



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. La, 2018 ONCA 830

DATE: 20181017

DOCKET: C63358

Feldman, Roberts and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Banh La
and Jiahoa Li

Appellant

Ravin Pillay, for the appellant

Sarah Shaikh, for the respondent

Heard: April 19, 2018

On appeal from the convictions entered by
    Justice John F. Adamson of the Ontario Court of Justice on April 22, 2016.

Roberts J.A.:

A.

Overview

[1]

The appellant
    appeals from his convictions for production of marijuana and possession of
    marijuana for the purpose of trafficking.
He received a global custodial
    sentence of 15 months followed by 2 years probation, which is not the subject
    of this appeal.

[2]

While the
    appellant raises two other related grounds, at the heart of this appeal is
    whether inculpatory evidence seized by the police in admitted breach of the
    appellants ss. 8, 9 and 10(b)
Charter
rights should have been excluded from the evidence at his
    trial under s. 24(2) of the
Charter
. The appellant submits that once that evidence is excluded, the
    convictions are unreasonable and should be set aside, and that acquittals
    should have followed. In the alternative, the appellant asks for a new trial.

[3]

While I agree
    that the impugned evidence should have been excluded from the appellants trial
    as a result of the admitted s. 10(b)
Charter
breach, I would nevertheless dismiss
    the appeal.
[1]
Even without the impugned evidence, there
    was ample evidence on which the trial judge could and did reasonably found the
    appellants convictions.

B.

Brief factual background

[4]

The appellants
    arrest on the charges of which he was convicted followed three days of police
    surveillance. Working on an anonymous tip, the police carried out surveillance
    of a residential house in Bowmanville, Ontario, as a suspected marijuana grow operation.

[5]

During the
    surveillance, the police observed window coverings and condensation. They also
    noted a loud electrical humming noise and the smell of fresh marijuana coming
    from the house.

[6]

On the third and
    last day of surveillance, the police noted that the appellant had spent over
    four and a half hours in the house. Upon the appellants departure from the
    house, the police stopped his vehicle a short distance away and arrested him
    for possession of marijuana for the purpose of trafficking. The arresting
    officer detected a very, very pungent smell of fresh marijuana emanating from
    the appellant and seized a water bill for the house from the appellants shirt
    pocket. She also seized three cellphones, $1,710 in cash, and a key ring with
    40 to 50 keys on it.

[7]

The arresting
    officer immediately gave the appellant his rights to counsel and caution. However,
    on the direction of the officer in charge of the investigation, the appellants
    access to counsel was denied for over eight and a half hours until a search
    warrant of the house had been judicially authorized and completely executed by
    the police.

[8]

The police search
    revealed that the entire house was given over to the use of a sophisticated
    marijuana grow operation. The indicia of a large grow operation for sale and
    profit were apparent upon entering the house. The overpowering odour of
    marijuana and heat made the main floor quite uncomfortable. The basement served
    as the centre of the grow operation: divided into three areas, each area contained
    marijuana plants in different stages of growth; there were water and hydro
    bypasses; and numerous growing paraphernalia and plants were seized, including
    a growing and fertilizer schedule, 2,460 marijuana plants, 7 refrigeration
    units, shrouds, high intensity light bulbs, ballasts, electrical and timer
    panels, dehumidifiers, carbon dioxide generators, vent fans, and 4 garbage bags
    of marijuana shake which weighed 60 pounds. A ventilation system stretched from
    the basement to the attic. The mudroom was converted into an electrical room. Police
    seized 400 marijuana clone seedlings from the kitchen fridge on the main floor.
    The master bedroom served as a drying room with equipment and the washroom
    within the master bedroom contained significant marijuana growing equipment.
    The Crowns expert estimated the potential street value of the marijuana
    produced at between 1.1 and 2.3 million dollars and the value of the equipment
    recovered at about $33,620.

[9]

The police also
    arrested the appellants co-accused, Jiahao Li, who was found sleeping in a
    locked bedroom on the main floor of the house.


C.

The trial PROCEEDINGS, RULINGS ON THE APPELLANTS DIRECTED VERDICT AND
CHARTER
APPLICATIONS, AND judgment

[10]

The trial
    commenced on April 7, 2015. At the beginning of trial, the Crown conceded that
    the appellants
Charter
rights under ss. 8, 9 and 10(b) had been breached. The appellant brought an
    application to stay the proceedings (which is not pursued on appeal). He also
    applied to exclude the evidence of the marijuana odour and of the water bill
    for the house seized incident to his arrest. The appellant also sought to
    exclude from his trial (but not on appeal) the evidence realized from the
    execution of the search warrant at the house.

