



C
OURT
    OF APPE
AL FOR ONTARIO

CITATION: R. v. Just, 2020 ONCA 362

DATE: 20200610

DOCKET: C65645

Strathy
    C.J.O., Miller and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alexander Just

Appellant

Fady Mansour and Solomon Friedman, for
    the appellant

Allyson Ratsoy, for the respondent

Heard: March 5, 2020

On appeal from
    the conviction entered on May 24, 2018 and the sentence imposed on June 28,
    2018, by Justice Laurie Lacelle of the Superior Court of Justice, sitting without
    a jury.

Trotter
    J.A.:

A.

introduction

[1]

The appellant, a vegetable farmer, was convicted
    of unlawful production of marijuana and possession of marijuana for the purpose
    of trafficking, contrary to ss. 5(2) and 7(1) of the
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19 (
CDSA
).

[2]

The appellant farmed on land he leased from
    another farmer. The police suspected that he was running a marijuana grow
    operation on the land. While investigating the appellant by traversing another
    part of the owners land, the police unintentionally trespassed onto the leased
    lands. The trial judge found that this infringed s. 8 of the
Charter
and invalidated the two
    warrants that the police subsequently obtained to conduct searches on the
    property. Applying
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, she found that the original
    infringement did not warrant exclusion of the evidence under s. 24(2) of the
Charter
.

[3]

This appeal concerns the correctness of the
    trial judges s. 24(2) analysis. The appellant submits that the trial judge misjudged
    the seriousness of the breach (the first branch in
Grant
) and erred in the scope of her inquiry into the impact of the
    breach on the appellants
Charter
-protected interests (the second branch). The respondent concedes
    that the trial judge erred on the second branch, but contends that, on a fresh
Grant
analysis, the evidence should be
    admitted.

[4]

I would dismiss the appeal. I accept that the
    trial judges analysis of the impact on the appellants
Charter
-protected interests was
    incomplete. Nonetheless, after undertaking a fresh s. 24(2) analysis, I would
    admit all of the evidence seized by the police, with the exception of items
    seized from the residence. After excluding this evidence, there still remains
    sufficient evidence to sustain the appellants convictions and I would dismiss
    the appeal.

B.

factual background

[5]

Martin McDonald owned 330 acres of land in South
    Glengarry Township. Based on a verbal agreement, McDonald leased approximately
    12 acres to the appellant, consisting of two fields right beside each other.

[6]

On August 20, 2012, Sgt. Lamontagne, a drug
    investigator with the Ontario Provincial Police (OPP), responded to a
    neighbours complaint that the appellant was growing marijuana on the property.
    The neighbour took the officer to the location where he claimed marijuana was
    being grown. Both men briefly and unintentionally trespassed on the leased
    lands, although no marijuana was seen.

[7]

Some time later, an off-duty police officer was
    hunting on the property with McDonalds permission. He saw some marijuana
    plants and passed this information onto Sgt. Lamontagne.

[8]

In 2014, Detective Constable MacCulloch took
    over Sgt. Lamontagnes position in drug enforcement. He received information
    from Sgt. Lamontagne that the appellant was growing marijuana. D.C. MacCulloch
    obtained McDonalds consent to enter onto his property to view the leased lands.

[9]

On August 11, 2014, D.C. MacCulloch met McDonald
    at the property. He planned to travel on the non-leased portion of the land to
    get close enough to the leased portion to see whether the appellant was growing
    marijuana.

[10]

Without the aid of a map, McDonald explained to D.C.
    MacCulloch how he could get to a good vantage point on the non-leased lands.
    D.C. MacCulloch drove his truck to the area in accordance with McDonalds
    instructions. McDonald did not accompany him. Unbeknownst to D.C. MacCulloch,
    he trespassed onto one of the leased fields. He saw 14 rows of marijuana
    plants.

[11]

The investigation continued. On August 14, 2014,
    D.C. MacCulloch and another officer visited McDonalds farm. From McDonalds
    barn, and with the use of binoculars, the officers could see the leased fields.
    However, they could not identify any marijuana plants. On August 19, 2014, D.C.
    MacCulloch took part in a fly over of a number of rural properties, including
    the McDonald acreage. They were unable to see any marijuana plants from the
    sky.

