



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Groat,






2006 
          BCCA 27



Date: 20060124





Docket: CA032849

Between:

Regina

Respondent

And

Robert 
    Groat

Appellant








Before:


The 
          Honourable Madam Justice Rowles




The 
          Honourable Madam Justice Newbury




The 
          Honourable Madam Justice Levine






R. 
          Neary


Counsel for the Appellant




P.A. 
          Eccles


Counsel for the Respondent




Place 
          and Date of Hearing:


Victoria, British Columbia




September 29, 2005




Place 
          and Date of Judgment:


Vancouver, British Columbia




January 24, 2006










Written 
          Reasons by
:




The 
          Honourable Madam Justice Newbury




Concurred 
          in by:




The 
          Honourable Madam Justice Rowles

The Honourable 
          Madam Justice Levine











Reasons for Judgment of the Honourable Madam Justice 
    Newbury:

[1]

Mr. Groat was convicted on March 10, 2005 of one count of production 
    of a controlled substance, namely Cannabis (marihuana), and one count of possession 
    of the same substance for the purpose of trafficking.  The crucial evidence 
    against him consisted of certain statements he made to police officers, and 
    physical evidence found by the officers as a result of a warrantless search 
    of a house occupied by him.  This evidence included 79 Cannabis plants 
    which were said to constitute a "small to medium-sized two-stage commercial 
    marihuana production operation."  They would have yielded almost 10 pounds 
    of marihuana having a value of between $21,725 and $27,650.  The admissibility 
    of the statements and the real evidence was the subject of a
voir dire
conducted by the trial judge, for which she gave reasons indexed as [2005] 
    B.C.J. No. 539, 2005 BCPC 80.

[2]

The charges originated when two police officers, Clayton and Cranton, 
    responded to a 911 call concerning a possible break and entry in progress 
    at Mr. Groat's address in Sooke.  After looking around the outside of 
    the house and seeing no indication of break and entry, they knocked on the 
    front door.  Mr. Groat answered.  In the process of conversing with him 
    about the 911 call, the officers smelled marihuana from the doorstep.  Constable 
    Clayton suspected it was being grown in the house.  When she asked about it, 
    Mr. Groat replied that he had just smoked some for medicinal purposes.  
    However, Constable Clayton was confident it was fresh growing marihuana she 
    smelled, and asked what was in the basement.  At first, Mr. Groat said 
    he did not know and that he did not take care of the basement, but according 
    to Constable Clayton's evidence, "then he changed his story in saying 
    that yes, he did know what was in the basement and it was all his, it was 
    his responsibility."

[3]

Although Constable Clayton testified she was not sure whether Mr. Groat 
    had invited the police inside, the trial judge found that he had done so.  
    The police entered.  The constable testified that by this time, she had formed 
    the opinion Mr. Groat was growing marihuana in his basement.  She also 
    testified that had Mr. Groat denied involvement with marihuana, she would 
    have arrested him, taken him back to the detachment, cleared the house, "checked 
    for evidence and officer safety", and would have sought a search warrant 
    for the premises.  In fact, a third officer, Constable Pacquet, arrived at 
    the scene, and Constable Clayton asked for Mr. Groat's permission to 
    search the house.  She testified:

We were inside the house speaking to Mr. Groat.  He knew  he know [sic] 
    that I knew there was a grow in the basement, he had admitted that you know, 
    he was taking care of everything in the basement.

I asked him if he would give us a consent search, if he would sign my 
    notebook, give me his consent to search the whole entire house.  He was also 
    made aware that he would be charged with, you know, the grow that we did find. 
     I asked him numerous times if he would like to  if he would give us permission 
    or not, if he changed his mind at any time, he could."

