



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Megill, 2021 ONCA 253

DATE: 20210427

DOCKET: C65475

Watt, Tulloch and Roberts JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Kyle Megill

Appellant

Maija Martin and David Malcolm Reeve,
    for the appellant

Sarah Shaikh, for the respondent

Heard: September 16, 2020 by video conference

On appeal from the conviction entered by Justice Carole J. Brown of the
    Superior Court of Justice, sitting with a jury, on March 1, 2018, and the
    sentence imposed on November 8, 2018, with reasons reported at 2018 ONSC 6486.

Watt J.A.:


[1]

Warrant in hand, several police officers entered
    an apartment. They were looking for some controlled substances, offence-related
    property and anything that would afford evidence of controlled substance or
    related offences.

[2]

They found several things. Controlled
    substances. Related paraphernalia. And currency. $365 in Canadian currency.

[3]

The police found some of these things in a
    bedroom, where they also found Kyle Megill (the appellant) seated at a computer.
    They found other things, such as capsules, a beige powder and a digital scale
    in the kitchen. And more bags containing controlled substances, a tester and
    some empty capsules in the living room area.

[4]

The controlled substances varied. Ketamine. Cocaine.
    BZP/TFMPP. MDMA. MDA. Marijuana. And psilocybin.

[5]

The searchers then turned their attention to a
    storage unit on the same floor. There they found more of the same. Ketamine. MDMA.
    Psilocybin. And something different: GHB.

[6]

A jury found the appellant guilty of six counts
    of possession of the various controlled substances for the purpose of trafficking.
    And of possession of property and of proceeds of property obtained by crime. The
    trial judge imposed a sentence of imprisonment of five years.

[7]

The appellant says his convictions are flawed.
    The jury charge was unfair and unbalanced. The judge was wrong to refuse his
    application to challenge the search of the storage unit. And she imposed a
    sentence that was unfit.

[8]

I do not agree that the convictions are flawed
    or that the sentence was unfit. And I will explain why I would dismiss both
    appeals, except that I would set aside the victim surcharges imposed by the
    trial judge.

The Background Facts

[9]

The evidence at the appellant's trial consisted
    principally, though not exclusively, of the testimony of several police officers
    who executed the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19 (
CDSA
)
search warrant at the apartment and
    associated storage unit on June 22, 2015.

[10]

The case against the appellant was entirely
    circumstantial. His response, unsupported by his own testimony or that of any
    defence witness, was that the case for the Crown did not, indeed could not,
    prove beyond a reasonable doubt that he was in possession of the various
    controlled substances found in the apartment and storage unit. He did not seek
    a directed verdict of acquittal at the close of the Crown's case at trial, and he
    does not argue here that the verdict is unreasonable. He accepts, as he did at
    trial, that if the evidence establishes possession beyond a reasonable doubt,
    possession was for the purpose of trafficking.

[11]

The grounds of appeal advanced on the appeal
    from conviction do not require an elaborate recital of the evidence adduced at
    trial. A brief reference to various findings made on the search of the
    apartment and storage unit and the evidence connecting the appellant to the
    premises provides a suitable frame for the discussion that follows.

The Rental of UPH01

[12]

The building with which we are concerned is a 13-storey
    condominium. The units on the 13th floor, which is also referred to as the 14th
    floor, are designated as penthouses, hence the acronym UPH followed by the unit
    number, as in UPH01. The owners of the units may rent them out. This requires
    completion of a Confidential Resident Information Form. The form includes
    information about the date and unit number, as well as particulars about the
    owner and residents, those renting the unit. Each residential unit has a
    storage locker associated with it. The residential unit and locker are located
    on the same floor.

[13]

The property manager of the condominium identified
    the Confidential Resident Information Form for unit UPH01, the unit searched by
    police on June 22, 2015. The document was dated July 27, 2014, about 11 months
    before the search. It described the owners name and information about the
    residents, David Davidson and Kyle Megill. It also referred to a 2013 Honda Civic
    automobile with Ontario plate BTJW581 and noted that the storage unit for the
    residential unit was located on the 14th floor.

[14]

The property manager recognized the owner of the
    unit but did not know either of the residents. There had been no complaints
    about the residents, so the manager had never met them. The manager could not
    recall the locker number associated with UPH01. He acknowledged that owners
    could rent storage units associated with their residential unit to persons who
    did not live in the unit.

The Undercover Buy

[15]

On February 13, 2015, an undercover police
    officer, acting on information received from a confidential informant, met Elion
    Saliaj to buy some drugs. The officer wanted some fire" (high-quality
    cocaine) and Molly (MDMA). Saliaj directed the officer to UPH01 of the condominium,
    where his supplier was located. David Davidson admitted the men into the unit. Saliaj
    went into bedroom #1 and spoke to a man there about the transaction. The
    officer did not see the man. Davidson walked into bedroom #1. Seconds later, Davidson
    returned carrying a freezer bag with several small brown capsules inside.

[16]

Saliaj re-emerged. He and the officer left
    together. In exchange for the agreed-upon price, Saliaj gave the officer two
    small bags. One had a thumbnail-sized chunk, white in colour. The other
    contained eight pink pills and two clear capsules which looked the same as the
    pills the officer had seen Davidson bring out of bedroom #1.

The Search of UPH01

[17]

On March 9, 2015, a police officer confirmed
    with the property manager of the condominium that the residents in UPH01 were David
    Davidson and the appellant. The officer returned on June 18, 2015. He claimed
    that the manager told him that he (the manager) had received complaints about
    frequent traffic to and from the unit. The manager denied any such complaints.

[18]

On June 22, 2015 several police officers arrived
    at the condominium with a
CDSA
search warrant for unit UPH01. They
    showed the warrant to a staff member and were given a key to UPH01. An officer
    asked about the number of the storage unit associated with UPH01, which the
    warrant described as 1322. Police did not receive the information before the
    search began.

Bedroom #1

[19]

When police entered bedroom #1, they found the appellant
    seated at a computer. In a closet in the bedroom, they found a key ring with several
    keys including a key to a Honda. A small key on the ring unlocked a grey Sentry
    safe in the closet. The safe contained MDMA and $365 in Canadian currency. Elsewhere
    in the closet was more MDMA, powdered cocaine and a variety of pills. On a
    dresser in the bedroom, police found the appellant's drivers licence, which
    showed the same address as on the registration of the Honda listed on the Confidential
    Resident Information Form.

[20]

David Davidson was not in bedroom #1 or
    elsewhere in the unit when police conducted their search.

Bedroom #2

[21]

Police found no drugs or drug paraphernalia in
    bedroom #2 but did locate two documents in the name of David Davidson in that
    room.

The Living Area

[22]

In addition to Ziploc bags containing
    marijuana and psilocybin, and drug paraphernalia, police found two Rogers Communications
    bills and a letter from TD Bank, all addressed to the appellant at UPH01 at the
    condominium, in the living area of the unit.

The Storage Unit

[23]

In storage unit LUP22, police discovered
    substantial quantities of Ketamine, MDMA, GHB and psilocybin, as well as a Christmas
    card and picture of the appellant. A black safe in the storage unit contained
    $23,550.

