2011 QCCA 237, 2011 QCCA 237

L’Espérance c. R. 2011 QCCA 237 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002409-097 200-10-002410-095 (400-01-051238-087) (400-01-051240-083) DATE: February 9, 2011 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. LOUIS ROCHETTE, J.A. JACQUES VIENS, J.A. (AD HOC) No.: 200-10-002409-097 YVON L’ESPÉRANCE APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix No.: 200-10-002410-095 CLAUDETTE TRUDEL APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] THE COURT ; On the appeal from a judgment of the Court of Quebec, Criminal and Penal Division, District of Trois- Rivières (the Honourable Judge Narcisse Proulx), rendered on June 11, 2009, that found the appellants guity of having produced cannabis (marihuana) contrary to the Controlled Drug and Substances Act . [ 2 ] After having examined the file, heard the parties, and on the whole deliberated; [ 3 ] For the reasons of Rochette J.A., with which Thibault J.A. and Viens J.A. (ad hoc) agree: [ 4 ] ALLOWS the appeals; [ 5 ] SETS ASIDE the convictions entered on June 11, 2009; [ 6 ] ORDERS the exclusion of the physical evidence obtained following the search of the appellants’ home on May 30, 2008. [ 7 ] SUBSTITUTES an acquittal for the judgments rendered in both files.

FRANCE THIBAULT, J.A.

LOUIS ROCHETTE, J.A. JACQUES VIENS, J.A. (AD HOC) Mtre Catherine Roberge LEBLANC, ROBERGE For the appellants Mtre Jean-François Bouvette CRIMINAL AND PENAL PROSECUTOR For the respondent Date of hearing: November 25, 2010 REASONS OF ROCHETTE J.A. [ 8 ] This case considers the power of police officers to conduct a warrantless search of a residence into which the occupants had given them entry, where the officers, who were investigating an event that had taken place in the neighbourhood, noticed an odour of fresh cannabis and a high humidity level once they were inside.

The admissibility of the evidence thus gathered is also at issue. [ 9 ] The factual background can be summarized as follows. [ 10 ] Late at night on May 30, 2008, Sûreté du Québec police officers were investigating a fire, considered suspicious, in a barn built on the property neighbouring that of the appellants in Sainte-Anne-de-la-Pérade. At around 12:30 p.m., Officer Tommy Lemay and Investigator Régis Rousseau knocked on the door of the appellants’ residence to question them about this incident.

Verbally and using hand gestures, the appellants invited the police officers to enter, which they did. [ 11 ] The appellants were questioned by Investigator Rousseau about the fire. Officer Lemay noticed an odour [ translation ] “of fresh cannabis, the odour of a grow op”. He asked the appellant for permission to use the bathroom and on the way back told his colleague that he had reason to believe that there was a [ translation ] “cannabis grow op” in the house.

He testified: [ translation ] A. ... look, I...I told him that, look, I had reason to believe that there was a cannabis grow op on the premises because it was really humid inside the house, there was a smell of ... of cannabis inside too, it wasn’t a smell of cannabis that had been smoked, but actually a smell of cannabis, you know, growing. I had already done searches by...in the past, and look, it’s a smell that’s really...that’s characteristic. [ 12 ] The officer then explains how he proceeded [ translation ] A. ...

Look, by then it was twelve thirty-five (12:35 p.m.), twelve thirty-five (12:35 p.m.), I informed the two (2) occupants, who are on my right, Mr. L’Espérance and Ms. Trudel, that I had reasonable grounds to believe that there was a cannabis grow op on the premises. Then also, look, to preserve the evidence and also for our security, I looked around the premises to see if there was anyone else on the premises, it’s really...that was my intention. THE COURT: One moment A. Yes. Q. Yes. Right and you said that to ... you went to see if there were other people? A. That’s right.

For our safety and also to preserve the evidence, given that I knew that there were two (2) other people living there, two (2) teenagers who live on the premises with Mr. L’Espérance and Ms. Trudel, who are their children, I didn’t know at the time if they...if they were there on the premises. Mtre JEAN-MARC POIRIER: Crown prosecutor Q. When you say that you decided to look around for your safety, to preserve the evidence, how did that take place, how did you do that?