[11]

The parties had
    initially agreed that the appellants
Charter
application would proceed by way of
    a blended trial and
voir dire
. However, towards the close of the Crowns case on April 8,
    2015, the appellant requested a ruling on the
Charter
application. The trial judge did not
    accede to the defence request because of his concern that the trial would be
    unduly delayed, Li was not so keen on waiving any delay, and a new Crown
    counsel would have to take over the prosecution. Counsel for Li advised that he
    would be testifying.

[12]

Following the close
    of the Crowns case, on April 10, 2015, the appellant brought a motion for a
    directed verdict and expressed his concern about proceeding on the motion
    without a ruling on his
Charter
application and without knowing what evidence, if any, would be excluded
    from his trial. The trial judge advised that the appellant should argue his motion
    as if the
Charter
application were denied and none of
    the impugned evidence excluded.

[13]

Immediately after
    hearing the motion, the trial judge dismissed it, determining that the evidence
    of the appellants extended presence in the house and possession of the water
    bill provided sufficient evidence to support a reasonable inference of his
    knowledge of and control over the marijuana grow operation.

[14]

Following his
    ruling, the trial judge asked the appellant again if he wished to call any
    evidence. The appellant indicated that he would not testify nor call any
    evidence. When the trial judge asked Li, he chose to testify.

[15]

Li testified at
    trial on April 10 and June 10, 2015. In his testimony, Li implicated the
    appellant in the grow operation. Specifically, Li testified that the appellant had
    hired him to work at his legal plantation of marijuana by taking care of the
    house, including snow shoveling and garbage disposal, as well as providing
    security against theft of the marijuana plants. Li testified that he saw the
    appellant go down to the basement on a number of occasions, including on the
    day of his arrest. Li also testified that on other occasions, the appellant
    would sometimes be accompanied by two others who also went with the appellant to
    the basement.

[16]

On November 13,
    2015, the trial judge heard submissions on the appellants
Charter
applications. Prior to hearing
    submissions, the trial judge advised the appellant that he would be provided
    with an opportunity to call evidence, if he chose to do so, once the
Charter
issues were determined.

[17]

After breaking
    for just over two hours, the trial judge dismissed the application.

[18]

The trial judge engaged
    in the requisite analysis set out in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353.
    He accepted the Crowns concession that the appellants rights under ss. 8, 9
    and 10(b) of the
Charter
had been breached. However, the trial judge concluded that the breaches
    were not serious, the impact of the s. 10(b) breach was negligible, and the
    societal interest in the trial of the very serious charges on their merits
    outweighed any prejudice to the appellant.

[19]

With respect to
    the seriousness of the ss. 8 and 9
Charter

breaches, the Crown argued on the application that the
    original traffic stop of the appellant was reasonable for investigative
    purposes but conceded that his arrest was without sufficient, reasonable and
    probable grounds. The trial judge accepted that the officers had a reasonable
    basis for an investigative detention of the appellant, if not reasonable and
    probable grounds for his arrest or very close, indeed because of their
    previous observations about the house and the appellants extended presence in
    it. The trial judge concluded that the seriousness of these breaches did not
    favour a stay or exclusion of the impugned evidence.

[20]

Similarly, the
    trial judge held that the s. 10(b) breach was not serious. He rejected the
    defence suggestion that the officers attitude was cavalier, arrogant and
    defiant because the police had concerns about officer and public safety and
    destruction of evidence which did not so undermine the integrity of the
    process that the charges should be stayed, or the evidence excluded.

[21]

The trial judge determined
    that the impact of the ss. 8 and 9 breaches on the appellants
Charter
-protected rights favoured exclusion
    of the impugned evidence. However, he found that the impact of the s. 10(b)
    breach was negligible because the officers had scrupulously abstained from
    any efforts to secure evidence from [the appellant] in the period while he was
    unable to call counsel.

[22]

The trial judge
    concluded that the evidence was real evidence and not conscripted, and that on
    balance, the societal interest in the case being tried on its merits strongly
    favoured the admission of the evidence and that its admission would not affect
    trial fairness.

