Court File and Parties

Date: July 25, 2023 Information No.: 3211-998-22-32100215-01, 3211-998-22-32100216-01

Ontario Court of Justice

His Majesty The King v. David H. Whetham

Reasons for Sentence

Before The Honourable Justice K. L. McKerlie on July 25, 2023, at STRATFORD, Ontario

Appearances: K. McNair, Counsel for the Federal Crown A. Bain, Counsel for the Provincial Crown N. Wansbutter, Counsel for David Whetham

...PROCEEDINGS RECORDED BUT NOT TRANSCRIBED ...EXCERPT OF PROCEEDINGS

MCKERLIE J. (Orally):

I am addressing the charges on the Informations 215 and 216, for the year 2022.

Charges

The accused, David Whetham, is being sentenced for eight March 19, 2022 charges:

1. Possession of fentanyl, a Schedule I substance, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act;
2. Possession of methamphetamine, a Schedule I substance, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act;
3. Possession of cocaine, a Schedule I substance, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act;
4. Possession of hydromorphone, a Schedule I substance, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act;
5. Possession of a loaded prohibited firearm, without being the holder of a licence, contrary to s. 95(1) of the Criminal Code;
6. Possession of a firearm while being prohibited by reason of a s. 109(2) order, contrary to s. 117.01(1) of the Criminal Code;
7. Careless storage of a loaded .32-calibre handgun, contrary to s. 86(1) of the Criminal Code; and
8. Possession of an Ontario driver’s licence that related to another person, contrary to s. 56.1(1) of the Criminal Code.

Circumstances of the Offences

The findings of guilt were made following a Charter voir dire and trial. On March 19th, 2022, the police executed a search warrant at Mr. Whetham’s residence and seized the following items located in a safe in the bedroom (the safe was approximately four feet high, two feet wide):

• A loaded black Savage .32-calibre handgun with a magazine and an additional magazine. Both magazines contained rounds of ammunition.
• 28.92 grams of fentanyl
• 160.9 grams of methamphetamine
• 13.1 grams of cocaine
• 25 hydromorphone tablets.

During the search of Mr. Whetham incident to arrest, the police seized several items from his person, including:

• a long chrome-plated key to the safe in which the drugs and handgun were located
• $1,570.00 in Canadian currency
• the keys to the residence.

Positions of Counsel

The federal prosecutor seeks a sentence of 10 years less credit for pre-sentence custody on a 1.5:1 basis.

Defence counsel submits that the appropriate sentence is six years less a one-year credit on account of the finding of a Charter breach, essentially reducing a six-year sentence to a five-year sentence. Defence counsel further submits that in addition to the 1.5:1 credit for pre-sentence custody, there ought to be a further credit of 100 days to account for harsh pre-sentence custody conditions, including triple bunking and lockdowns.

Circumstances of the Offender

At the age of 33, Mr. Whetham has a prior record. The most recent entries are directly related to the charges before the court. On July 10, 2019, Mr. Whetham was convicted of two counts of possession of methamphetamine for the purpose of trafficking, one count of simple possession of methamphetamine and two counts of failing to attend court. He received a total sentence of imprisonment of 24 months and 44 days, and s. 109 weapon prohibition orders for 10 years.

Less than a year after the expiration of that sentence of imprisonment, Mr. Whetham committed the offences before the court. This time, he was in possession of not only methamphetamine for the purpose of trafficking, but also fentanyl, cocaine, and hydromorphone. He was also in possession of a loaded .32-caliber handgun — a prohibited firearm — in direct contravention of the s. 109 weapon prohibition orders.

Mr. Whetham’s related record and the timing of these offences as they relate to that prior record are aggravating factors for sentencing. Mr. Whetham has further 2019 convictions for breaking and entering a dwelling house and unlawful possession of methamphetamine, as well as a dated conviction for an over-80 offence.

Mr. Whetham’s background and personal circumstances are set out in the pre-sentence report filed. His childhood was described as challenging and difficult, and is a mitigating factor for sentencing. His mother struggled with alcoholism. Mr. Whetham reported that his parents “gave up on him” and he resided in a number of foster homes and group homes between the ages of 12 and 17.

