2020 ONSC 174 CR 19-159

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v. –

HOLLY WHITTAKER

REASONS FOR DECISION

ADMISSIBILITY OF STATEMENT, LAWFULNESS OF ARREST AND ADMISSIBILITY OF EVIDENCE SEIZED

BEFORE THE HONOURABLE JUSTICE V. CHRISTIE

ON January 9, 2020 at BARRIE, Ontario

APPEARANCES:

K. Ivory Counsel for the Federal Prosecutor R. Chartier Counsel for Ms. Whittaker

January 9, 2020

CHRISTIE J. (Orally)

OVERVIEW

[1] The Applicant, Holly Whittaker, is charged that she:

a. On or about the 22nd day of January in the year 2018, at the City of Barrie, in the said Region, did possess a substance included in Schedule I to wit: Fentanyl, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act; and

b. On or about the 22nd day of January in the year 2018, at the City of Barrie, in the said Region, did unlawfully possess a substance included in Schedule I to wit: Fentanyl, contrary to Section 4(1) of the Controlled Drugs and Substances Act.

[2] The Applicant has brought two applications alleging various violations of her Charter rights. Specifically, the Applicant argued as follows:

a. That the police elicited an utterance from her in violation of her right to silence and her right to counsel, pursuant to sections 7 and 10(b) of the Charter, and that the utterance ought to be excluded from evidence pursuant to section 24(2) of the Charter; and

b. That her arrest, without a warrant, was made in the absence of reasonable and probable grounds to believe that she had committed an offence and was, therefore, in contravention of section 9 of the Charter. Flowing from this, the Applicant submitted that she was strip-searched and had her property seized incident to an unlawful arrest, thereby violating section 8 of the Charter, and that all seized items must be excluded pursuant to section 24(2) of the Charter.

[3] In submissions, it was clarified that the only utterance that is at issue is an utterance which Ms. Whittaker made regarding the ownership of a purse. Further, in submissions, it was clarified that the only items of evidence that the Applicant seeks to exclude are the purse seized from the residence and the fentanyl which was seized from Ms. Whittaker during a strip search.

FACTS

[4] On January 22, 2018 at 7:47 p.m., Sgt. Trevor Marsh of the Barrie Police Service, community response unit, received a radio call to attend 100 Dunlop Street, apartment 10. The information received by Sgt. Marsh was that a caller to 911 had been contacted by text message by Keith Preston who stated he was in this apartment with four other men, was outnumbered, and asked the caller to contact the police. On the same day at 7:42 p.m., Constable Jeff Wright of the Barrie Police Service, community response unit, also received a similar radio call. According to Constable Wright, there were no flags on this address and no one by the name of “Keith” was associated with that address.

[5] Sgt. Marsh attended at the front door of 100 Dunlop Street, which was locked. He then went around to the rear of that location and found apartment 10 on the ground level. Constable Wright also initially attended the front door of 100 Dunlop Street and then realized that the apartment was in the back. Sgt. Marsh and Constable Wright met up in the back alleyway where the door to apartment 10 was located. There was no discussion between the two officers before approaching the apartment door. Sgt. Marsh peered into the window that was slightly open. From this “quick peek”, he could see several people in the living room area and drug paraphernalia. He then took another “quick peek”, and at the same time, he was trying to listen for anyone in distress inside. During this second “quick peek”, a female looked up and saw Sgt. Marsh. At that point, Sgt. Marsh knocked on the door and a male came to the door and opened it. The male came out of the apartment a bit, partially closing the door behind him, and stated, in a low voice “come in now, get in here now”. According to both officers, the male seemed stressed, his eyes were wide, and there was urgency in his voice.

[6] Sgt. Marsh and Constable Wright entered the apartment. Immediately upon entering the apartment, there were three or four stairs that went down to a lower level. As the officers entered the apartment, they smelled smoked and fresh marijuana, which was an illegal substance at the time. As they reached the bottom of the stairs, the living room was to the left. There they saw drug paraphernalia on the coffee table, including a leafy substance, bongs, and zigzag papers. There were four or five people in the living room, both males and females. Sgt. Marsh asked who else was in the apartment, due to the information that he had received about there being four males. One of the females in the living room looked to the end of the apartment and said “just my friend in the washroom”. According to Constable Wright, Sgt. Marsh detained everyone at that point as a result of the observations when they entered. Also, according to Constable Wright, the priority at that time was to check the premises for safety based on the call to 911.

[7] Between the living room and the kitchen, there were stairs going up to a loft area. Continuing past the living room and the staircase going to the loft, on the same level as the living room, there was a short hallway, no more than ten feet from the base of the stairs, almost underneath the loft, that led to the kitchen area. The kitchen itself was approximately 10 feet by 10 feet. Continuing straight to the back of the kitchen, which was an open room, there was a slight alcove and then the bathroom. The bathroom door was at the rear of the apartment, estimated to be no more than 20 feet from the base of the stairs. The bathroom door was visible upon entering the kitchen.

[8] Sgt. Marsh and Constable Wright approached the bathroom door. Sgt. Marsh believed he knocked three times. He announced them as police and told the persons inside to open the door at least three times. He could hear movement inside. The bathroom door was locked. Sgt. Marsh told the persons inside to open the door or it would be forced open. There was no response. Constable Wright was standing to the right of the bathroom door. Sgt. Marsh then forced the door open. Inside the bathroom, there was a male and a female. Sgt. Marsh asked them to exit, which they did, and they then stood just outside the bathroom with Constable Wright in a small area, while Sgt. Marsh cleared the small bathroom.

[9] The two people from the bathroom identified themselves verbally as Holly Whittaker and Michael Nodwell. Sgt. Marsh recognized Ms. Whittaker from the downtown area. Constable Wright recognized Mr. Nodwell from previous interactions. Sgt. Marsh indicated that he and Constable Wright had concerns about Mr. Nodwell and therefore asked for an additional unit to attend. According to Sgt. Marsh, once Ms. Whittaker and Mr. Nodwell exited the bathroom, he advised everyone that they were detained. Constable Wright then remained with Ms. Whittaker and Mr. Nodwell while Sgt. Marsh went to clear the remainder of the apartment and to speak to the other occupants. Constable Wright never entered the bathroom.

