Court File and Parties

DATE: March 23, 2021 Information No.: 200758, 201256 ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN v. SHELDON WYNTER

BEFORE THE HONOURABLE JUSTICE P. BISHOP on March 23, 2021, at THUNDER BAY, Ontario

APPEARANCES: M. Haque Counsel for the Crown W. Cavin Counsel for Sheldon Wynter

Reasons for Judgment

BISHOP, J. (Orally):

Thank you. This is for a decision on a voir dire that was conducted. I’ll just go over the background, or some of it here. And I received all of the material filed by the Crown and the defense, as well as the application material and the case law books; I’ve reviewed it all. And it’s very well presented and quite complete.

So, we’re here on R v. Sheldon Wynter. He faces eight charges. There’s four charges from the 5th of February, and he was, on that date of 2020, unlawfully trafficked in a substance presented, or held out to be schedule one, to wit: cocaine, section 5(1). There’s three charges on that. And on the same date, there’s a breach of probation, section 733, failing to keep the peace and be of good behavior, to wit: trafficking, is the allegation.

Then on the 21st of February, two charges: resist arrest, that’s when he was arrested contrary to section 129 of the Criminal Code, and possession of proceeds of crime, section 354(1)(a).

And then there were two charges from the 21st to the 25th of February, 2020, 5(2) possession for the purpose of trafficking, to wit: fentanyl, and possession for the purpose of trafficking to wit: cocaine.

So, we entered into the, commenced the trial, and started the voir dire on, heard evidence on January 25th, 27th to 29th, 2021, with the defense filing his written submissions, that is the Crown, sorry the defense filled his written submissions on March 11th and the Crown filed on March 16th, and it’s here for a decision on the voir dire.

MR. WYNTER: ...Sorry. Sorry, Your Honour to interrupt, when you read out the charges from the 27th, you read out possession for the purpose of trafficking, I thought it was just simple possession.

THE COURT: No. It’s 5(2). That hasn’t been amended, is that correct, Mr. Haque?

MR. HAQUE: That is correct.

THE COURT: Yes. So, that’s correct. So, we’ll just proceed. At this particular stage, I’m to determine whether there are any charter breaches, and if so, if there were a charter breach, what’s the remedy, if anything.

So, the first alleged charter breach is section 8, dealing with the strip search, and then there was a section 10(b) rights to counsel, and that’s two occurrences on the 21st of February and then either, March 6th, 7th, when he regained consciousness. And then there’s a section 7 and 11(d), the Crown allegedly presented some misleading evidence at the bail hearing, and it deals with the life liberty and security of the person and not to be deprived thereof except in accordance with the principles of fundamental justice.

So, many of the breach allegations are intertwined. And the evidence of one might be applicable to the evidence of the other, and I’ll get to that when I give my reasons.

Analysis of Charter Breaches

Lawfulness of the Strip Search (Section 8)

Dealing firstly, with the lawfulness of the strip search, Mr. Wynter was a target of a drug investigation, which was known to the Thunder Bay intelligence unit. There was an undercover agent in an operation called Project Trapper, and they recruited an officer from the Durham regional police service. Mr. Wynter was photographed, and that photograph was sent to Barrie Police, and they identified him, he goes by the drug trade name of Marcus, and he had, he has a twin brother, but he has a distinct scar on his forehead. It was also believed, from confidential sources, that because he was dealing in drugs, he hid drugs in his underwear. He is also accused of selling drugs at the Midtown Inn from undercover sources.

He has had prior involvement with the police, he was the victim of a stabbing in September 2019. The evidence I have is he was uncooperative with the police for that, and he was the complainant on another incident where armed people were trying to get into the Midtown Inn room where he was working and living, or residing, and that was another incident that had to be investigated.