[12]

On August 25, 2014, the police obtained a
    general warrant under s. 487.01 of the
Criminal
    Code
, R.S.C. 1985, c. C-46, to search the leased fields.
    Based largely on the observations made while executing the general warrant, the
    police later obtained a warrant under s. 11 of the
CDSA
to search the outbuildings, the residence, and vehicles on the leased
    land.

[13]

As a result of these two warrants, the police
    discovered: (a) 3775 marijuana plants in the field; (b) a marijuana processing
    operation in the barn (including machinery to strip the bud from marijuana
    plants, packaging materials, and storage freezers); (c) 185 pounds of marijuana
    bud and 236 pounds of marijuana shake, also in the barn; (d) trays of small
    marijuana plants in a greenhouse; and (e) a single gram of marijuana and a can
    of bear spray in the appellants house.

C.

the
Charter
application and the trial
    judges findings

[14]

The appellant applied under s. 8 of the
Charter
to exclude the evidence seized on
    the authority of the warrants. The defence advanced two main arguments: (1) the
    warrants were invalid because they were based upon a trespass; and (2) the
    police provided misleading content in the information to obtain the general
    warrant and in the information to obtain the
CDSA

warrant.

[15]

The application focused almost exclusively on
    the marijuana discovered in the fields. None of the police officers who
    testified on the
voir dire
were cross-examined on the searches of the outbuildings or the
    residence. Indeed, defence counsel at trial objected to the trial judge viewing
    a video recording of the search of the barn and residence, claiming they were
    irrelevant. Defence counsel made only brief reference to the search of the
    residence in his submissions. That search has assumed great prominence in the
    appellants submissions on appeal.

[16]

The trial judge provided very detailed reasons on
    the application:
R. v. Just
,

2017 ONSC 5178. They were responsive to the issues pressed
    by counsel. The trial judge found that the appellants s. 8
Charter
rights were infringed as a
    result of D.C. MacCullochs trespass. This breach undermined the validity of
    the warrants that authorized the search of the land, the outbuildings, and the
    residence, rendering all of the searches warrantless. However, the trial judge
    rejected the submission that the police failed in their duty to make full and
    frank disclosure in obtaining the warrants. That issue was not pursued on appeal.

[17]

The trial judge did not exclude any evidence
    under s. 24(2) of the
Charter
. In assessing the seriousness of the breach, the trial judge found
    that it was neutral in terms of whether it favoured exclusion. She held that
    the impact on the appellants
Charter
-protected interests was minimal because the breach only involved
    the search of fields, over which the appellant had a reduced expectation of
    privacy. As to societys interest in the adjudication of the case on its merits,
    the trial judge held that exclusion was not warranted, based on the reliability
    of the seized evidence and that it was crucial to the Crowns case.

[18]

Following the trial judges decision, the
    appellant entered a plea of guilty to all counts on September 18, 2017.
    However, on May 24, 2018, the appellant successfully moved to set aside his
    guilty plea for the purpose of preserving his right to appeal the trial judges
Charter
ruling: see
R. v. Faulkner
, 2018 ONCA 174, 407
    C.R.R. (2d) 59. He was found guilty based upon agreed facts and sentenced to two
    years imprisonment with various ancillary orders.

D.

analysis

(1)

Introduction

[19]

The appellant submits that the trial judge
    misapplied
Grant
. He
    contends that the trial judge ought to have found that the first branch
    (seriousness of the breach) favoured exclusion. On the second branch (impact on
Charter
-protected
    interests), the trial judge erred by limiting her analysis to the search of the
    fields and failing to consider the searches of the outbuildings and the
    residence.

[20]

The respondent disputes that the trial judge
    misapplied the first branch; however, it concedes that the trial judge erred on
    the second branch, but that her ultimate conclusion under s. 24(2) remains
    valid.

[21]

Where a trial judge has considered the proper
    factors under s. 24(2) and has not made any unreasonable finding, appellate
    courts should accord considerable deference to his or her ultimate
    determination:
Grant
,
    at para. 86;
R. v. Cole
, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 82;
R. v. Adler
, 2020 ONCA 246, at para.
    40;
R. v. Thompson
,
    2020 ONCA 264, at para. 73. In
R. v. McGuffie
, 2016 ONCA 365, 131 O.R. (3d) 643, Doherty J.A. held, at para. 64,
    that this deference may be displaced by an error in principle, a palpable and
    overriding factual error, or an unreasonable determination. In these
    circumstances, an appellate court must undertake the s. 24(2) analysis anew.