[10] After Sgt. Marsh left the bathroom area, Constable Wright advised Ms. Whittaker and Mr. Nodwell that they were detained in relation to the drug investigation that started when police entered the apartment. Having said that however, Constable Wright testified that this was not the priority, as the priority was to clear the apartment to make sure everyone was safe.

[11] Constable Mark Hankin, who was working uniform general patrol that night, received a call over the air at 7:55 p.m. to attend 100 Dunlop Street, apartment 10, to back-up officers on scene. He received the call over the air, however it was also on his mobile data terminal. He stated that he wanted to get there quickly so did not check all the details. He was familiar with this area but had never been inside that unit. At some point, the timing of which is unclear, but prior to the arrest of Holly Whittaker, Constable Hankin received information from a confidential informant that “the girl Holly in the kitchen has fentanyl in her pussy. I am scared for her.” Constable Hankin testified that he believed the information to be current and did not believe it was second-hand knowledge. He stated that he did learn the name of the person who gave the information. When asked if the information turned out to be false would it have been possible to arrest the person for public mischief, he stated that it would have been possible, but it would have required some investigation. He had never worked with this informant in the past. On this date, he was not aware if this person had given information to the police in the past that was relied on. The source did not receive any compensation for this information. He said that he was very concerned by this information as fentanyl is a very powerful opioid and, given the suggested manner and place of concealment, he had great concern for this person’s safety.

[12] In cross-examination, it was suggested to Constable Hankin that he believed the information from the confidential informant was not based on second-hand knowledge, to which he responded that was the inference he drew from the information. However, he agreed that he was not certain whether this information was second-hand knowledge. He repeated multiple times in cross-examination that he did not ask the confidential informant any questions, such as, he did not ask the informant whether the information was first-hand or second-hand. He agreed that he did not know this confidential informant prior to receiving this information. He did not know whether the confidential informant had ever provided reliable information to the police that was acted upon. In fact, in response to that, he said “I knew nothing about the CI”. He did not ascertain whether the informant had a criminal record or any outstanding charges. He did not run the informant’s name on the mobile data terminal in his vehicle that was available to him. He did not caution the informant that if information being provided was found to be false, that the person could be charged with a criminal offence.

[13] At 7:59 p.m., Constable Hankin arrived at apartment 10. Sgt. Marsh had a brief conversation with him, that lasted a few seconds, at the entrance of the apartment. The conversation was only about the general nature of the call, being the information Sgt. Marsh had received on the radio call, how many people were in the apartment, and that he had forced the bathroom door. According to Sgt. Marsh, Constable Hankin told him that “Holly had fentanyl down her pants”. Sgt. Marsh then returned to the occupants in the living room to try to truly identify them. As he was doing this, Constable Hankin came down the stairs and proceeded to the area where Constable Wright was standing with Ms. Whittaker and Mr. Nodwell. Constable Hankin arrested Ms. Whittaker, handcuffed her to the rear, and walked her toward the entrance to the apartment.

[14] According to Constable Wright, seconds after he told Ms. Whittaker and Mr. Nodwell that they were detained pending an investigation, Constable Hankin entered the kitchen, approached Ms. Whittaker and arrested her for possession of a controlled substance. Constable Wright did not believe that Constable Hankin had indicated the specific substance. Prior to the arrest, Constable Wright had not provided Constable Hankin with any information. Constable Hankin did not ask for any information from him before the arrest. At the time of her arrest, Ms. Whittaker had a black Samsung phone in her hand and Constable Wright took possession of the phone upon her arrest and placed it in the pocket of his cargo police pants. He stated that he took the phone as it could provide evidence of an offence. Constable Wright remained with Mr. Nodwell.

[15] Constable Hankin testified that with the confidential informant information, he attended inside and to the kitchen area. He observed a number of people in the living room as he passed by, including some females. He also noted that there was drug paraphernalia on the table in the living room, including marijuana or residue. He stated that at the back of the kitchen area, there was a small raised platform and then a door which he learned was the bathroom. Constable Wright was with a male and a female on the landing at the back of the kitchen. He entered the kitchen, asked the female if she was Holly and she said “yes”. There were no other females in the kitchen. At 8:02 p.m., Constable Hankin asked Ms. Whittaker to come down the stairs and placed her under arrest for possession of a controlled substance being fentanyl. Constable Hankin testified that he believed he had reasonable and probable grounds for the arrest, and specifically referred to his grounds as being the information received from the confidential informant and the fact that Ms. Whittaker was located in the kitchen. He agreed that he had previously written in his notes that Ms. Whittaker was elevated by the bathroom area. He did not take pictures of the area or direct any officers that remained to take pictures. He said that his experience as an officer also assisted him in determining reasonable and probable grounds.

[16] According to Constable Hankin, Ms. Whittaker was holding a cell phone, which he asked her to put down on a moving box, and then cuffed her to the rear. He then read her rights to counsel, including providing her with the toll-free number for duty counsel. When asked if she wished to call a lawyer, she said that she wished to call Robert Chartier. She was then cautioned regarding statements given to him and she said that she understood. [Later in cross-examination, Constable Hankin suggested that this caution was the standard caution from the back of his notebook]. According to Constable Hankin his number one concern was for Ms. Whittaker’s safety. He believed she had fentanyl secreted inside of her, and he did not know if or how it was wrapped or packaged. He wanted to get her out of the building and into the car to control her movements and to reduce the risk of the packaging being ripped.

[17] In cross-examination, it was suggested to Constable Hankin that he could have placed Ms. Whittaker under investigative detention and continued to investigate. He disagreed with this suggestion. He agreed that there were three other females in the living room when he entered the apartment, he did not know their names and did not know, at the time he entered, whether any of their names was “Holly”. He did not spend any time investigating whether the other females were named “Holly”. He testified “I didn’t have to. I walked into the kitchen where I was going to see if there was a female named Holly and there was…that was absolutely enough for me”. It was suggested to Constable Hankin that he has, throughout his career, purposely “jumped the investigative step” to which he said no. He was then taken to the preliminary hearing wherein he agreed he stated:

Q: And I take it in your 15 years of service as an officer, you’ve conducted both?