Search Incident to Arrest

[24]

Police searched the appellant incident to arrest.
    They found and seized a powder substance that later tested positive for both
    cocaine and Ketamine.

The Conviction Appeal

[25]

The appellant advances two principal grounds of
    appeal against the conviction entered at trial. He says that the trial judge
    erred in:

i.

giving an unfair and unbalanced charge to the
    jury; and

ii.

refusing to hear a mid-trial application on behalf of the appellant
    to challenge the reasonableness of the storage unit search and the
    admissibility of evidence found there.

Ground #1: The Unfair and Unbalanced Charge

[26]

The appellant makes five specific complaints
    about the charge to the jury that he says, individually or cumulatively,
    rendered the final instructions unfair and unbalanced. I will examine each
    individually and assess their cumulative effect on the fairness and balance so
    essential to a proper jury charge.

A. The Instructions on Circumstantial Evidence

[27]

As we saw earlier, the case against the
    appellant rested entirely on circumstantial evidence. The principal issue in
    controversy was whether the evidence established beyond a reasonable doubt that
    the appellant was in possession of the controlled substances and the currency
    found in the apartment and storage unit. The parties were as one that if
    possession were proven, its purpose was for trafficking.

[28]

The relevant parts of the evidence adduced at
    trial have been rehearsed earlier. They need not be repeated here. For present
    purposes, it is sufficient to begin with a snapshot of the arguments advanced
    here about the adequacy, fairness and balance of the instructions on
    circumstantial evidence.

The Arguments on Appeal

[29]

The appellant begins with the incontrovertible
    principle that in a case where the proof of guilt is wholly or substantially to
    be made by circumstantial evidence, guilt can only be established if it is the
    only reasonable inference available on the evidence taken as a whole. Inferences
    inconsistent with guilt can but need not be based on proven facts. They can and
    often do arise from the absence or lack of evidence. This, the availability of
    an inference inconsistent with guilt from an absence of evidence, must be made
    clear to the jury in final instructions.

[30]

In this case, the appellant says, despite a
    request for such an instruction from trial counsel, the trial judge failed to
    incorporate what was requested in her charge. She should have supplemented what
    she said by specifically instructing the jury that inferences inconsistent with
    guilt can arise from the absence or lack of evidence and that drawing such an
    inference does
not
amount to impermissible speculation. This was a
    serious error since it deprived the appellant of the benefit of an inference
    inconsistent with guilt arising from the lack of evidence that he lived in the
    apartment.

[31]

The respondent rejects any suggestion of error.
    No formulaic approach to instructions on this issue is required by the
    authorities.

[32]

Instructions on circumstantial evidence, the
    respondent says, must alert the jury to the dangers of filling in the
    blanks" or jumping to conclusions" from circumstantial evidence. The
    respondent accepts that evidentiary gaps can result in inferences other than guilt,
    provided those inferences are reasonable, and not speculative. But no specific
    word formula is mandatory to bring this message home to the jury. Explaining
    that an inference of guilt drawn from circumstantial evidence must be the only
    reasonable inference on the evidence as a whole is an effective and succinct
    way of preventing premature conclusions of guilt.

[33]

In this case, the respondent continues, the
    instructions, taken as a whole, made it clear that, in order to find the
    appellant's guilt proven beyond a reasonable doubt, the jury had to conclude
    that his guilt was the only reasonable inference available on that evidence.
    The jury was told that a reasonable doubt could arise from the evidence or from
    the absence of evidence. They were also directed that this burden of proof
    remained on the Crown throughout the trial and never shifted to the defence.
    The lack of objection by trial counsel indicates the adequacy of the
    instructions as they were given.

The Governing Principles

[34]

We take a functional approach when we are asked
    to assess the adequacy of a charge to the jury. We test its adequacy against
    its ability to fulfil its function of equipping the jury to decide the case the
    jury heard. We do not adjudge adequacy by assaying the degree of its adherence
    to or deviation from a particular formula or pattern:
R. v. Jacquard
, [1997]
    1 S.C.R. 314, at para. 32;
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R.
    523, at paras. 30-31; and
R. v. MacKinnon
(1999), 43 O.R. (3d) 378 (C.A.),
    at para. 27.

[35]

In our assessment of the adequacy of a jury
    charge, we also keep in mind that a charge to the jury does not take place in
    isolation, but rather in the context of the trial as a whole. That context, the
    trial environment, includes the addresses of counsel and the expectation that
    counsel will help the trial judge identify anything problematic included in or
    omitted from the charge:
Daley
, at para. 58.

[36]

An essential constituent of a charge to the jury
    is an instruction on the standard of proof. This is so whether the case for the
    Crown consists of direct evidence, circumstantial evidence or some mélange of
    the two types of evidence. The typical instruction on the standard of proof
    makes it clear that a reasonable doubt may be based not only on the evidence
    adduced at trial, including the credibility of the witnesses and the
    reliability of their evidence, but also on the absence of evidence:
R. v. Lifchus
,
    [1997] 3 S.C.R. 320, at para. 36.

[37]

In cases in which the evidence adduced by the Crown
    is wholly or substantially circumstantial, there is no particular form of
    mandatory instruction. However, where proof of one or more essential elements
    of an offence with which an accused is charged depends exclusively or largely
    on circumstantial evidence, it is helpful that the jury receive instructions
    that will assist them to understand:

i.

the nature of circumstantial evidence; and

ii.

the relationship between proof by circumstantial evidence and the
    requirement that an accused's guilt be proven beyond a reasonable doubt.

See
R. v. Villaroman
, 2016 SCC
    33, [2016] 1 S.C.R. 1000, at para. 22.

[38]

An explanation of the difference between direct
    and circumstantial evidence is commonplace in jury instructions in this
    province. The difference may be illustrated by an everyday example not
    connected with the facts of the case or the evidence adduced at trial. This
    type of instruction is at once helpful and sufficient in most cases:
Villaroman
,
    at paras. 23-24.

[39]

Instructions on reasonable doubt and
    circumstantial evidence and the relationship between them deal with different
    subject-matter. An instruction on reasonable doubt describes a state of mind.
    It refers to the degree of persuasive force that the evidence as a whole must
    have that entitles and requires a juror to find an essential element of an offence,
    or the guilt of an accused, established. Reasonable doubt is not an inference
    or finding of fact that requires support in the evidence adduced at trial. A
    reasonable doubt is logically connected to the evidence or the absence of
    evidence:
Villaroman
, at para. 28;
Lifchus
, at para. 36.

[40]

Circumstantial evidence is different. It is a
    type of evidence on which jurors may rely in reaching their conclusion about
    the persuasive force of the evidence as a whole. Instructions about
    circumstantial evidence alert jurors to the dangers of the path of reasoning
    involved in drawing inferences from circumstantial evidence. The risk that
    jurors will fill in the blanks" or jump to conclusions":
Villaroman
,
    at para. 29.