[22]

Given the Crowns concession that the trial
    judge failed to fully consider the impact of the s. 8 breach on the appellants
Charter
-protected
    interests, a concession that I would accept, a fresh s. 24(2) analysis must be conducted.
    I conclude that, with the exception of the items seized from the residence, all
    of the evidence should be admitted.

(2)

The
Grant
Framework

[23]

The trial judge commenced her s. 24(2) analysis
    by outlining the general approach mandated by
Grant
. As she said, at paras. 35-36:

Following consideration of these lines of
    inquiry, a trial judge must "weigh the various indications".
Ultimately,
    the balancing inquiry is qualitative in nature and not to be subjected to a
    mathematical formula. That is, it is not simply a question of whether the
    majority of the relevant factors favour exclusion or inclusion in a particular
    case. The ultimate issue is whether, considering all the circumstances, on
    balance, the admission of the evidence would bring the administration of
    justice into disrepute
: see
Grant
at paras. 85-86, and 140.

To the extent that a general rule could be
    formulated, the Supreme Court provided the following guidance in
Grant
at para. 127: where reliable evidence is discovered as a result of a good faith
    infringement that did not greatly undermine the accused's protected interests,
    the trial judge may conclude that it should be admitted under s. 24(2). On the
    other hand, deliberate and egregious police conduct that severely impacted the
    accused's protected interests may result in exclusion, notwithstanding that the
    evidence may be reliable. [Emphasis added.]

[24]

The trial judge then addressed the three
    branches in
Grant
.

(a)

The Seriousness of the Breach

[25]

As noted already, the trial judge made detailed
    findings on the evidence heard on the
voir dire
. A major focus of the evidence, and the trial judges reasons, was on
    the August 11, 2014 meeting of D.C. MacCulloch and McDonald at the property and
    the consequent trespass. I set out her findings in summary form:

a.

In terms of the extent of the trespass, in terms of distance, the
    trial judge found that D.C. MacCulloch was, well within the parcel of land
    leased by [the appellant]. It was not on the border, or the periphery, of the
    rented parcel: at para. 8.

b.

On the totality of the evidence, I accept that D/Cst MacCulloch
    made inquiries about where the rented parcel of land was located and that he
    was given some direction from Mr. McDonald about how to get there: at para.
    47. The trial judge also accepted the sincerity of his belief that he was not
    trespassing at the time he made his observations: at para. 48.

c.

Noting that the lease of the lands was based on an oral agreement
    between the appellant and McDonald, the trial judge found that the police
    cannot be faulted for having relied on Mr. McDonalds direction as to the
    location of the leased land, nor would this have been clarified by other
    investigative searches. The trial judge also said, I find that the police
    acted in good faith in relying on the description given by Mr. McDonald: at para.
    49.

d.

On the other hand, the trial judge found that, had D.C. MacCulloch
    been more precise in questioning McDonald, he likely would have obtained a
    better description. Moreover, he could have asked Mr. McDonald to accompany him
    onto the land. The trial judge concluded that 
the importance of respecting
    the boundary of the rented land was not at the forefront of his considerations
    when he obtained directions from Mr. McDonald about how to make his way to the
    rented parcel. I find that if the officer had been more focused on the
    accuseds privacy interests at this stage, and more careful about how he
    approached the rented portion of the land, the breach could have been avoided
:
    at para. 50.

e.

The trial judge found, While that belief was mistaken, I accept that
    it was honestly held. I find that the conduct of D/Cst MacCulloch in
    trespassing on the accused's rented land was at most the product of
    carelessness in not obtaining clearer instructions about the boundary of the
    rented parcel
. I would characterize it as a breach in the middle range of
    gravity
: at para. 51. [Emphasis added.]

[26]

The trial judges findings cut both ways in
    terms of the seriousness of the breach. On the one hand, she found that D.C. MacCulloch
    did not have the appellants privacy in the forefront of his mind, even though
    he met McDonald at the property and received directions from him. On the other
    hand, the trial judge found that D.C. MacCulloch honestly believed that he had
    avoided trespassing on the leased lands during this part of his investigation. I
    note that the trial judge found McDonalds evidence was somewhat confusing
    concerning the direction he provided to D.C. MacCulloch that day: at para. 47.