A: Yes. I tend to stay away from investigative detention. It’s far too tricky of an area.

Q: What do you mean by that?

A: There’s a lot of questions at trials regarding detention and how many minutes have gone by, by the time you’ve detained them, to giving them grounds, to why didn’t you give them access to counsel? And a lot of times, depending on the circumstance, I’ve not found it worth it...

A: Yes. And I, I, like I say, I, I don’t use investigative detention. I can’t remember the last time I actually did and, because it’s, it’s too convoluted to – especially the, the differences between them. They can be, they can be large differences or they can be extremely small, but she was not under investigative detention at this time. She was under arrest.

[18] Constable Hankin took Ms. Whittaker by the arm and went up the stairs of the apartment. He asked her where her shoes were, she pointed to them and slipped them on.

[19] As Ms. Whittaker was being escorted out of the apartment by Constable Hankin, Sgt. Marsh noticed a purse at the base of the stairs. It was open and he could see a significant quantity of cash inside. Sgt. Marsh asked the other occupants if the purse belonged to them, to which, initially, nothing was said, but then one of them ultimately responded that it was not theirs. Sgt. Marsh then looked at Ms. Whittaker and asked if it was her purse to which she said “yes”. At that point, Sgt. Marsh handed the purse to Constable Hankin. Sgt. Marsh agreed that he knew Ms. Whittaker was under arrest at that time and that she was entitled to rights to counsel as soon as possible. He stated that his intent was not to discover evidence of the investigation but rather to make sure her property was going with her. He stated that if no one took ownership, he would have made further inquiries, as it looked like thousands of dollars in the purse. He stated that, if it belonged to Ms. Whittaker, it should go with her, as this was not her residence and he wanted to ensure that she took all her property. He stated that he, as a police officer, could be held accountable if he did not send her property with her. He stated that it is his practice to ensure that parties have their property, such as proper clothing, footwear, bags, identification, before leaving a residence that is not theirs. He stated that if Ms. Whittaker said it was not hers, he would have seized the purse to find the rightful owner and for safe keeping.

[20] Sgt. Marsh agreed that even after asking Ms. Whittaker about the purse, he looked inside for identification. He could not recall if it was a driver’s licence or health card that he found, but he confirmed that the purse belonged to Ms. Whittaker.

[21] After Ms. Whittaker was taken from the apartment, Constable Wright joined Sgt. Marsh in the living room with the other parties. They received confirmation that Amber Knudsen-Elliott was the tenant of the apartment and that another male, Keith Rimmer, had been staying there with her.

[22] Constable Hankin’s car was parked about 8 to 10 feet from the door of the apartment. He placed Ms. Whittaker in the rear of the car. He described the rear of the car as having a “half cage”, where there would not be a lot of room to “jostle around” and risk tearing the package of fentanyl that he believed she had inside of her. He placed the purse in the front of the car. Around this time, Constable Hankin stated to Ms. Whittaker that he was concerned of what she was concealing inside of her. He testified that he was familiar with the effects of fentanyl and had been present when people passed away from its use. He explained that he and the other two officers all had Narcan, a nasal spray, in the large pouch in their vest which would supress the effects of fentanyl, however, he commented that suppressing the effects can take more than one nasal spray depending on the amount of fentanyl taken in. He also explained that EMS have a stronger injectable form of Narcan to suppress the effects of fentanyl. He stated that the signs and symptoms of ingesting fentanyl are lethargy, intoxication, laboured breathing, and unfocused eyes.

[23] While Ms. Whittaker was locked in the rear of the car, which was running, Constable Hankin went back to the apartment door. He could see the officers and other persons inside the apartment. He did this because officers had called for assistance and he wanted to ensure that everything was ok. At the same time, he could also see Ms. Whittaker in the back of the car through the passenger side window.

[24] Constable Hankin left the apartment with Ms. Whittaker at 8:28 p.m. and he arrived at the station at 8:34 p.m. Ms. Whittaker was taken into the station, and paraded before Staff Sgt. Moorhouse. Constable Hankin requested that a complete strip search be conducted on Ms. Whittaker due to the information received from the confidential informant. Staff Sgt. Moorehouse authorized a strip search of Ms. Whittaker. An admission of fact was entered as Exhibit 1 which outlined the facts and circumstances surrounding what occurred leading up to and during the strip search which was conducted by Staff Sgt. Moorhouse and Constable Smith. As the search was about to begin, Ms. Whittaker requested a pair of gloves, and after putting them on, reached into the front of her pants and removed a small, clear plastic bag from her genital area. The bag had a white, powdery substance contained within it. Constable Smith took possession of the bag. The search was still conducted to confirm that there were no other materials hidden on her person. No other items were found. The search lasted approximately five minutes. It was conducted in a dignified manner and in accordance with best practices. The door remined closed at all times. Constable Hankin remained outside of the room.

[25] After the search, Constable Smith turned the bag of white, powdery substance over to Constable Hankin. Constable Hankin described it as a golf ball sized package, which he believed to be roughly an ounce of fentanyl. The packaging was translucent and it was double wrapped, however it was not sealed or vacuum packed and he believed if Ms. Whittaker would have run, the package would have opened. At that point, he advised Ms. Whittaker that she would be charged with possession for the purpose of trafficking. He then returned to his car to retrieve the purse, and returned inside to start processing the evidence obtained.

[26] At 9:27 p.m., Constable Hankin contacted Robert Chartier, counsel that Ms. Whittaker requested. He did not remember if he spoke to Mr. Chartier directly or left a message, however, he did recall that Ms. Whittaker spoke to counsel for about four minutes at a later time.