A. Well, look, it was twelve thirty-five (12:35 p.m.), what I did was check each room, one after another, really to check whether there were people inside. So I went to the left, if I can say, of the front door, there was a room there, then I went down to the basement. In the basement, see, there was no one except I observed that there were about, quickly, see, it’s not a very big house, I quickly observed that there were about twenty cannabis plants about one foot (1’) high, and a dozen cuttings.

I’m telling you, look, I’m telling you this quickly because I went back upstairs, I looked around the first floor, I went up to the second floor because it’s a house...it can be described as a two (2)-storey house with a basement, I went up to the second floor, I checked every...every room, one after the other, and I observed that there was no one, and I went back to ...I went back down to the first floor. [ 13 ] Back with his colleague, Officer Lemay placed the appellants under arrest for production of cannabis, read them the usual caution, and informed them of their right to consult counsel.

The appellants were taken to the police station while an officer was put on watch outside their house to ward off possible intruders and prevent the loss of evidence. They each took turns speaking with a lawyer then signed a [ translation ] “consent to search or seizure on premises without a warrant” for the marihuana plants and the equipment used for their production. Their consent at this stage is not questioned. [ 14 ] Charged with the production of cannabis, the appellants pleaded not guilty. On June 9, 2009, they presented a motion to exclude the evidence gathered in the search.

They alleged that the seizure was unreasonable within the meaning of

section 8 of the Canadian Charter of Rights and Freedoms (the “ Charter” ) and that their arrest was therefore unlawful and unreasonable. [ 15 ] After the evidence was adduced, the trial judge dismissed the motion.

He found that the police officers acted lawfully and in good faith, adding: [ translation ] So I come to the conclusion that no, it was done in a manner that did not infringe the Charter and, what is more, if I were to come to this conclusion, first, it’s physical evidence, then, in any event and pursuant to the “but for” test, the ... they are things that would have been discovered one way or another, the “but for” test, B.U.T. F.O.R. So, as for the second stage of the... of the Collins test, again and what would normal citizens think, well informed of their rights, fire, yes.

You go to someone’s home for information about a fire, to investigate, and then you discover drugs, you happen upon the drugs and then, because the officer ... acted too quickly, then it must all be rejected, I’m sorry, it’s a ... in addition, the area here, I know, after the Vancouver area, I think the Bois-Francs region and here are where there is the most of this kind of production. So I do not... even if there was inequality [it should read unlawfulness], I would not reject the evidence.

So, the judgment accordingly, so it was validly done. [Reproduced in full.] [ 16 ] On June 11, 2009, the evidence from the voir dire was filed in the record by consent of the parties. The judge convicted the appellants of having produced cannabis. On September 2, 2009, he imposed a four-month term of imprisonment on the appellant L’Espérance, along with a three-year probation order, an order to perform seventy hours of community work within eight months of the end of the prison term, and an order to undergo drug rehabilitation therapy.

The judge also imposed a six-month suspended sentence on the appellant Trudel with restrictive conditions for the first four months, along with a twelve-month probation order, without surcharge or costs. [ 17 ] The appellants appeal the verdict and the sentences. Let us first consider the verdict. * * * [ 18 ] The appellants fault the trial judge for having [ translation ] “confused the relevant criteria for the determination of whether the conduct of the police officers was unreasonable with those applied for the exclusion of evidence”.

They add that the [ translation ] “sensory observations” of Officer Lemay were [ translation ] “lawful” but that nothing justified a warrantless search of the residence. At first glance, such a search is unreasonable, and the prosecution, who acknowledged this, bore the burden of rebutting this presumption. It failed to do so. [ 19 ] Similarly, the police officers could not act on their power incidental to arrest because the search preceded and justified the arrest of the appellants.

Finally, concerns regarding safety or the preservation of the evidence could not validate a Charter -infringing search and, consequently, the evidence gathered must be excluded under section 24(2) of the Charter . [ 20 ] The Crown replies that the police entered the appellants’ residence in the context of a [ translation ] “justified and lawful” investigation and that the [ translation ] “heart of the dispute concerns the application of

section 487.11 Cr. C. “. It argues that the inspection of the residence [ translation ] “sought to avoid the destruction of evidence while awaiting a search warrant” and to ensure the safety of the police officers, a situation described as urgent: [ translation ]

Officer Lemay’s action of looking around the house was undertaken only once the accused appellants had been informed that he hadreasonable grounds to believe that cannabis production was taking place on the premises. The purpose of checking the home was toprevent the destruction of the evidence while awaiting a search warrant because the officers knew that the appellants lived with twoteenagers who were not in the room with them and the appellants at the time. The officers’ action was to avoid the destruction ofevidence and not to obtain reasons to believe that there was a grow-op.

