R. v. Just, 2020 ONCA 362
SECTION 24(2) - EXCLUSION OF EVIDENCE - MARIJUANA - TRESPASSING
What You Need to Know
If a search warrant is obtained based on information acquired in a manner that breaches the Charter, the impact of those subsequent searches on the accused’s Charter-protected interests must be considered in a section 24(2) analysis.
There is no rule that mandates either the exclusion or inclusion of all evidence that follows a Charter infringement. Some evidence may be excluded as a result of a particular breach, and other evidence admitted.
Overview
The appellant, Just, was convicted of unlawful production of marijuana and possession of marijuana for the purpose of trafficking. Just leased land from another farmer. The police suspected he was running a marijuana grow operation on the land. While investigating another part of the owner’s land, the police unintentionally trespassed onto the leased lands.
The trial judge found that this infringed s. 8 of the Charter and invalidated the two warrants that the police subsequently obtained to conduct searches on the property. However, she found that the infringement from the trespass did not warrant exclusion of the evidence under s. 24(2) of the Charter.
The appeal turned on the sole issue of whether the trial judge’s s. 24(2) analysis was correct. Both the appellant and Crown respondent agreed she did not fully consider the impact of the breach on his Charter-protected interests.
Verdict - Appeal dismissed.
Key Facts
In 2014, Detective Constable MacCullogh obtained the consent of the appellant’s landlord to enter onto his leased property. MacCulloch went out to observe, following directions from the landlord. He unwittingly trespassed onto the leased fields, and spotted 14 rows of marijuana plants.
The police then obtained a warrant under s. 487.01 of the Criminal Code to search the leased fields. They then obtained a second warrant under s. 11 of the Controlled Drugs and Substances Act (“CDSA”) to search the outbuildings, the residence, and vehicles on the leased land.
As a result of these two warrants, the police discovered 3775 marijuana plants in the field, a large marijuana processing operation in the barn, marijuana plants in the greenhouse, and a single gram of marijuana and a can of bear spray in the appellant’s house.
Exclusion of Evidence
Section 24(2) of the Charter states:
Where, in proceedings under section (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
To determine whether including the evidence would “bring the administration of justice into disrepute,” we use the framework established in R v Grant, [2009] 2 SCR 353. Courts must assess and balance the effect of admitting the evidence against society’s confidence in the justice system, by considering the following factors:
The seriousness of the Charter-infringing state conduct;
The impact of the breach on the Charter-protected interests of the accused; and
Society’s interest in the adjudication of the case on its merits.
The Trial Decision
The trial judge agreed that the appellant’s Charter rights were breached but did not exclude any evidence under s. 24(2) of the Charter. In applying the three branches of Grant she found the following:
1) The breach was of moderate seriousness and “neutral” on whether it favoured exclusion.
2) The impact on the appellant’s Charter protected interests was minimal, favouring inclusion.
3) The seized evidence was highly reliable and crucial to the case, favouring inclusion.
The appellant plead guilty after the judge’s ruling to include all of the evidence but later appealed.
Analysis on Appeal
Where a trial judge makes an error on a s. 24(2) analysis, the appellate court should give “considerable deference to his or her ultimate determination.”
The appellate court must only undertake a fresh analysis if there is:
1. An error in principle;
2. A palpable and overriding factual error; or
3. An unreasonable determination.
Since the Crown conceded that the trial judge failed to fully consider the impact of the s. 8 breach on the appellant’s Charter-protected interests, the court conducted a fresh s. 24(2) analysis.
(a) The Seriousness of the Breach
The trial judge found that MacCulloch’s inadvertent trespass could not be characterized as “flagrant, deliberately violating of the accused’s rights, or in bad faith.” On a fresh analysis, the court determined the trial judge’s characterization of the breach as “neutral” was in fact “overly generous” to the appellant. The breach was simply not serious, and favoured inclusion.
(b) Impact on Charter-protected interests
The trial judge made an error in considering only MacCulloch’s initial trespass and did not consider the impact of the subsequent searches of the outbuildings and residence.
The other breaches “cascaded” from the initial trespass. The two warrants to conduct the building searches stemmed from the discoveries made during the trespass, rendering them invalid. Any evidence obtained from their execution was also “obtained in a manner that infringed or denied” the appellant’s Charter rights.
Each place searched – the fields, the barn, and the residence – had different expectations of privacy associated with them. The expectation of privacy of the fields and the residence were on opposite ends of the privacy spectrum.
The search of the house had the greatest impact on the appellant’s Charter-protected interests. The court reached the conclusion that this favours excluding the evidence obtained only from that particular search.
(c) Society’s interest in adjudication on the merits
The trial judge concluded that the evidence was reliable and essential to the case. The court took no issue with this and adopted her conclusion that this factor favoured admission of the evidence.
(d) The final balancing
Grant requires a careful balancing of the three factors. There is no overarching rule on how to strike the correct balance. It is fundamentally qualitative and incapable of mathematical precision.
The court determined that the warrants stemmed from an honest mistake by officer MacCulloch. The administration of justice would not be brought into disrepute by the admission of the evidence gathered from the fields and outbuildings. Only the evidence seized from the house should have been excluded. The remaining evidence was enough to support the convictions.
Note: This summary was contributed by Teddy Weinstein. Teddy was called to the bar in 2019 and is a graduate of the University of Windsor. He recently returned from working abroad in Makhanda, South Africa and is currently based in downtown Toronto. His interests are in criminal, regulatory, privacy, and health law. This post was copy edited by Sara Little.