R. v. Noftall, 2016 NLCA 48

Christopher Robert Benjamin Noftall (appellant) v. Her Majesty the Queen (respondent) (15/16) Indexed As: R. v. Noftall 2016 NLCA 48 1 C.A.N.L.R. 43 Court of Appeal of Newfoundland and Labrador Welsh, Harrington and Hoegg JJ.A. September 23, 2016

Summary: The appellant was convicted of unlawfully producing marihuana contrary to

section 7 of the Controlled Drugs and Substances Act , SC 1996, c. 19 . The marihuana was discovered after a social worker at the Department of Child, Youth and Family Services received a report that the appellant may have a grow-op in his house and his child may be in need of protection. Together with another social worker and an RCMP officer, the social worker attended at the appellant’s residence. The three entered on the grounds that the Children and Youth Care and Protection Act , SNL 2010, c. C-12.2 provided authority to do so. Upon entry they reported a strong smell of marihuana.

One of the social workers and the officer then went to the bedroom where the social worker found a firearm and marihuana plants in the closet. The officer then arrested the appellant. Subsequently, the officer obtained a search warrant and seized the plants. The appellant applied to have the evidence excluded on the grounds that the marihuana was located pursuant to an unauthorized warrantless search which violated

section 8 of the Charter . The trial judge found no violation of

section 8 or, in the alternative, that the evidence should nonetheless be admitted pursuant to section 24(2) of the Charter , and dismissed the application. The appellant appealed. Held: Appeal dismissed. Welsh J.A. (Harrington and Hoegg JJ.A. concurring): Under the authority of the C hildren and Youth Care and Protection Act , SNL 2010, c. C-12.2 , the social workers had the authority to investigate the report that a child was in danger.

The appellant conceded the police officer had authority to accompany the social workers to the residence and the officer therefore lawfully entered and remained until the investigation by the social workers was completed. The extent of the authority to investigate and the nature of an investigation under the Act depends on the contents of the report on which the investigation is undertaken. In this case, as noted by the trial judge, the social workers had to satisfy themselves that the house did not contain a marihuana grow-op.

The smell of marihuana created reasonable grounds for the social workers to continue their investigation. Whether or not a search warrant was required for the social workers, should be decided in a future case. The marihuana plants were not in plain view. Smell is not as reliable an indicator as sight and therefore an analogy with the “plain view” doctrine cannot be used to say Mr. Noftall had no expectation of privacy in the plants. However, the presence of the smell of marihuana is a relevant factor to consider in assessing the officer’s conduct under

section 8 of the Charter . The presence of the police officer in the appellant’s home engaged a high expectation of privacy under

section 8 of the Charter . The officer had two separate mandates, that is, securing the safety of the social workers, and investigating a possible offence. He could not use the former to clothe the latter with authority that would otherwise result in a breach of Mr. Noftall’s rights under

section 8 of the Charter . To avoid this conundrum, the officer could have asked all present to remain in the kitchen while he took action to obtain a search warrant which would have provided authorization for a search under the Controlled Drugs and Substances Act consistent with Mr. Noftall’s rights under

section 8 of the Charter . In the circumstances, the police officer’s failure to obtain a warrant prior to a search for the location of the marihuana plants resulted in a

breach of Mr. Noftall’s rights under

section 8 of the Charter for purposes of investigating an offence and laying a charge under theControlled Drugs and Substances Act. Nonetheless, the evidence should be admitted under section 24(2). The infringement of Mr. Noftall’s

section 8 rights falls at the lowerend of a continuum of seriousness. The impact of proceeding without a warrant on Mr. Noftall’s rights under

section 8 of the Chartercould not be construed as significant. The officer would have been successful in obtaining a search warrant and in locating the marihuanaplants without Mr. Noftall’s assistance. Producing marihuana is a serious offence which society has a significant interest in havingadjudicated on its merits. On balance there is no basis on which to conclude that admitting the evidence would bring the administrationof justice into disrepute or erode society’s confidence in the justice system. The evidence was therefore admissible. The appeal wasdismissed. Cases cited: R. v.