Immediate action on the part of the police officers was required toensure their safety and to preserve the evidence.[1] [Emphasis added.] [21] Therefore, the Crown argues that

section 487.11 Cr. C. and its analogous provision in section 11(7) of the Controlled Drugand Substances Act,[2] like section 489(2) Cr. C. moreover, authorize officers to act the way they did. It notes that subsection 489(2) Cr.C. does not require an arrest prior to a search.

The Crown also argues that, because the conditions in Collins[3] were met, the searchcannot be characterized as unreasonable, especially since the final search during which the evidence was seized was not unreasonablebecause the consent of the appellants had by then been obtained. [22] Finally, the Crown submits that, if there was a violation of a Charter right, the application of the criteria set out in Grant,[4]among others, allows the admission of the evidence found. In the alternative, it asks the Court to apply subparagraph (iii) of paragraph686(1)(

b) Cr. C., being of the view that there was no error tainting the fairness of the trial. * * * [23] The main purpose of

section 8 of the Charter[5] is to protect the right to privacy from state incursion. The conduct of a policeofficer who violates a “reasonable expectation of privacy” is a search or seizure within the meaning of this provision.[6] Moreover, thereasonable expectation of privacy is very high in the case of a “dwelling-house”.[7] [24] In the case before us, the lawfulness of the police officers’ presence in the appellants’ home pursuant to their investigativepowers is not disputed,[8] but the same cannot be said regarding the ensuing events.

The search of the appellants’ residence took placewithout a warrant and is therefore considered prima facie unreasonable.[9] In R. v. Evans, the Supreme Court of Canada recalled theburden of proof incumbent on the Crown: [23] ... In other words, a warrantless search is presumed to be unreasonable unless the party seeking to justify the search can “rebut thispresumption of unreasonableness” (Hunter, supra, at p. 161). According to this Court in R. v.

Collins, (SCC), [1987] 1S.C.R. 265, at p. 278, in order to rebut the presumption of unreasonableness the Crown must establish three things, namely (1) that thesearch was authorized by law, (2) that the law authorizing the search was reasonable, and (3) that the manner in which the search wascarried out was reasonable.

Only where these three criteria are met is the “presumption of unreasonableness” rebutted: in all other cases,a warrantless search infringes s. 8 of the Charter. [10] [25] The appellants do not challenge the constitutional validity of any legislative provisions or the reasonableness of any statute.The manner in which Officer Lemay conducted the search of the appellants’ home is not characterized as unreasonable.

Therefore, theonly matter at issue here is whether there is any “law” authorizing the search conducted. [26] Regarding the powers of peace officers, authors Pierre Béliveau and Martin Vauclair state the following: [translation] The various powers conferred on peace officers to ensure that they meaningfully exercise their functions are set out in the CriminalCode, in the various statutes creating police forces, and in certain special provincial laws such as the Highway Safety Code.

Some powersintimately connected to the effectiveness of the penal and criminal law, however, are common law powers. ...[11] [27] Let us now consider the provisions upon which the Crown relies. [28]

Section 487.11 Cr. C. and

section 11 of the Controlled Drug and Substances Act state the following, using similar wording: 487.11 A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial lawand whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any ofthe powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason ofexigent circumstances it would be impracticable to obtain a warrant. 11.

(1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that (

a) a controlled substance or precursor in respect of which this Act has been contravened, (

b) any thing in which a controlled substance or precursor referred to in paragraph (

a) is contained or concealed, (

c) offence-related property, or (

d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in

part in relation to acontravention of this Act, under

section 354 or 462.31 of the Criminal Code is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlledsubstance, precursor, property or thing and to seize it. ...

(7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one . [Emphasis added.] [ 29 ] Exigent circumstances are held to exist “if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed”. [12] Exigent circumstances exist, for example, during a hot pursuit and where immediate action is required to ensure the safety of the police officers. [13] [ 30 ] The trial judge did not elaborate on the allegation of exigency.