Mr. Groat then signed a written consent to "enter 
    residence up and down" which reiterated that he could revoke his permission 
    at any time.  Constable Clayton also told him before going downstairs that 
    "he would be charged with . . . the grow that we did find."  Mr. Groat 
    seemed to understand and showed them around the house.  The police found a 
    grow operation in the basement.  They immediately arrested Mr. Groat, 
    gave him the usual
Charter
warning and permitted him to telephone 
    legal counsel.  Constable Pacquet testified that on getting off the phone, 
    Mr. Groat said:  "When you get caught, you get caught; when they 
    catch you, you can't hide it."

[4]

One officer stayed at the house while Constable Clayton took the appellant 
    to the local police headquarters where, the trial judge found, he was given 
    another opportunity to revoke his consent to the search of his premises.  
    He did not.  Accordingly, Constable Clayton returned to the house and with 
    her colleagues conducted a search and seized the incriminating evidence.  
    She then went back to headquarters, where Mr. Groat gave a videotaped 
    statement in which, the trial judge said:

. 
    . . he confirmed that he had been advised of his Charter rights and cautioned, 
    spoken to a lawyer, and been given an opportunity to call a lawyer again. 
     He confirmed what hed said earlier, and gave further details about the operation. 
     He stated that the landlord was paying the hydro bills for the property, 
    which were substantial.  He took responsibility for the operation.

Throughout all this, Officer Clayton did not raise her voice.  She made no 
    threats and offered no inducements.  The accused was calm and open.  This 
    is reflected in the videotaped statement.

The reason for using a consent search was to save the time 
    and effort of obtaining a warrant.  It was a Saturday night and the police 
    were busy.  [Paras. 10-12]

[5]

The first question argued at trial and the third ground of appeal now 
    advanced by the appellant is that the Crown had failed to prove beyond a reasonable 
    doubt that his statements made to the police at the house were voluntary.  
    The trial judge did not accede to this argument.  She stated her findings 
    as follows:

I am satisfied beyond a reasonable doubt that the statements 
    of the accused were voluntary.  There were no inducements or threats.  There 
    is nothing to suggest any difficulty with the mental capacity of the accused 
    at the time.  In the videotaped statement he is completely lucid.  Officer 
    Clayton took some notes, the other officers did not.  Notes are one factor 
    to be used in assessing the evidence of a witness.  Depending on other aspects 
    of the testimony and circumstances, they may be quite important, as illustrated 
    in some of the authorities provided by the accused.  I found the testimony 
    of Officer Clayton, and the other officers, credible.  In these particular 
    circumstances, any gaps in Officer Claytons notes, and the failure of the 
    other two officers to take notes, do not affect my finding.  [Para. 15]

[6]

In this court, it is said this finding was erroneous even though deference 
    is to be shown to findings of fact made by trial judges who have seen all 
    the witnesses.  Counsel for the appellant relied in particular on the following 
    passage from a 1979 text by Fred Kaufman,
The Admissibility of Confessions
(3rd ed.).  The author wrote:

When questions are asked, it is of the utmost importance to 
    keep a complete record of
all
questions and answers, and to resist 
    the temptation to reduce to writing only that part which inculpates the accused.  
    Indeed, failure to recollect the complete conversation may jeopardize an otherwise 
    acceptable confession, but once again this is a matter of appreciation for 
    the judge.  [139]

On this point, he cited
R. v. Bélanger
(1978), 40 C.C.C. (2d) 335 (Ont. H.C.J.) and
R. v. Hoser
(1958), 
    unreported No. 810, Crown Office Montreal (Que. Sess.).