McNeil, 2013 NLCA 52, 340 Nfld. & P.E.I.R. 42 R. v. Smith (1998), 1998 ABCA 418 , 161 D.L.R. (4th) 331 (Alta. C.A.) R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167 R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 Counsel: Derek Hogan, for the appellant; Neil Smith, for the respondent. This appeal was heard on April 15, 2016 before Welsh, Harrington and Hoegg JJ.A. The following judgment was delivered on September 23, 2016 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [1] Christopher Noftall was convicted of unlawfully producing marihuana contrary to

section 7 of the Controlled Drugs andSubstances Act. The trial judge rejected his application, under

section 8 of the Canadian Charter of Rights and Freedoms, to excludeevidence from a grow-op seized from his home. Issues raised by the appeal relate to detection of growing marihuana based on smell, theextent of authority to investigate under the Children and Youth Care and Protection Act, SNL 2010, c. C-12.2, and the authority of apolice officer accompanying a social worker for the purpose of an investigation under that Act.

BACKGROUND [2] On November 28, 2012, a social worker with the Department of Child, Youth and Family Services (the “Department”), receiveda telephone call reporting that a child about one year of age may be in need of protective intervention. The social worker knew the callerbut did not know either Mr. Noftall or his partner, the child’s mother. The caller reported that “there was information in the community”that Mr. Noftall and his partner had a grow-op in their home from which illegal drugs were being sold (decision of the trial judge, 2013NLTD(G) 171, 344 Nfld. & P.E.I.R. 163, at paragraph 8).

The social worker contacted her supervisor and it was decided that the reportshould be investigated without delay.

The trial judge explained: [9] … [The report] involved a young child who depended completely on her parents; selling drugs is a criminal activity that mightdraw an unsavory clientele to the house; and a grow-op is an hazardous activity from which a young child crawling in its vicinity couldingest harmful substances or be exposed to dangerous works. [The social worker] says that while she was not familiar with themechanics of grow-ops, she envisioned heat lamps and other apparatus, and the possible presence of chemical products. [3] Before approaching the Noftall house, the social worker contacted the R.C.M.P. and requested that a police officer accompanyher and her colleague, also a social worker, for the investigation.

The officer was in uniform and driving a marked police car when hearrived at the house where he met the two social workers. The officer testified that he was given the information regarding the reportthat had been made to the Department.

The judge noted: [13] … However, he says he went with the social workers not because of the allegations, but to ensure their safety as they investigatedthe referral that there was a child in the house who might be at risk of harm. [4] The social worker testified that she smelled a strong odour when she entered the house and that she told the child’s mother thatshe believed she smelled marihuana. The child’s mother denied that there was marihuana in the house, but suggested the smell mightcome from Mr. Noftall’s clothes since he occasionally smoked marihuana.

The social worker did not accept this and told the child’smother that she was investigating a report that there was a grow-op in the house from which drugs were sold. The trial judge explained:

[16] … She says she asked [the child’s mother] if they could look around the house. [The social worker] says that Mr. Noftall asked them if they had a warrant and she told him that she did not; but she also told him that they did not need a warrant. She says she told Mr. Noftall they were investigating a child protection referral which they had authority to do without a warrant, if acting, as they were, under the [ Act ]. [ 5 ] The social worker testified that Mr.

Noftall “did not press the point further” and that he proceeded to show the second social worker and the police officer to the bedroom while she remained in the living room with the child’s mother (decision of the trial judge, at paragraph 17). A short time later, the second social worker reported that “she had seen six 5-gallon tubs in a closet in one of the bedrooms containing plants (decision of the trial judge, at paragraph 17). The first social worker testified that she heard the police officer place Mr. Noftall under arrest and she went to the room to examine the scene.

The social workers then discussed the situation with the child’s mother who agreed to remove the child from the house. [ 6 ] Regarding the actions of the police officer, the trial judge explained: [19] Cst. Jenkins stayed at the Noftall-M. home after he arrested Mr. Noftall and waited for help from other officers to remove Mr. Noftall and secure the scene. Cst. Jenkins has been an RCMP officer for 10 years. He has been in the Grand Bank-Fortune area since April 2009 and was posted to British Columbia before that. Cst.