Detective Constable Cam Smith, attended at the Midtown Inn on February 5th, 2020. He met up with some woman, and said he was looking for Marcus, and she took him to room 301; that’s the same room that the armed men were trying to get into. He was admitted entrance into the room 301 at the Midtown and he observed three sales, which purportedly were cocaine, and when he tried to purchase a 100 hard, which is, in drug terms, $100 worth of crack cocaine, Mr. Wynter didn’t sell it to him because Constable Smith refused to smoke it.

Sixteen days later, on February 21st, it was take-down day for this Project Trapper, and Mr. Wynter was arrested at the Midtown Inn. Four officers were involved in the arrest, Detective Constable Dan Bartol, Constable Tom Harrison, Detective George Convey(ph), and Detective Constable Matt Veal.

They met him in the lobby, they identified him, they knew who he was, he resisted arrest. One officer indicated he was reaching for his crotch area, which is unusual behaviour, and he continued moving his arms and his legs. Detective Constable Veal suffered some superficial injuries to his hand and his chest.

A search incident to arrest was conducted at the Midtown Inn and found $3782 in a jacket pocket. And the evidence was that both Detective Constable Veal and Constable Harrison sought permission from Staff Sergeant Anderson to conduct a strip search. I’ll address that further later.

He was further searched when he was taken back to the police station, a more complete search, a complete pat down, his legs spread apart, a wand search, and they didn’t find anything.

I’m also finding it was unreasonable to exercise his right to counsel in the police cruiser or at the Midtown Inn. At the Midtown Inn, it was a dangerous situation with the drug, known drug dealing location, he was handcuffed to the rear, he resisted arrest, he was shouting and yelling, it’s reasonable in the circumstance to take him to the police station where he could consult counsel in private. I find that that arrest was lawful and his rights to counsel, the informative right, was performed on the way, either just outside the Midtown Inn, or on the way to the police station in the cruiser. But it was impractical to have him exercise any rights while he’s handcuffed and violent acting out and resisting in the cruiser.

The strip search, I reviewed the Supreme Court of Canada case, R v. Golden, 2001 SCC 81, and there’s several principles. A strip search is an incident to arrest, an arrest must be lawful. I’m finding that the arrest was lawful, I’ll get to that in a minute. As well, the strip search must be for the purpose of disclosing evidence on the body related to the reason for arrest. I note, 16 days had passed since the initial occurrence from Detective Constable Cameron Smith. It is not to be carried out as a matter of routine, and they must have, the police must have reasonable and probable grounds to strip search and be necessary in the circumstances. I’m convinced on a balance of probabilities that the reasonable and probable grounds to conduct a strip search were there. I find that the original arrest was lawful on the evidence of Detective Constable Smith, who was a very believable witness on what transpired in room 301, and the accused is observed dealing in drugs on three occasions, purported drugs, cocaine or, held out to be cocaine on three occasions at the Midtown Inn.

The accused did not sell to Detective Constable Smith without smoking because he didn’t know Detective Constable Smith. The drugs in 301 were not out in the open, they were concealed and presented when the purchasers asked for them. The investigative unit targeted and photographed Mr. Wynter at the Midtown Inn, prior to this taking place, and he was a victim of a stabbing. He was involved in a couple violent incidents, as there were armed men trying to get into room 301 on another occasion, where he was the complainant, and that’s the same room where Constable Cameron Smith found him dealing with drugs purportedly.

So, Constable Smith was taken to the room, he wanted to produce a 100 hard, and it was also revealed that the CPIC evidence, or records, show that Mr. Wynter had 13 prior CDSA related convictions and a record for violence including two assaults on police. The officers also observed, at least one officer observed this unusual behaviour, where he was reaching to his crotch during the arrest, and this prompted the officers to think that, perhaps, he was concealing something there.