As an adult, Mr. Whetham was involved in a relationship for 10 years. His three sons, ages 9 to 12, reside with his former partner’s parents. His former partner tragically died in July 2022 after being struck by a vehicle.

Mr. Whetham’s mother reported to the writer of the pre-sentence report that Mr. Whetham’s stable relationship with his former partner and role as a parent “made him take the world more seriously”. During that time, he was a devoted father and worked full time. She reported that, unfortunately, the relationship ended four years ago, which resulted in “a downward spiral involving substance abuse and legal problems”.

Mr. Whetham has a grade 10 education and has been employed as a carpenter, kitchen worker, and labourer.

Under the heading “Substance Use and Addictions”, the pre-sentence report contains the following information:

The subject informed that he began using intoxicating substances at the age of 11. He indicated that his use of alcohol and marijuana led to cocaine, crystal methamphetamine and fentanyl use in the last two years. He informed that his illicit substance use directly impacted his relationships with family members, recent employment, and involvement with the law. He divulged that he has been undertaking suboxone treatment for the past year in custody at Maplehurst Correctional Complex. ... He is now amenable to attend treatment [in the community]. He indicated that he recently met with an addiction counsellor while in custody and has been exploring treatment options.

[The counsellor] noted that the subject requested “support with finding a treatment centre” in addition to his daily suboxone treatment. She noted that she will provide the subject with ongoing programming during his incarceration.

The writer of the pre-sentence report described Mr. Whetham as polite and compliant during interviews and presenting as “disappointed in himself regarding his current situation.”

Collateral contacts, his mother and his uncle, remain supportive of Mr. Whetham and believe he would benefit from guidance and supportive counselling to address substance abuse and personal issues.

In addition to the information contained in the pre-sentence report, Mr. Whetham testified that he struggles with mental health issues and has developed post-traumatic stress disorder, which has made his time in pre-sentence custody difficult, particularly with triple bunking and lockdowns.

Case Law, Submissions and Analysis

In support of the submission for a total sentence of 10 years, the Federal Prosecutor relies upon the following decisions as suggesting a range of sentence from 6 to 10 years where an offender is convicted of possession for the purpose of trafficking of a variety of controlled substances, including fentanyl, and a range of sentence from two to four years served consecutively for firearms convictions.

I will address the decisions in reverse chronological order, with the most recent decisions first.

In R. v. Green, 2021 ONCA 932, the offender was found to be in possession of an illegal loaded firearm with an oversized magazine containing 11 rounds of ammunition. He was also found to be in possession of “large quantities" of illicit drugs, which included cocaine in powder form, crack cocaine, and a mixture of heroin and fentanyl. The offender was found guilty following an 18-day trial. On appeal, the global sentence of 10 years imprisonment less pre-sentence custody credited on a 1.5:1 basis was found to be a fit and appropriate sentence.

In R. v. Persad, 2020 ONSC 188, the 42-year-old offender pled guilty to possession of fentanyl and cocaine for the purpose of trafficking, possession of a loaded restricted firearm, possession of a prohibited device, and possession of a firearm while prohibited. The police executed a search warrant at Mr. Persad’s residence and seized 32 grams of fentanyl, 3.8 kilograms of cocaine, a loaded handgun, and a loaded over-capacity magazine. The offender had a significant criminal record, including convictions for firearm and drug trafficking offences. His longest prior sentence was three years for firearm offences in 2005. The parties jointly submitted that the appropriate sentence for Mr. Persad was four and a half years for possession of the firearm, one year concurrent for the possession of the magazine, one year consecutive for violating a weapons prohibition order, and five and a half years for each of the drug offences, to be served concurrently with each other but consecutively to the sentences on the firearm offences. The parties jointly submitted that the resulting sentence of 11 years should then be reduced by two years, having regard to the principle of totality, leaving an overall sentence of nine years. The reasons for sentence reflect that Mr. Persad pled guilty despite there being significant triable issues with respect to the legality of the search of his home. Mr. Persad received credit for pre-sentence custody on a 1.5:1 basis and further enhanced credit because of the conditions of his pre-sentence custody, including the fact that he spent 47 per cent of the time in lockdown.