[7]

Two more recent cases which confirmed the heavy burden on the Crown 
    to prove voluntariness are
R. v. Ahmed
(2002), 7 C.R. (6th) 
    308 and
R. v. Moore-McFarlane
(2001), 47 C.R. (5th) 203, both 
    decisions of the Ontario Court of Appeal.  In the latter case, Charron J.A. 
    (as she then was) reviewed in particular
R. v. Oickle
, [2000] 
    2 S.C.R. 3 and concluded that:

[T]here is no absolute rule requiring the recording of statements.  It is 
    clear from the analysis in both
Hodgson
[[1998] 2 S.C.R. 449] and
Oickle
that the inquiry into voluntariness is contextual in nature and that all relevant 
    circumstances must be considered. Iacobucci J. says so expressly in
Oickle
in the following words (at para. 47, p. 31 S.C.R., p. 345 C.C.C.):

The application of the rule will by necessity be contextual. 
     Hard and fast rules simply cannot account for the variety of circumstances 
    that vitiate the voluntariness of a confession, and would inevitably result 
    in a rule that would be both over- and under-inclusive.  A trial judge should 
    therefore consider all the relevant factors when reviewing a confession.

However, the Crown bears the onus of establishing a sufficient 
    record of the interaction between the suspect and the police.  That onus may 
    be readily satisfied by the use of audio, or better still, video recording. 
    Indeed, it is my view that
where the suspect is in custody, recording facilities 
    are readily available, and the police deliberately set out to interrogate 
    the suspect without giving any thought to the making of a reliable record, 
    the context inevitably makes the resulting non-recorded interrogation suspect
. 
     In such cases, it will be a matter for the trial judge on the
voir dire
to determine whether or not a sufficient substitute for an audio or video 
    tape record has been provided to satisfy the heavy onus on the Crown to prove 
    voluntariness beyond a reasonable doubt.  [Paras. 64-65; emphasis added.]

In
Ahmed
, the Court overruled a trial judge's 
    finding that a confession allegedly made at police headquarters had been voluntary, 
    noting that the trial judge had given "no reason for why he believed 
    the detective and failed to analyze his evidence on this crucial point."  
    (At para. 18.)

[8]

In the case at bar, the appellant also emphasized that neither of the 
    officers involved in questioning Mr. Groat could remember in detail what 
    exactly had been said prior to his making his statement, and that about 10 
    minutes elapsed between the arrival of the police and the point when he "finally 
    advised" (the phrase is Constable Clayton's) that the plants were his.  
    (So-called "continuation reports" were not made until the following 
    day.)

[9]

The fact remains, however, that the trial judge found that the Crown 
    had discharged its burden of proving voluntariness.  The officers' evidence 
    was uncontradicted (the accused did not testify on the
voir dire
or 
    at trial) and the trial judge did not find the absence of more copious notes 
    to be fatal.  As she stated:

Notes are one factor to be used in assessing the evidence of a witness. 
     Depending on other aspects of the testimony and circumstances, they may be 
    quite important, as illustrated in some of the authorities provided by the 
    accused.  I found the testimony of Officer Clayton, and the other officers, 
    credible. In these particular circumstances, any gaps in Officer Clayton's 
    notes, and the failure of the other two officers to take notes, do not affect 
    my finding.  [Para. 15]

With respect to the videotaped statement made at police 
    headquarters, she also found that Mr. Groat was "completely lucid."  
    No challenge to that finding was advanced.

[10]

I see no basis on which an appeal court could conclude that the trial 
    judge was not aware of the onus on the Crown, or that she somehow erred in 
    principle in accepting the police officers' testimony.  This is not a case 
    where suspicion of police misconduct required further analysis.  Mr. Groat 
    was clearly willing to make the statements he did, and as unusual as his reaction 
    was, the trial judge was entitled to make the findings of fact she did.  The 
    findings are consistent with the videotaped evidence and with Mr. Groat's 
    willingness to sign a consent to search the premises.  I would dismiss this 
    ground of appeal.

