DATE: April 6, 2023 Information Nos. 3211-998-22-32100215-01 3211-998-22-32100216-01

ONTARIO COURT OF JUSTICE

HIS MAJESTY THE KING

v.

DAVID WHETHAM

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE K.L. MCKERLIE on April 6, 2023 at STRATFORD, Ontario

APPEARANCES: V. Mazza for K. McNair Federal Prosecutor N. Wansbutter Counsel for David Whetham

MCKERLIE, J. (Orally):

This matter proceeded as a blended Charter voir dire and trial, conducted jointly on two Informations, with the charges streamlined prior to the commencement of the blended proceeding.

At the outset, I commend counsel, Mr. McNair and Mr. Wansbutter, for the manner in which they narrowed issues with a statement of admissions and for their well-prepared Charter materials.

The accused, David Whetham, faces the following March 19, 2022 charges:

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

By Notice of Application dated February 9, 2023, the accused seeks an order excluding evidence pursuant to sections 8, 9 and 24(2) of the Canadian Charter of Rights and Freedoms.

The accused submits that the redacted Information to Obtain (ITO) falls well short of providing a basis upon which a warrant could have been issued to search the residence and submits that the police did not have the requisite grounds for his arrest, which took place prior to the execution of the search warrant.

The federal prosecutor submits that there were sufficient grounds in the ITO for the issuance of a search warrant, which a Justice of the Peace did issue on March 19, 2022. The prosecutor further submits that the police had the requisite grounds to arrest Mr. Whetham and to conduct a search of his person incident to arrest.

On March 19, 2022, Constable Hartleib submitted an Information to Obtain a warrant to search for and seize firearms, weapons and ammunition at 84 Rebecca Street. The heavily redacted ITO is found at tab four of the Application Record.

The section 117.04 warrant to search the residence at 84 Rebecca Street was issued by Justice of the Peace Marquette on March 19, 2022 and permitted entry between the hours of 12:00 p.m. on March 19, 2022 and 9:00 p.m. on March 20, 2022.

The police waited for Mr. Whetham to exit the residence before executing the search warrant. Mr. Whetham was arrested for possession of a firearm at approximately 3:13 p.m., shortly after he was observed exiting the residence. He was arrested on the street while walking a dog.

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

• $1,570.00 in Canadian currency;
• a long chrome-plated key; and
• a set of keys to the residence.

At approximately 5:00 p.m., members of the Stratford Police Service Emergency Response Team executed the search warrant at the 84 Rebecca Street residence and seized the following:

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

All items were found in a safe in the closet of one of the two upstairs bedrooms. It was the bedroom which appeared to be “lived in” and contained articles of men's clothing and women's clothing. Also in the bedroom were photographs of Mr. Whetham and the co-accused, Ms. Crinklaw, who did not participate in this trial.

The safe was described as being four feet high and two feet wide. The safe was opened using the very long chrome-plated key found on Mr. Whetham's person.

The accused submits that the evidence seized ought to be excluded pursuant to section 24(2) of the Charter. If the evidence is admitted, the accused submits that the prosecutor has failed to discharge its onus of proving beyond a reasonable doubt the requisite knowledge and control to establish that he was in possession of those items.

A number of admissions were made at the outset of the blended Charter voir dire and trial, including:

1. the .32 calibre handgun is a firearm as defined by section 2 of the Criminal Code.
2. the .32 calibre handgun is classified as a prohibited and restricted handgun as defined in section 84 of the Criminal Code.
3. the .32 calibre handgun was in operable firing condition.
4. Mr. Whetham does not have an authorization, licence or registration certificate for a firearm.
5. On July 19, 2019, Mr. Whetham was placed on a ten-year weapon prohibition order under section 109(2) of the Criminal Code.
6. The quantities of the controlled substances seized from the residence establish that they were possessed for the purpose of trafficking.
7. There is no issue respecting the continuity or analysis of the controlled substances seized from the residence.