[23]

After delivering
    his ruling on the
Charter
application, the trial judge gave the appellant another opportunity to
    call evidence. The appellant asked for some time to consider whether he would
    do so. As a result, the trial judge adjourned the trial for 24 days to permit
    the appellant another opportunity to consider whether he would elect to testify
    or call any evidence at trial. Upon resuming on December 7, 2015, the appellant
    advised that he would not do so and requested an adjournment to prepare closing
    submissions. The trial judge adjourned the trial for more than three months to
    March 24, 2016 to permit the appellant to prepare closing submissions. After
    hearing submissions from the parties, the trial judge adjourned the matter to
    April 22, 2016 for delivery of his reasons for judgment.

[24]

On April 22, 2016,
    the trial judge convicted the appellant of the charges now under appeal. He concluded
    that the Crown had proven beyond a reasonable doubt the appellants knowledge
    of and control over the marijuana grow operation. He based his conclusion on
    the circumstantial evidence of the officers observations of the house, the
    appellants extended presence in it, the odour emanating from him, his
    possession of the water bill, as well as Lis evidence.

D.

Issues

[25]

The appellant
    submits the trial judge erred and seeks acquittals on the charges or a new
    trial. He raises the following grounds of appeal:

(i)

the trial judge erred in failing
    to rule on the appellants
Charter
application at the close of the
    Crowns case;

(ii)

the trial judge
    erred in failing to exclude under s. 24(2) of the
Charter
the evidence of the marijuana odour and water bill seized
    from the appellant;

(iii)

the trial judge
    erred in misapprehending and relying on the evidence of the appellants
    co-accused, Li.

[26]

I shall consider
    each of these grounds in turn.

(1)

Did the trial judge err in failing to determine the appellants
Charter
application at the close of the Crowns case?

[27]

The appellant
    contends that the trial judge prejudged his
Charter
application. The appellant submits
    that the trial judge prejudiced his fair trial rights and undermined his motion
    for a directed verdict and his election to call evidence by failing to accede
    to his request for a ruling on his
Charter
application at the close of the
    Crowns case.

[28]

First, I am not
    persuaded that the trial judge prejudged the appellants
Charter
application.

[29]

The circumstances
    of the judges direction that the appellant assume that his
Charter
application was dismissed do not
    meet the very high threshold required to demonstrate a reasonable apprehension
    of judicial bias. Although the trial judges instruction to the appellant may
    not have been pristine, there is no indication from his reasons on the directed
    verdict or his subsequent reasons on the appellants
Charter
application that he had prejudged
    any of the issues. Indeed, on giving his direction on the appellants motion
    for a directed verdict, the trial judge stated that he had not yet made any
    decision on the
Charter
application. In my view, an informed person, viewing the trial judges
    direction and the circumstances surrounding it realistically and practically,
    and having thought the matter through, would not conclude that the trial judge
    had prejudged the
Charter
application:
R. v. G(P)
, 2017 ONCA 351, 138 O.R. (3d) 343, at para. 25.

[30]

With respect to
    the next issue, the appellant raises important questions regarding the timing
    of the
Charter

ruling and its effect on the
    appellants motion for a directed verdict. While there was an agreement that
    the appellants
Charter

application would
    be heard as part of a blended
voir dire
and trial, circumstances changed when the appellant sought
    to bring a directed verdict application. I recognize the trial judges
    discretion to manage the proceedings. However, here, the trial judge should
    have realized that the agreed upon course of proceedings had to be altered. The
    trial judge ought to have appreciated that he could not determine the directed
    verdict application without first resolving the
Charter
issue. The appellant was entitled to
    argue his directed verdict application based on what had already been
    determined to be admissible evidence.

[31]

However, while
    the procedure followed at this trial was not ideal, it did not prejudice the
    appellant. The outcome of the appellants motion for a directed verdict would
    have been the same even if the evidence impugned on appeal had been excluded. In
    considering the appellants motion, the trial judge had to decide whether there
    was a basis in the evidence upon which a reasonable trier of fact, properly
    instructed, could convict the appellant:
R. v. Kelly
, 2017 ONCA 920, 138 O.R. (3d) 241, at
    para. 19. Even if the evidence of the odour of marijuana from the appellant and
    the water bill had been excluded, the trial judge made no error in dismissing
    the motion. A reasonable trier of fact, properly instructed, could return a
    verdict of guilty against the appellant on the basis of the evidence of the
    officers observations of the noise and smell of marijuana emanating from the
    house, the covered and condensed windows, and the appellants lengthy presence
    for more than 4.5 hours in the house that was patently devoted to a sophisticated
    marijuana operation.