[11]

The appellant also argued that because he had not been advised of his 
    right to remain silent or given the opportunity to contact counsel
before
he made his statement, his rights under s. 10(b) of the
Canadian 
    Charter of Rights and Freedoms
were infringed.  On this issue, the 
    trial judge relied on the decisions of this court in
R. v. Kay
(1990), 53 C.C.C. (3d) 500 and
R. v. Stanford
(1994), 51 B.C.A.C. 
    58, [1994] B.C.J. No. 2332.  In both cases, the police had come upon 
    suspicious circumstances and suspects had been questioned in the course of 
    their investigations.  In
Kay
, the appellant was questioned 
    in his hospital bed and in
Stanford
, the questioning occurred 
    in an ambulance after a car accident.  The trial judge noted that in each 
    case, the police would have detained the suspect had the suspect tried to 
    leave, but that did not happen.  She continued:

I find that Mr. Groat was not detained until he was arrested. 
     He was standing in the residence talking to the officers.  He was not constrained. 
     He would have been arrested had he tried to leave.  However, a determination 
    of whether he was detained should be based on what actually occurred.  [Para. 
    26]

The trial judge relied as well on
Ingenhaag v. 
    Burdock
(1991), 4 B.C.A.C. 186, [1991] B.C.J. No. 4027, to the effect 
    that in order to be "detained", the defendant had to show that he 
    "reasonably believed himself compelled to answer the officer's questions".  
    The trial judge was not satisfied Mr. Groat had reasonably believed he 
    was compelled to answer Constable Clayton's questions.  In her words, "Because 
    the accused was not detained, in either a conventional or extended sense, 
    his right to counsel was not contravened. I find his right to silence was 
    not denied, and that the statements are admissible."  (Para. 28.)

[12]

In this court, the appellant relies on certain factual differences 
    between this case on the one hand and
Kay
,
Stanford
and
Ingenhaag
on the other.  Mr. Neary in his able submissions 
    notes that as much as 20 minutes elapsed from the time when Mr. Groat 
    admitted to being in possession of marihuana, to when he was informed of his
Charter
rights under s. 10; that in none of the cited cases 
    was the accused "confronted with evidence pointing to [his] guilt" 
    (see
Ingenhaag
, at para. 20); and that as soon as Mr. Groat 
    began making his statement, Constable Clayton had reasonable and probable 
    grounds to arrest him.  (She indeed testified that she felt that she had such 
    grounds almost immediately upon the beginning of the conversation on the doorstep.)  
    In any event, counsel for the appellant contends that as soon as Constable 
    Clayton told Mr. Groat he would be charged (if a grow operation was found), 
    he must have had a "reasonable apprehension of restraint or coercion, 
    such as to produce a detention", within the meaning of this court's judgment 
    in
Kay
,
supra
.

[13]

On the other hand, as counsel for Crown argues, the fact that the police 
    officers may have thought they had reasonable grounds or may have intended 
    to detain Mr. Groat had he tried to leave, is not determinative:
Stanford
,
supra
.  The Crown cites
R. v. Van Wyk
, [1999] O.J. No. 
    3515 (Ont. Sup. Ct. J.), aff'd [2002] O.J. No. 3144 (Ont. C.A.)), where 
    the trial judge reasoned:

In order for an individual to be detained other than in a physical sense,
a police officer must assume control over his or her movement by a demand 
    or direction which may have significant legal consequences and which prevents 
    or impedes access to counsel
:
The Queen v. Therens
(1985), 18 
    C.C.C. (3d) 481 (S.C.C.) at 504
per
Le Dain J.  There must exist
some form of governmental coercion or compulsion
(
Prosper v. The 
    Queen
(1994), 92 C.C.C. (3d) 353 (S.C.C.) at 377
per
Lamer C.J.C.) 
     an element of "physical compulsion, in the form of a reasonable perception 
    of suspension of freedom of choice" (
The Queen v. Therens
,
supra
, 
    at 505).

In
Regina v. Moran
, [(1987) 36 C.C.C. (3d) 225 (Ont. C.A.)], at 258-9, 
    Martin J.A. set out a number of factors relevant to the existence of detention 
    while noting that the presence of "any one factor or combination of factors 
    or their absence" would not necessarily be determinative in any particular 
    case.  Nevertheless, application of the factors serves as a helpful guide.  
    Their application to the dynamics of this case, as canvassed below, defeats 
    the accused having established the status of detention when speaking to the 
    police in the hallway of his home.