Three police witnesses testified on the blended Charter voir dire and trial:

• Constable Hartleib, who was the investigating officer and affiant of the ITO. He arrested Mr. Whetham and also participated in the search of the residence.
• Constable Moschopedis, a member of the Emergency Response Unit, who assisted in the execution of the warrant.
• Constable Merkley, a member of the Street Crime Unit, who conducted surveillance on March 19, 2022 and was also the exhibit officer for the search of the residence at 84 Rebecca Street.

Mr. Whetham did not call evidence on the Charter voir dire or on the trial.

Constable Hartleib testified that he commenced the investigation on March 18, 2022 when he spoke to a “human source” and received information about Mr. Whetham and "firearms in his possession". The officer did not answer the question as to whether he had prior dealings with the source, but did indicate that to his knowledge the person had not been a source in the past for any other officer.

Constable Hartleib testified that he corroborated the information received with previous information he had received and corroborated it with a member of the Street Crime Unit and then drafted the Information to Obtain a warrant to search the residence at 84 Rebecca Street.

When asked what he meant by corroborated, Constable Hartleib testified that on March 11, 2022 he received a service wide email bulletin from Sergeant Ferguson that Mr. Whetham was in possession of firearms. The information in the bulletin was received "from a human source with unknown reliability indicating that David Whetham is in possession of a gun at his residence". Constable Hartleib also spoke to Constable Merkley of the Street Crime Unit, whom he believed had knowledge of the situation.

Constable Hartleib testified that he was unable to say if the human source from whom he received information was the same person who provided information that led to the service wide bulletin from Sergeant Ferguson. He stated that he could not say they were two separate sources.

Constable Hartleib testified that "a few years prior, maybe two, maybe five, I'm not sure", he arrested Mr. Whetham for possession of methamphetamine.

Constable Hartleib also testified that in December 2021, he suspected that Mr. Whetham was dealing drugs from the residence. The officer conducted static surveillance and observed what he believed was a possible drug transaction in front of the residence. He saw a vehicle pull up, a passenger go into the residence, and then Mr. Whetham walk with the passenger back to the vehicle. The officer stopped the vehicle and the passenger was found to be in possession of fentanyl.

Constable Hartleib testified that on March 19, 2022, once he obtained the warrant, he set up surveillance. The plan was to wait for Mr. Whetham to leave the residence so the police could arrest Mr. Whetham outside the residence before the search warrant was executed.

When Mr. Whetham left the residence, Constable Hartleib placed Mr. Whetham under arrest for possession of a firearm. In the search incident to the arrest, the officer located a number of items on Mr. Whetham's person including currency, the long chrome key for the safe and a set of keys for the residence.

Constable Hartleib confirmed that he was the officer who formulated grounds for arrest. When asked “what were the grounds for arrest”, Constable Hartleib replied "for possession of a firearm".

Under cross-examination, Constable Hartleib acknowledged that during his surveillance in December 2021, he did not see if the passenger from the vehicle actually entered the residence as he lost sight of the person once they went up the driveway. He did not know where the vehicle was coming from or where it was headed. There was no follow-up surveillance by the officer.

Constable Hartleib confirmed that the co-accused, Gwenyth Crinklaw, was found inside the residence when the warrant was executed on March 19, 2022.

Constable Moschopedis, who assisted in the execution of the search warrant, confirmed that members of the Emergency Response Unit breached the front door with a battering ram when they executed the warrant and that the only person found inside the residence was Ms. Crinklaw.

Constable Merkley, a Detective Constable with the Street Crime Unit, testified that within nine months of March 19, 2022, Mr. Whetham was the subject of a controlled drugs and substances investigation conducted by the Street Crime Unit. No other information was provided respecting the prior investigation, which did not result in charges against Mr. Whetham.