[27] At 11:15 p.m., Constable Wright attended back at the station where he assisted Constable Hankin with processing the suspected fentanyl that had been seized from Ms. Whittaker. Following that, he returned back to the report room where he transferred the cell phone, which had remained in his cargo pants pocket the entire time, to Constable Hankin. He did not remember if the phone rang or vibrated while he had it. He did not turn the phone off at any point. Constable Hankin also provided Constable Wright with a bill of sale, that was located in the main pocket of the purse, which he later investigated. Constable Hankin noted that when he received the phone, on the screen, it said there were 12 missed calls. He did not know if it was locked and did not try to open it. The cell phone was entered as Exhibit 2 on these proceedings.

[28] The total weight of the fentanyl seized from Ms. Whittaker was 31.5 grams. In the purse, there was $395 seized from the wallet and from the main part of the purse, a large stack of cash, which totalled $5360, in addition to a black scale which had a small amount of residue around the scale. The scale was entered as Exhibit 3 on these proceedings.

[29] Eventually, in April, Constable Hankin authored a search warrant for the cell phone data to be extracted. The phone was turned over to Special Constable Pottage who did the extraction. After the data was extracted, Constable Hankin attended at the technological crime unit and selected the data that he believed was relevant to the case and this was subsequently made into a report. A redacted version of the report was marked as Exhibit 4.

[30] Special Constable Cameron Pottage testified about his process of extracting data from the Samsung cell phone seized from Ms. Whittaker and about some of the data contained in the report. The redacted extraction report showed various messages sent and received from the Samsung phone on the date of the alleged offences, such as:

847 Incoming 3:25:11 I have an offer and reasonable at that call me 848 Outgoing 3:54:58 whats that 849 Incoming 3:55:41 It have 130 clonazepam which are equivalent to Xanax 850 Incoming 3:55:43 Same class 851 Incoming 3:56:14 I am so fuxking sick u don’t get it could u possibly help me out il throw u a bunch and give u the 60 or something tomo 852 Incoming 3:56:32 I haven’t got anyway to get money and I’m sick 853 Incoming 3:56:47 Please do me a fav I haven’t messaed up before 854 Incoming 3:58:08 Also a carton of those same smokes I gave u the other day 855 Incoming 4:02:39 I don’t know holly I need help please I won’t let u down u know where I live 888 Incoming 8:36:43 I need another ball 889 Incoming 8:46:54 Are you coming still 890 Incoming 9:34:44 I have cash call me

ANALYSIS

Utterance Regarding Ownership of the Purse

Voluntariness/Section 7 – right to silence

[31] The Crown sought to introduce into evidence the utterance made by the Applicant in relation to ownership of the purse. Specifically, following her arrest and as she was being escorted from the apartment up the stairs, Sgt. Marsh noticed a purse by the stairs which appeared to contain a large amount of cash. He asked other occupants of the apartment if it was their purse to which initially there was no response, however, then one of the females said it was not their purse. Sgt. Marsh then looked at Ms. Whittaker and asked if it was her purse to which she said “yes”.

[32] Where the Crown seeks to rely upon utterances obtained by persons in authority, it must prove beyond a reasonable doubt that such utterances were voluntary.

[33] To be found voluntary, a statement must be the product of an operating mind, it must not have been obtained by threats or inducements, it must not have been made in circumstances so oppressive that they vitiate the statement’s voluntariness, and it must not be the product of unacceptable police tactics or trickery. The issue of the voluntariness of a statement is essentially a factual inquiry, where the court looks at all of the circumstances surrounding the making of the statement. See R. v. Oickle, 2000 SCC 38; R. v. Singh, 2007 SCC 48.

[34] There is no suggestion in this case that there were threats or inducements, or that the circumstances were so oppressive that they vitiate the statement’s voluntariness, or that there were unacceptable police tactics or trickery. Therefore, the only question left is whether Ms. Whittaker had an operating mind. A statement may be rendered involuntary if it was not the utterance of an operating mind. Statements may not represent the utterances of an operating mind because the accused has suffered a serious physical injury or because he or she is in a state of shock. The person may be suffering from serious fatigue or stress. None of these circumstances were present in this case.

[35] It is clear from the case law that having an operating mind has become a low threshold for the Crown to demonstrate. However, it is something that, as stated in Oickle, should not be understood as a discreet inquiry completely divorced from the rest of the confessions rule.

[36] Having considered the totality of the circumstances in this case, all of the facts suggest that Ms. Whittaker had an operating mind and was acting with complete free will when she responded to the officer about her purse. The following facts are relevant to this consideration:

a. There is no evidence of threats or inducements being made or offered by the police. b. There is no evidence of police tactics or trickery to obtain this statement. c. The officers on scene had clearly identified themselves as police officers. d. Ms. Whittaker had been arrested shortly before this utterance. e. There was no suggestion that there was anything wrong with her physically or mentally, including no evidence of intoxication, fatigue, or mental illness. f. She had been advised of the reason for her arrest. g. She had been advised of her right to counsel and had clearly stated she wished to speak to Robert Chartier. h. She had been cautioned about providing statements to police. While Constable Hankin stated in examination-in-chief that he cautioned Ms. Whittaker with respect to statements made to him, he later stated in cross-examination that he used the standard police caution. In examination-in-chief, Constable Hankin was not providing a verbatim account of what he said to Ms. Whittaker. This court accepts his explanation in cross-examination that the standard caution was used. i. After exiting the bathroom, Ms. Whittaker appeared to have been cooperative with the police throughout their interaction with her. She provided her name and other personal information about herself when asked.

[37] Clearly, Ms. Whittaker understood the jeopardy that she faced and made a free and informed choice to answer Sgt. Marsh when he asked whether the purse belonged to her. The Crown has proven beyond a reasonable doubt that the utterance was voluntary.

[38] Given this court’s finding that the utterance was voluntary, “there can be no finding of a Charter violation of the right to silence in connection with the same statement or interview”. See R. v. Boukhalfa, 2017 ONCA 660, para. 131. The Applicant was provided with a standard caution about making statements. She was aware that any statements she made could be used against her. There was no persistence on the part of the police in this case. They asked the question and she answered it. There was no breach of section 7 of the Charter.