Neither Detective Morgado nor his associates, by their numbers, presence, 
    language or actions, intimidated or coerced responses from the homeowner.  
    Mr. Van Wyk stood in his own home, hot chocolate in hand, and elected to answer 
    police questions.  There existed none of the pressure of custodial interrogation 
    which is of course the type of environment necessitating the protection afforded 
    by the right to counsel.

Accepting that a police question may, in some circumstances, amount to a "direction 
    or command" (
Regina v. Moran
,
supra
at 258), that is not 
    the case here.  A suspect is free to answer or not to answer questions posed 
    by the police save in exceptional circumstances:
Regina v. Esposito
, 
    [(1985), 24 C.C.C. (3d) 88 (Ont. C.A.)] at 94.  The language used by Detective 
    Morgado was non-confrontational and polite.
There is no persuasive evidence 
    that Mr. Van Wyk, in speaking to the police in the hallway, believed he was 
    in a position where there existed a statutory compulsion to respond to questions 
    about his driving of the sort described in The
Queen v. White
, 
    [[1999] 2 S.C.R. 417].

The police did not have reasonable and probable grounds to believe that Mr. 
    Van Wyk had committed the offence under investigation simply by virtue of 
    his status as the registered owner of the vehicle reported to be involved 
    in the accident.  In a somewhat similar case,
Regina v. Hicks
, [(1988), 
    42 C.C.C. (3d) 394 (Ont. C.A.)] at 397, Lacourcière J.A. observed:

... the police had no reasonable and probable grounds to arrest ... until 
    they eliminated the possibility that someone other than the owner of the van 
    had been the driver on the day of the fatality in question.


In 
    this sense then, Mr. Van Wyk, in the hallway, was not confronted with evidence 
    pointing to his guilt.
It could not be said that the investigation had 
    reached the stage, described by Martin J.A. at page 259 of the
Moran
decision, where the police "... had already decided that a crime had 
    been committed and that the accused was the perpetrator or involved in its 
    commission"
.

In any event,
the concept of detention has not been judicially 
    expanded to include any case where the police have articulable cause to suspect
that the person being questioned is involved in the commission of the offence 
    under investigation:
Regina v. Caputo
(1997), 114 C.C.C. (3d) 1 (Ont. 
    C.A.) at 11
per
Rosenberg J.A.  [Paras. 58-63; emphasis added.]

As the Crown notes in its factum, the character of the 
    interaction in
Van Wyk
between the police and the accused was 
    found to have changed once the suspect was confronted with the assertion that 
    witnesses had informed the police he had caused the accident.  From that point 
    on, Mr. Van Wyk was found to have been detained.

[14]

In the case at bar, Constable Clayton wanted to see the marihuana grow 
    operation, if there was one, before she detained (and arrested) Mr. Groat.  
    As soon as she saw the operation, she arrested him and gave him the required
Charter
warnings.  There is no evidence of the appellant that 
    he felt he was psychologically detained prior to his arrest.  In this regard, 
    the case is different from many of those cited to us, including
R. v. 
    Dolynchuk
(2004), 184 C.C.C. (3d) 214 (Man. C.A.).  There the Court 
    stated:

The testimony of the accused as to his subjective belief that he was compelled 
    to reply to the police is certainly very powerful evidence as to the existence 
    of a reasonable belief.  Neither the accused in
C.R.H.
[(2003) 174 
    C.C.C. (3d) 67 (Man. C.A.)] nor the accused at bar testified on the
voir 
    dire
.  In most cases, this would end the matter.  However, ultimately, 
    the determination is an objective one, and in appropriate circumstances, a 
    court may conclude that the accused was psychologically detained even though 
    he did not testify. Although it would have been preferable for the accused 
    to testify as to his subjective belief, I do not agree with the Crown that 
    in every case of psychological detention, the absence of evidence from the 
    accused automatically negates the possibility of finding, in the words of 
    Justice Le Dain in
Therens
, at p. 644, "a reasonable perception 
    of suspension of freedom of choice" so as to make the restraint of liberty 
    involuntary.  In fact, in the case of
C.R.H.
, I stated (at para. 47):

I am not suggesting that there can never be a finding of detention 
    in the absence of testimony from the accused, but such a determination would 
    require stronger facts than exist in this case.
The court must still have 
    some evidence from which it can infer that the circumstances were such that 
    the accused could reasonably have concluded that his freedom had been restrained.