[27]

The trial judge also considered the event from
    two years earlier when Sgt. Lamontagne was led astray by the appellants
    neighbour who had complained about marijuana being grown on the leased
    property. The trial judge found that this earlier trespass was brief and
    inadvertent, and that the officers decision to have the neighbour accompany
    him was a good faith effort: at para. 56.

[28]

After considering these factors and others, the
    trial judge summarized her conclusions on the seriousness of the breach, at
    para. 58:

In summary, with respect to the seriousness of
    the police conduct in this case, errors were made in this investigation and the
    accused's rights were breached.
I am not prepared to characterize any of the
    police conduct as having been flagrant, deliberately violative of the accused's
    rights, or in bad faith
. While these findings are not required before a
    court may dissociate itself from police conduct, even when I consider the
    cumulative impact of the conduct and the mid-level severity of the breach by
    D/Cst MacCulloch, in my view the conduct at issue here is not such that the
    court must disassociate itself.
This factor in the
Grant
analysis
    does not clearly favour exclusion or admission of the evidence. It is, in
    effect, neutral
. [Emphasis added.]

[29]

In reaching her decision on this branch of the
Grant

framework,
    the trial judge relied on
R. v. Lauda
(1999), 45 O.R. (3d) 51 (C.A.). The trial judge recognized that
Lauda

was
    a pre-
Grant
decision.
    As in this case, the police in
Lauda
trespassed on farmland that Lauda leased from the owner. Unlike
    this case, the police did not have the owners permission to be on the land in
    the first place. Because the police in
Lauda
were involved in a marijuana eradication exercise, they did not
    believe they required a warrant to search the land or the house on the land.
    They were wrong. This court found that the police infringed Laudas s. 8
    rights. On the issue of seriousness of the breach, while the court was unable
    to find that the police acted in good faith, it was not prepared to find bad
    faith. Moreover, the court declined to find that the breach was flagrant,
    wilful or deliberate:
Lauda
, at paras. 87-89.

[30]

The appellant submits that the trial judge made
    numerous errors in assessing the serious of the breach, none of which I find
    persuasive.

[31]

First, the appellant submits that the trial
    judge was wrong to rely on the pre-
Grant
decision in
Lauda
in gauging the seriousness of the breach. I disagree. Recognizing
    that
Lauda
preceded
Grant
, the trial judge did not treat it
    as binding authority; she merely used it as a frame of reference for evaluating
    the seriousness of the breach. In my view,
Lauda
continues to give guidance in assessing the blameworthiness of
    police conduct in this context.

[32]

The appellant contends that the trial judge did
    not give proper effect to her finding that D.C. MacCullochs trespass was not
    minimal and that he strayed well onto the leased lands when he made his initial
    observations. The trial judge was not required to measure the seriousness of
    the breach by the foot or yard. She correctly focused on the officers degree
    of blameworthiness. In hindsight, perhaps the officer could have obtained a
    map. He might have asked McDonald to accompany him onto the leased lands
    (although it is not known whether McDonald would have agreed). To the extent
    that D.C. MacCullochs topographical incursion was serious, it was mitigated by
    his genuine efforts to follow McDonalds direction.

[33]

Contrary to the appellants submissions, the
    trial judge did not err in failing to find bad faith on the part of the
    officers. Nor did she make the mistake of equating a lack of bad faith with the
    presence of good faith:
Grant
, at para. 75. Her further conclusion that the conduct was not
    flagrant or deliberately violative of the appellants rights was amply
    supported by the evidence.

[34]

The appellant argues that the trial judge erred
    in not considering the multiple trespasses on the leased property as
    indicative of a pattern of abuses by the police: see
R. v. Côté
, 2011 SCC 46, [2011] 3
    S.C.R. 215, at para. 88;
R. v. Strauss
, 2017 ONCA 628, 353 C.C.C. (3d) 304, at para. 53.
Again, I disagree. The brief trespass in 2012, committed
    two years earlier by a different officer who was no longer involved in the
    investigation of the appellant, was minor and inadvertent. It hardly formed a
    pattern for the purposes of this
Grant
factor.

[35]

More generally, the appellant submits that it
    was improper for the trial judge to conclude that the seriousness of the breach
    was neutral, favouring neither admission or exclusion. I disagree. Although
    the overall
Grant
analysis forces a trial judge to make a binary decision  either the exclusion
    or the admission of the evidence  this is not at each stage. The overarching
    question is whether the administration of justice would be brought into
    disrepute by the admission of the evidence. As Watt J.A. held in
R. v. Manchulenko
, 2013 ONCA 543, 116
    O.R. (3d) 721, at para. 88: Section 24(2) eschews bright line or
per se
rules in favour of a contextual,
    fact-specific assessment.