Section 10(b)

[39] In the context of section 10(b), the general purpose is to provide a detainee with informed choice. More specifically, the purpose is to provide a detainee with access to legal advice in relation to a present legal predicament in order to assist that detainee in choosing whether or not to speak with the police or whether or not to cooperate in some way with the police investigation. In R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, the court stated:

[26] The purpose of the right to counsel is "to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights": R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43. The emphasis, therefore, is on assuring that the detainee's decision to cooperate with the investigation or decline to do so is free and informed. Section 10(b) does not guarantee that the detainee's decision is wise; nor does it guard against subjective factors that may influence the decision. Its purpose is simply to give detainees the opportunity to access legal advice relevant to that choice.

[40] The Supreme Court of Canada has recognized and repeatedly affirmed that the right to counsel imposes at least three duties on the police, namely:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel -- informational component; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances) -- implementational component; and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

See: R. v. Taylor, 2014 SCC 50, at paras. 20-28; Sinclair, at para. 27; R. v. Willier, 2010 SCC 37, [2010] S.C.J. No. 37 at para. 29; R. v. Bartle, [1994] 3 S.C.R. 173, at p. 192, R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1241-42; R. v. Evans, [1991] 1 S.C.R. 869, at p. 890; and R. v. Brydges, [1990] 1 S.C.R. 190, at pp. 203-4.

[41] It is the view of this court that, on the evidence in this case, there was a clear violation of s. 10(b) of the Charter. Having considered the totality of the evidence, the following facts are found by this court and must be highlighted:

a. Ms. Whittaker made it abundantly clear from the time of her arrest that she wished to speak to Robert Chartier; b. Ms. Whittaker, in the control of the police, acted as reasonably diligent as she could in the circumstances that she faced; c. Ms. Whittaker was not provided with any tools in order to call Mr. Chartier up to this point. Her cell phone had been taken away by the police; d. Within a very short time, and before any opportunity was given to exercise her right to speak to Mr. Chartier, Sgt. Marsh asked Ms. Whittaker if this was her purse; e. Sgt. Marsh had noted that there was a large amount of cash in this purse in plain view; f. This court does not accept that Sgt. Marsh was simply trying to ensure that Ms. Whittaker had all of her property when she left, as opposed to eliciting evidence. There was no evidence that he asked her about other property that she may have had in the home, such as a jacket, shoes, or other bags. It is clear that he was focused on this purse with a large amount of cash in plain sight. g. Sgt. Marsh stated that he was going to be seizing this purse if no one claimed it. He stated that he would be doing this to ensure its safe keeping and to find the rightful owner. This court does not accept this evidence. It does not appear that Sgt. Marsh was concerned with other items of property in the apartment finding their rightful owner. h. The officer, without advising the Applicant of her right to wait to speak to counsel of choice, asked this question and elicited a response.

It is the view of this court that Sgt. Marsh concluded that there was some evidentiary value to this purse and the money contained in it.

[42] Ms. Whittaker had clearly indicated that she wished to speak to counsel, specifically Mr. Chartier. Before being given any opportunity to do so, Sgt. Marsh was eliciting evidence from her. The onus lies on the Applicant to demonstrate, on a balance of probabilities, that her s. 10(b) Charter rights have been breached. It is the view of this court that she has met that onus.

Unlawful Arrest (s.9) Linked to Unreasonable Search and Seizure (s. 8)

[43] As stated above, the alleged Charter violations pursuant to s. 8 and 9 are inextricably linked, in that the Applicant argued that the arrest, without warrant, was unlawful, and therefore the warrantless searches that followed, incident to arrest, were unreasonable. In the case of R. v. Gerson-Foster, 2019 ONCA 405, [2019] O.J. No. 2877 (C.A.), the Court held that, in these circumstances, the burden is on the Crown. The court stated:

[75] In order to defeat Mr. Gerson-Foster's s. 9 claim, the Crown has to prove that Mr. Gerson-Foster's arrest was lawful. Ordinarily it would have been Mr. Gerson-Foster's burden, as the Charter claimant, to prove his arrest to have been unlawful, but Mr. Gerson-Foster has also brought an s. 8 claim against the warrantless searches that were conducted. Warrantless searches are presumptively unreasonable, and where, as here, the Crown seeks to rebut that presumption by claiming a search was lawfully conducted incident to an arrest, the Crown must show that the arrest was lawful: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 87. In order to avoid inconsistent outcomes on the same issue because of conflicting burdens, where the arrest the Crown is relying upon to justify the search incident to arrest is subject to a s. 9 challenge, the Crown will carry the burden on both of the overlapping ss. 8 and 9 claims and must prove that the arrest was legal: R. v. Lee, 2017 ONCA 654, 351 C.C.C. (3d) 187, at paras. 82-83; R. v. Brown (1996), 47 C.R. (4th) 134 (Ont. C.A.); R. v. Besharah, 2010 SKCA 2, 251 C.C.C. (3d) 516, at paras. 32-35.

Therefore, the Crown in this case must prove that Ms. Whittaker’s arrest was lawful.

[44] It is agreed that the Applicant was arrested without a warrant. In accordance with section 495(1)(a) of the Criminal Code, an officer may arrest, without a warrant:

a) A person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence.

[45] The law is clear that the arresting officer must have subjective and objective grounds on which to base an arrest. In R. v. Storrey, [1990] 1 S.C.R. 241 (S.C.C.) at pp. 250-51, the court stated:

[16] There is an additional safeguard against arbitrary arrest. It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest. See R. v. Brown (1987), 33 C.C.C. (3d) 54 (N.S.C.A.), at p. 66; Liversidge v. Anderson, [1942] A.C. 206 (H.L.), at p. 228.