What type of evidence could give rise to such an inference?  The facts 
    of
C.R.H.
were very different than this case.  That case involved a 
    random street encounter where no crime had been committed, there was no ongoing 
    investigation and the police, besides chatting generally with the accused, 
    asked only for the accused's name, address and birthdate.  In that case, speaking 
    for the court, I held that not every conversation with police officers was 
    a detention and, in that particular situation, no detention had arisen.  [Para. 
    20; emphasis added.]

[15]

Considering all the circumstances before her, the trial judge in the 
    case at bar was not satisfied that Mr. Groat had reasonably believed 
    he was compelled to answer the officer's questions.  However, the evidence 
    might have supported the opposite conclusion: two, and then three, officers 
    had presented themselves at Mr. Groat's door, the conversation took several 
    minutes, there was no indication the police were going to leave, nor were 
    they likely to, given Constable Clayton's suspicions.  Certainly once Mr. Groat 
    was told he would be charged if a grow operation were found, it is difficult, 
    as Mr. Neary argues, to imagine that the appellant believed he was at liberty 
    to "disengage".  I must say that I likely would not have reached 
    the same conclusion as the trial judge did.  On the other hand, it was a conclusion 
    of at least mixed fact, if not pure fact, and the room for appellate interference 
    with findings of fact is extremely limited.  Accordingly, I propose for the 
    balance of the reasons to
assume
, without deciding, that Mr. Groat 
    was detained at some point during the conversation that began on his doorstep 
    and then moved into the house.  From that assumption it follows that his rights 
    to counsel under s. 10(b) of the
Charter
were breached.

[16]

The trial judge did find that Mr. Groat's consent to the warrantless 
    search was not an informed consent.  In her words:

In this case,
Mr. Groat probably had the impression 
    that his choice didn't matter one way or the other - he was told he would 
    be charged anyway
.  This kind of statement diminishes the importance of 
    the decision to waive a constitutional right.  Although the accused was told 
    a number of times that he could revoke his consent, the evidence was sparse 
    on whether he was told clearly, at the beginning, that he did not have to 
    consent in the first place.  In the absence of clear information about his 
    options and the consequences, he should have been given an opportunity to 
    contact counsel before any consent to search was taken.  [Para. 32; emphasis 
    added.]

In the result, the trial judge found that Mr. Groat's 
    rights under s. 8 of the
Charter
had been breached "because 
    the consent of the accused was not sufficiently informed in all of the circumstances."  
    (Para. 35.)  The Crown does not challenge this finding on appeal.

[17]

The trial judge then turned to consider whether the real evidence  
    i.e., "items forming part of the marihuana grow operation"  should 
    be excluded.  Citing
R. v. Collins
,

[1987] 1 S.C.R. 
    265, she correctly stated that she was required to consider "whether 
    the admission of the evidence would affect trial fairness, the seriousness 
    of the contravention of the
Charter
, and whether the repute 
    of the justice system will be better served by exclusion or admission of the 
    evidence".

The 
    crux of her reasoning on this point was that:

The evidence here consists of items forming part of the marihuana grow operation. 
     It is real evidence.  The admission of real evidence rarely affects trial 
    fairness unless it is conscripted.  Real evidence is conscripted in a derivative 
    sense where discovery of the evidence results from statements of the accused 
    associated with a Charter contravention, or the accused is otherwise compelled, 
    in contravention of the Charter, to participate in its discovery:
R. v. 
    Stillman
(1997), 113 C.C.C. (3d) 321 (S.C.C.).  The evidence here was 
    not conscripted.  There was no Charter violation associated with the statements. 
     In addition, I am satisfied that the evidence would have been discovered 
    in any event. I find it likely that the police would have obtained a search 
    warrant if the accused had not consented to the search.