In R. v. Sidhu, 2019 ONCA 880, the 25-year-old offender appealed a “net sentence” of eight years and two months imposed on several convictions of trafficking and possession for the purpose of trafficking in heroin (42.8 grams), fentanyl (89.5 grams), and methamphetamine (214.3 grams). There were no firearm offences. Mr. Sidhu had related prior convictions and was described as resuming commercial trafficking within months of his release on parole. The Court of Appeal dismissed the appeal and described it as a case “teeming with aggravating factors and few mitigating factors apart from a plea of guilty and the appellant’s strongly supportive family.”

In R. v. Cinelli, 2018 ONSC 4983, the 38-year-old offender pled guilty to two counts of possession of heroin (63 grams and 9.2 grams)for the purpose of trafficking, and one count of possession of fentanyl (20 grams) for the purpose of trafficking. The prosecutor sought a seven-year sentence. The defence submitted that the appropriate starting point was six years, but that the sentence should be reduced significantly because Mr. Cinelli surrendered an illegal firearm. The sentencing judge described the prosecutor as “tacitly acknowledging” that some credit should be given. Mr. Cinelli was sentenced to seven years imprisonment less credit for pre-sentence custody, and an additional four-month credit for having surrendered a firearm to the police. The sentencing judge noted that the prosecutor did not request a sentence in excess of seven years, but the sentencing judge “would be quite prepared to consider a sentence in excess of seven years for an accused found in possession of significant amounts of fentanyl and heroin for the purpose of trafficking.”

In R. v. Shevalier, [2017] O.J. No. 7247 (OCJ), the 47-year-old offender was found guilty following trial for possession of fentanyl (28 grams) and possession of methamphetamine (22 grams) for the purpose of trafficking, as well as prohibited weapon offences involving brass knuckles and knives. At the time of his arrest, he had $2,200 on his person, and a further $10,300 was found hidden in the residence. Mr. Shevalier had a significant criminal record and had served two prior penitentiary sentences. He was sentenced to eight years imprisonment, less credit for pre-sentence custody on the charge of possession for the purpose of trafficking, and received lesser concurrent sentences on the remaining drug, prohibited weapon, and breach of probation offences. There were no firearm offences.

In R. v. Boardman, [2016] O.J. No. 4379 (OCJ), the accused pled guilty to three counts of possession of Schedule I substances for the purpose of trafficking relating to 19.78 grams of fentanyl, 27.99 grams of methamphetamine, and 84.51 grams of cocaine. There were no firearm offences. Mr. Boardman was sentenced to six years imprisonment, in addition to the 169 days in pre-sentence custody.

Defence counsel submits that the cases relied upon by the prosecutor are each distinguishable. For example, Mr. Shevalier had a significant and unrelenting record of 105 prior convictions, including nine convictions related to illicit drugs. Although in possession of almost an identical amount of fentanyl, significantly more cash was seized and police surveillance revealed a constant stream of customers. However, the prohibited weapons were brass knuckles and knives, not a loaded handgun.

Turning to Sidhu, the offender resumed “commercial trafficking” within months of his release on parole. He was in possession of significantly more fentanyl (89 grams).

Mr. Persad was in possession of a loaded handgun, but also possessed drugs in an order of magnitude greater than Mr. Whetham — 3.8 kilograms of cocaine. Mr. Persaud had a prior record for firearm offences, whereas Mr. Whetham has no prior convictions for weapon related offences.

Defence counsel relies upon the following, among other, decisions to support his suggested six-year range of sentence.