[36]

In my view, the trial judge was entitled to
    characterize the seriousness of the breach in the manner that she did. With the
    exception of the search of the residence, the trial judges conclusion that the
    seriousness of the breach was a neutral factor supports her overall analysis.

[37]

However, in undertaking a fresh s. 24(2)
    analysis, I would go further. With respect, the trial judges conclusion that the
    seriousness of the breach was in the middle range of gravity was overly
    generous to the appellant. The trespass was inadvertent and brief. It was an
    innocent mistake based upon the officers reasonable reliance on McDonalds directions
    about how to navigate a property that had been in his family for decades. For
    the reasons I have outlined above, I conclude that the breach was not serious.
    It did not favour exclusion.

(b)

Impact on
Charter
-protected Interests

[38]

Both parties agree that the trial judge erred in
    applying this branch of the
Grant
framework by restricting her analysis to D.C. MacCullochs trespass
    and not considering the impact of the subsequent searches of the outbuildings
    and the appellants residence:
R. v. Dhillon
, 2010 ONCA 582, 260 C.C.C. (3d) 53, at paras. 55-56; see also
McGuffie
, at para. 70, in which the
    trial judge failed to conduct any analysis of the impact on the appellants
Charter
-protected interests.

[39]

The trial judge referred to the residence at two
    points in her reasons. At para. 61, she found:

I find that the search which occurred during
    D/Cst MacCulloch's trespass did not engage the highest of privacy interests and
    was minimally intrusive.
This was not a search of the accused's home, or his
    person, but of rented farmland.
Nor did this search invade the accused's
    privacy in regards to private information. [Emphasis added.]

[40]

The trial judge compared this case to
Lauda
, and said, at para. 63-65:

This analysis applies wholly to the facts
    here. In that regard,
I accept the uncontradicted evidence that there were
    no signs or barriers erected on the property to alert anyone who might come
    upon it that the person who controlled the property was asserting a privacy
    interest
. The property, while hidden from public view due to its location
    on the MacDonald [
sic
] farm, was not inaccessible to persons on the
    farm. This included PC Robertson, who over the time he hunted on the farm had
    occasion to notice workers in the fields rented by the accused and wave at
    them. Mr. MacDonald [
sic
] had also at least once travelled to the area
    of the rented property to see what a garden of that size would look like, and
    made easy observations of the fields.

I also accept that it was the accused who
    developed the pathways in and out of the fields and that he also used the land
    to farm vegetables.
He made real and extensive use of the property over a
    number of years. His privacy interest was not trifling. All the same, in the
    totality of the circumstances, I find that the accused's expectation of privacy
    in the contents of his rented land was not high on the privacy scale
.

I also find that the search conducted by D/Cst
    MacCulloch was minimally intrusive. It consisted of his visual observations of
    an open field. It did not involve invasive investigative techniques.
It did
    not involve the accused's bodily integrity, his residence, or core biographical
    information
. The search had a minimally intrusive impact on the accused's
    privacy interests. [Emphasis added.]

[41]

The appellant does not take issue with the trial
    judges assessment of the appellants privacy interests in the fields. This
    conclusion is well-supported by the record. In
Lauda
, Moldaver J.A. attributed a low expectation of privacy in the
    fields that were searched. As he said at paras. 92-93:

[The] level of privacy attaching to the
    cornfield does not approach that of a private dwelling.
A field is obviously more exposed to public intrusion than a home;
    steps taken by property holders to exclude the public from open fields will not
    always prove successful. Indeed, as the evidence in this case reveals, Sergeant
    Cardwell observed hunters on the property before giving the command to
    eradicate the marijuana.

It follows, in my view, that although the
    appellant was entitled to assert a privacy interest in the leasehold property,
    his expectation did not measure high on the privacy scale
. This too serves to mitigate the seriousness of the violation.
    [Emphasis added.]

[42]

The Crown accepts the appellants submission
    that the trial judge erred in failing to consider his privacy interests that
    were implicated by the search of the barn and residence. However, the Crown
    submits that the result would have been the same under s. 24(2).