[41]

Where proof of one or more essential elements of
    an offence with which an accused is charged depends wholly or substantially on
    circumstantial evidence, it is generally helpful to caution the jury about
    inferring guilt too readily. No specific word formula is required. A succinct
    and accurate way of delivering this message, which describes the relationship
    between circumstantial evidence and the standard of proof, is to instruct the
    jury that an inference of guilt drawn from circumstantial evidence must be the
    only reasonable inference that the evidence permits:
Villaroman
, at paras.
    30, 32-34.

[42]

As we saw earlier in connection with the
Lifchus
-compliant
    instruction on reasonable doubt, a reasonable doubt may arise from the evidence
    adduced at trial or from an absence of evidence. The same holds true where the
    case for the Crown on an essential element or the offence as a whole falls to
    be established exclusively or substantially on the basis of circumstantial
    evidence. Inferences inconsistent with innocence need not arise from proven
    facts. And to require that inferences inconsistent with guilt be grounded on
    proven facts effectively imposes a burden on the accused to prove those facts.
    And that offends the principle that whether there is a reasonable doubt
    requires consideration of the whole of the evidence. In a circumstantial case,
    an inference other than guilt may arise from an absence of evidence, provided
    the non-culpable inference is reasonable, in light of the evidence and absence
    of evidence, assessed logically and on the basis of human experience and common
    sense. The trier of fact should consider other plausible theories" and other
    reasonable possibilities" inconsistent with guilt:
Villaroman
, at
    paras. 35-37.

The Charge to the Jury

[43]

In this case, the trial judge instructed the
    jury on the burden and standard of proof. In the instructions on the standard
    of proof, the trial judge told the jury that a reasonable doubt could arise
    from the evidence, the absence of evidence, the credibility of one or more of
    the witnesses, or the reliability of the evidence of a witness.

[44]

The trial judge explained the difference between
    direct and circumstantial evidence and illustrated the difference between them
    by two examples, one traditional, the other based on the evidence adduced at
    trial. She then concluded her instructions about the standard of proof based on
    circumstantial evidence:

In order to find Kyle Megill guilty of an offence
    on the basis of circumstantial evidence, you must be satisfied beyond a
    reasonable doubt that his guilt is the only reasonable conclusion or inference
    that can be drawn from the whole of the evidence.

[45]

Later in her charge, the trial judge instructed
    the jury on the position of the defence:

It is the theory of the Defence that the Crown
    has not proven the case against Mr. Megill. The Crown has not presented
    sufficient evidence to prove beyond a reasonable doubt who possessed the drugs
    in apartment UPH01 or who possessed the drugs in storage locker LUP22.

The gaps in the evidence undermine the Crowns
    case; these gaps in the evidence create reasonable doubt. A few of the most
    important questions left unanswered are the following:

i.

When was Mr. Megill physically present in UPH01
    before June 22, 2015?

ii.

Who let Mr. Megill and the two females into
    UPH01 on June 22, 2015?

iii.

Did Julian Humphreys [the unit owner] have
    access to the apartment or the storage locker?

iv.

Did Bing Su [whose fingerprints were found on a
    vacuum-sealed bag in the storage unit] have access to the apartment or the
    storage locker?

v.

Did any other individuals have access to the
    apartment or the storage locker?

The Defence submits that the evidence supports
    reasonable inferences that are not compatible with the guilt of Mr. Megill. One
    reasonable inference is that Mr. Megill was previously a resident of UPH01 but
    had moved out; and on June 22, 2015 Mr. Megill was a visitor in the apartment.

The Defence maintains that David Davidson is
    the person most likely to have been in possession of the drugs seized in the
    apartment and the storage locker. Any suggestion that both Mr. Davidson and Mr.
    Megill possessed the drugs together would be pure speculation, and this
    speculation would not support a conviction.

[46]

Trial counsel for the appellant did not object
    to the charge to the jury on this ground.

The Principles Applied

[47]

As I will explain, I would not give effect to
    this ground of appeal. I am satisfied that despite the absence of an express
    instruction now said to have been a fatal omission, read as a whole, the charge
    adequately apprised the jury of the standard of proof in a case dependent
    entirely on circumstantial evidence.

[48]

First, the instruction on the burden of proof
    made it clear that the burden of proving each essential element of each offence
    was on the Crown. That burden, the judge said, did not shift. No onus ever
    settled on the defence. The appellant did not have to prove anything. From this
    instruction, a 21st-century jury would understand that the appellant did not
    have to introduce any evidence or prove any facts to support a non-culpable
    inference.

[49]

Second, the instruction on the standard of
    proof. Given in a case in which the jury was frequently reminded of the
    circumstantial nature of the case for the Crown, the jury was expressly
    instructed that a reasonable doubt could arise from:

·

evidence;

·

the absence of evidence;

·

the credibility of witnesses; and

·

the reliability of the evidence of witnesses.

The use of the term evidence"
    did not distinguish between direct evidence and circumstantial evidence. In a
    case consisting entirely of circumstantial evidence, the jury could not fail to
    understand that a reasonable doubt, an inference inconsistent with guilt, could
    arise because of the absence of or a gap in the evidence.

[50]

Third, the instruction on the position of the
    defence. While admittedly not part of the legal directions the jury was bound
    to follow, the trial judge's description of the defence position, as provided
    by defence counsel, focused on the absence of evidence and the availability of
    non-culpable inferences as a basis for a reasonable doubt about the appellant's
    guilt. The defence position, the focal point of counsel's closing address, was
    about inferences inconsistent with guilt available because of gaps in the
    evidence leading to a case not proven.

[51]

A final point. Trial counsel did not object to
    the absence of an express instruction now said to constitute a fatal error.
    Lack of objection is not dispositive, but it affords some indication that, in a
    case grounded on
lacunae
in the prosecution's proof, the defence
    position was fairly put to the jury.

B. The Inflammatory Description of GHB

[52]

The second aspect of final instructions the
    appellant says contributed to an unfair and unbalanced charge relates to
    something said in recounting the evidence of a police witness qualified as an
    expert in street-level distribution, practices, cultures and uses of the drugs
    located during the search of UPH01 and the associated storage unit.

[53]

A brief reference to the evidence and the trial
    judge's description of it in her charge will provide the background necessary
    to determine the viability of this claim of error.

The Evidence

[54]

During their search of the storage unit, police
    found a cardboard box. They looked inside. There, they found three bottles
    containing a total of 3.6 kilograms of GHB.

[55]

An expert witness testified that GHB was used
    recreationally as an intoxicant when mixed with a bottle of water and sipped.
    The witness pointed out that GHB was used by bodybuilders to get a good
    cut". It was commonly used as a date rape drug".

[56]

Defence counsel agreed that the witness, a
    police officer, was an expert in his subject-matter. Counsel did not object to
    the evidence when given, nor seek a mid-trial instruction as an antidote to any
    prejudice inherent in or that may arise from the description date rape
    drug".

The Charge to the Jury

[57]

In the pre-charge conference, counsel and the
    trial judge discussed a draft of the final instructions the trial judge
    proposed to give to the jury. Defence counsel objected to the date rape
    drug" reference in the summary of the expert witness' evidence. Counsel
    said that the reference was inflammatory and not consistent with the evidence
    of the witness. The trial judge declined to remove the reference.

