the court in their evidence.
[80] Finally, I have considered the recent case of R. v. Strauss, 2017 ONCA 628, where non-bodily physical evidence was excluded given the “deliberate and ongoing” breaches by police of the accused’s Charter rights. In that case, a police officer had testified about making a conscious gamble in conducting a warrantless search of a barn. The accused urges the analysis by the Court of Appeal in that case should apply here. For the reasons I have given, I do not agree that the police conduct in this case can reasonably be characterized in the same fashion.
[81] As I have indicated, I do not find that the police wilfully or flagrantly breached the accused’s Charter rights, or otherwise conducted themselves in bad faith. The impact on the accused’s privacy interests of the search which led to the general warrant was minimally intrusive. The evidence subsequently obtained is real and reliable. Upon balancing the Grant factors, and giving my best consideration to the prospective interests in maintaining the integrity of, and public confidence in the administration of justice, I have decided that the evidence will be admitted.
[82] Accordingly the accused’s application is dismissed.
Madam Justice Laurie Lacelle
Released: September 1st, 2017
CITATION: R. v. Just, 2017 ONSC 5178
COURT FILE NO.: 39700-17-51
DATE: 20170901
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Alexander Just
REASONS FOR JUDGMENT
Madam Justice Laurie Lacelle
Released: September 1st, 2017