[32]

Finally, the
    timing of the trial judges
Charter
ruling did not prevent the appellant from making an informed decision as
    to whether to testify or call any evidence. The trial judge gave the appellant
    a second opportunity and a substantial adjournment to consider his position. The
    trial judge adjourned the trial for more than three months for the preparation
    of submissions. The appellant knew the entire extent of the case he had to
    meet, including Lis evidence, before he elected not to call evidence or made
    his closing submissions. As a result, there was no prejudice to the appellants
    ability to make full answer and defence to the charges against him:
R. v. Rose
, [1998] 3 S.C.R. 262, at paras.
    102-103.

[33]

Therefore, I
    would reject this ground of appeal.

(2)

Did the trial judge err in failing to exclude from trial the evidence of
    the odour of marijuana and the water bill under s. 24(2) of the
Charter
?

[34]

As already noted,
    the Crown at trial (who was not Ms. Shaikh) conceded that the appellants ss.
    8, 9 and 10(b) rights had been breached. Assuming for the sake of argument that
    the conduct of the officers who stopped and arrested the appellant infringed
    ss. 8 and 9 of the
Charter
, for the reasons that follow, I am of the view that the breach of the
    appellants s. 10(b) rights alone warrants exclusion of the evidence of the
    odour of marijuana and the water bill.

[35]

While there was
    no causal connection between the discovery of the odour of marijuana and the
    water bill, and the s. 10(b) breach, there was a close temporal connection.
    There was no dispute that the connection is sufficient to engage s. 24(2): see
R. v. Pino
, 2016 ONCA 389, 130 O.R. (3d) 561, at
    paras. 52, 72 and 74;
R. v. Rover
, 2018 ONCA 745, at para. 35.

[36]

In undertaking
    the s. 24(2) analysis, the trial judge correctly referenced the following
    criteria set out by the Supreme Court of Canada in
Grant
, at para. 71:

(1)

The seriousness of the
    state-infringing conduct;

(2)

The impact of the breaches on
    the appellants
Charter
-protected
    interests; and

(3)

The societal interest
    in the adjudication of the very serious charges on their merits.

[37]

Absent error, the
    trial judges s. 24(2) analysis as to what would bring the administration of
    justice into disrepute is subject to deference on appeal:
Grant
, at para. 86. However, I am of the
    view that the trial judge erred in principle and also misapprehended material
    evidence which caused him to underestimate the seriousness of the police
    conduct and its impact on the appellants s. 10(b)
Charter

rights in this case. As a result, the evidence of the
    marijuana odour and water bill ought to have been excluded from the appellants
    trial.

[38]

As the trial
    judge properly recognized, it is well-established that the police must inform a
    detainee of his right to retain and instruct counsel and facilitate that right
    immediately upon detention, subject to concerns for officer or public safety
    and such limitations prescribed by law and justified under s. 1 of the
Charter
:
R. v. Suberu
, 2009 SCC 33, [2009] 2 S.C.R. 460,
    at paras. 38, 42;
Rover
, at paras. 25-26.

[39]

Those concerns
    must be circumstantially concrete. General or theoretical concern for officer
    safety and destruction of evidence will not justify a suspension of the right
    to counsel:
R. v.

Wu
, 2017 ONSC 1003, 35 C.R. (7th) 101,

at para. 78;
R. v. Patterson
,
2006
    BCCA 24
, 206 C.C.C. (3d) 70, at paras. 41-42, and
R. v. Proulx
,
2016
    ONCJ 352
, at para. 47. Rather, the assessment of whether a delay or suspension of
    the right to counsel is justified involves a fact specific contextual
    determination:
Wu
,
    at para. 78.

[40]

The emphasis in
    the s. 10(b) jurisprudence for a fact specific contextual analysis was recently
    explained by Doherty J.A. for this court in
Rover
at para. 27:

These cases have, however, emphasized that concerns of a
    general or non-specific nature applicable to virtually any search cannot
    justify delaying access to counsel.  The police may delay access only after
    turning their mind to the specifics of the circumstances and concluding, on
    some reasonable basis, that police or public safety, or the need to preserve
    evidence, justifies some delay in granting access to counsel. Even when those
    circumstances exist, the police must also take reasonable steps to minimize the
    delay in granting access to counsel. [Citations omitted].