On March 19, 2022, Constable Merkley was tasked with conducted surveillance on 84 Rebecca Street to determine when Mr. Whetham left the residence. He commenced surveillance at 12:30 p.m. Constable Merkley observed Mr. Whetham exit the residence with a dog at 2:36 p.m. and meet briefly with a male person the officer knew to be involved in the drug subculture as a user and a dealer. Mr. Whetham re-entered the residence at 2:38 p.m. The officer next observed Mr. Whetham at 3:13 p.m. Mr. Whetham was outside the residence walking the dog on Nile Street. It was at that point that Mr. Whetham was placed under arrest by Constable Hartleib.

Constable Merkley then joined the Emergency Response Unit to execute the search warrant at the residence. The time interval between arrest and the execution of the warrant was in order to assemble members of the Emergency Response Team and prepare for the execution of the warrant.

Constable Merkley photographed items seized by police, including the long chrome-plated key found on Mr. Whetham's person and the firearm, magazines, ammunition, drugs and identity documents found in the safe. The identity documents included a driver's licence and bank card in the name of Lakhvinder Singh.

Constable Merkley testified that there were two bedrooms in the residence — one appeared “lived in”, the other appeared to be used for storage. The safe was in the closet of the lived-in bedroom. In the lived-in bedroom, there were articles of male and female clothing as well as photographs of Mr. Whetham and Ms. Crinklaw. The safe was locked when the officers found it. The long chrome-plated key found on Mr. Whetham's person was used to open the safe.

Charter Issues

First, I address the Charter issues.

Defence counsel submits that the service wide safety bulletin is akin to a Crime Stoppers tip. The information received by Constable Hartleib was from a human source of unknown reliability. There were no details as to how the source came into the information or any details of the information received, other than "David Whetham is in possession of a gun".

Defence counsel emphasizes that Constable Hartleib's surveillance in December 2021 was not part of an ongoing investigation and the information from that date was three to four months old by the time of this investigation. Furthermore, the officer acknowledged that he did not know where the person arrested for possession of fentanyl had been or where he was going after the brief stop at 84 Rebecca Street. The officer did not see the person enter the residence, nor did he see a drug transaction.

Defence counsel further submits that the Debot test has not been met — the confidential informant information relied upon by Constable Hartleib was not credible, compelling or corroborated. The Niche database linked Mr. Whetham to the 84 Rebecca Street residence, but there was otherwise no corroboration of information received. Defence counsel emphasizes that the ITO is heavily redacted and the Court cannot speculate about the nature of the redactions.

The prosecutor concedes that the weakest factor in the Debot analysis is the credibility of the confidential informant. As to whether the information received was compelling, the prosecutor submits that the information received related to a firearm — an item not typically displayed out in the open. Accordingly, the prosecutor submits that the inference to be drawn is that the confidential informant information was based on personal knowledge.

The prosecutor submits that it is unrealistic to expect the police to corroborate the presence of a firearm, but they did corroborate the street level information received in 2021 that Mr. Whetham was dealing methamphetamine and fentanyl.

The prosecutor concedes that it would have been preferable for the police to have conducted surveillance and to have acquired further information, but emphasizes that there was some urgency to act on 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.

The prosecutor submits that the degree of corroboration was not ideal but it does meet the minimum requirement for the issuance of a warrant in the circumstances. He submits that notwithstanding the heavy redactions in the ITO, it is clear that the police established that the 84 Rebecca Street residence was occupied by Mr. Whetham and that is where the firearm was alleged to be located.

In R. v. Sadikov, 2014 ONCA 72, at paras. 83-88, the Ontario Court of Appeal provided guidance regarding the standard for warrant review, including:

1. Warrant review begins from a premise of presumed validity. The scope of warrant review is narrow. The reviewing judge does not substitute his or her view for that of the issuing justice.
2. The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search.
3. The test on review is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued.