In R. v. Lynch, 2022 ONCA 109, the 29-year-old offender sold fentanyl and cocaine to an undercover officer on six occasions. He pled guilty and was described as accepting responsibility for a total of 41.37 grams of fentanyl, 965 grams of cocaine, and 149 grams of MDMA. His criminal record consisted of only a single entry unrelated to drug activity. The Court of Appeal allowed the Crown’s appeal of the four-year sentence imposed by the sentencing judge and increased the sentence to six years. At paragraph 15, the Court of Appeal emphasized:

Fentanyl is now known to be a much more dangerous drug than almost any other. That reality directs that a sentence imposed for trafficking in fentanyl should be as long or longer than a corresponding sentence for trafficking in cocaine.

In R. v. Piri, 2020 ONSC 920, the 39-year-old offender was sentenced to a global sentence of six years less credits for pre-sentence custody and strict terms of bail release. Mr. Piri pled guilty to a number of offences, including one count of trafficking heroin which contained fentanyl (0.96 grams), and two further counts of trafficking fentanyl(2.16 grams and 27.22 grams), as well as possession of a further 6.97 grams of methamphetamine and two counts of possession of proceeds of crime ($2,990 and $4,500). Mr. Piri had a dated prior conviction for trafficking in a Schedule II substance and a more recent conviction for simple possession of a Schedule I substance, for which he received a suspended sentence and probation. Mr. Piri was an “addict trafficker” who had a difficult childhood in both Iran and Canada, and faced collateral immigration consequences. The sentencing judge characterized the federal prosecutor’s request for a 7.5-year sentence as “reasonable”, but imposed a sentence of 6 years, noting that the sentence “may be considered low.”

In addition to the specific sentencing examples outlined by counsel in their oral and written submissions, I take into account the general guidance provided by the Supreme Court of Canada in R. v. Parranto, 2021 SCC 46, at paras. 93-99 respecting the dangers of fentanyl:

93As grave a threat as drugs such as heroin and cocaine pose, that threat pales in comparison to the one posed by fentanyl and its analogues. Indeed, over the past decade, fentanyl has altered the landscape of the substance abuse crisis in Canada, revealing itself as public enemy number one.

94Synthetically produced and readily available on the illicit market, fentanyl is an extremely dangerous and powerful painkiller and sedative. As with other opioids, such as heroin and morphine, it is a highly addictive substance, which, when taken outside of controlled medical environments, puts its users at risk of serious harm, including brain damage, organ damage, coma, and death. Fentanyl’s potential for harm is, however, significantly greater than other opioids. ... Given its strength, a lethal dose will often be less than two milligrams, an amount as small as a single grain of salt. ...The risk of overdose and death from fentanyl is thus extremely high, particularly for naïve users or where it is taken in combination with other substances, such as alcohol or other opioids. ...

96Beyond its mere potential to cause harm, however, fentanyl has had — and continues to have — a real and deadly impact on the lives of Canadians. Indeed, trafficking in fentanyl is so deadly that various courts have described it as a national crisis, reflective of an increased understanding of the gravity of the harm it causes.

98In many ways, “trafficking in fentanyl is almost the equivalent of putting multiple bullets in the chambers of a revolver and playing Russian roulette...” Put simply, it is a crime that can be expected to not only destroy lives, but to undermine the very foundations of our society.

To put this into perspective, the fentanyl seized in this case was 28.92 grams. If a lethal dose is often “less than two milligrams”, the fentanyl in Mr. Whetham’s possession amounted to more than 14,000 potential lethal doses. Mr. Whetham was also in possession of other dangerous, addictive Schedule I substances for the purpose of trafficking: 160.9 grams of methamphetamine, 13.1 grams of cocaine, and 25 hydromorphone tablets.

As is well recognized, guns and drugs are a “toxic combination”. While bound by a weapon prohibition order as a result of prior convictions for possession of methamphetamine for the purpose of trafficking, Mr. Whetham was in possession of not only fentanyl, methamphetamine, cocaine, and hydromorphone, but also a loaded .32-calibre handgun, which is a prohibited firearm as defined in s. 84 of the Criminal Code. The handgun was loaded, as was the additional magazine.