[41]

Here, the trial
    judge erred by accepting the existence of a general duty on the part of the officers
    to protect themselves, the public and the preservation of evidence as an
    overarching justification for the s. 10(b) breach without analyzing, as he
    was required to do, whether the officers concerns were reasonable in the
    circumstances of this case.

[42]

In my view, the
    officers testimony did not rise above concerns of a general or non-specific
    nature applicable to virtually any search. The officers testified that they
    were concerned about officer and public safety, as well as the destruction of
    relevant evidence. Specifically, they said that if allowed to speak to counsel,
    the appellant might communicate with associates to set up booby traps within
    the house or set fire to the grow operation, or counsel, by advising potential
    sureties of the appellants arrest may inadvertently trigger the appellants
    associates to set those steps into motion. However, neither officer could point
    to any evidence that either concern could possibly materialize in this case. The
    officer in charges concern was entirely theoretical and based on her training
    alone; she admitted receiving no instructions or directions from senior
    officers. She testified that it was simply a matter of common sense. While
    the arresting officer had previously experienced booby traps on a couple of
    occasions, she admitted that her experience was unrelated to this case, dated, and
    from a different jurisdiction. She had never experienced booby traps during the
    execution of drug warrants in the jurisdiction where this case took place. There
    was no evidence that the arresting officer had shared this information with the
    officer in charge.

[43]

While the Court
    in
Grant
, at para. 75,

stated that [e]xtenuating circumstances, such as the
    need to prevent the disappearance of evidence, may attenuate the seriousness of
    police conduct that results in a
Charter
breach, in this case, the officers speculative concerns
    should not have served to lessen the seriousness of their breach of the
    appellants s. 10(b) rights because of their ignorance of the law.

[44]

There is also no
    question that the prolonged suspension of the appellants s. 10(b) rights was
    deliberate. The arresting officer believed that the suspension of an accuseds
    right to counsel was justified to preserve evidence and to protect the safety
    of officers and the public. The officer in charge stated that they did nothing
    wrong and would do the same thing again in the same circumstances. As the
    officer in charge testified during her cross-examination:

Q.      So youre fully prepared to suspend somebodys right to
    speak to counsel until youve executed a search warrant?

A.      Yes, and I would do it again. I dont regret anything I
    did that night.



A. I dont believe I did anything wrong.

[45]

The officers erroneous
    belief that they could indefinitely suspend the appellants right to speak to
    counsel until the search warrant was issued and executed was not justified in
    the circumstances of this case. This is not a case where the delay in
    facilitating the appellants right to counsel was minimal and necessary and
    where no attempts were made to elicit incriminating information. The officers
    ignorance of the very well-entrenched rights of an accused to immediate access
    to counsel and their insistence on the rightness of their actions put their
    conduct on the very serious end of the spectrum.

[46]

I next turn to
    the trial judges analysis of the second
Grant
criterion. The trial judges
    conclusion that the s. 10(b) breach had minimal impact on the appellants
Charter
-protected rights flowed from a
    misapprehension of the evidence and a misapplication of the
Grant
criterion.

[47]

The trial judge misapprehended
    the evidence when he wrote that the police scrupulously abstained from any
    efforts to secure evidence from [the appellant] in the period while he was
    unable to call counsel. This was not the case here. Immediately following the
    appellants arrest, rights to counsel and caution, and his request to speak to
    counsel, the arresting officer attempted to elicit incriminating information from
    the appellant about his bundle of keys. This occurred, despite the officer in
    charge testifying that, obviously, no statement would be elicited from the
    appellant. The appellant refused to answer the officers questions.

[48]

The trial judges
    evidentiary error affected his analysis. Because of his evidentiary error, he
    wrongly determined that there was minimal impact on the appellants rights.
    Specifically, he failed to consider the extent to which the s. 10(b) breach
    undermined all the interests it protects, regardless of whether the police
    succeeded in obtaining an incriminating statement from the appellant.  Those
    interests go well beyond the appellants fair trial rights as considered by the
    trial judge and include the vulnerability of an arrested accused who requires
    the immediate ability to consult with a lawyer to obtain counsel, not just for
    legal advice, but as a lifeline to the outside world:
Pino
, at para. 105;
Rover
, at para. 45.

[49]

Turning to the
    third
Grant
criterion, the trial judge failed to
    give effect to the fact that there were multiple, deliberate breaches of the
    appellants
Charter
-protected
    rights. Moreover, the plan to deny the appellant his rights was formed prior to
    the police stopping the appellant. The officers were directed to arrest him as
    soon as he left the house and to prevent the appellant from speaking to counsel
    until the search warrant of the house was authorized and executed.