Jenkins says he spent a lot of his time in British Columbia investigating the drug trade and was quite familiar with grow-ops. He says that he was involved in “numerous takedowns” of marihuana grow-ops when he worked in British Columbia and that he knows the mechanics of those operations. More particularly, he says he can distinguish between the smells that burning marihuana emits and the smells that come from grow-ops . [20] To this end, Cst. Jenkins says that he smelled a strong smell of marihuana when he entered the house and he knew it came from growing, not burning marihuana . Cst. Jenkins says the Mr.

Noftall tried to pass the smell off as the residual odour of marihuana on his clothing because he had smoked some just before they arrived at the house; but Cst. Jenkins says that he corrected [the child’s mother ( sic )] and told him he knew the smell of growing marihuana. Cst. Jenkins wanted to look around the house with the social workers. He says he told Mr. Noftall, as did [the social worker], that they did not need a warrant to do that because he was there with the social workers who were investigating a child protection referral under their constituting legislation . [21] Cst. Jenkins says Mr.

Noftall relented when they told him they neither had nor needed a search warrant and took them directly to the bedroom where the grow-op was set up. Cst. Jenkins says he found six 5-gallon buckets in a small closet off the room, in which there were six marihuana plants. He says the bedroom was immediately adjacent to and shared a common wall with the bedroom that [the child] slept in. [22] Cst. Jenkins says the grow-op was kitted out in the usual way, with a heat lamp, temperature gauges, fans and a stainless steel hood-refractor.

He says that he found plant food and water nearby and that electrical extension cords ran across the floor of the bedroom to the closet to provide energy to the operation. Cst. Jenkins says he also observed a hunting rifle cradled in a retaining device, pointing directly at the closet. He was uncertain at first if the rifle was loaded but he found on closer inspection that it was not; although he says there was a loaded magazine lying next to it. (Emphasis added.) [ 7 ] At that point, the officer told Mr. Noftall that he was under arrest for producing marihuana and for maintaining an unsecured firearm.

He immediately read Mr. Noftall his rights and called his detachment. After other officers arrived, he left with Mr. Noftall in custody. The officer then obtained a search warrant and subsequently seized the marihuana plants, related paraphernalia, the rifle and the loaded magazine. [ 8 ] In the Information to Obtain a Search Warrant, the police officer stated, among other “Grounds for Belief”: 13. In my policing experience I have been exposed to the distinct odours of both smoked Cannabis (Marihuana) and growing (vegetative) Cannabis (Marihuana) and am able to differentiate between the two. 14.

While speaking to [the child’s mother] and Christopher Noftall in the kitchen of their residence I detected the odour of growing (vegetative) Cannabis (Marihuana). 15. I advised Christopher Noftall and [the child’s mother] that I detected the odour of growing Cannabis (Marihuana) in their residence. 16. [The social workers from the Department] advised Christopher Noftall and [the child’s mother] that they would need to view the house due to the nature of the information they had received and explained their authority to perform a walkthrough without a search warrant. The grounds went on to state that Mr.

Noftall led a social worker and the police officer to the location where they found the marihuana plants, rifle and other related items. [ 9 ] The trial judge began his analysis with the meaning of “investigate” in the Children and Youth Care and Protection Act (the “ Act ”): [30] The [ Act ] requires social workers who receive child protection referrals to investigate them.

The Act does not define “investigation” but Black’s Law Dictionary does, as the Crown pointed out, and the definition includes “to follow up step by step by patient inquiry or observation”; “to trace or track”; “to search into”; and “to examine or inquire into with care and accuracy”. It is self- evident that a duty to investigate a referral by viewing, observing and interviewing (which was not practicable here because of the child’s age) a child entails the authority to examine the place where a child is located to ascertain whether the child is at risk in the place.

This case illustrates how self-evident that authority is. …

[32] Yet, the social workers could not fulfill their duty to investigate the referral they had received until they satisfied themselves if there was a grow-op in the house. … The child did not appear to be in any jeopardy but, as far as they knew without looking further, the risk to [the child] that they were investigating may have been hidden elsewhere in the house. They could neither confirm nor eliminate that risk without looking elsewhere. So when Mr.