The violation is serious because of its nature, a search of 
    the home of the accused.  The fact that the police could have obtained the 
    evidence legally adds to the seriousness:
Collins
,
supra
.  However, 
    I am satisfied the police acted in good faith.  I note this was the first 
    consent search for the lead officer.  Although she was not asked this directly, 
    I infer that she thought she had a valid consent.  The police were courteous 
    at all times.  [Paras. 37-38]

In the result, she found that the admission of the evidence 
    would not bring the justice system into disrepute.

[19]

The question for this court is whether, assuming Mr. Groat's rights 
    under s. 10(b) as well as under s. 8 of the
Charter
were 
    breached, the trial judge erred in admitting the appellant's statements made 
    prior to arrest and the results of the search, or whether doing so would bring 
    the administration of justice into disrepute.  In my view, it clearly would 
    not.  Although we are here concerned with a search of the accused's residence 
    and in that sense the warrantless search was not trivial, I would not, for 
    that reason alone, exclude the evidence.  While the police officers were mistaken 
    in assuming that the signed consent relieved them from the necessity of going 
    through the formalities of obtaining a warrant, the absence of any malice, 
    Constable Clayton's inexperience, and the fact that the accused was extremely 
    forthcoming concerning his control of the grow operation lead me to conclude 
    that the trial judge made no error in finding that the officers acted in good 
    faith: see
R. v. Tang
(2001), 153 B.C.A.C. 6, 2001 BCCA 165 
    at paras. 11-13.  This was not a case in which the police were acting
bona 
    fide
but unreasonably, as occurred in
R. v. Bohn
(2000), 
    145 C.C.C. (3d) 320, 2000 BCCA 239, or
R. v. Mann
, [2004] 3 
    S.C.R. 59.  There was nothing "casual" or "flagrant" about 
    the police behaviour; indeed, it appears they had been trying seriously to 
    do what was required of them.  Considering all of the circumstances in which 
    these violations of the
Charter
occurred, they do not attain 
    the level of seriousness that would lead to a finding that the evidence is 
    inadmissible.  As Hall J.A. noted in
R. v. Tang
at para. 
    15:

. . .
appellate courts should not 
    too readily interfere with the decision of trial judges with respect to the 
    application of s. 24(2), unless it were to be found that the trial judge 
    had made an unreasonable finding of fact or legal error in applying s. 24(2).  
    The decision of the trial judge is to be given proper defence.

In this case, as in
R. v. Tang
, the trial 
    judge made a decision that was open to her, on the evidence.

[20]

The charges on which Mr. Groat was convicted may not be regarded 
    as serious charges by some, but cultivation of marihuana for the purpose of 
    trafficking is now a very serious problem in this province.  The maximum term 
    of imprisonment for which Mr. Groat could have been sentenced was substantial.  
    The evidence was essential to the proof of the Crown's case and had the accused 
    not given his consent to the search, the officers could in all likelihood 
    have simply gone and obtained a search warrant.  To insist that the evidence 
    be excluded because he was so forthcoming in speaking to them would be to 
    take technicality to an absurd level and would in my view bring the administration 
    of justice into disrepute.  (See David Watt,
Watt's Manual of Criminal 
    Evidence
(2005) at §41.07.)

[21]

In these circumstances, I conclude that the appellant's statements 
    and the real evidence were properly admitted.  I would dismiss the appeal, 
    with thanks to counsel for their able arguments.

The Honourable
Madam Justice Newbury

I Agree:

The Honourable
Madam Justice Rowles

I Agree:

The Honourable
Madam Justice Levine