He simply wrote: [ translation ] ... when a house is searched in a drug case, it is established that officers must take certain measures to ensure their safety . So, he looked in certain rooms and observed the presence of ... of the production of drugs. So he ... the two (2) of them were arrested and they were taken to the station. [14] ... ... so I note in particular that these are notions of seriousness and good faith. So it should be noted that the police officers appeared and stated that it was not a trick, they were there in the exercise of their power.

Once inside, Officer Lemay immediately or almost immediately observed that... that there was production of marihuana and he decided to... he informed the two (2) owners and decided to go see the premises. In my view, I cannot see any breach there in that he had the right to go force – to go see. So therefore, at that moment, they knew what was happening, they had the elements in hand . [15] [Emphasis added.] [ 31 ] In my view, and with respect for the trial judge, this is an error of law.

The Crown had to demonstrate that an exceptional situation authorized the police officers to proceed without a warrant in order to rebut the presumption of unreasonableness of the seizure that took place in the appellants’ home. According to the reasoning of the trial judge, because in principle safety concerns are often present [ translation ] “in drug cases”, a warrantless search may be carried out validly in all cases. [ 32 ] Let us recall that here, the police officers were not investigating a “drug case” but rather a suspicious fire at a neighbour’s.

It was the characteristic odour of cannabis that raised Officer Lemay’s suspicions, nothing more. The situation did not involve a hot pursuit. There is nothing to suggest that there was an imminent danger of the loss, removal, destruction, or disappearance of the evidence if the search or seizure was delayed. The appellants have two children, but they did not appear to be in the house, which, it should be added, is of a very small size.

In actual fact, Officer Lemay did not know whether there was anyone else on the premises. [ 33 ] In short, immediate action was not required to ensure the safety of the police officers who had been duly received by the appellants. The atmosphere appears to have been calm, and the “imminent danger” argument is not plausible.

In this context, the Crown has not shown what could have prevented the officers from seeking a warrant by submitting an information by telephone or other means of telecommunication before conducting the search. [16] [ 34 ] Therefore, the first ground is without merit and does not rebut the presumption that the search carried out by the appellants was unreasonable. The Crown also invokes subsection 489(2) Cr.

C . [ 35 ] It argues that since the presence of the police officers at the appellants’ home was lawful, they had the right to proceed with the search because [ translation ] “ subsection 489(2) of the Criminal Code ... does not require an arrest prior to a search”, particularly when objects related to the commission of an offence are in plain view. [ 36 ]

Section 489 Cr. C. codifies the common law power of seizure of objects in plain view. [17] The second subsection of the provision states: 489. ...

(2) Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds (

a) has been obtained by the commission of an offence against this or any other Act of Parliament; (

b) has been used in the commission of an offence against this or any other Act of Parliament; or (

c) will afford evidence in respect of an offence against this or any other Act of Parliament. [Emphasis added.] [ 37 ] This doctrine permits a warrantless seizure of evidence in plain view when three conditions are met: the intrusion is lawful, the evidence is discovered inadvertently, and the property seized is likely to prove the alleged offence. [18] The first and last conditions are not at issue here. The officers were authorized to enter the appellants’ residence and they were carrying out a valid investigation of the fire that had occurred on a neighbouring property. In R. v.

Evans , however, the Supreme Court states the following regarding the waiver of the expectation of privacy constituted by an invitation to knock at a door:

[13] … The implied invitation, unless rebutted by a clear expression of intent, effectively waives the privacy interest that an individual might otherwise have in the approach to the door of his or her dwelling. [14] If one views the invitation to knock as a waiver of the occupier’s expectation of privacy in the approach to his or her home, it becomes necessary to determine the terms of that waiver.

Clearly, under the “implied licence to knock”, the occupier of a home may be taken to authorize certain persons to approach his or her home for certain purposes. ... [18] … the invitee’s purpose is all-important in determining whether his or her activity is authorized by the invitation. [19] [ 38 ] In R. v. Godoy , however, the Supreme Court states that the power of police officers to enter a residence – in that case to answer an emergency call – does not authorize them to carry out a search: [22] ...The police authority for being on private property in response to a 911 call ends there.