In R. v. Herta, 2018 ONCA 927, the Court of Appeal framed the issue as follows:

[21] ...The ultimate question was whether the issuing justice could have found that the content of the ITO in its redacted form, and the reasonable inferences that could be taken from it, gave rise to a credibly-based probability that [there was a gun in the residence]... The answer to that question was squarely rooted in the strength of the CI information.

The Court addressed the issue of whether the confidential informant information was compelling and provided the following guidance at paragraph 42:

[42] ...Highly relevant to whether information supplied by an informer constitutes reasonable grounds are considerations involving whether "the informer's tip contains sufficient detail to ensure it is based on more than mere rumour or gossip" and "whether the informer discloses his or her source or means of knowledge". Bald conclusory statements cannot support the veracity of CI information.

Paraphrasing the Court's conclusion at paragraph 47, in the present case there is no basis upon which to assess the veracity of the confidential informant information because the ITO is heavily redacted. In the unredacted portion, no “details” are provided, nor is there any indication that the confidential informant disclosed his or her "source or means of knowledge". Although those details may have been contained within the redactions, there is no basis upon which to characterize the remaining unredacted information in the ITO as "compelling".

I am mindful that weakness in one of the Debot criteria can be compensated for by strengths in the other areas, but there is no such compensation in the present case. Given that the ITO is heavily redacted, I cannot conclude that the confidential informant information is credible or compelling. There is no information upon which to assess the confidential informant's credibility, reliability or motivation to provide information to the police. Furthermore, there was no contemporaneous corroboration beyond Mr. Whetham's general reputation in the drug subculture and confirmation of his address in the police database. The consistency between the information contained in the service-wide safety bulletin and the information provided by the "unproven human source" is not corroboration, particularly given that Constable Hartleib could not say that they were two separate sources.

In summary, the heavily redacted version of the ITO does not reveal sufficient grounds upon which a justice could be satisfied that there were reasonable grounds to search the residence at 84 Rebecca Street. Likewise, the prosecutor has not established reasonable grounds for Mr. Whetham's arrest. As a result, I find that Mr. Whetham’s rights as guaranteed by sections 8 and 9 of the Charter have been violated.

Section 24(2) Analysis

I next turn to section 24(2) of the Charter and the application of the analysis in R. v. Grant, 2009 SCC 32 to the facts of the present case.

Defence counsel relies upon the scenario examined by the Court of Appeal in R. v. Herta, in which the Court made the following findings on the Grant analysis:

1. On the first prong, seriousness of the Charter-infringing conduct, on one hand there is nothing that suggests intentional police misconduct. The police appear to have had bona fide concerns about public safety. The fact that the redacted ITO fell short on reasonable grounds for belief does not suggest intentional wrongdoing. Rather, it demonstrates that either the application was premature (and the justice of the peace failed to identify that fact) or the Crown miscalculated the strength of the redacted ITO. Either way, falling short of reasonable grounds does not suggest intentional police wrongdoing. The first Grant factor is neutral in the admissibility analysis: paras. 61-65.
2. On the second prong, the impact of the breach on the Charter-protected interests of the accused, this was the accused’s home, a place over which he held a strong expectation of privacy. The search was clearly extensive and highly invasive and intrusive, including the breaching of the door, multiple police officers and sniffer dogs. It had a heavy impact on the accused's section 8 Charter protected interests. This factor points strongly toward exclusion: paras. 66-71.
3. On the third prong, society's interest in an adjudication on the merits, it must be remembered that the exclusion of relevant and reliable evidence can undermine the truth-seeking function of the justice system, thus bringing the administration of justice into disrepute. The exclusion of evidence will gut the prosecution and lead to acquittals. The third prong points toward inclusion: para.72.
4. The balancing requires a “qualitative assessment”, one that is ill-suited to “mathematical precision”. Although the seriousness of the state conduct is at the middle of the spectrum, the impact of the breach on the Charter-protected interests of the accused clearly outweighs it, existing at the apex of seriousness. Society's interest in having an adjudication on the merits is important, but so is society's interest in ensuring extensive searches of private residences are justified. There is no precise equation that can be applied, but, in this case [meaning Herta], the fact that the accused's privacy was invaded for reasons that had nothing to do with him decisively tips the scales in favour of exclusion: paras. 73-74.