Noftall confronted them about a search warrant and they told him they did not need one they simply expressed it to him and then exercised the authority to search the house that inheres in the duty to investigate. [33] I am not saying that the duty to investigate always includes the authority to search, especially a house.

It will depend on the details of the child protection referral and the investigation that is required to assess the merits of the referral. … [ 10 ] The trial judge referred to the additional information the social workers had from the police officer that, when he entered the house, he recognized the smell to be from growing marihuana.

The judge also referred to the complicating factor of the broader authority of the police officer exercisable under the Controlled Drugs and Substances Act quite apart from the Children and Youth Care and Protection Act . [ 11 ] Following this discussion, the trial judge found that, once the growing marihuana had been discovered, the police officer “withdrew from the property to obtain a search warrant before he went any further”, and that he had obtained a search warrant “before he began his criminal investigation of the marihuana grow-op” (paragraph 38).

This comment must be read in light of the fact that, once the officer saw the marihuana, he arrested Mr. Noftall and took him into custody. [ 12 ] In the result, the trial judge concluded that a violation of

section 8 of the Charter had not been established. Further, even if Mr. Noftall’s rights under

section 8 had been infringed, the judge determined that the evidence should not be excluded under section 24(2) of the Charter .

ISSUES [ 13 ] The issues raised by this appeal are: (1) the authority of a police officer to enter a private dwelling to accompany a social worker who is investigating a report that a child may be in need of protective intervention; (2) the relevance of smell in detecting a marihuana grow-op; (3) authority of a police officer to search a private dwelling for purposes of laying a charge under the Controlled Drugs and Substances Act ; and (4) the exclusion of evidence under section 24(2) of the Charter .

ANALYSIS The Legislation [ 14 ] Section 12(1) of the Act provides for investigation of a report of a child in need of protective intervention: Where a manager or social worker receives information in the form of … (

b) a report under

section 11; … the manager or social worker shall investigate whether the child is in need of protective intervention unless, upon assessment, the manager or social worker is satisfied that the information provided was without merit or without reasonable grounds. [ 15 ] Section 11(1) sets out the circumstances when a report may be received: Where a person has information that a child is or may be in need of protective intervention, the person shall immediately report the information to a manager, social worker or a peace officer. [ 16 ] Section 10(1) of the Act specifies circumstances when a child may be in need of protective intervention.

The applicable provision in this case is section 10(1) (a): A child is in need of protective intervention where the child (

a) is being, or is at risk of being, physically harmed by the action or lack of appropriate action by the child’s parent; [ 17 ] Section 20(1) of the Act specifies the requirement for a warrant where a social worker intends to remove a child from the home:

(1) Where a manger or social worker believes (

a) that a child is in need of protective intervention; and (

b) a less intrusive course of action that would adequately protect the child is not available, he or she shall file an application with the court for a warrant to remove a child. A judge may authorize entry to a place and removal of a child, by force if necessary (section 20(2)). Section 20(3) provides an exception to the requirement for a warrant in exigent circumstances. [ 18 ]

Section 8 of the Charter provides: Everyone has the right to be secure against unreasonable search or seizure. The trial judge provided a succinct

summary of the operation of this provision:

[5] … When the police interfere with a person’s s. 8 rights by searching and/or seizing private property, they must act reasonably.

Typically, this means that the police must obtain search warrants to authorize their actions and then operate within the parameters of theirauthority; if they proceed without prior judicial authorization, they are presumed to act unreasonably. [6] The Crown may be able to rebut the presumption that the police acted unreasonably by showing that the accused consented to thesearch; or that the police actions fall within one of the recognized exceptions where a warrant is not required, such as that their searchwas incident to an arrest or that exigent circumstances existed to justify it.