They do not have further permission to search premises or otherwise intrude on a resident’s privacy or property. In Dedman , supra, at p. 35, [22] Le Dain J. stated that the interference with liberty must be necessary for carrying out the police duty and it must be reasonable . A reasonable interference in circumstances such as an unknown trouble call would be to locate the 911 caller in the home.

If this can be done without entering the home with force, obviously such a course of action is mandated. [20] [ 39 ] Moreover, it is self-evident that the property seized is likely to afford evidence in respect of the alleged offence. That said, it remains to be determined what should be understood by [ translation ] “evidence in plain view” that is [ translation ] “discovered inadvertently”. [ 40 ] First of all, I am not prepared to limit the application of the plain view doctrine to only those elements whose presence may be observed firsthand. For example, as Bastarache J. prudently noted in R. v.

Law , a case where this doctrine was invoked in regard to photocopies made by the police of financial documents found in a safe that had been stolen and were later recovered: [27] ... Corporal Desroches admitted there was nothing facially wrong with the documents. He testified they contained a series of numbers and Chinese characters, and that he lacked both accounting expertise and proficiency in Chinese.

Not having detected anything incriminating through the unaided use of his senses , Corporal Desroches cannot rely on the plain view doctrine either to establish reasonable and probable grounds ... [21] [Citations omitted.] [Emphasis added.] [ 41 ] In R. v. Smith , a very interesting case as it is analogous to our own, the Court of Appeal of Alberta drew a distinction between the lawfulness of the police officers’ entrance into a residence and their power to search once inside.

According to that case, a police officer who finds himself lawfully in a residence and perceives a characteristic odour of drugs from another room may not carry out a search without a warrant on the basis of the “plain view” doctrine. A warrant must be obtained: [8] Even if the entry onto the premises was legal, consent to entry was for a limited purpose , namely, to ensure the safety of the telephone complainant. This does not imply that a search of those premises for other purposes is allowable .

No consent to enter the basement where the marijuana was found was given , yet Constable Leggatt proceeded down to the basement. In doing so he was conducting a search, and his actions went beyond what was authorized by Mr. Smith’s invitation to enter the house. ... [24] In

summary, it is apparent that, from its origin, the plain view doctrine applies to justify a seizure where the police are lawfully present in a location. It is not a justification, in itself, for a search of a private residence. Consequently, any analogy to “plain smell” must be undertaken with care. If an unique smell causes an officer to believe that drugs are present in another part of a private dwelling, absent consent, a search warrant will be required to find those items .

Neither existed here and the search of the premises was a breach of s. 8 . [22] [Emphasis added.] [ 42 ] I agree with this statement. [ 43 ] Here, the cannabis plants and cuttings were not in plain view of the officers. They were kept in the basement of the appellants’ residence, where the reasonable expectation of privacy is high. From another perspective, Officer Lemay had no element other than the [ translation ] “smell of fresh cannabis” on which to base his suspicion that the appellants were producing cannabis.

Although he perceived this odour when he entered the appellants’ home, Officer Lemay did not inform Investigator Rousseau of this right away. He first went to the bathroom, and it was only after he returned that he told his colleague that he had [ translation ] “reasons to believe that there was a cannabis grow-op on the premises”. Investigator Rousseau then told him that he was of the same opinion.

But the appellants were placed under arrest only once Officer Lemay had returned to the ground floor, after he discovered the cannabis. [ 44 ] In the circumstances, the Crown has not persuaded me that the cannabis plants were [ translation ] “discovered inadvertently”. The police officers suspected they were there, but it was only upon searching the appellants’ home that they were able to make the discovery, to observe the commission of an offence, and to arrest them.

The infringement of freedom must, however, be necessary to accomplishing police duty and it must, to repeat the words of Le Dain J. in Dedman , be reasonable . As noted above, I am not persuaded that concerns regarding safety or the preservation of evidence prevented the police officers from requesting a telewarrant. The infringement of freedom was not reasonable, in the circumstances. [ 45 ] Therefore, the second justification of the right to search submitted by the prosecution must fail. Ultimately, the proposed

interpretation of subsection 489(2) Cr. C . would justify any search of a residence and any seizure of evidence the police simply suspected was in existence, a power that goes well beyond the situation contemplated by Parliament.