[17] In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

[46] Where the reasonable and probable grounds are said to rely on information provided by a confidential informant, the leading case of R. v. Debot [1989] 2 S.C.R. 1140 provides this court with guidance at p. 1168:

[53] In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

[47] The totality of the circumstances must be considered to determine whether the information provided by a confidential informant constitutes reasonable and probable grounds. In R. v. Lewis, [1998] O.J. No. 376 (C.A.), the court stated:

[15] In determining whether information provided by a tipster constitutes reasonable grounds for an arrest or a warrantless search, the "totality of the circumstances" must be considered: R. v. Debot (1986), 30 C.C.C. (3d) 207 at 218 - 19 (Ont. C.A.), aff'd. R. v. Debot (1989), 52 C.C.C. (3d) 193 at 215 (S.C.C.). In cases like this where the allegation relates to possession of narcotics, the totality of the circumstances must be such as to raise a reasonable probability that the target is in possession of the suspected contraband at the time of the arrest or search: R. v. Debot, supra, per Martin J.A. at p. 219 (Ont. C.A.); per Wilson J. at p. 213 (S.C.C.).

[16] The totality of the circumstances encompasses factors which are relevant either to the accuracy of the specific information supplied by the tipster or the reliability of the tipster as a source of information for the police. Where, as here, the tip is provided by an unknown first-time tipster who has not revealed how she came to know about the alleged criminal activity, the value of the tipster's information depends on the nature of that information and the extent to which the police are able to confirm that information before the arrest or search...

[19] ...Absent confirmation of details other than details which describe innocent and commonplace conduct, information supplied by an untested, anonymous informant cannot, standing alone, provide reasonable grounds for an arrest or search.

[48] Often in cases involving a confidential informant, some of the information available to the officers may not be disclosed. However, in R. v. Zammit, [1993] O.J. No. 881 (Ont. C.A.), the court held that there still must be a proper evidentiary record to support the existence of reasonable grounds. The court stated:

[23] It is understandable that the police may need to protect a confidential source and therefore may not be in a position to reveal certain information. However, sufficient information must be revealed to justify the granting of a search warrant or to justify a warrantless search on the basis of reasonable and probable grounds. A warrantless search can never be justified on the basis of unrevealed information. When there has been a possible breach of a person's Charter rights, it is small consolation for that person to be told by the police: "We have reasonable and probable grounds but we cannot tell you what they are because we have to protect our confidential source".

See also: R. v. McKinney, [2019] O.J. No. 2320 (C.J.) at para. 12.

[49] In R. v. Rocha, 2012 ONCA 707, the court made it clear that there are limits to the corroboration required. The court stated:

[22] The police will rarely be able to confirm the tip to the extent of having observed commission of the offence and that level of confirmation is not required. In a very short judgment in R. v. Caissey, 2008 SCC 65, [2008] 3 S.C.R. 451, [2008] S.C.J. No. 66, the Supreme Court of Canada said the following [at para. 2]:

The dissenting judge advanced the view that only corroboration of some criminal particular of the offence offered the necessary assurance for the issuance of the warrant. This is the question of law that brings the appeal before us. On this issue, we agree with the test adopted by the majority.

[50] The Crown relied heavily on the case of R. v. Stockton, 2016 ONSC 1408, aff’d 2019 ONCA 300. In Stockton, the court considered whether confidential informant information, on its own, was sufficient to constitute reasonable and probable grounds to arrest for a drug offence. The Court found that it was in that case as the “information provided by the confidential informant was sufficiently reliable, sufficiently detailed and based on first-hand observations and knowledge”. The following facts from that case set out at paragraph 7 were critical to the determination by the court:

a. The CI had provided accurate and reliable information that was verified on at least 20 prior occasions; b. The CI had never provided false or inaccurate information; c. The CI was part of the drug sub-culture in Sarnia; d. The CI was compensated for information provided but only if accurate; e. He [the officer] had worked with this CI for approximately five years as of November 2012; f. The CI has an historical, trivial criminal record which does not include any history of misleading police or perjury.

The court also set out the details that the confidential informant provided and what the confidential informant had observed first-hand.

[51] In Stockton, the court relied on the case of R. v. Amare, 2014 ONSC 4119, in which Justice Hill provided a non-exhaustive list of considerations when determining whether an arrest amounts to a violation of section 9 of the Charter. Justice Hill also provided guidance on the issue of reliance on a confidential informant. In paragraph 84 of the decision, he pulled together a number of principles that he found supported by the case law. He stated:

[84] Not infrequently, the police act upon hearsay information received from a confidential informant. Within limits, they are entitled to do so:

(1) general principles can be derived from these authorities:

Consequently, a mere statement by the informant that he or she was told by a reliable informer that a certain person is carrying on a criminal activity or that drugs would be found at a certain place would be an insufficient basis for the granting of the warrant. The underlying circumstances disclosed by the informer for his or her conclusion must be set out, thus enabling the justice to satisfy himself or herself that there are reasonable grounds for believing what is alleged. I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search or for making an arrest without warrant. Highly relevant to whether information supplied by an informer constitutes reasonable grounds to justify a warrantless search or an arrest without warrant are whether the informer's "tip" contains sufficient detail to ensure it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance. I do not intend to imply that each of these relevant criteria must be present in every case, provided that the totality of the circumstances meets the standard of the necessary reasonable grounds for relief.

(Debot (OCA), at pp. 218-9)...

In my opinion, it should not be necessary for the police to confirm each detail in an informant's tip so long as the sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence. As I noted earlier, however, the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater. (Debot (SCC), at pp. 215, 218)

Justice Hill continued on to cite a number of propositions that have been accepted by the court.

[52] The Applicant referred this court to two cases, also from the Ontario Superior Court, wherein a violation of s. 9 was found and where evidence was excluded.

[53] In the case of R. v. Biadi, [2014] O.J. No. 1904 (S.C.), after receiving an anonymous tip, the police put the accused under surveillance. After four occurrences where the police observed actions suggestive of drug trafficking, Mr. Biadi was arrested. Drugs were found on his person, in his vehicle and in his home. It is of note in that case that there was a late acknowledgement by the Crown that the anonymous tip was inherently unreliable and could be removed from consideration. The court held:

[49] I therefore do not find that there were reasonable and probable grounds for the arrest of Mr. Biadi. The various meetings could be accounted for by other explanations, and all of them were, in the words of Smith neutral in nature. The lack of any reliability concerning the initial tip and Mr. Biadi's lack of criminal record increased the obligation of the officers in their investigation to at least observe a hand to hand transaction or, where drugs were later found, a face to face meeting. This is especially so considering the fact that Mr. Biadi appears to have been a long time resident of the community who knew many people in the community, as indicated in his meeting with two acquaintances in the Walmart on May 30, 2012 and his hockey game the next day, both of which were seen as being innocent in nature.