Although there are certainly parallels to be drawn between the scenario examined in Herta and the present case, there is also an important factual difference. As expressed at paragraph 6 of Herta, the Court started with the "central observation" that the appellant was not the subject matter of the search warrant executed at his home, there was nothing to suggest that the appellant was even known to the police before the search warrant was executed, nor was there anything to suggest that the police knew who lived at or owned the home. The search arose strictly from the fact that a man by the name of Derek Callahan, who was wanted for robbery, was seen arriving at that location.

In addition to the case authorities filed, I am guided by the application of the Grant analysis in two recent decisions from the Supreme Court of Canada: R. v. Tim, 2022 SCC 12 and R. v. McColman, 2023 SCC 8, which was released two weeks ago.

In R. v. Tim, the police arrested the accused for possession of a controlled substance based on a mistake of law about the nature of the drug seized. Subsequent searches of the accused and his car led to the seizure of drugs, ammunition and a handgun. The accused was also strip searched at the police station. The Supreme Court of Canada held that the police breached Mr. Tim's rights as guaranteed by sections 8 and 9 of the Charter.

In Tim, the Supreme Court provided the following guidance respecting the section 24(2) analysis:

[74] Section 24(2) of the Charter is triggered where evidence is “obtained in a manner” that violates an accused's Charter rights. A section 24(2) inquiry examines the impact of admitting evidence obtained in breach of the Charter on public confidence in the justice system over the long term, based on three lines of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused's Charter-protected interests; and (3) society's interest in the adjudication of the case on the merits. A court’s task is to balance the assessments under these three lines of inquiry "to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute” (Grant, at para 71; see also Le, at paras. 139-42).

[75] Section 24(2) does not create an automatic exclusionary rule when evidence is obtained in breach of a Charter right. The accused bears the onus of establishing that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute (see Collins, at p. 280; Fearon, at para. 89; see also S.C. Hill, D.M. Tanovich and L.P. Strezos, McWilliams' Canadian Criminal Evidence (5th ed. (loose-leaf)), at 19:12).

As the Supreme Court emphasized at para. 82, in considering the seriousness of the Charter-infringing state conduct, the court must assess:

[82]... whether the police engaged in misconduct from which the Court should disassociate itself (see Grant, at para. 72). The concern of this inquiry is "not to punish the police", but rather to "preserve public confidence in the rule of law and its processes" (Grant, at para. 73). The court must situate the Charter-infringing conduct on a "spectrum" or a "scale of culpability" (Grant, at para. 74; Paterson, at para. 43; Le, at para. 143). At the more serious end of the culpability scale are wilful or reckless disregard of Charter rights, a systemic pattern of Charter-infringing conduct, or a major departure from Charter standards. Courts should dissociate themselves from such conduct because it risks bringing the administration of justice into disrepute. At the less serious end of the culpability scale are Charter breaches that are inadvertent, technical, or minor, or which reflect an understandable mistake. Such circumstances minimally undermine public confidence in the rule of law, and thus dissociation is much less of a concern (see Grant, at para. 74; Le, at para. 143; R. v. Harrison, 2009 SCC 34, at para. 22).

The second line of inquiry considers the impact of the breach on the accused's Charter-protected interests. In other words, did the breach “actually undermine the interests protected by the right infringed”. The court must situate the impact on the accused’s Charter-protected interests on a spectrum, ranging from impacts that are fleeting, technical, transient or trivial, to those that are profoundly intrusive or seriously compromise the interests underlying the right infringed: Tim, at para. 90.