[46] Finally, the Crown may not rely on the powers of search incidental to the detention of the appellants to justify the contestedsearch. On that subject, the Supreme Court stated the following, in R. v. Mann: [37] ... I note at the outset the importance of maintaining a distinction between search incidental to arrest and search incidental to aninvestigative detention.

The latter does not give licence ot officers to reap the seeds of a warrantless search without the need to effect alawful arrest based on reasonable and probable grounds, nor does it erode the obligation to obtain search warrants where possible. [23] [47] In short, the Crown has not rebutted the presumption of the unreasonableness of the search of the appellants’ residence. Theevidence gathered was therefore in violation of

section 8 of the Charter. The appellants’ consent to a search, given from the policestation where they had been taken, cannot constitute an explicit waiver of the right to invoke the violation of their rights at trial. * * * [48] At this stage, it is appropriate to determine whether the evidence obtained is nevertheless admissible.

In other words, has itbeen established under section 24(2) of the Charter that their use is likely to bring the administration of justice into disrepute havingregard to the circumstances, in which case the evidence should be rejected? [49] This determination requires the application of the principles set out by the Supreme Court in Grant and Harrison, amongothers.

Admittedly, the trial judge did not have the benefit of the teachings of those cases, which were rendered after the judgment underappeal.[24] The factors of analysis have not changed, however, although the categories used in the analytical approach have beenmodified slightly since Collins.[25] [50] In Grant, the majority of the Court, per the Chief Justice and Charron J., stated the following: The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of,and public confidence in, the justice system.

Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s.24(2) does not focus on immediate reaction to the individual case. 24(2). Rather, it looks to whether the overall repute of the justicesystem, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective.

It asks whether areasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission ofthe evidence would bring the administration of justice into disrepute. [69] Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done tothe administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breachdoes not do further damage to the repute of the justice system. [70] Finally, s. 24(2)’s focus is societal.

Section 24(2) is not aimed at punishing the police or providing compensation to the accused,but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of thejustice system. [71] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring theadministration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewedin a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court mustassess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousnessof the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) theimpact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count forlittle), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance theassessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidencewould bring the administration of justice into disrepute. ...[26] [Emphasis added.] [51] Let us now consider these three elements. [52] With regard to the seriousness of the Charter-infringing state conduct, the Supreme Court stated the following, in Grant: [75] Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of policeconduct that results in a Charter breach: R. v.

Silveira, (SCC), [1995] 2 S.C.R. 297, per Cory J. “Good faith” on the partof the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charterstandards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, (SCC), [1989] 1 S.C.R. 59, p. 87, per Dickson C.J.; R. v. Kokesch, (SCC), [1990] 3 S.C.R. 3, at pp. 32--33,per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59.

Wilful or flagrant disregard of the Charter by those verypersons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It followsthat the deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should alsokeep in mind that for every Charter breach that comes before the courts, many other may go unidentified and unredressed because theydid not turn up relevant evidence leading to a criminal charge.

In recognition of the need for courts to distance themselves from thisbehaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion. [27] [53] In my view, a consideration of this element leads to a neutral result. The police acted in good faith,[28] but they were notunaware that their intervention was taking place in a residential home, a place benefiting from a high degree of protection by Charter-enshrined values. The violation should not be trivialized.

Good faith is only one element in the analysis and must be considered inrelation to the factors affecting the seriousness of the infringement.[29] Finally, there was nothing to suggest that there was an urgentneed to act due to an elevated risk of the disappearance of evidence or to ensure the safety of the officers.

[54] On the impact of the breach on the Charter-protected rights of the accused, the Supreme Court continues: [77] To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right andexamine the degree to which the violation impacted on these interests. For example, the interests engaged in the case of a statement toteh authorities obtained in breach of the Charter includes the s. 7 right to silence, or to choose whether or not to speak to authorities(Hebert) — all stemming from the principle against self-incrimination: R. v.

White, (SCC), [1999] 2 S.C.R. 417, atpara. 44. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring theadministration of justice into disrepute. [78] Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly,human dignity.

An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy,or that demeans his or her dignity, is more serous than one that does not.[30] [Emphasis added.] [55] A consideration of this element favours the exclusion of the evidence.