One guiding principle in Golden, is that there’s a principle to stop transportation of drugs and other contraband to the jail, if you're going to jail or going to prison, to stop that spread. I find the police had reasonable and probable grounds to conduct the strip search. It’s uncontradicted evidence, although there is difference in the evidence of the police officers involved in this arrest, but there was no other evidence on that issue. Counsel for the accused didn’t like the evidence, but that was the uncontradicted evidence, that he was reaching for his crotch area. There’s no other evidence that I have to that, and the minor differences are the difference between the four officers involved in the search which don’t create a problem or a doubt for the court whether it was reasonable. So, I’m finding the police had reasonable and probable grounds to conduct the strip search.

Then I address the reasonableness of the search. They conducted the search at the police station, there was no health or safety concerns for the accused. It was authorized by Staff Sergeant Jason Anderson, and he confirmed the procedure, and it was complied with. The officers were of the same gender, three were involved. They talked about public safety concerns because the accused was violent, acting out. It took four officers to effect the arrest, they arrested him in the lobby of the Midtown, he dragged, there was some scuffle going across to a window, and then he was shouting and yelling. Constable Harrison said he was squirming around. And he has convictions for violence and an assault on police.

During the strip search there was no physical force used on the accused. His genitals were exposed for approximately 5 seconds, that was in a private area. There was no camera, there was no door, and the defense made a great deal of that, but I’m finding, because I viewed that video about six times, the two big police officers were blocking the view from anyone else looking in. One Constable was doing the search. So, that was for police safety as well as the privacy, the fact that there’s no door was compensated by the fact that the police officers blocked the door, and no one could see through them when the search was taking place, and it was for officer safety, because Mr. Wynter was violent during the arrest.

During the strip search his genitals were revealed for 5 seconds, it took, the whole strip search took 1 minute and 12 seconds. The accused took off his garments, the officer looked, they handed them back to him, he put them on. The accused independently removed his garments and were returned to him after inspection. There was no physical touching of the accused. There was no body cavity search. I concluded the naked strip search was reasonable in the circumstances. So, that breach failed.

Now, I’d like to address the section 10(b). I tried to follow the theme of the both the Crown and the defense, so, again, this is an oral decision and I reserve the right to give better, more complete written reasons if required to do so, or requested to do so. So, I’m finding there was no charter breach section 8 with respect to the strip search.

Right to Counsel (Section 10(b))

Rights to counsel, section 10(b). I find the rights to counsel of the original arrest at the police station, there was a breach there. I’m finding that the informational component was upheld, they gave him his rights to counsel either at the Midtown Inn or in the police cruiser on the way to the station, and they also gave the rights to counsel at the station again. There were four officers, and I’ve already talked about the struggle, and it was not practical to exercise right to counsel, he was in handcuffs in the cruiser, it was not practical to exercise his right to counsel at the Midtown Inn. The police were correct to bring him back to the police station where he could exercise his constitutional rights to counsel in private. For safety and security reasons, they were reasonable in conducting a further, more complete search at the station, including the wand search for illegal substances and weapons. I’ve already ruled that the strip search for the reasons was lawful and reasonable.

I must comment on Mr. Wynter’s demeanor at the police station in the booking room. He was very subdued. Police officer Bartol was trying to get the name and the phone number of his counsel. The court listened to the audio and watched the video at least six times, and Mr. Wynter was very quiet, just the opposite of, this is after the strip search, just the opposite of what he was during his arrest and on the way to the police station. I don't know what his state of mind was, but it was not conducive to providing a name and a phone number of the lawyer of his choice. Detective Constable Bartol had to, had written down a number, either misheard it or he wrote it down wrong, from the accused. He wrote down, which is in one of the transcripts, 416-422-7193, whereas the correct number was 416-322-7913. So, two of the numbers are transposed and one of the numbers is wrong. To the credit of the police, Constable Johnson went and got the, he looked up Mr. Caven’s number, 416-322-7193, and he contacted Mr. Caven. Almost contemporaneously, it took from 4:03 to 4:15, 12 minutes to get the correct name of Mr. Caven and his phone number. The police eventually did that. But before Mr. Wynter could talk to his lawyer, he collapsed from a medical emergency. He was taken to the hospital in a coma. There was foam coming out his mouth, he was unresponsive. Corrections was guarding him as well as the police paid the jail or Corrections to guard Mr. Wynter.