The federal prosecutor acknowledges there is no rule mandating consecutive sentences with respect to drugs and weapons, but emphasizes that firearms offences and controlled substances offences activate different legally protected interests such that it is within the discretion of the sentencing judge to impose consecutive sentences where appropriate: R. v. Delchev, 2014 ONCA 448 at para. 34 and R. v. Crevier, 2015 ONCA 619 at para. 129.

In addition to enhanced credits for time spent in pre-sentence custody and harsh conditions, including triple bunking and lockdowns, defence counsel submits that the total sentence ought to be further reduced as a remedy for the finding that Mr. Whetham’s rights as guaranteed by s. 8 and s. 9 of the Charter were violated.

By way of background on that issue, the Charter voir dire and trial proceeded in a very focused fashion. Mr. Whetham made a number of admissions, including:

1. The .32-calibre handgun is a firearm as defined by s. 2 of the Criminal Code and classified as a prohibited firearm in s. 84 of the Criminal Code;
2. The loaded .32-calibre handgun was in operable firing condition;
3. On July 19, 2019, he was placed on 10-year weapon prohibition orders under s. 109(2) of the Criminal Code; and
4. The quantities of the controlled substances seized from the residence establish that they were possessed for the purpose of trafficking. There was no issue respecting the continuity or analysis of the controlled substances seized from the residence.

The trial was focused on Charter issues. The Information to Obtain (ITO) a warrant to search for and seize firearms and ammunition was heavily redacted. The prosecutor conceded that it would have been preferable for the police to have conducted surveillance and to have acquired further information, but emphasized that there was some urgency to act on the information received respecting a firearm in the possession of a suspected drug trafficker, who was also the subject of a weapon prohibition order. As such, the police promptly obtained a search warrant based on the threat to public safety.

On the voir dire, there was a finding that Mr. Whetham’s rights as guaranteed by s. 8 and s. 9 of the Charter were violated. The ITO was so heavily redacted that the Court could not conclude that the confidential informant information was credible and compelling. There was no information upon which to assess the confidential informant’s credibility, reliability, or motivation to provide information to the police. The heavily redacted version of the ITO did not reveal sufficient grounds upon which a justice could be satisfied that there were reasonable grounds to search the residence.

On the s. 24.2 analysis, the findings included the following:

1. The first line of inquiry is aimed at preserving public confidence in the rule of law and its processes. There was nothing in the present case to suggest intentional police misconduct or a systemic pattern of Charter- infringing conduct. The police had bona fide concerns for public safety. To paraphrase the Court of Appeal in R. v. Herta, 2018 ONCA 927, the fact that the redacted ITO fell short on reasonable grounds does not suggest intentional wrongdoing. The police, in good faith, sought a search warrant and obtained a search warrant issued by the Justice of the Peace. The police did not engage in misconduct from which the court is required to disassociate itself. Accordingly, the first line of inquiry pulled only weakly or slightly in favour of exclusion.
2. Under the second line of inquiry, the impact of the breach on the Charter- protected interests of the accused, this was a breach on the “profoundly intrusive” end of the scale. The execution of the warrant involved a forced entry into a residence. The impact on Mr. Whetham’s s. 8 and s. 9 Charter -protected interests was significant. This line of inquiry pulled strongly in favour of exclusion, but not to the extent that it did in Herta, where the appellant was not the subject matter of the search executed at his residence.
3. Under the third line of inquiry, society’s interest in an adjudication on the merits, the evidence was clearly reliable and crucial to the prosecutor’s case. The third line of inquiry overwhelmingly pulled in favour of admission of the evidence.
4. Balancing the three lines of inquiry requires a “qualitative assessment”, one ill-suited to “mathematical precision”. Not only must the balancing be prospective, it also must be “societal”. The goal is not to punish the police, nor compensate the accused. The goal is to address systemic and institutional concerns by analyzing the broad impact of admission of evidence on the long-term repute of the justice system.
5. This was not a scenario where there were concerns respecting a systemic pattern of Charter infringing conduct or sloppy drafting of an ITO. Also, unlike the scenario examined in Herta, there was a direct link between Mr. Whetham and the residence searched. Mr. Whetham was the specific and only target of the investigation. The police had current confirmation of his residence.
6. The dangers associated with possession of a loaded prohibited firearm in combination with possession of fentanyl and other Schedule I substances for the purpose of trafficking cannot be overstated and directly impact the safety of the community.
7. Mr. Whetham’s significant privacy interests must be balanced with significant societal concerns arising from the combination of a loaded firearm and quantities of fentanyl and other Schedule I substances possessed for the purpose of trafficking. As emphasized in Parranto, the widespread prevalence of fentanyl has the potential “to undermine the very foundations of our society”.
8. While not minimizing the importance of ensuring that warrants to search residences are properly authorized, given the very serious nature of these charges involving both a loaded firearm and fentanyl, the exclusion of the reliable evidence would, as expressed in R. v. Tim, 2022 SCC 12, “damage rather than vindicate the long-term repute of the criminal justice system.
9. The third line of inquiry, society’s interest in the adjudication on the merits, outweighed the combined effect of the first two lines of inquiry. In all of the circumstances, the accused did not establish that the admission of the evidence would bring the administration of justice into disrepute. The application for an order excluding evidence was dismissed.