The evidence was excluded.

[54] The Applicant also relied on the case of R. v. Ritchie, [2015] O.J. No. 3812 (S.C.) in which Conlan J. found a section 9 violation and excluded drug evidence. In that case police had information from an informant that the co-accused was in possession of methamphetamine. They had no information about the accused who was a passenger in the same car.

[55] Having considered the legal principles and the facts in the case at bar, it is the opinion of this court that, while the officer testified that he had subjective grounds on which to base his arrest, those grounds were not objectively reasonable. The following facts and circumstances are central to this determination:

a. It is unknown whether the confidential informant had a criminal record. Constable Hankin did not ask and made no inquiries, despite the fact that he could have done so on his mobile data terminal. b. It was unknown whether the confidential informant had any outstanding charges. Constable Hankin did not ask and made no inquiries, despite the fact that he could have done so on his mobile data terminal. c. Constable Hankin did not know the confidential informant prior to receiving this information. He had no involvement with him/her in the past. d. Constable Hankin was not aware of any previous information that the confidential informant had provided to the police that had been acted upon in the past and was found to be reliable and credible. e. Constable Hankin believed the information to be current, however, currency of information is relative to the information being provided. The fact that someone is said to be in a kitchen is a circumstance that can change within seconds. Further, it is unclear why Constable Hankin held the belief that the information was current. f. While the source was not anonymous and could have been charged with providing false information, Constable Hankin never cautioned the source of this risk. g. The information provided by the confidential informant was that “the girl Holly in the kitchen has fentanyl in her pussy. I am scared for her”. There was no last name. There was no address. It must be recalled that Constable Hankin was going to this address for an officer assist call on an unrelated matter, not as a result of any information received from the confidential informant. The information received was not detailed or compelling so as to ensure it was based on more than rumour or gossip. h. Constable Hankin believed this was first hand information, however, when questioned about this further, he stated that this was an inference that he drew and he was not certain that this was first hand information. i. Constable Hankin did not attempt to investigate this tip in any way prior to the arrest. j. Constable Hankin passed by a number of females in the residence he entered without making any inquiries of them whatsoever. k. Constable Hankin did not attempt to corroborate the information in any way, other than asking Ms. Whittaker if her name was Holly. Constable Hankin did not know at the time of the arrest whether there were other females in the residence named Holly. l. The confidential informant had suggested that “Holly” would be found in the kitchen. Yet, Constable Hankin was aware from his brief conversation with Sgt. Marsh that police had forced their way into the bathroom and Ms. Whittaker was located by Constable Hankin on the elevated portion just outside of the bathroom.

[56] It is true that the informant was not paid for this information, however this one factor cannot possibly make the information reliable or credible. The information was vague and conclusory. It was not credible, compelling or corroborated.

[57] The totality of the circumstances in this case do not amount to a reasonable belief based on objective and subjective grounds that the Applicant was committing an offence. The Crown suggested that the totality of the circumstances to consider in this case must include the exigent circumstances under which police became involved and the 911 call made, the distressed nature of the individual who answered the door, the observations of cannabis and drug paraphernalia in plain sight of the officers, the fact that the Applicant had locked herself in the bathroom, the information of the informant, the concern for safety of the Applicant and those around her, and the officers numerous years of experience. This court agrees that the totality of the circumstances must be considered, but only to the extent that those circumstances were known to and relied upon by Constable Hankin for this arrest. For example, Constable Hankin was not aware of the emotional state of the individual who answered the door. It is also unclear how much Constable Hankin knew about the events at the bathroom door. Constable Hankin himself does not refer to many of these factors when he was asked for his grounds. He stated that he relied on the information from the confidential informant, the fact that he found Ms. Whittaker in the kitchen and later added that he relied on his years of experience.

[58] It should also be stated of course that the fact that drugs were ultimately found on Ms. Whittaker is of no consequence to this analysis. This court accepts and applies the comments of Justice Doherty in R. v. Golub, [1997] OJ No. 3097, in which he discussed the difficulties police face in performing their duties and that courts must appreciate the realities of the arrest situation when deciding whether the steps taken by police were justified. It is of note that these comments were made in the context of a case involving what the police believed to be a loaded sub machine gun and a very upset and agitated person. These were not the circumstances here. There was nothing volatile about this investigation. The only urgency to any of this was that Constable Hankin stated that he was concerned for the safety of Ms. Whittaker. However, despite these stated concerns, Constable Hankin did not call paramedics to the scene. He did not take Ms. Whittaker to the hospital to ensure her safety. He left her in a locked car alone for some time – the time of arrest being 8:02 p.m. and the time of departure being 8:28 p.m.

[59] Based on the totality of the circumstances, it is the view of this court that there has been a breach of section 9 and that there were not reasonable and probable grounds to arrest Ms. Whittaker. It flows from this that the searches incident to arrest were unreasonable, and therefore, in violation of section 8 of the Charter. Based on the facts of this case, and the obviousness of the breach, the court’s conclusion would be the same whether the onus was on the Applicant or on the Crown.

24(2) Analysis

[60] In R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, the Supreme Court of Canada set out the approach to be taken to section 24(2) of the Charter, articulating a three-part inquiry designed to determine in all of the circumstances whether the admission of the evidence would bring the administration of justice into disrepute. In determining whether evidence should be excluded under section 24(2), consideration is to be given to all of the circumstances, while balancing three factors:

(1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the defendant's Charter protected interests; and (3) the societal interest in an adjudication of the case on the merits.