He appeared, somehow, in court, it’s still unclear to me, on February 22nd, 24th, 25th, 26th, 27th, and 28th. But on February 25th, he had a bowel movement and expelled a condom, three baggies, and one of those baggies had purportedly drugs in them. In March 6th, because he was unconscious, the Crown issued a prosecutorial stay, but on March 7th he regained consciousness and the stay was revoked and Officer Nick Tanari of the Thunder Bay Police Service attended at the hospital, read his rights to counsel and the new charges. This is rather meaningless and inappropriate in my mind, because he was unconscious, he had regained consciousness, but he was incubated, he couldn’t respond, he couldn’t contact counsel. The officer indicated that he shook his head back and forth, but I’m not convinced that he understood those rights to counsel shortly after regaining consciousness. And, further, they never followed up on that. So, the informational component was issued, but there was no follow up on the second, the execution of that or the allowing him to speak to counsel. That was not followed up on from what I could see in the reading the material.

I reject the police evidence that once he’s in the hospital, corrections control the rights to counsel and they must perform it, that they must do the informational and the implementational. That’s just wrong. This is a police investigation, Corrections has, in my mind, no responsibility. This is a police investigation, they did the investigation, they arrested him, they had him detained and in custody at the time since February 21st and also at the hospital. So, it’s a misconception, and I don’t accept what the police officer said, that their duty to advise the accused to retain and instruct counsel, the informational process, and the implementation is somehow transferred to Corrections. That’s just wrong and I don’t accept that. They’ve got a misunderstanding of what their obligations are. So, the ruling here, I’m ruling that, with respect to the 10(b), the informational component of 10(b), rights to counsel was performed, this is on the February 21st at the police station, the attempt to have the implementation was interrupted by a medical emergency. The police officers at the police station did attempt that. They finally ascertained it was Mr. Caven, but he couldn’t talk to his lawyer because of a medical emergency. The police should have followed up on that. I also find there was no malice or a deliberate attempt to frustrate his right to counsel on that. The informational was there, but you can't fault Mr. Wynter, he had a medical emergency. But that doesn’t relieve the police of following up on the implementation process on that particular charge.

The Crown appears to reverse the onus, put the onus on Mr. Wynter. The Onus is on the Crown, the onus is on the agents of the Crown, in that instance it was the police to not only give the informational but the implementational component to him.

The Crown submitted if Mr. Wynter had given the right number the first time he would have talked to his lawyer within a reasonable time, I reject that totally, because he wasn’t in any position to exercise the implementation, but the police should have facilitated that. I’ll get further into this in my analysis on 24(1) and 24(2).

Misleading Evidence at Bail Hearing (Sections 7 and 11(d))

Moving to the bail hearing, there is an argument here that his section 7 rights were breached, Everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. And 11(d) “A person charged with an offence has the right to be presumed innocent until proven guilty according to law, in a fair and public hearing by an independent impartial tribunal, and a component of that is he not be denied reasonable bail without just cause.”