The search will be unlawful and in breach of an accused’s s. 8rights, if the police do not have prior authorization and cannot show that the accused consented to the search or that their actions fall intoone of the exceptions. Attendance by the Police Officer at the House [19] For safety and security reasons, since illegal activity was alleged, Mr. Noftall concedes that the police officer had authority toaccompany the social workers for purposes of their investigation under the Act (preservation of the peace under

section 18(

a) of theRoyal Canadian Mounted Police Act, RSC 1985, c. R-10). The trial judge accepted the social worker’s evidence that she was enteringinto an uncertain and potentially dangerous place. She did not know Mr.

Noftall or his partner; the Department had no record indicatingprevious involvement with those persons and, therefore, no basis on which to assess the situation; and the report alleged serious criminalactivity involving trafficking in drugs. [20] Referring to the social worker’s testimony, the trial judge noted: [11] … In those cases, [the social worker] says [the Department] has a policy to contact the RCMP and request their assistance.

Inparticular, [the Department] suggests that they ask for an officer to accompany them to the home to provide for their safety. [21] In this case, the trial judge accepted the police officer’s testimony that his reason for entering the Noftall house was to ensure thesafety of the social workers who were required by law to investigate the report that a child may be in need of protective intervention. [22] Taking all these factors into account, I accept that the police officer lawfully entered and remained in Mr. Noftall’s house untilthe social workers had completed their investigation.

The Relevance of the Smell of Marihuana [23] Assessing police conduct where the officer relied on the smell of marihuana was considered in R. v. McNeil, 2013 NLCA 52, 340Nfld. & P.E.I.R. 42. In that case, relying on information from an informant that Mr. McNeil was transporting significant amounts ofmarihuana, the police stopped his vehicle. The judge accepted the officer’s testimony that there was an overwhelming smell of fresh,unburned marihuana emanating from the driver’s open window. This, along with the information from the informant and othercorroborating factors, led to Mr.

McNeil’s arrest and a search of his vehicle. The trial judge likened the smell of the marihuana to theplain view doctrine. On appeal, this Court cautioned against the use of the analogy, but did not discount the evidentiary use of smell inan appropriate context: [23] … [T]he reference to the plain view doctrine serves only as an analogy employed by the trial judge in recognizing that a policeofficer may use his senses, including smell, as one element in determining the presence of grounds to proceed with an investigation.

However, while reference to the doctrine does not amount to error in the instant case, I would caution against use of the analogy. Something that is in plain sight may have stronger persuasive value in assessing police conduct than something that is smelled sincesmells travel in the air and may not be as clearly located as something that is seen. In the instant case, the smell was just one of manyfactors on which the police proceeded and was appropriately considered as such by the trial judge. [24] Similarly, in R. v. Smith (1998), 1998 ABCA 418 , 161 D.L.R. (4th) 331 (Alta.

C.A.), the Court wrote: [20] Furthermore, there is logic for those distinctions between smell and sight. While both senses can be reliable indicators, smellalone is not as conclusive that a crime is being committed as observation of the crime. Smell may be an indication that at some timeprior a grow operation was situated in the house. … Moreover, and more importantly, smell alone, unlike sight, requires a furthersearch to locate the item. In Dreysko, the lawful search disclosed the goods.

In this case, the fact that the officer needed to godownstairs to “confirm [his] suspicion” supports the proposition that smell is not as reliable an indicator as sight. … [25] As applied to this appeal, the officer knew that the social workers were investigating a report that a child may be in need ofprotective intervention based on the presence of a marihuana grow-op and drug trafficking from the child’s home. Upon entering thehouse, the officer detected a smell indicating to him the presence of growing marihuana.

The trial judge accepted that this officer wascompetent, from his experience and training, to distinguish the smell of growing marihuana from that of dry or burned marihuana. [26] This is a situation in which the smell of marihuana is a factor that may properly be taken into account in assessing the policeconduct under

section 8 of the Charter. While there was no evidence as to the reliability of the person who gave the report to theDepartment, the legislation requires the Department to conduct an investigation unless “the manager or social worker is satisfied that theinformation provided was without merit or without reasonable grounds” (section 12(1) of the Act). In the circumstances, the policeofficer had authority to be in Mr. Noftall’s residence. The smell of marihuana was such that he knew it was emanating from somewherein the house, though he did not know the precise location.