The third line of inquiry considers the reliability of the impugned evidence and its importance to the Crown's case and asks "whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion" (Tim, at para. 96).

As to balancing the three lines of inquiry, the Supreme Court of Canada reiterated in Tim, at para. 98, that the balancing involves a qualitative exercise, one that is not capable of mathematical precision. The focus is on the long-term integrity of, and public confidence in, the administration of justice:

[98]... The balancing is prospective: it aims to ensure that evidence obtained through a Charter breach "does not do further damage to the repute of the justice system". ... The balancing is also societal: the goal is not to punish the police, but rather to address systemic concerns by analyzing "the broad impact of admission of the evidence on the long-term repute of the justice system" (Grant, at para. 70; Le, at para. 139).

In Tim, the Supreme Court of Canada ultimately concluded that the “final balancing” did not call for exclusion of the evidence to protect the long-term repute of the justice system and that “excluding the evidence would damage, rather than vindicate the long-term repute of the criminal justice system”. At para. 99, the Court held:

[T]he first line of inquiry under Grant pulls weakly toward exclusion and the second does so moderately, but the third pulls strongly toward admission."

Two weeks ago in McColman, the Supreme Court of Canada addressed the power of police to stop a vehicle on private property for a random sobriety stop. The Court held that Mr. McColman's rights under section 9 of the Charter were violated but determined that the evidence obtained from the unlawful police stop should not have been excluded under section 24(2) of the Charter.

In McColman, the Supreme Court of Canada emphasized that a "contextual inquiry" is required and provided guidance respecting the proper approach for thoroughly evaluating each of the three lines of the Grant inquiry, including:

1. The section 24(2) analysis is an objective one, evaluated from the perspective of a reasonable person, and the burden to persuade the court that admission of the evidence would bring the administration of justice into disrepute rests on the party seeking exclusion: para. 53.
2. Section 24(2) is focused on maintaining the long-term integrity of, and public confidence in, the justice system. Accordingly, the exclusion of evidence under section 24(2) is directed not at punishing police misconduct or compensating the accused, but rather at systemic and institutional concerns. ... Courts are tasked with balancing the assessment under each of the three lines of inquiry, but as recognized in Grant, "[t]he balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision": para. 54.
3. The first line of inquiry focuses on the extent to which the state conduct at issue deviates from the rule of law. Did the police conduct involve misconduct from which the Court should be concerned to disassociate itself: para. 57.
4. In evaluating the gravity of the state conduct in issue, a court must ”situate that conduct on a scale of culpability”. To properly situate state conduct on the scale of culpability, courts must also ask whether the presence of surrounding circumstances attenuates or exacerbates the seriousness of the state conduct. Were the police compelled to act quickly in order to prevent the disappearance of evidence? Did the police act in good faith? Could the police have obtained the evidence without a Charter violation? Only by adopting a holistic analysis can a court properly situate state conduct on the scale of culpability: para. 58.
5. The first and second lines of inquiry are distinct. The first evaluates the state conduct itself, while the second goes further and assesses the impact of the state conduct on the accused’s Charter-protected interests. Courts must be careful not to collapse the first two lines of inquiry into one unstructured analysis: para. 59.
6. Like the first line of inquiry, the second line envisions a sliding scale of conduct, with "fleeting and technical" breaches at one end of the scale and "profoundly intrusive" breaches at the other: para. 66.
7. The third line of inquiry requires courts to consider both the negative impact of admission of the evidence on the repute of the administration of justice and the impact of failing to admit the evidence. Under this third line of inquiry, courts should consider factors such as the reliability of the evidence, the importance of the evidence to the Crown's case, and the seriousness of the alleged offence, although that final factor can cut both ways. While the public has a heightened interest in a determination on the merits where the offence is serious, it also has a vital interest in maintaining a justice system that is above reproach: para. 69-70.
8. When balancing the Grant factors, the cumulative weight of the first two lines of inquiry must be balanced against the third line of inquiry: para. 74.