[58]

The trial judge engaged in a serial review of
    the evidence of each witness who testified at trial. The review was
    undifferentiated in the sense that she did not relate it to the essential
    elements of the several offences with which the appellant was charged. She
    described GHB in these terms:

GHB is [a] solvent mixed with sodium
    hydroxide. It smells like nail polish remover. It is usually mixed with water. 5
    milligrams of GHB in a bottle of water is a typical dose. One bottle with a
    dose of GHB can cause one to feel drunk. It is also commonly used as a date
    rape drug".

The Arguments on Appeal

[59]

The appellant says that the reference to the
    common use of GHB as a date rape drug" was inflammatory and contributed
    to a charge that was unfair and unbalanced. What is more, the reference did not
    fairly characterize the witness' evidence about GHB. It left the impression
    that the
only
use of GHB was as a date rape drug. This was not so.
    It was also used recreationally as an intoxicant and by bodybuilders to get a
    good cut. Objection was taken in advance of the charge to its inclusion, but
    to no avail. The reference should have been deleted.

[60]

The respondent acknowledges that it might have
    been better had the witness not described the common use of GHB as a date rape
    drug" and had the trial judge deleted this description from her summary of
    the witness' evidence. However, the respondent submits, the reference did not
    result in or contribute to an unbalanced or unfair charge.

[61]

The reference was in a review of the evidence of
    the witness. It was not part of any legal instruction the jury was bound to
    follow. It was not linked to and had nothing to do with any essential element
    of any offence with which the appellant was charged. It did not give rise to
    any propensity reasoning or other form of prejudice in light of the array of
    drugs found in the apartment and storage unit. No objection was made when the
    evidence was given.

The Governing Principles

[62]

The appellant does not rely on any specific
    authority in support of his claim of prejudice from the repetition of the date
    rape drug" description in the recital of the expert's evidence.

[63]

The root of the problem here, as it is in many
    cases, is in the introduction of the evidence itself.

[64]

The circumstances in which the evidence is
    received in a criminal trial are well known. Relevance. Materiality.
    Admissibility. See
R. v. Calnen
, 2019 SCC 6, [2019] 1 S.C.R. 301, at para.
    107,
per
Martin J. (dissenting, but not on this point). Likewise, the
    principles governing the reception of expert opinion evidence:
White
    Burgess Langille Inman v. Abbott and Haliburton Co.
, 2015 SCC 23, [2015] 2
    S.C.R. 182, at para. 24.

[65]

Evidence is relevant if it has some tendency, as
    a matter of logic and human experience, to make the fact or proposition that it
    is offered to establish more likely than it would be in the absence of the
    evidence. We assess relevance in the context of the case as a whole and the
    positions of counsel:
Calnen
, at para. 108,
per
Martin J. (dissenting,
    but not on this point);
R. v. Luciano
, 2011 ONCA 89, 267 C.C.C. (3d)
    16, at paras. 204-5.

[66]

Evidence is material if what it is offered to
    prove or disprove is a fact in issue as determined by the allegations and the
    governing substantive or procedural law. Evidence that is immaterial is
    excluded on that ground. If erroneously admitted in a jury trial, the judge
    should tell the jury that they are not to consider it:
Calnen
, at para.
    109,
per
Martin J. (dissenting, but not on this point);
Luciano
,
    at para. 207.

The Principles Applied

[67]

In the brief reasons that follow, I explain why I
    would reject this assertion of error.

[68]

The appellant does not formally challenge the
    admissibility of this aspect of the expert witness' evidence. I do not wish to
    be taken as accepting that it was properly received. It seems to me that, in
    the circumstances of this case, where the critical issue of fact for the jury
    to resolve was whether the appellant was in (constructive) possession of the
    myriad of drugs found in the residential and storage units, the uses purchasers
    might make of those drugs was neither relevant nor material. On the other hand,
    I am satisfied that the impugned reference in the charge reflects harmless
    error.

[69]

First, so far as the GHB was concerned, the
    critical issue for the jury to decide was whether the Crown had proven beyond
    reasonable doubt that the appellant was in possession of the drugs and property
    found in the storage unit. The trial judge explained to the jury, in terms to which
    no exception has been taken, the essential elements of the offence charged in
    connection with GHB. From that instruction, and the agreement that if
    possession were proven, the purpose of it was for trafficking, the jury could
    not fail to understand that no purchaser's ultimate use of the drug had
    anything to do with the issue they had to decide.

[70]

Second, the reference in issue was made during
    the trial judge's summary of the evidence of the expert witness, a part of her
    undifferentiated summary of the evidence of every witness who testified at
    trial. It was preceded by the usual caution about errors, omissions and the
    obligation of the jury to rely on their own recollection of the substance of
    the evidence.

[71]

Third, the trial judge did not relate this evidence
    to any essential element of any offence with which the appellant was charged.
    Thus, the jury was not instructed or invited to consider it in determining, for
    example, whether the Crown had proven the appellant's possession of the storage
    units contents beyond a reasonable doubt.

[72]

Further, the reference to GHB as a date rape
    drug" does not appear in the closing address of either Crown or defence
    counsel, or in their positions as outlined for the jury in the trial judge's
    charge.

[73]

In the result, this claim of prejudice lacks
    substance.

C. The Handwriting Comparison

[74]

This contention of prejudicial instruction has
    its origins in a submission made by defence counsel in his closing address to
    the jury about the origin of the handwriting that appears on the Confidential
    Resident Information Form for UPH01 filed as an exhibit at trial.

The Background

[75]

The property manager of the condominium explained
    the requirements when an owner rented their unit to others. A Confidential
    Resident Information Form is completed. The manager identified the form in
    connection with UPH01, dated July 27, 2014, about 11 months before the search
    of the residential unit and the storage unit associated with it.

[76]

The form contains the name of the owner of the
    unit and lists two residents: David Davidson and the appellant. It bears two
    indecipherable signatures or marks opposite the names of the residents in a box
    designated Name" at the bottom of the form.

[77]

The property manager did not know who filled out
    the form, although it was usually the unit owner or residents who did so. He
    knew the owner but did not know and would not recognize either the appellant or
    David Davidson.

The Jury Address

[78]

In his closing address to the jury, defence
    counsel suggested that there were two different types of handwriting on the
    face of the Confidential Resident Information Form relating to UPH01. He
    suggested that the top or owner's portion was written by the owner and the
    bottom by David Davidson.

[79]

Neither the unit owner nor David Davidson
    testified at trial.

The Charge to the Jury

[80]

During pre-charge discussions of a draft of the
    proposed final instructions, defence counsel took the position that his closing
    address had been perfectly proper despite the absence of any evidence about
    authorship of the handwriting on the form. He suggested that the jurors could
    make their own comparison, but he did not ask for an instruction to that
    effect.