So, I’ve gone through the transcript of the bail hearing, and I have some further remarks, I have to review the background, for the reasons I have to go to the background again. Mr. Wynter was unconscious from February 21st to March 7th, 2020. On February 25th, the hospital informs the police, and I’m assuming the police or Corrections were there, that he had a bowel movement and passed a condom with three baggies inside, and purportedly some drugs in one of those baggies, and it weighed, the total weight of the condom, the baggies, the drugs, was 14.4 grams. The police officer doing an examination of the condom and the baggies, found it was chock-full of fecal matter and alleged drugs. And I viewed on video what the constable did. Constable Harrison, on February 26th, 2020, he analyzed it and he said the total weight was of the condom, the baggies, and the drugs was 14.4 grams. The CDSA exhibit list February 27th shows a combination of fentanyl and cocaine. The purported drugs were analyzed and Certificate of Analysis produced on March 6th, 2020. A supplementary occurrence report prepared by Constable Harrison and Veal of February 27th, 2020, revealed that the weight of drugs and baggie was 2.7 grams. Constable Harrison’s supplementary occurrence report of February 28, 2020 disclosed the actual weight of the drugs was 0.8 grams. All the reports were forwarded to the Crown. The name of the screening Crown is not disclosed. Mr. Hardiejowski, the federal Crown at the bail hearing did not disclose, or was oblivious, or willfully blind to Detective Constable Veal’s supplementary occurrence report that alleged drugs and fecal matter in the baggie was 2.7 grams. Nor did he disclose Constable Harrison’s seizure and disposition report of February 28th showing there was 0.8 grams of suspected cocaine. It was clear that Mr. Hardiejowski submitted the first report, 14.4 grams to the justice of the peace because she referred to it. This is a breach. This should never have happened and the Crown in a written submission, stated COVID was on, and screening was done working from home. The Crown is indivisible. One doesn’t have to physically deliver these documents to the bail Crown, it’s the click of a mouse, here are the documents, that should have happened, and it didn’t happen. It didn’t happen when he got to the justice of the peace doing the bail hearing. So, it wasn’t presented to defense counsel, and that’s the only conclusion I can draw, it wasn’t presented to the defense or Justice of the Peace Ellard at the bail hearing on the 14th of April, although it was known to the Crown since February 27th or 28th of that year. Neither Mr. Hardiejowski nor the screening Crown, testified, they didn’t submit an affidavit explaining how this happened, the federal Crown just says well, it happened, too bad, it happened but it wasn’t willful, and we didn’t talk to the accused or enlist any other information from him, we just took it, and we made a mistake and that’s unfortunate. Basically, that’s their position. It’s obvious that Justice of the Peace Ellard was misinformed or misled about the weight of the fentanyl and cocaine. On page 70 of the transcript, she says:

“The amount of drugs seized from you that were passed were 14.4 grams of fentanyl and cocaine. This is a significant amount, much higher than personal use. It is unknown the estimated value of these drugs. It points to a somewhat strong case for the Crown. This is relevant for both the secondary and tertiary grounds, I’ll speak to more about that in a moment.”

She then goes on and mentions the fentanyl is obvious that this is one of the reasons that, a strong reason for her keeping him, Mr. Wynter, detained. It was one of the reasons but not the only reason, but on page 74 she accepts the drug trafficking in fentanyl is a violent crime, repeats, “fentanyl and cocaine are violent crimes.” Page 75, she states a significant quantity of trafficking in cocaine and fentanyl. Page 76, she talks about the dangers of cocaine and fentanyl. She was very focused on the quantity and the drug in her reasons and that was only because it appears that the very first report, from Constable Harrison, showed 14.4, and that was a misstatement, that was corrected about two days later, saying what the actual amount of the drugs were, 0.8 grams.

The Crown puts forward, well, you know, that’s unfortunate it happened but the defendant hasn’t brought a bail variation for all this disclosure mistake. I reject that submission. The onus is not on the accused to do anything. The error is on the Crown, and it rests squarely on the Crown and it should correct and amend it and take appropriate action. So, I do not find that Mr. Hardiejowski deliberately withheld information with respect to true weight of the fentanyl and cocaine, but I do find it was withheld, and that’s a breach of section 7 or 11(d). And it’s a significant breach. The public would be outraged if on any case the Crown could withhold significant evidence that deals with his freedom, and it’s not just a matter for trial, remember, that’s for later, pardon me, this is a situation where I have to determine whether any charter breaches and what the remedies are, if any.