In McColman, the Court concluded that given the legal uncertainty that existed at the time of the random sobriety stop, the breach was not so serious as to require the Court to disassociate itself from the police actions and the seriousness of the breach "pulls in favour of exclusion, but only slightly." The Court characterized the unlawful police stop as “a marked, although not egregious, intrusion on Mr. McColman's Charter-protected interests” and, as such, “moderately favours exclusion of the evidence”.

On the third prong of the Grant test, the Court concluded:

However, the evidence collected by the police was reliable and crucial to the Crown's case and impaired driving is a serious offence. Admission of the evidence would better serve the truth-seeking function of the criminal trial process and would not damage the long-term repute of the justice system.

The factual scenarios examined in McColman and Tim — vehicle searches in which there was a reduced expectation of privacy — are different than the present case involving the search of a residence. However, both decisions provide important guidance respecting the proper approach for evaluating each of the three lines of inquiry mandated in Grant. With that guidance in mind, I turn to the contextual inquiry required in the present case.

Under the first line of inquiry, the seriousness of the Charter-infringing state conduct, I am mindful of the context of urgency inherent in receiving information that a person has a gun in his residence, particularly when that same person is involved in the drug subculture, is suspected of drug trafficking from his residence, and is subject to a section 109 weapon prohibition order. I am also mindful of the inherent difficulty for the police to corroborate that type of information through direct observation.

This line of inquiry is aimed at preserving public confidence in the rule of law and its processes. There is nothing here 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 Herta, 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 dissociate itself.

Accordingly, I conclude that the first line of inquiry pulls only weakly or slightly in favour of exclusion.

Under the second line of inquiry, the impact of the breach on the Charter-protected interests of the accused, this is a breach on the “profoundly intrusive” end of the scale. The execution of the warrant involved a forced entry into a residence, a place where Mr. Whetham held a strong expectation of privacy.

The impact on Mr. Whetham's section 8 and 9 Charter-protected interests is significant. This line of inquiry pulls strongly in favour of exclusion, but not to the extent it did in Herta, where the appellant was not the subject matter of the search executed at his residence.

Under the third line of inquiry, society's interest in an adjudication on the merits, the evidence is clearly reliable.

The evidence in question includes a loaded firearm and ammunition, as well as fentanyl, methamphetamine, cocaine and hydromorphone in quantities possessed for the purpose of trafficking. The evidence is crucial to the prosecutor's case.

The third line of inquiry overwhelmingly pulls in favour of admission of the evidence. Admission of the evidence would better serve the truth-seeking function of the criminal trial process.

The Supreme Court of Canada has emphasized that balancing the three lines of inquiry requires a “qualitative assessment”, one that is ill-suited to “mathematical precision”. Not only must the balancing be prospective, it must also 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.

This is not a situation where there are concerns respecting a systemic pattern of Charter-infringing conduct or sloppy drafting of an ITO.

The Court must consider both the negative impact of admission of evidence on the repute of the administration of justice and the impact of failing to admit the evidence. The negative impact of admission is directly linked to Mr. Whetham's strong expectation of privacy in his home and society's strong interest in ensuring that searches of private homes are properly authorized. In Herta, the fact that the accused’s privacy was invaded for reasons that had nothing to do with him “decisively tipped the scales in favour of exclusion”.

In this case, 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.

Furthermore, the charges in this case, possession of a loaded prohibited firearm and possession of fentanyl, methamphetamine, cocaine and hydromorphone (all Schedule I substances) for the purpose of trafficking, are extremely serious and directly impact the safety of the community.

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. In particular, fentanyl is a scourge in our community. As the Supreme Court of Canada succinctly summarized in R. v. Parranto, 2021 SCC 46, at paras. 93-96:

[93] ... Over the past decade, fentanyl has altered the landscape of the substance abuse crisis in Canada, revealing itself as public enemy number one.