[81]

The trial judge instructed the jury in these
    terms:

While in closing, the suggestion was made that
    the Form was in two different handwritings, there was no evidence given by any
    witness to that effect, there was no handwriting analysis done and no
    handwriting expert was called as a witness to give such evidence, such that
    this submission should not be considered.

The Arguments on Appeal

[82]

The appellant says that expert testimony is not
    a prerequisite to a jury instruction that invites jurors to make their own
    comparisons of handwriting samples. Although the lack of expert evidence
    warrants a caution in any instruction that invites jurors to make their own
    comparison, the instruction is nonetheless proper and should have been given
    here. It was wrong to tell the jury to ignore the defence submission that they
    should do their own comparative analysis.

[83]

The respondent says that the instruction to
    disregard defence counsel's closing submission on this issue was well placed.
    The submission was unsupported by any evidence. Neither the owner nor Davidson
    testified. There was no expert evidence about authorship or multiple
    authorship. The property manager said nothing about this forms authors, only
    about the general practice.

The Governing Principles

[84]

At common law, proof of handwriting could be
    made by testimonial or circumstantial evidence. For example, a witness might testify
    that they saw the act of writing. Or they might give evidence of the
    circumstances leading up to or pointing back to the act of writing. In a
    similar way, a qualified witness may testify about the style of the handwriting
    which requires a comparison between known and the disputed writing:
VII
    Wigmore on Evidence (Chadbourn Rev. 1978)
,
§
1991, at pp. 252-57.

[85]

The common law also permitted the trier of fact,
    without the aid of experts, to compare handwriting samples when a proved or
    admitted standard used for comparison with the disputed writing was already
    properly admitted as evidence for other purposes. No document was admissible
    merely as a standard of comparison with the disputed writing:
R. v. Abdi
(1997), 116 C.C.C. (3d) 385 (Ont. C.A.), at para. 15, citing
VII Wigmore on
    Evidence (Chadbourn Rev. 1978)
, §§1992-1994, at pp. 257-64.

[86]

Under s. 8 of the
Canada Evidence Act
, R.S.C.
    1985, c. C-5, handwriting may be proven by comparison, by expert or lay
    witnesses, of a disputed handwriting with one that has been proved to be
    genuine and which has been received in evidence for the purpose of comparison:
Abdi
,
    at para. 16.

[87]

Section 8 does not oust the common law rule. The
    section does not preclude a trier of fact from comparing disputed handwriting
    with admitted or proved handwriting in documents which are properly in evidence
    and drawing available inferences:
Abdi
, at paras. 22, 23 and 25.

The Principles Applied

[88]

I would not give effect to this submission.

[89]

This instruction arose out of something said by
    defence counsel in his closing address to the jury. He suggested that the Confidential
    Resident Information Form admitted in evidence in connection with UPH01 was
    authored by two different persons. The top or owner part by the owner. And the lower
    or resident part by David Davidson. This submission was unhinged from the
    evidence adduced at trial. There was no evidence of dual authorship, nor any
    evidence of specific authorship. The submission invited impermissible
    speculation, not permissible inference. The trial judge was right to tell the
    jury to ignore this submission.

[90]

Defence counsel did not seek an instruction that
    invited the jury to conduct its own comparative analysis. They were not
    entitled to do so for the purpose of finding that the document was written by
    the owner and Davidson to the exclusion of the appellant. The reason is simple.
    Comparative analysis compares known with disputed. There was no known in
    evidence here, thus nothing with which the jurors could compare the disputed
    writing. That two different hands may have been at work was of no assistance to
    the appellant absent evidence pointing to whose hands those were.

[91]

This claim of error fails.

D. Hearsay and the Motive to Fabricate

[92]

This argument originates in what is said to be a
    misapprehension of evidence incorporated in the trial judge's evidentiary
    review in her charge to the jury. And in an instruction to the jury to
    disregard the submission made by defence counsel in his closing address.

The Evidence

[93]

The property manager testified that he did not
    know and would not recognize either David Davidson or the appellant as
    residents of UPH01. He had had no contact with them. He described both as exemplary
    residents" based on his lack of contact with them.

[94]

A police officer subsequently testified that he
    met the property manager at the condominium on June 18, 2015, about four days
    before the search warrant was executed. His purpose was to obtain more
    information about UPH01. At that time, the property manager had said others had
    received complaints about frequent traffic to the penthouse by people who left
    shortly after their arrival. These visitors, it was said, did not follow proper
    entrance procedures and were belligerent with staff.

[95]

In adducing this evidence from the officer, the
    trial Crown pointed out to the witness that these reports were second-hand,
    double hearsay. The officer agreed. He also admitted that he could not attest
    to the accuracy or truthfulness of these second-hand reports.

[96]

The officer was cross-examined on the
    differences between his evidence and that of the property manager concerning
    the character of the residents of UPH01 and the timing of the officer's visit.
    It was not explicitly suggested to the officer that he had a motive to lie
    about these complaints to shore up his case to obtain a search warrant.

The Jury Address

[97]

In his closing address to the jury, defence
    counsel contended that the officer had a motive to lie about these complaints
    involving the appellant and UPH01. The motive was that a report of complaints
    of this nature, which was dramatically opposed to the evidence of the property
    manager, enhanced the case for a
CDSA
search warrant because the
    frequent brief visits were consistent with a drug trafficking operation.
    Counsel argued that the evidence of the property manager, that the residents of
    UPH01 were exemplary residents", represented the true state of affairs.

The Charge to the Jury

[98]

In her summary of the evidence of the officer,
    the trial judge summarized the officer's account of the conversation with the
    property manager on June 18, 2015 and his role as the affiant in the ITO to
    obtain the search warrant. She mentioned his evidence about obtaining the Confidential
    Resident Information Form on June 18, 2015 (the property manager did not recall
    when he turned over the form to the police) and his denial of misunderstanding
    or exaggerating information about the complaints.

[99]

The trial judge told the jury to disregard
    defence counsel's submission that the officer had a motive to fabricate the
    evidence about the reported complaints.

The Arguments on Appeal

[100]

The appellant says that the conflict in the evidence between the
    property manager and the officer provided an air of reality for the submission
    that the officer had a motive to lie about the reported complaints  to bolster
    his case for the issuance of a search warrant for the residential and storage
    units. It follows, according to the appellant, that the trial judge erred in
    instructing the jury to ignore the defence position.

[101]

This error, the appellant submits, was aggravated by the failure of
    the trial judge to instruct the jury to ignore the evidence of reported
    complaints as recounted by the officer. This evidence was hearsay, thus
    inadmissible for the truth of its contents, unless the Crown established that
    it should be received under a listed or the principled exception. No such
    attempt was made. It should have attracted a mid-trial and final instruction limiting
    its use. In combination, these failures require a new trial.

[102]

The respondent acknowledges that the trial judge erred in the date
    she assigned to the officer's receipt of the Confidential Resident Information
    Form. The officer picked it up
after
execution of the search warrant,
    not on June 18, 2015, as the trial judge told the jury. The respondent also
    accepts that tendered in proof of the truth of what was reported, frequent
    brief attendance by others at UPH01, the evidence was hearsay and inadmissible
    except under an established exception.