So, I want to review the possession, for the purpose of trafficking cocaine and fentanyl, March 7th breach of section 7, 11(d). The informational right was performed by Constable Tanari, but, as I said, it’s greatly lacking on this set of charges, that is the 21st to 25th. Mr. Wynter was incubated, he couldn’t respond even though the Constable said he shook his head, said he shook his head back and forth, not only that, but I have real doubt whether he understood, having just coming out of a coma the day before. Secondly, the implementational process was never addressed. They seemed to have that, the police seemed to have the idea that we can tell him about his charter rights but we’re not going to facilitate you exercising those rights, and the evidence that I have, they never did. I know that he contacted Mr. Caven, but that must have been on his own, there’s a big void here. The police, nor Corrections, nor anybody facilitated his right to talk to counsel and get instructions so as to not incriminate himself. The Crown submits, well, we didn’t ask him any questions, police didn’t ask any, that’s not the point. The point is was there a charter breach, was he given as soon as practical, the right to talk to the lawyer of his choice. This is not the clearest of cases for a stay, and I’ll get into further on that. I’m looking at the Grant analysis (R v. Grant 2009 SCC 32), and I have to do that, but I’m finding this was a significant breach of his right to a fair trial, fundamental justice, and also, I’ve already indicated on the 11(d) that he has to be given the implementational right to talk to his lawyer, that was never done from the evidence that I have before me. I’m finding that Mr. Wynter was detained at the hospital and the police response to be informed of his charter rights and implementation were not given; this was never achieved. That’s a little different from the February 5th charges that he was given his right to counsel on February 16th. He was given his right to counsel twice, but he couldn’t exercise on that, he couldn’t rather, exercise his right to speak to counsel because of the medical emergency on February 16th. But that’s a little bit different. The police in that particular instant tried their very best and they did get a hold of his counsel, but he didn’t speak to his lawyer of choice on the February 16th, and that seems to go hand-in-hand with the next set of charges, where he didn’t do that, but there was no malfeasance, there was no real serious impact on him on that. I look at the serious of the charter infringing state conduct, which requires an assessment of the evidence, whether the admission of the evidence would bring the administration of justice in to disrepute and focus on the severity of the state conduct that lead to the charter breach, which includes the analysis of whether the breach was deliberate or willful, and whether the officers were acting in good faith. I’m finding on the February 21st it was not deliberate, it was not willful, they were acting in good faith, the medical emergency interfered, and they simply forgot about that. The only thing that could be excluded would be that, on that particular charge, would be the money, but I’ll get to that in a minute. The impact of the charter protected rights of the accused, which focused on how the accused’s person was affected by the state conduct, the impact of the charter protected interest of the accused which analysis focuses on the person’s privacy and direct impact of the right not be forced to self-incriminate and the effect on the person’s human dignity. That section 10 breach on the February 21st arrest, I’m finding it had very little effect. The state conduct, when they simply forgot or didn’t give him his implementation rights to talk to his lawyer, the medical emergency interfered. They also had the misinformation that the charter obligation somehow transferred to the jail. I find that’s wrong, it never transferred to the jail. And the direct impact on the right not to be forced to self-incriminate, I’m finding he didn’t self-incriminate as a result of that breach, they already had the drugs or the evidence that Detective Constable Smith, who I said was very credible and believable, and the money was seized prior to the breach and there may be an innocent explanation, or an explanation why he had those funds other than drug dealing, and I’ve heard that in many other cases. And the effect of the person’s human dignity, that doesn’t play on that set of charges. And the society interest in the adjudication on merits which focused on how reliable the evidence was that led to the nature of the charter breach. Detective Constable Smith is very reliable, very credible. He wasn’t challenged in any meaningful way in cross-examination. So, I’m finding that, in those circumstances, that breach was the implementational, but I understand why, it wasn’t malice, it wasn’t proforma, it wasn’t a deliberate attempt, so that evidence is all going to go in, nothing is going to be excluded on the arrest there.