[43]

It is understandable why the trial judge took
    such a narrow approach to this question. This was the manner in which the case
    was litigated. The application to exclude evidence was focused on the events
    leading up to the trespass on the leased lands. The discovery of the 14 rows of
    growing marijuana formed the core of the case against the appellant. This
    evidence alone was sufficient to establish the appellants guilt on both charges.
    This is no doubt why counsel focused their submissions on the trespass onto the
    leased property.

[44]

However, there was a broader context. Other
    breaches cascaded from the initial breach. The police obtained a general
    warrant and a
CDSA
warrant
    and conducted the searches on the outbuildings and the residence, as described
    above. Based on the connection of these warranted searches to the trespass, the
    warrants became invalid. The evidence obtained upon execution of the warrants
    was also obtained in a manner that infringed or denied the appellants
Charter
rights: see
R. v. Pino
, 2016 ONCA 389, 130 O.R.
    (3d) 561, at paras. 50-61.

[45]

The places that were searched  the fields, the
    barn, and the residence  were associated with different expectations of privacy.
    As noted above, in the discussion of
Lauda
, the appellants privacy interests, and the consequent impact of
    the
Charter
breach,
    was minimally implicated by the search of the fields where the growing
    marijuana was found.

[46]

At the other end of the spectrum, the law has
    long recognized clearly that a search of a residence involves a serious
    invasion of privacy interests: see
Grant
, at para.
113;
Côté
, at para. 85;
R. v. Silveira
, [1995] 2 S.C.R. 297, at para.
148;
Dhillon
, at para. 56; and
Lauda
, at paras. 97-98, 102.

[47]

The appellants expectation of privacy in the
    barn and greenhouse received little attention on the application. As noted in
    para. 15, above, none of the officers who testified on the application were
    asked about these buildings. Counsel made no submissions about the level of
    privacy to be reasonably enjoyed in these structures. The matter was not
    clarified further by submissions on appeal. However, as a matter of common
    sense, the privacy interest in a barn and greenhouse is less than a house, and
    perhaps greater than the leased fields.

[48]

The trial judge should have considered these
    features of the
Charter

infringements under this branch of
Grant
. Relying on
Pino
, the appellant submits that the
    impact on the appellants
Charter
-protected interests is evaluated solely based on the expectation of
    privacy the appellant enjoyed in his residence. That is, he attempts to isolate
    a single link in a chain of events  the search of the residence  and blanket the
    entire sequence with the heightened expectation of privacy that is inherent in
    this part of search. I disagree with this approach.

[49]

Pino
does not
    support the appellants position. That case is principally about the reach of
    the obtained in a manner threshold in s. 24(2). In this case, there is no
    question that all of the evidence that was seized was obtained in a manner
    that infringed the appellants
Charter
rights. This case involves the next step in the analysis.

[50]

A single
Charter
breach, especially under s. 8, may impact on more than one
Charter
-protected interest. This is
    demonstrated in other cases. In
R. v. Li
, 2013 ONCA 81, 296 C.C.C. (3d) 408, leave to appeal refused [2013]
    S.C.C.A. No. 142, also a grow operation case, a s. 8 breach had been
    established by virtue of the fact that search warrants had been issued by a
    judge who lacked the authority to do so. Nonetheless, the trial judge did not
    exclude the evidence under s. 24(2). Both holdings were upheld on appeal. In
    addressing s. 24(2), Watt J.A. said the following, at para. 110:

The impact of the unconstitutional conduct
    on the appellant's
Charter
-protected interests was not significant,
    despite the fact that one of the searches involved a residence
. The initial conduct consisted of observations of activities on
    property. Some of these activities could be seen from a public road. The
    residential search involved a home of which the appellant was neither the owner
    nor an occupant, thus one in respect of which he had, if any, a reduced
    expectation of privacy. The police conduct had no impact on the appellant's
    bodily integrity or personal dignity. This line of inquiry favours admission of
    the search evidence. [Emphasis added.]

[51]

This case shares some of the same features as
Li
, although I acknowledge that the
    appellant in this case resided at the house that was searched.

[52]

This differential approach was also reflected in
Lauda
. After
    considering the different privacy interests implicated by the places that were
    searched, Moldaver J.A. held that the fruits of the fields search should be
    admitted (
Lauda
, at

paras. 100-101), whereas substances seized from the accuseds residence should
    be excluded (
Lauda
, at
    paras. 102-103).