This was an adequate basis on which the social workers could proceed with aninvestigation. [27] The question is whether the officer required a search warrant before proceeding or whether his authority to accompany a socialworker on her investigation, and the extent of her investigatory authority, permitted a search without a warrant to locate the marihuanaplants, and how that information might be used in a prosecution under the Controlled Drugs and Substances Act. Authority under the Act to Investigate

[ 28 ] The extent of the authority to investigate and the nature of an investigation under the Act depends on the contents of the report on which the investigation is undertaken. In this case, as noted by the trial judge, the social workers had to satisfy themselves that the house did not contain a marihuana grow-op. In order to do that, investigation, including a search if necessary, was required (see decision of the trial judge, at paragraphs 30 to 33, paragraph 9, above). [ 29 ] The fact that the police officer told Mr.

Noftall and the social workers that he smelled growing marihuana when he entered the house would not have been a sufficient basis on which the social workers could determine whether the child was in need of protective intervention. The smell did, however, provide a basis for investigating further to ascertain whether there was a grow-op in the house. [ 30 ] The legislation does not address the question of whether a search warrant is required, or in what circumstances, when an investigation, involving a search, is undertaken by a social worker. The only reference to a warrant is in

section 20 of the Act which relates to removing a child from a home. For purposes of this case, it is unnecessary to determine the parameters of an investigation by a social worker under

section 12 of the Act and the potential implications of

section 8 of the Charter , including the requirement for a search warrant. [ 31 ] However, I would note that the obligation and attendant authority to investigate a report does not necessarily lead to the conclusion that a search warrant is not required. Constitutional obligations as set out in the Charter apply to all governmental action. This point is succinctly made in R. v. Anderson , 2014 SCC 41 , [2014] 2 S.C.R. 167 , albeit in the context of prosecutorial discretion in the criminal context: [45] … Manifestly, the Crown possesses no discretion to breach the Charter rights of an accused.

In other words, prosecutorial discretion provides no shield as to a Crown prosecutor who has failed to fulfill his or her constitutional obligations … [ 32 ] That said, I leave to an appropriate case the question of when a search warrant may or may not be required when an investigation is undertaken pursuant to the Act . Authority of the Police Officer [ 33 ] The information in the report to the Department together with the smell of growing marihuana provided sufficient grounds for the police officer to suspect the commission of an offence under the Controlled Drugs and Substances Act . However, he was in Mr.

Noftall’s residence, which engages a high expectation of privacy under

section 8 of the Charter . The marihuana plants and firearm were not in plain view from where the officer stood. [ 34 ] When he smelled the marihuana, the officer had two separate mandates, that is, securing the safety of the social workers, and investigating a possible offence. He could not use the former to clothe the latter with authority that would otherwise result in a breach of Mr. Noftall’s rights under

section 8 of the Charter . In order to avoid this conundrum, the officer could have taken the following approach. When he smelled the marihuana which he identified as “growing”, he could, as he did, have given this information to Mr. Noftall, the child’s mother and the social workers. At that point, he could have proceeded in a manner that would have been consistent with both his mandates by asking all present to remain in the kitchen while he took action to obtain a search warrant. A warrant, which may be requested by telephone, would have provided authorization for a search under the Controlled Drugs and Substances Act consistent with Mr. Noftall’s rights under

section 8 of the Charter . [ 35 ] I would note in passing that Mr. Noftall’s conduct could not be construed as informed consent to the search for purposes of grounding a charge under the Controlled Drugs and Substances Act . He conducted a social worker and the officer to the location of the marihuana plants in reliance on the social worker’s representation that a search warrant was not required. [ 36 ] I would note further that a request by the officer that Mr. Noftall remain in the kitchen with him would constitute an investigative detention, engaging the relevant law.