Relying on the guidance given by the Supreme Court of Canada in R. v. Nasogaluak, 2010 SCC 6, defence counsel submits that the Charter breach ought to be considered “a serious mitigating circumstance” bringing the appropriate sentence for Mr. Whetham below the usual range for possession of fentanyl for the purpose of trafficking.

I accept defence counsel’s submission that in these particular circumstances, the finding of a Charter breach ought to be considered as a mitigating factor for sentencing, particularly given that the trial proceeded in such a focused fashion. Mr. Whetham made a number of admissions, which streamlined the evidence called by the prosecutor such that the Charter issue was the primary focus.

The finding relating to the Charter breach is a mitigating factor which does not lend itself to a specific mathematical calculation. Rather, it is an overall mitigating factor somewhat akin to the significant mitigating factor of a guilty plea.

I emphasize that the paramount sentencing objectives for possession of fentanyl for the purpose of trafficking and possession of a loaded prohibited firearm (a .32-calibre handgun) are denunciation and deterrence, both specific and general deterrence. The dangers associated with possession of a loaded prohibited firearm in combination with possession of Schedule I substances in quantities for the purpose of trafficking cannot be overstated.

Section 718 of the Criminal Code and the s. 10 of the Controlled Drugs and Substances Act emphasize that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

Mr. Whetham has demonstrated that he has no respect for the law or for the safety of his community. Having been convicted of two counts of possession of methamphetamine for the purpose of trafficking and being prohibited from owning weapons for 10 years, Mr. Whetham once again made the decision to prey upon vulnerable members of the community - people who are struggling because of their addictions and life circumstances. This time, Mr. Whetham was in possession of not only methamphetamine for the purpose of trafficking, but also fentanyl, cocaine, hydromorphone, and a loaded handgun. The insidious nature of the dangerous, addictive Schedule I substances has a pervasive, negative impact on the entire community. The combination of drugs and a loaded handgun elevates the danger to the community.

Pursuant to s. 718.1 of the Criminal Code, the fundamental purpose of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Mr. Whetham’s degree of responsibility and his moral blameworthiness are high. The offences are grave, involving both dangerous, addictive Schedule I substances and a loaded handgun.

As recently emphasized by the Ontario Court of Appeal at para. 16 in R. v. Lynch, “moral culpability rises with the risk of serious harm the trafficker is prepared to expose others to”. At paragraph 17, the Court held:

17There is good reason for this. The problems that dangerous drugs pose for our society are well known. They involve drug addiction, adverse health consequences and, unfortunately all too often, death. Further, drugs are often sold to already vulnerable people thereby exacerbating their difficult circumstances. Still further, there are the indirect costs to society through increased health care expense, increased demands on the health care system, increases in robberies or other forms of criminal activity, and increases in violence. Simply put, the greater those risks are when a particular drug is being trafficked, the greater the offender’s culpability or moral blameworthiness for choosing to traffic in that drug.