[53]

As I have already said, the trial judge should
    have considered the broader impact of the
Charter
. However, in fairness to the trial judge, defence counsel hardly
    focused at all on this aspect of the case. Instead, he placed great weight on
    his submission that the police were deceptive in obtaining the search warrants.
    This was rejected by the trial judge. Counsels other main submission  that
    D.C. MacCullochs trespass amounted to a wilful and flagrant breach of s. 8 
    also failed to find traction with the trial judge. The focus on appeal, on the
    broader implications of the s. 8 breach, represents a major change in strategy.

[54]

A fresh
Grant
analysis must consider the impact of the subsequent searches.
    Neither the record in this case, nor the jurisprudence, points clearly in one
    direction about the nature of the privacy interest the appellant enjoyed in the
    barn and greenhouse. On the other hand, the search of the house clearly had the
    greatest impact on the appellants
Charter
-protected interests. But the search of the house was only one part
    of the picture in this case. If the point had been pressed in front of the
    trial judge, she likely would have concluded that the impact of the residence
    search was so serious that it favoured exclusion of
that
search. That is the conclusion
    that I would reach. However, the impact of that search does not overwhelm the
    overall impact of the searches of the other locations. It is merely part of the
    constellation of factors to consider in evaluating the overall impact of the
Charter
-infringing conduct of the
    police. In my view, the application of this branch favours exclusion of the
    search of the residence; it does not favour the exclusion of any other
    evidence.

(c)

Societys Interest in Adjudication on the Merits

[55]

The trial judge accurately identified the considerations
    that are relevant to this branch of
Grant
. She rightly considered that the evidence seized was reliable, the
Charter

infringement
    did not attenuate its reliability, and the evidence was essential to the
    Crowns case: at para. 74.

[56]

The trial judge gave less weight to the
    seriousness of the offence. On the one hand she observed that, in the hierarchy
    of drug offences, marijuana is less serious than other drugs; on the other, the
    appellant was involved in a significant commercial grow-operation: at para.
    75. The trial judge determined that this factor favours admissibility because
    [a]dmitting the evidence would enhance the truth seeking function of the trial:
    at para. 76.

[57]

I adopt the trial judges conclusion that this factor
    favours the admission of the evidence.

(d)

The Final Balancing

[58]

Grant

requires a careful balancing of the three factors discussed above. As
    McLachlin C.J. and Charron J. held, at para. 86: No overarching rule governs
    how the balance is to be struck. Mathematical precision is obviously not
    possible. In
R. v. Harrison
, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 36, McLachlin C.J. said
    that the balancing is a qualitative one, not capable of mathematical
    precision.

[59]

As discussed above, this nuanced approach does
    not require that all evidence seized as a result of a
Charter
infringement be treated in the
    exact same way. In
Manchulenko
, at para. 76, Watt J.A. said: [T]here is no
per se
or bright line rule that
    mandates exclusion of all evidence that follows a Charter infringement.
    Consequently, some evidence may be excluded as a result of a particular
    breach, and other evidence admitted:
The Law of
    Evidence
, at p. 405.

[60]

It is important to consider the big picture in
    this case. At the beginning of an investigation into what turned out to be a
    major grow operation, D.C. MacCulloch made a mistake  he strayed onto a leased
    farmers field when he should not have. This was after obtaining directions
    from the owner of this vast 330-acre property about how to get a look at the
    suspected grow operation without trespassing. The officer did not realize that
    he had trespassed until the matter was litigated. In the meantime, he had obtained
    not one, but two judicial authorizations to search the fields, and then,
    separately, the buildings associated with the leased land.

[61]

On balance, the administration of justice would
    not be brought into disrepute by the admission of the evidence gathered from
    the fields and the outbuildings. The enhanced impact on the appellants privacy
    interests in his residence requires that evidence seized from that location be
    excluded. But even with this evidence excluded, the appellants convictions are
    still supported by the evidence that was properly admitted.

E.

disposition

[62]

I would dismiss the appeal against conviction.
    Although the appellant originally sought to appeal his sentence, it was not
    pursued in writing or during the oral hearing. Accordingly, it is dismissed as
    abandoned.

Released: GRS June 10, 2020

Gary Trotter J.A.

I agree. G.R. Strathy
    C.J.O.

I agree. B.W. Miller
    J.A.