[94] Synthetically produced and readily available on the illicit market, fentanyl is an extremely dangerous and powerful painkiller and sedative. ... 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. The risk of overdose is also one that can be difficult to guard against, as traffickers often surreptitiously mix small amounts of fentanyl with other substances to create a cheaper product with the same effects. ...

[96] 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. 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.

[98] In many ways, “trafficking of 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 that danger into perspective, the amount of fentanyl seized in this case was 28,920 milligrams.

In summary, section 24(2) of the Charter provides that where “a court concludes that evidence was obtained in a manner” that infringed a Charter right, “the evidence shall be excluded if it is established that, having regard to all of the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”.

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".

I do not minimize the importance of ensuring that warrants to search residences are properly authorized. However, given the very serious nature of these charges involving both a loaded firearm and fentanyl, I find that the exclusion of this reliable evidence would, as expressed in Tim, "damage, rather than vindicate the long-term repute of the criminal justice system”.

The third line of inquiry – society's interest in the adjudication on the merits – outweighs the combined effect of the first two lines of inquiry. In all the circumstances, the accused has not established that the admission of the evidence in these proceedings would bring the administration of justice into disrepute.

Accordingly, the application for an order excluding evidence pursuant to section 24(2) of the Charter is dismissed.

Trial Issue: Possession

I now turn to the sole issue identified on the trial. Has the prosecutor discharged its onus of proving beyond a reasonable doubt that Mr. Whetham had the requisite knowledge and control over the safe and its contents in order to establish possession?

The items seized by the police were all found in the large safe in one of the two upstairs bedrooms. The uncontradicted evidence on this trial is that one of the bedrooms appeared “lived in”, the other appeared to be used for storage. The safe was in the bedroom that had the lived-in appearance. There were articles of male and female clothing in the bedroom and photographs of Mr. Whetham and Ms. Crinklaw in the bedroom.

The key to the safe was found on Mr. Whetham's person when he was arrested while walking down the street with a dog. There was evidence of a dog living in the residence. Mr. Whetham was observed at the residence on more than one occasion on the date in question and also on an earlier date.

Mr. Whetham was also in possession of a separate set of keys to the residence at the time of his arrest. The police did not locate any other key to the safe.

The key to the safe was separate from the set of keys for the residence. The key to the safe is a particularly long and distinctive silver coloured key as shown in the photographic exhibits. It is not the type of key a person would put on a keychain or slip in a pocket and forget why they had it or what it opened. It is a distinctive key. It is much longer than keys typically found on keychains. Its appearance is unmistakable.

The only reasonable inference to be drawn from the totality of the trial evidence is that Mr. Whetham was specifically carrying the key to the locked safe on his person in order to maintain control over the safe and its contents, including the firearm, ammunition, fentanyl and other Schedule I substances.

Ms. Crinklaw was found inside the residence when the police executed the search warrant. Her presence in the residence does not raise a reasonable doubt. If anything, it further supports the inference that Mr. Whetham was in possession and control of the safe and its contents because he was carrying the key on his person, even when he left to take the dog for a walk.

The federal prosecutor has clearly discharged its onus of proving beyond a reasonable doubt that Mr. Whetham had possession and control over all the items seized from the locked safe.

Conclusion

Accordingly, I find Mr. Whetham guilty on the eight remaining charges on Informations 22–215 and 22-216. The clerk will record those findings today.

Form 2 Certificate of Transcript (Subsection 5(2)) Evidence Act

I, Tracy Graziotto, certify that this document is a true and accurate transcript of the recording of R. v. David Whetham, in the Ontario Court of Justice, held at STRATFORD taken from Recording 3211_Cr-1_20230406_081058 which has been certified in Form 1.

October 25, 2023 ELECTRONIC COPY

(Date) Authorized Court Transcriptionist The Typist Certified Verbatim Transcription 519-721-1879