[103]

However, the respondent says neither the misdescription of the date
    nor the evidence of reported complaints caused the appellant any prejudice. (The
    misdescription occurred in a summary of the witness' evidence, not a legal
    instruction about its use or an essential element of any offence with which the
    appellant was charged.) When the complaint evidence was introduced, Crown
    counsel characterized it as double hearsay which had not been verified by the
    officer.

[104]

The respondent contends that the trial judge did not err in telling
    the jury to ignore the submission of defence counsel that the officer had a
    motive to lie. Without more, discrepant recollections about the fact or
    substance of a conversation do not give rise to a motive to lie. It is all the
    more so where no such suggestion was ever put to the witness said to have the
    motive.

The Governing Principles

[105]

The principles at work here are neither controversial nor in need of
    lengthy recitation.

[106]

It is uncontroversial that evidence of what the property manager
    told the police officer about what others had said about frequent traffic and
    brief stays at UPH01 tendered to prove that those visits occurred offended the
    hearsay rule.

[107]

Equally uncontroversial is the principle that any party who seeks to
    tender relevant and material evidence that is
prima facie
inadmissible
    bears the burden of establishing its admissibility.

[108]

But sometimes in a criminal case, evidence is received that is
    irrelevant, immaterial or inadmissible and should properly have been excluded.
    When this happens, a trial judge must consider whether jurors should be
    instructed to inoculate against improper use of this evidence in reaching their
    verdict: see, for example,
R. v. Van
, 2009 SCC 22, [2009] 1 S.C.R.
    716, at para. 33. Failure to give a limiting instruction where required is not
    always fatal. Some omissions occasion no substantial wrong or miscarriage of
    justice:
Van
, at para. 34.

[109]

The motive of a witness to testify is a subject that may be explored
    in cross-examination. For example, a witness may be cross-examined about
    circumstances that tend to show bias, interest or corruption. The witness'
    denials may be contradicted by evidence as an exception to the collateral facts
    rule: see, for example,
Attorney General v. Hitchcock
(1847), 1 Ex.
    91;
McDonald v. The Queen
, [1960] S.C.R. 186, at p. 191; and
R. v.
    S. (A.)
(2002)
, 165 C.C.C.
    (3d) 426 (Ont. C.A.), at para. 32.

[110]

In general terms, a party who intends to impeach a witness called by
    an opposite party must give the witness an opportunity, while the witness is in
    the witness box, to provide any explanation the witness may have for the
    contradictory evidence. This rule, the rule in
Browne v. Dunn
as it
    has come to be known, reflects a confrontation principle in the context of
    cross-examination of a witness for a party opposed in interest on disputed
    factual issues:
R. v. Quansah
, 2015 ONCA 237, 323 C.C.C. (3d) 191, at para.
    76, leave to appeal refused, [2016] S.C.C.A. No. 203.

[111]

The rule in
Browne v. Dunn
is rooted in considerations of
    fairness:

i.

to the witness whose credibility is attacked, by
    alerting the witness to the intended impeachment and offering the witness the
    opportunity of explanation;

ii.

to the party whose witness is impeached, by
    providing notice, thus the opportunity to decide about introducing confirmatory
    evidence; and

iii.

to the trier of fact, by ensuring that it is not
    deprived of the full picture of the impeachment and its response, thus not
    compromising the accuracy of its verdict.

See
Quansah
, at para. 77.

The Principles Applied

[112]

I would reject this ground of appeal in each of its aspects as
    advanced by the appellant.

[113]

First, misapprehensions of evidence.

[114]

A significant portion of the trial judge's charge consisted of an
    undifferentiated serial review of the evidence adduced at trial. Witness by
    witness. In the order in which they testified. This method of summing up a case
    to the jury is unsatisfactory, for a number of reasons. It ignores the
Jacquard
instruction to decant and simplify: at para. 13. It is not faithful to the
Azoulay
obligation to review the
salient

features
or substance of the
    evidence and to
relate
them to the issues so that the jury appreciates
    the value and effect of the evidence:
Azoulay v. The Queen
, [1952] 2
    S.C.R. 495, at pp. 497 (
per
Taschereau J.), 503 (
per
Estey J.).
    And, as has been better said elsewhere, it is soporific: see
R. v. Charles
(1979), 68 Cr. App. R. 334 (C.A.), at pp. 338-39.

[115]

It was during the course of this serial review of the evidence that
    the trial judge is said to have been in error about two items of evidence.

[116]

The trial judge did err in the date she assigned to a police
    officer's attendance at the condominium to pick up a copy of the Confidential
    Resident Information Form the officer had first seen in March 2015. He then
    made note of the details but did not pick up the form until sometime
after
execution of the warrant on June 22, 2015  not on June 18, 2015, as the trial
    judge described it.

[117]

The second alleged error relates to the property manager's evidence
    about the appellant and David Davidson as exemplary residents". The trial
    judge used the phrase at that time" in connection with this evidence.
    What remained clear from the trial judge's summary of the property manager's
    evidence was that he had never seen either the appellant or Davidson and there
    were no complaints about them".

[118]

Errors in the recitation of evidence in a charge to the jury are
    different than misapprehensions of evidence that appear in a judge's reasons
    for judgment in a judge-alone trial. Judicial references to the evidence in a
    jury trial serve as an
aide

memoire
for jurors. They are designed to assist the jury in their recollection of the
    evidence. As each charge makes clear, it is the jurors' recollections that
    control, not those of the trial judge. Misapprehensions of evidence in a judge-alone
    trial, on the other hand, may be material, play an essential part in the
    reasoning process leading to the verdict and result in a miscarriage of
    justice.

[119]

In this case, neither reference had any relevance to any essential
    element of any offence with which the appellant was charged. They occurred in a
    recital of the judge's recollection of the evidence at trial. The recital, it
    was repeatedly pointed out, was subject to the recollection of the court of
    last resort on issues of fact  the jury. Accordingly, this claim fails.

[120]

Second, hearsay.

[121]

As evidence that frequent brief visits to UPH01 took place at night
    and that the visitors were obnoxious with security and rule-aberrant, the
    evidence attributed to the property manager was inadmissible hearsay. But
    nothing came of it. The trial Crown characterized it as hearsay and double
    hearsay and made it clear when the evidence was given that it had not been
    verified as truthful. It formed no part of the closing address of the trial Crown.

[122]

Finally, the motive to lie.

[123]

This issue was raised for the first time in the closing address of
    defence counsel. The suggestion was that the officer lied about the alleged
    complaints concerning visitors to UPH01 to bolster the officer's grounds for
    the search warrant. This allegation was not put to the officer in
    cross-examination. In these circumstances, the instruction given does not
    reflect error.

Conclusion on Ground #1

[124]

As I have explained, I would reject each discrete allegation of
    error advanced in connection with the first ground of appeal. Their rejection
    would seem to compel the same conclusion in respect of the argument that the
    charge was unfair and unbalanced. However, I acknowledge that a charge to the
    jury may be unfair and unbalanced despite the absence of any specific legal
    error.