The search and seizure of the appellants’ residence, adwelling house where the reasonable expectation of privacy is very high, should be seen as serious even though the manner in which itwas carried out was not in violation of individual dignity.[31] [56] As for society’s interest in the adjudication of the case on its merits, the court must weigh the impact of excluding theevidence obtained in violation of Charter-protected rights: [79] Society generally expects that a criminal allegation will be adjudicated on its merits.

Accordingly, the third line of inquiry relevantto the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of theevidence, or by its exclusion. This inquiry reflects society’s “collective interest in ensuring that those who transgress the law are broughtto trial and dealt with according to the law”: R. v. Askov, (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-20.

Thus the Courtsuggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence onthe repute of the administration of justice, but the impact of failing to admit the evidence. [32] [57] In this process, “public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis.

The reliability ofthe evidence is an important factor in this line of inquiry”.[33] In addition, “[t]he importance of the evidence to the prosecution’s case isanother factor that may be considered in this line of inquiry”.[34] The seriousness of the alleged offence must also be considered.[35] [58] In this case, the use of the evidence gathered, the importance[36] and reliability of which are not challenged, would servesociety’s interest in seeing the case adjudicated on its merits and those who break the law brought to trial. But that is true in all casessimilar to ours.

On the other hand, the production of cannabis by the appellants is far from the highest level of seriousness. It seems tome that, in this case, the negative repercussions on the reputation of the administration of justice if the evidence gathered through theunreasonable search were to be used far outweigh the negative effects of their exclusion. [59] It now remains to balance the factors. In Harrison, the Supreme Court notes: [36] The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision.

It is not simply a questionof whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must beweighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring theadministration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true.

In all cases, it is the long-term repute of the administration ofjustice that must be assessed.[37] [60] This qualitative balancing exercise leads me to conclude that, in this case, the use of the evidence gathered at the appellants’home would be likely, in the long term, to bring the administration of justice into disrepute. The conduct infringing the right to privacyremains serious, even though the police officers acted in good faith.

They could have reasonably acted otherwise and requested a searchwarrant by means of telecommunication, since their safety was not threatened and no tangible element caused them to fear for thedisappearance of the evidence.

Finally, the circumstances of the commission of the offences were not among the most serious. [61] I am not unaware that considerable deference is owed to the trial judge’s assessment of the relevant evidence under section24(2) of the Charter.[38] Essentially, the trial judge based himself on the good faith of the officers, on the fact that it was physicalevidence that would have been discovered one way or another, and on the seriousness of the alleged offence against the appellants. [62] Ultimately, however, the judge erred in principle by trivializing the effect of the search of the appellants’ home and the highdegree to which this search was Charter-infringing.[39] The effect of the violation was therefore improperly assessed.

Finally, the judgepatently erred in characterizing the offence alleged against the appellants as “serious” in all respects because the production of cannabisis very common in the area in which the appellants live. * * * [63] In the alternative, the Crown seeks dismissal of the appeal by invoking subparagraph (iii) of paragraph 686(1)(

b) Cr. C. onthe grounds that [translation] “no substantial wrong or no miscarriage of justice has occurred”.[40] In R. v. Arradi, the Supreme Courtnoted the situations that can give rise to the implementation of this curative proviso: There are two classes of errors of law that lead to the application of that provision. The first consists of harmless or minor errors havingno impact on the verdict. The second “encompasses serious errors which would justify a new trial, but for the fact that the evidenceadduced was seen as so overwhelming that the reviewing court concludes that there was no substantial wrong or miscarriage of justice”

(Khan, supra, at para. 26.) The test is whether “the verdict would necessarily have been the same if such error had not occurred” (R. v.Bevan, (SCC), [1993] 2 S.C.R. 599, at p. 616 (per Major J.), citing Colpitts v. The Queen, (SCC),[1965] S.C.R. 739 at 744 (per Cartwright J.)).

In other words, the “appellate courts will maintain a conviction in spite of the errors of lawwhere such errors were either minor in themselves or had no effect onthe verdict and caused no prejudice to the accused” (Khan, supra,at para. 29). 29.)[41] [64] Obviously, this provision does not apply in this case. [65] Therefore, I would allow the appeal, set aside the conviction of June 11, 2009, order the exclusion of the evidence, andsubstitute for the judgment rendered a verdict of acquittal in both appeals. LOUIS ROCHETTE, J.A.