It is unnecessary to consider the issue in this case since that was not the approach taken by the officer. [ 37 ] In the circumstances, the police officer’s failure to obtain a warrant prior to a search for the location of the marihuana plants resulted in a breach of Mr. Noftall’s rights under

section 8 of the Charter for purposes of investigating an offence and laying a charge under the Controlled Drugs and Substances Act . The trial judge erred in concluding that the officer’s involvement in the social worker’s investigation under the Act allowed him to search Mr. Noftall’s residence and to lay a charge when he was led to the location of the plants which, together with the firearm, were then in plain view. [ 38 ] It is necessary, then, to determine whether the evidence of the grow-op and the firearm should be excluded under section 24(2) of the Charter .

Exclusion of the Evidence under Section 24(2) of the Charter [ 39 ] Section 24(2) of the Charter provides: Where, in proceedings under subsection (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 the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 40 ] The trial judge concluded that, even if there had been a breach of Mr. Noftall’s rights under

section 8 , the evidence should not be excluded: [39] … A reasonable person informed of all relevant circumstances here and knowing the values that underlie the Charter would not conclude that admitting the evidence of the grow-op would bring the administration of justice into disrepute. … [ 41 ] The test to be applied under section 24(2) of the Charter is set out in R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353 :

[71] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2) , viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), 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 the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. … Seriousness of the Charter-infringing State Conduct [ 42 ] The seriousness of the officer’s failure to obtain a search warrant before he was led, with the social worker, to the location of the marihuana plants must be considered in context.

The police officer was lawfully in the house at the request of the social worker who was required to conduct an investigation into a report that a child may be in need of protective intervention. [ 43 ] Based on the report to the Department and the smell of growing marihuana, the officer had reasonable grounds on which to request a search warrant had he proceeded in that way. The plants were not so hidden as to be unlikely to be discovered. The officer was not acting carelessly or in bad faith and his conduct shows that he intended to be mindful of Mr.

Noftall’s rights. [ 44 ] Further, as explained by the trial judge: [38] … Mr. Noftall’s bad luck was that the child protection referral led the police to his grow-op; but it was a vigilant citizen’s concern for [the child’s] safety (which Mr. Noftall now acknowledges he should have had) that led to its discovery and not any trickery or sleight of hand from Cst. Jenkins. [ 45 ] In the circumstances, the conclusion follows that the infringement of Mr. Noftall’s rights under

section 8 falls at the lower end of a continuum of seriousness. Impact of the Breach on the Charter-protected Interests of Mr. Noftall [ 46 ] For the reasons set out under the first prong of the Grant analysis, admission of the evidence in this case would not send the message that individual rights count for little. The circumstances surrounding the state’s intrusion into Mr.

Noftall’s house must be distinguished from those in which, for example, the police are not lawfully in the house. [ 47 ] Because the officer was lawfully in the house for purposes of an investigation under the Act , and given the presence of the smell of growing marihuana and the report on which the social workers were proceeding, the impact of proceeding without a warrant on Mr. Noftall’s rights under

section 8 of the Charter could not be construed as significant. If the officer had proceeded via the investigative detention route described above, he would have been successful in obtaining a search warrant and in locating the marihuana plants without Mr. Noftall’s assistance. Society’s Interest in the Adjudication of the Case on its Merits [ 48 ] Producing marihuana contrary to

section 7 of the Controlled Drugs and Substances Act is an indictable offence; it is a serious offence which society has a significant interest in having adjudicated on its merits. To exclude the evidence in this case would preclude the Crown from proceeding with the charge. On balance, this is a factor weighing in favour of admitting the evidence. Conclusion under the Grant Analysis [ 49 ] In the circumstances, none of the inquiries under the Grant analysis weighs in favour of excluding the evidence of the marihuana plants, the firearm and related paraphernalia.

On balance there is no basis on which to conclude that admitting the evidence would bring the administration of justice into disrepute or erode society’s confidence in the justice system.

SUMMARY AND DISPOSITION [ 50 ] In

summary, the trial judge erred in concluding that Mr. Noftall’s rights under

section 8 of the Charter had not been breached by the warrantless search of his house for purposes of laying a charge under the Controlled Drugs and Substances Act . However, the judge did not err in concluding that, in the circumstances, the evidence was admissible. [ 51 ] Accordingly, I would dismiss the appeal. Appeal dismissed .