As summarized in Lynch at paragraph 15,

15It is a well-established principle that drugs vary in the degree of danger that they represent to those who consume them. Consequently, the more dangerous the drug being trafficked, the higher the penalty that will be imposed. Fentanyl is now known to be a much more dangerous drug than almost any other.

Pursuant to s. 718.2 of the Criminal Code:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.

The principle of totality was succinctly summarized in R. v. Friesen, 2020 SCC 9, at para. 157:

157The principle of totality requires any court that sentences an offender to consecutive sentences to ensure that the total sentence does not exceed the offender’s overall culpability. ... While this principle is applied throughout Canada, there have been divergences in the methodology used by various appellate courts. Some jurisdictions require the sentencing judge to decide what would be a fit sentence for each offence before considering totality. ... In other jurisdictions, sentencing judges start by determining an overall fit sentence and then impose individual sentences adding up to the total (R. v. Ahmed, 2017 ONCA 76, 136 O.R. (3d) 403).

In R. v. B.(R.), 2013 ONCA 36, the Ontario Court of Appeal outlined the following approach to a totality:

30The proper approach to applying the principle of totality on sentencing is to first identify the most serious part of the accusations or offences made against the person that resulted in the criminal offences he or she was charged with. Next, the court is to determine the total sentence to be imposed, and then to impose sentences with respect to each offence that they add up to the total sentence. In doing so, the sentence for each offence must properly reflect the most serious part of the overall criminal conduct and must reflect the proper sentence for that offence. At this stage, the court will then decide whether a particular sentence should be consecutive or concurrent to the other sentences imposed: R. v. Jewell; R. v. Gramlick, [1995] O.J. No. 2213, 83 O.A.C. 81 (C.A.), at para. 27.

In summary, in determining the appropriate sentence, I take into account the circumstances of the offences, including the mitigating finding of a Charter breach, Mr. Whetham’s background and personal circumstances, his rehabilitative potential and current motivation to seek treatment, the aggravating factor of his recent related record, principles of parity, proportionality and totality, and the guidance given by appellant courts.

Balancing those factors, a total sentence of eight years will address the sentencing objectives of denunciation and deterrence while placing significant weight on the principle of totality. Nothing less would be proportionate to the gravity of the offences involving both fentanyl and a loaded handgun. Had it not been for the finding of a Charter breach in the context of a very focused trial, a longer sentence would have been imposed.

As to the apportionment of sentence, I am mindful that the controlled substance offences and the firearm offences address separate or different legally protected interests. However, it is the fentanyl charge that is by far the most serious of the offences before the court today. As emphasized by the Supreme Court of Canada in Parranto, fentanyl has altered the landscape of the substance abuse crisis in Canada:

Beyond its mere potential to cause harm, however, fentanyl has had — and continues to have — a real and deadly impact on the lives of Canadians. ...

Put simply, it is a crime that can be expected to not only destroy lives, but to undermine the very foundations of our society.

Possession of fentanyl for the purpose of trafficking must be denounced and deterred in the clearest possible terms. Accordingly, the eight-year sentence will be imposed on the offence of possession of fentanyl for the purpose of trafficking, with shorter concurrent sentences on the remaining offences, in order to address totality, proportionality and parity.

Sentences Imposed

In summary, the sentence for possession of fentanyl for the purpose of trafficking is eight years imprisonment, with five years concurrent on each of the other trafficking counts involving methamphetamine, cocaine and hydromorphone.

On each of the weapon offences, there will be a three-year concurrent sentence. On the possession of identity documents charge, the sentence will be one month concurrent.