[50]

As the Court
    explained in
Grant
, at
    para. 73, preservation of public confidence in the rule of law and its
    processes is the main concern. In the present case, the breaches were neither
    minor nor inadvertent but formed part of a pattern of conduct that the officers
    did not regard as wrong and would repeat again in the same circumstances. It is
    therefore necessary that the court dissociate itself from such conduct:
Grant
, at para. 75.

[51]

Moreover, the
    exclusion of the impugned evidence would not end the Crowns case against the
    appellant. While the trial judge considered the effect of the exclusion of all
    the seized evidence, on appeal, the appellant argues that only the evidence of
    the marijuana odour and the water bill ought to have been excluded. The latter
    evidence, though real and reliable, was not central to the Crowns case against
    the appellant.

[52]

As a result, the
    evidence of the marijuana odour and the water bill should have been excluded
    from the appellants trial. However, as I will explain, the exclusion of this
    evidence would not have changed the outcome of the appellants trial.

(3)

Did the trial judge err by misapprehending and relying on Lis evidence?

[53]

The appellant
    submits that the trial judge erred in accepting and relying on Lis evidence
    concerning the appellants role in the grow operation and his denial of having
    anything to do with its maintenance, particularly in the light of the Crowns
    position that Lis evidence should be rejected in its entirety. The appellant
    further submits that the trial judge failed to apprehend many inconsistencies
    and other problems with Lis evidence, including his powerful motive to lie and
    implicate the appellant.

[54]

I do not accept
    the appellants submissions. Notwithstanding the appellants and Crowns
    disavowal of his evidence, it was still open to the trial judge to accept some,
    all or none of Lis evidence:
R. v. Bristol
, 2011 ONCA 232, 280 O.A.C. 334, at para. 14.

[55]

A court
    must exercise caution in accepting the evidence of a co-accused who is awaiting
    trial or sentencing. Nevertheless, a co-accused or accomplices evidence is
    admissible, and the trier of fact must employ care to determine the weight to
    be assigned to such evidence:
R. v. McGown
, 2016 ONCA 575, 341 C.C.C. (3d) 53,
    at paras. 39-40.

[56]

The trial judges
    reasons demonstrate that he adverted to all the frailties and inconsistencies
    in Lis evidence, including his varying accounts of the appellants visits to
    the basement and Lis motive to lie because of deportation consequences. He
    exercised appropriate caution with respect to Lis evidence and correctly
    determined that it was corroborated by the Crowns circumstantial evidence
    concerning the house and the appellants extended presence in it.
Such evidence could
    reasonably provide comfort to the trial judge that the witness was being
    truthful.

[57]

The trial judge
    made no error in concluding that Lis evidence helped to establish that the
    appellant had knowledge and control of the extensive marijuana grow operations
    in the house.

[58]

In consequence, I
    would reject this ground of appeal.

E.

Disposition

[59]

The appellant
    submits that if the evidence of the marijuana odour and water bill were
    excluded, the convictions against him should be set aside and acquittals
    entered, or a new trial ordered.

[60]

I disagree. On
    appeal, the appellant did not contest that the search results of the contents
    of the house were properly included at trial. As a result, even without the
    impugned evidence, the Crown had a strong circumstantial case against the
    appellant. The appellants sustained presence in the house that was
    unmistakably given over to an extensive and sophisticated marijuana grow
    operation, together with Lis evidence that the appellant spent considerable
    time in the house and the basement, established the appellants knowledge of
    and control over the grow operation. This evidence amply supported the
    convictions.

[61]

For these
    reasons, I would dismiss the appeal.

Released: October 17, 2018

L.B. Roberts J.A.

I agree K. Feldman J.A.

I agree G.T. Trotter J.A.





[1]

The breaches of ss. 8 and 9 of the
Charter
were
    conceded by the Crown at trial. While not rejecting this concession, t
he
    trial judge nevertheless concluded that the officers had a reasonable basis for
    an investigative detention of the appellant, if not reasonable and probable
    grounds for his arrest or very close, indeed.

As a result, I should not be taken as agreeing that the conduct of
    the officers who stopped and arrested the appellant infringed these sections of
    the
Charter
. However, since I conclude that the s. 10(b) breach is
    sufficient to warrant the exclusion of the evidence, it is not necessary for me
    to resolve this issue.