[125]

A claim of imbalance or unfairness in a jury charge requires an
    assessment of the instructions as a whole in light of the evidence adduced and
    the positions put forward by the parties at trial:
R. v. Paredes
, 2014
    ONCA 910, 317 C.C.C. (3d) 415, at para. 41.

[126]

Read as a whole, the jury instructions do not convey the impression
    that the trial judge was navigating the jury towards conviction. Her recitation
    of the principles governing proof of the essential elements of the various offences
    charged were free of error. Defence counsel advanced no objection based on
    unfairness. The positions of the parties received equal treatment. In no sense
    was the cause of the Crown promoted and that of the defence denigrated.

[127]

In my respectful view, the first ground of appeal fails.

Ground #2: The Mid-Trial
Charter
Application

[128]

The second ground of appeal alleges that the trial judge erred in
    failing to permit trial counsel to bring an application under s. 8 of the
Charter
at trial.

The Background

[129]

A brief summary of the circumstances giving rise to the application
    is sufficient to frame the discussion that follows.

The Judicial Pre-Trial

[130]

As a jury trial, a pre-hearing conference was mandatory under s.
    625.1(2) of the
Criminal Code
,
    R.S.C., 1985, c. C-46
. The Report to Trial Judge completed by the
    judge presiding at the pre-hearing conference indicated that defence counsel
    would be raising an issue about the search warrants description of the storage
    unit to be searched. When the pre-hearing conference was held, the appellant
    and David Davidson were jointly charged and to be jointly tried.

The Pre-Trial
Charter
Application

[131]

When the parties appeared on the scheduled trial date, they
    indicated that they were ready for trial. There were no pre-trial
Charter
applications. A jury was selected. The trial began.

The Application at Trial

[132]

In the middle of trial, after the property manager at the
    condominium and several police officers involved in the investigation, arrest
    and search had testified, the officer in charge of the investigation was called
    as a witness. The day after he concluded his testimony, defence counsel sought
    to challenge the reasonableness of the search of the storage unit on the basis
    that there was a discrepancy between the place described in the warrant (locker
    1322) and that searched according to the officer (LUP22).

[133]

The residential unit occupied by David Davidson and the appellant
    was located on the 13th floor of the condominium building. The building had
    only 13 floors, although floor 13 appears to have been designated as 14 or UPH.
    The storage unit for UPH01 was very close to the residential unit. It appears
    that there is no storage unit 1322, only storage unit LUP22, although the
    officer in charge of the investigation said he did not confirm whether there
    was a storage unit 1322 at the time of the search.

[134]

The defence application was unsupported by any written material. No
    notice of application. No copy of the search warrant or ITO. Oral submissions
    only. The Crown resisted the application for want of timeliness, failure to
    comply with the
Criminal Proceedings Rules for the Superior Court of
    Justice (Ontario)
, S.I./2012-7, and the significant prejudice that would
    ensue from the interruption of trial proceedings in their penultimate stage and
    the need to recall several witnesses who had already testified and entered as
    exhibits the products of the search.

The Ruling of the Trial Judge

[135]

In brief reasons, the trial judge declined to undertake a full
    hearing of the application. She was satisfied, on the basis of the evidence
    already admitted at trial, that the correct storage unit had been searched. At
    worst, there had been a technical breach because of a misdescription of the
    number of the storage unit. The evidence obtained in the search would
    nonetheless be admissible under s. 24(2) of the
Canadian Charter of Rights
    and Freedoms
, Part I of the
Constitution
    Act, 1982
, being Schedule B to the
Canada
    Act 1982
(U.K.), 1982, c. 11
.
    Thus, a full hearing of the application was not required.

The Arguments on Appeal

[136]

The appellant accepts that it is generally incumbent upon an accused
    who alleges that evidence has been obtained by
Charter
infringement to
    challenge its admissibility before it is tendered at trial. The usual practice
    in a jury trial is to do so by a pre-trial application before the jury is
    selected. But the general rule permits of exceptions. The trial judge has a
    discretion, where the interests of justice warrant it, to permit the issue to
    be raised later, as for example, where evidence adduced at trial puts in issue
    the admissibility of evidence already given.

[137]

In this case, the appellant says, the investigating officer's
    testimony differed from his notes. The appellant believed that the officer had
    sought confirmation of the storage unit number before the search had begun, but
    his testimony disclosed that the search had begun before confirmation had been
    received. On this basis, the search was warrantless and the trial judge should
    have undertaken an evidentiary hearing.

[138]

The respondent says that it does not follow from a simple request
    for a
voir dire
that the party who seeks it is entitled to a full
    hearing. In the exercise of their trial management powers, trial judges are
    entitled to consider whether there is any reasonable prospect that the
    application will succeed. This is all the more so when the application is made
    in the waning moments of a criminal jury trial.

[139]

In the exercise of their case management authority, the respondent
    continues, trial judges are entitled to ask for and receive a summary of the
    evidence on which the proposed application is based and the authorities relied
    upon in support of the application. Where the judge is satisfied that the
    proposed application has no reasonable prospect of success, the judge is
    entitled to dismiss the application without a formal hearing.

[140]

In this case, the respondent submits, the application was not raised
    until the seventh day of trial. The case for the Crown was all but completed.
    Two witnesses remained. An expert in street-level distribution of controlled
    substances. And a former co-accused who, in the end, was not called as a
    witness. No pre-trial
Charter
applications had been made, despite a
    discussion at the pre-hearing conference. Defence counsel had advised the Crown
    in writing that no applications would be made at trial. The trial judge heard
    submissions from the parties. She concluded that the proposed application had
    no reasonable prospect of success. Her decision is subject to deference in this
    court. And on the merits, the decision was right.

The Governing Principles

[141]

The governing principles are uncontroversial and in no need of
    elaborate recital.

[142]

About three decades ago, this court made it clear that objections to
    the admissibility of evidence tendered by a party must be made before or when
    the evidence is proffered. This principle applies whether the alleged
    impediment is a common law or statutory rule or a constitutional infringement:
R.
    v. Kutynec
(1992), 70 C.C.C. (3d) 289 (Ont. C.A.), at pp. 294-95. This is
    so that the litigants, among them the Crown, can know when they tender or
    consider the tender of evidence whether the opposite party objects to its
    reception. Were it otherwise, the orderly and fair operation of the criminal
    trial process would be compromised, and
ex post facto
exclusion
    renders the trial process unwieldy at best. In a jury trial, the process could
    become inoperative, with a mistrial the potential result:
Kutynec
, at pp.
    295-96.

[143]

It is commonplace in jury trials in this province that applications
    to exclude evidence, irrespective of the genesis of the challenge, are brought,
    heard and determined at the outset of proceedings before jury selection. This
    is expressly authorized by s. 645(5) of the
Criminal Code
and
    underlies the enactment of the subsection: compare
R. v. Dietrich
(1970),
    1 C.C.C. (2d) 49 (Ont. C.A.), leave to appeal refused, [1970] S.C.R. xi.