I now turn to the credits to be given for pre-sentence custody and the harsh conditions under which the pre-sentence custody was served. I take into account Mr. Whetham’s testimony on the sentencing hearing respecting triple bunking, the amount of time spent under lockdown, and the resulting impact on him. Mr. Whetham explained that, at his request, he has been in protective custody and triple bunking is the only option in protective custody at the Maplehurst Correctional Complex. The summaries respecting lockdowns and triple bunking were filed as exhibits.

Mr. Whetham has now served 493 actual days of pre-sentence custody, which credited on a 1.5:1 basis is the equivalent of 740 days, which is rounded up for a credit of 25 months.

I accept defence counsel’s submissions and calculations respecting the further Duncan credit to be given to account for triple bunking, as well as days spent in full lockdown and partial lockdown. The credit sought by defence counsel is rounded up to four months.

Accordingly, a total of 29 months will be credited against the 8-year sentence — a 25-month credit for the 740 days in pre-sentence custody and a further 4-month Duncan credit.

There are 96 months in an 8-year sentence. On the possession of fentanyl for the purpose of trafficking charge, the term that would have been imposed before credit was granted is 96 months. The total time credited for pre-sentence custody is 29 months. Accordingly, the sentence of imprisonment imposed today is 67 months.

To summarize, the clerk will record the sentences of imprisonment as follows:

1. On Information 22-216, count 6, possession of fentanyl for the purpose of trafficking, pre-sentence custody is 740 days. Time credited is 29 months, including a 4-month Duncan credit. The term that would have been imposed before credit was granted is 96 months. The sentence of imprisonment imposed today is 67 months.
2. On each of counts 2, 4, and 10 of that same Information, being the three other possession for the purpose of trafficking offences involving methamphetamine, cocaine, and morphine, the sentence imposed is 60 months concurrent.
3. On Information 22-215, on each of the weapon offences, being counts 1, 6, and 10, the sentence imposed is 36 months concurrent.
4. On count 8 of the same Information, unlawful possession of identity documents, the sentence imposed is one month concurrent.

On the possession for the purpose of trafficking charges, there will be weapon prohibition orders under s. 109(3) of the Criminal Code for life.

On counts 6 and 8 of Information 22-215, being the s. 95(1) and s 117 .01(1) offences, there will be 10-year weapon prohibition orders under s. 109(2) of the Criminal Code. The weapon prohibition orders prohibit Mr. Whetham from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, explosive device or ammunition.

On each of the possession for the purpose of trafficking charges, there is a secondary DNA order. There are also secondary DNA orders imposed on the s. 95(1) and s. 117.01(1) offences, being counts 6 and 10 of Information 22-215. The secondary DNA orders require Mr. Whetham to provide samples of bodily substances for DNA databank purposes to the Stratford Police Services or their designate at the Stratford Police Services or a place designated by the Stratford Police Services prior to 4:00 p.m. on August 31, 2023. The order is valid until executed.

Finally, on the two Informations there is a combined forfeiture order of the proceeds of crime and offence-related property. The items listed in the forfeiture order include: $1,570 in Canadian currency, three cellphones, the key to the safe, packaging and cutting agents, the handgun, magazines with ammunition, and two butterfly knives.

The victim surcharges are waived given the length of penitentiary sentence.

Mr. Whetham, you present as motivated to address treatment and counselling while in custody. I encourage you to make the most of those opportunities so that you can leave your criminal past behind when you are released from custody. Good luck to you.

ACCUSED: Thank you.

THE COURT: You are welcome.

...END OF EXCERPT

Electronic Certificate of Transcript

FORM 3

ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act

I, Pauline Leung (Name of Authorized Person) certify that this document is true and accurate transcript of the recording R. v. David Whetham in the Ontario Court of Justice (Name of Case) (Name of Court) held at Courtroom 1, 100 St. Patrick Street, Stratford Ontario, N5A 7W1 (Court Address) taken from Recording 3211_Cr-1_20230725_083755__6_MCKERLK.dcr, which has been certified in Form 1. September 5, 2023 (Date) (Electronic Signature of Authorized Person(s)) 2567686493 (Authorized Court Transcriptionist Identification Number – if applicable) Ontario, Canada (Province of Signing) A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.