Utterance

[61] It is the view of this court that the breach of s. 10(b) was not a trivial breach. In circumstances of arrest and detention, the person is completely at the mercy of the police. The right to counsel is provided to a detained person to ensure that the detainee is aware of their rights, and to allow the detainee the opportunity to get advice to assist them with the choice of making a statement to the police or in other ways assisting with the investigation. It is not an onerous requirement to expect the police to refrain from eliciting evidence from the detainee until they have had a reasonable opportunity to exercise their right to counsel. This is a well-established rule of law. This court does not believe that the officers in this case were acting in bad faith. Nonetheless, the conduct cannot be mitigated by good faith, as it involved an unreasonable and complete disregard for basic requirements. See: R. v. Buhay, 2003 SCC 30, [2003] S.C.J. No. 30 at para. 59.

[62] Contrary to the submission of the Crown that the question about the purse was asked in exigent circumstances, it is the view of this court that there were no such circumstances present. There was no urgency to asking Ms. Whittaker whether this was her purse. Sgt. Marsh made it clear that he was going to seize the purse if no one took ownership of it. If this were true, then the purse would have been in safe-keeping until after Ms. Whittaker had exercised her rights to counsel. This court rejects the assertion of Sgt. Marsh that he was not asking this question to elicit evidence.

[63] On the first branch of the Grant test, the s. 10(b) breach was serious and favours exclusion of the evidence.

[64] With respect to the effect of the breach on the Applicant’s protected interests, a violation of an accused’s right to counsel will usually be found to significantly undermine that accused’s right to make an informed decision of whether to speak to police or not. As stated in R. v. Rover, 2018 ONCA 745, [2018] O.J. No. 4646 (C.A.)

[45] The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

Unlawful arrest/unreasonable search and seizure

[71] With respect to the unlawful arrest and subsequent unreasonable search and seizure, it is the view of this court that this was also not a trivial breach. Constable Hankin took no steps to ensure that the confidential informant was a reliable and credible person. He did not ask the confidential informant any questions whatsoever. He did not do any check on the informant’s name to see if the person had a criminal record or any outstanding charges. He did not ask if the person knew this information first-hand, as in they had witnessed something, or whether they had heard this information from someone else. It is not an onerous requirement to expect the police to make some inquiries in such a context, especially where such inquiries can be easily done by the police. These inquiries could have been made in mere seconds or minutes. No delay would have been caused by asking a few questions of the confidential informant or running his/her name through the mobile data unit.

[72] Further, when Constable Hankin arrived at the apartment, he made no inquiries of the other occupants that he passed on his way to the kitchen area. He made no inquiries of Constable Wright who was standing with Ms. Whittaker. He made it very clear in his testimony that he had the information from the confidential informant, he found a female in the kitchen who confirmed that she was Holly and that was enough for him. He also made it clear in his testimony that he simply does not do investigative detention as it is too convoluted.

[73] On the first branch of the Grant test, the s. 9/ s. 8 breach was serious and favours exclusion of the evidence.

[74] With respect to the effect of the breach on the Applicant’s protected interests, an arrest of a person without subjective and objective reasonable and probable grounds significantly undermines a person’s freedom. Ms. Whittaker was restrained, placed in the back of a police car, taken to the police station and strip searched. Being subjected to a strip search is a humiliating and degrading experience, even where that strip search is conducted in a professional manner. Consideration of this Grant factor favours exclusion.

[75] With respect to the societal interest in a trial on the merits, the exclusion of this evidence will have a significant, if not fatal, impact on the trial proceeding. Fentanyl is a very serious drug that has caused the death of numerous people in this and other communities. The evidence is reliable. However, the public must be able to trust that the police will not jump to action too quickly without a proper basis for doing so. If the police are allowed to arrest on the basis of unconfirmed, weak or incredible information, it would undermine the relationship that the public has with the police and the trust that the public must have for the police.

[76] The Crown relied on the case of R. v. Noorali, 2010 ONSC 2558 to support the argument that the evidence should not be excluded pursuant to section 24(2). Specifically, in Noorali, the court held that where the officer is not patently unreasonable in his honestly held belief that objective grounds exist, “the need for a court to dissociate itself from the infringing conduct by excluding evidence will be attenuated”. However, in the case at bar, the officer took absolutely no steps to ensure that the evidence he received was credible, compelling or corroborated. While the officer may have been aware of the need for subjective and objective grounds, the officer in the case at bar did not seem to turn his mind to whether objective grounds existed in these circumstances.

[77] It is also of note that the cases referred to by the Crown, Noorali and Stockton, are both cases where the court found that the arrest was lawful, however, chose to do a 24(2) analysis.

[78] Considering all three factors in the circumstances of this case, it is necessary to determine whether the overall, long-term reputation of the administration of justice would be adversely affected by the admission of this evidence. The public is entitled to assume, and in fact expect, that when they are arrested, the police have subjective and objective reasonable and probable grounds for doing so. If the police are permitted to arrest, arbitrarily, without proper grounds, then the confidence in the administration of justice will be lost.

[79] This court is satisfied that admitting the evidence seized, specifically the drugs and the purse, in this case would bring the administration of justice into disrepute. The Charter breaches represent conduct from which the court must disassociate itself. The reputation of the administration of justice is jeopardized where the court condones such police action. The evidence was directly linked to the conduct and exclusion is necessary in order to preserve the public confidence in and ensure state adherence to the rule of law.

CONCLUSION

The Applicant has demonstrated on a balance of probabilities that a breach of her s. 10(b) Charter rights has occurred. Having considered the Grant factors, the Applicant’s utterance to police will be excluded pursuant to s. 24(2). It has also been demonstrated that a breach of s. 9 has occurred, leading to a breach of s. 8. Having considered the Grant factors, the drugs and purse will be excluded pursuant to s. 24(2).

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.

FORM 2 Certificate of Transcript Evidence Act, Subsection 5(2)

I, Cathy Knelsen, certify that this document is a true and accurate transcript of the recording of R. v. Whittaker in the Ontario Superior Court of Justice, held at 75 Mulcaster Street, Barrie, Ontario, taken from Recording No. 3811-03-20200109-090334 which have been certified in Form 1.

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

January 15th, 2020

Cathy Knelsen, ACT/CCR cathytheartist@sympatico.ca

R v Whittaker, 2020 ONSC 174

Case Summary