Getting to the other one, that is the more serious, was the state conduct on March 6th, with respect to possession for the purpose of trafficking by the police. There was right to counsel, and plead or submitted or tried to say, we the police didn’t have that responsibility, which contradicts what they did as soon as Mr. Wynter regained consciousness, they sent an officer over to read the charges and right to counsel. So that infers knowledge of their responsibility, in attempting to comply with the informational component, but the implementation component was never addressed. They didn’t even try, they didn’t come back the next day, and that shows a systemic problem. We’ve given him his rights to counsel, but they don’t seem to realize that the implementation is part of their responsibilities too. Plus, it was a serious, serious breach, misinforming a justice of the peace, an officer of the court. The police did their job, with respect to what the drugs were and the weight of the drugs, but the Crown, whoever it was, whether it’s the screening Crown or Mr. Hardiejowski, the bail Crown. They did not do their job. They had that information, it’s no excuse to say it’s in the process of being disclosed, and that COVID interfered, and so on. That’s not accepted, it’s just out there and it has no bearing here on the charter breach. It was a substantial breach, he may or may not have been released, and I don’t know. There were other grounds, but it was a ground, the quantity of the drugs, the nature of the drugs, it was a ground that the justice of the peace relied on, she mentioned it several times in detaining him. So, when I look at the serious, that was a serious breach, not the police, but the Crown attorney, and whether it was willful, I have no evidence that it was willful, but I know what happened and I know that the Crown is indivisible, what one Crown has the other Crown has, or should have, and that should not have happened and it was a significant reason for the justice of the peace; the impact on him, he was detained, it wasn’t the only reason, but it was one of the major reasons that the justice of the peace detained him, because she mentioned it so many times. And society’s interest in adjudication on merits, the society, in my mind, would be very upset if they knew that police, or the Crown not the police, but the Crown could withhold very crucial evidence that might deal with the freedom of the accused. And for those reasons used in the Grant analysis, I’m going to exclude the fentanyl and the cocaine. So, for those reasons, and that’s the decision that I’ve come to. So, the fentanyl and the cocaine seized, well, between February 21st and 25th, that’s where he had his bowel movement, so, with respect to those charges, the fentanyl and the cocaine are going to be excluded; it will not be included in this.

The defense made many submissions about the credibility of the officers and I’m just going to comment briefly about that. The credibility of the officers, as I said, they didn’t put everything in their notes, they gave their evidence as best they could, there was some discrepancy, some things were not in their notes, but I don’t find that they were lying or misrepresenting or augmenting their case by giving their evidence more weight than any other, so, I reject that argument.

Conclusion

So, to summarize, with respect to the 10(b) breach on the February 21st, there’s going to be no exclusion, there was a breach, it was implementational breach, but it was explained because of the medical emergency, but on the other breach, it’s not explained; it’s not explained why the police did their job, but the Crown got it wrong or misrepresented, or that was the result that was misrepresented, and the justice of the peace relied heavily on that. That’s the significant breach, and the fentanyl and drugs that were seized will be excluded. That’s basically the decision, so I guess you have to go back, the resist arrest charge, the three trafficking cocaine charges, the proceeds of crime charge, and the breach of probation charge will proceed to trial, you don’t have the evidence on the other matter for the possession for the purpose of trafficking. All right.

E N D O F E X C E R P T O F P R O C E E D I N G S

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

I, Kari Deshaies (Name of Authorized Person) certify that this document is a true and accurate transcript of the recording of R v. Sheldon Wynter in the Ontario Court of Justice (Name of Case) (Name of Court) held at Thunder Bay, Ontario (Court Address) taken from Recording 4211_CR501_20210323_085722__6_BISHOPP.dcr, which has been certified in Form 1.

April 25, 2021 (Date) (Signature of Authorized Person)

This certification does not apply to the Reasons for Judgment which was judicially edited.