[144]

Pre-trial determination of admissibility issues settles the
    evidentiary landscape for trial. It avoids disruption of trial proceedings,
    promotes trial economy, and minimizes juror distraction and inconvenience. It
    also makes prudent use of limited court resources.

[145]

Rule 31 of the
Criminal Proceedings Rules
for the Superior
    Court of Justice (Ontario)
governs applications to exclude evidence that is
    presumptively admissible at common law. Rule 31.01(c) makes it clear that the
    rule applies to applications to exclude evidence alleged to have been obtained
    by constitutional infringement where the exclusion is sought under s. 24(2) of
    the
Charter
. Procedural requirements include filing a notice of
    application not less than 30 days before the day first scheduled for pre-trial
    motions or the trial. Factums are not, but may be, required. However, the
    applicant must file the notice of application, a book of authorities and an application
    record.

[146]

Under r. 34.02, the trial judge may conduct a preliminary assessment
    of any application on the basis of the materials filed. If the trial judge is
    satisfied that there is no reasonable prospect that the application could
    succeed, the judge may dismiss the application without further hearing or
    inquiry.

[147]

In addition to the specific authority for which r. 34.02 provides, a
    trial judge has the undoubted authority to control the trial proceedings to
    ensure fairness to all concerned and preserve the integrity of the trial
    process. In the exercise of this inherent power, a trial judge may decline to
    entertain a motion brought without or on inadequate notice to the opposite
    party. This includes motions to exclude evidence based on
Charter
infringements:
R. v. Loveman
(1992), 71 C.C.C. (3d) 123 (Ont. C.A.), at pp. 125-27;
R.
    v. Cody
, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 38.

The Principles Applied

[148]

For reasons that I will develop, I would not give effect to this
    ground of appeal.

[149]

In this case, defence counsel (not counsel on appeal) sought to have
    the trial judge conduct a
voir dire
to determine whether the search of
    the storage unit was warrantless, and thus unreasonable in breach of s. 8 of
    the
Charter
. The ultimate object of the proposed exercise was the
    exclusion of the evidence obtained during the search, principally drugs (GHB),
    associated paraphernalia and some documents linked to both the appellant and Davidson.

[150]

The
Charter
application, which had been bruited at the pre-trial
    conference, was not brought as a pre-trial motion, but on the seventh day of a
    jury trial in which no more than two witnesses remained in the case for the Crown.
    The evidence to which the application would apply had already been admitted and
    the witnesses who had described the search and its findings had completed their
    testimony. This included entry and exit videos of the search in issue.

[151]

The argument to be advanced, so it would appear, was that the search
    of the storage unit was not conducted in accordance with the warrant because
    the warrant, which was not produced, specified the place of search as storage
    unit 1322, whereas the unit searched was designated LUP22.

[152]

The trial judge's decision that is the subject of the complaint
    involved the exercise of discretion. It is entitled to deference in this court,
    but not immune from review, for errors of law or principle or a conclusion that
    is plainly unreasonable. No such error or unreasonableness has been
    established.

[153]

The appellant had no as-of-right entitlement to a
voir dire
to determine the constitutional integrity of the storage unit search or the
    admissibility of the evidence recovered there. That evidence was relevant,
    material and admissible at trial. Its reception controverted no admissibility
    rule when it was received.

[154]

The appellant's objection was not timely. As we have seen, the time
    to object to the admissibility of evidence is before or when the evidence is tendered
    for reception. That time had long since passed when this application was made.
    The evidence had been admitted. The searching officers had testified. Videos on
    entry and exit of the searched unit had been played and entered as exhibits.
    The remaining witnesses, only one of whom was actually called, had nothing to
    do with the search of the storage unit.

[155]

Despite the timing of the application, the trial judge listened to
    the argument advanced, retired to consider whether to grant the request and
    concluded, for brief reasons, that she would not conduct a full admissibility
    inquiry. She was entitled to reach that conclusion in the circumstances of this
    case.

[156]

The trial judge's management powers required her to control the
    trial proceedings so as to ensure trial fairness to all parties and preserve
    the integrity of the trial process. Trial proceedings had gone on for six days.
    The evidence that was the subject of the proposed inquiry was in the trial
    record. No more witnesses would have anything to say about the search. The case
    for the Crown was almost complete. The appellant had given no notice and filed
    no materials in support of the application. Indeed, the application was
    inconsistent with counsel's previously announced position that there would be
    no applications.

[157]

The trial judge was also entitled to consider the impact of the
    proposed application on the trial process. Exclusion of and inconvenience to
    the jury. The time needed to prepare, serve and file a proper record. The
    recall of witnesses. Argument. Decision. And the consequences of that decision
    on the integrity of the trial proceedings if it resulted in exclusion.

[158]

The trial judge was also entitled to consider the merits of the
    application. There was no suggestion that the search warrant had been
    improvidently granted. Or that the unit searched was not that associated with UPH01.
    Evidentiary exclusion was not in the cards.

[159]

I would reject this ground of appeal.

The Sentence Appeal

[160]

The appellant also appeals the sentence of imprisonment of five
    years imposed by the trial judge. He asks that we reduce the term of
    imprisonment to three years because the trial judge erred:

i.

by misapprehending the evidence in finding the
    appellant made two sales to an undercover officer about four months before arrest
    and relying on this finding as a factor on sentence; and

ii.

by rejecting evidence of the appellants mental health as a
    mitigating factor on sentence.

[161]

The parties agree that we should set aside the victim surcharge of
    $1,600 ordered by the trial judge.

[162]

In our assessment of the fitness of the sentence imposed, our
    analysis begins with the acknowledgment that sentences imposed by trial courts
    are entitled to substantial deference on appellate review:
R. v. Proulx
,
    2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 123, 125. Further, proportionality is
    the cardinal principle that must guide us in considering the fitness of the
    sentence imposed on the appellant. This means that the severity of a sentence
    depends not only on the seriousness of the crime and its consequences, but also
    on the moral blameworthiness of the person who committed it:
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 12.

[163]

Our intervention on an appeal from sentence is only warranted where
    the sentencing judge has erred in principle, failed to consider a relevant
    factor, or erroneously considered an aggravating or mitigating factor and the
    error has had an impact on the sentence imposed:
Lacasse
, at para. 44.
    Our intervention is not justified simply because we would have weighed the
    relevant sentencing factors differently:
Lacasse
, at para. 49, citing
R.
    v. Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 46.

[164]

A sentencing judges choice of a sentencing range, or a category
    within that range, lies within the discretion of the sentencing judge. The
    choice made cannot, on its own, amount to a reviewable error. On review, we are
    disentitled to intervene on the basis that we would have located the sentence
    in a different range or category within that same range. In such cases, our
    intervention is limited to cases in which the sentence imposed is demonstrably
    unfit. A sentence may be demonstrably unfit, despite the absence of error,
    because it is clearly or manifestly excessive or represents a substantial and
    marked departure:
Lacasse
, at paras. 49, 51-52.

[165]

Turning first to the submission that the trial judge erred by
    relying on her misapprehension that the appellant had been involved in two pre-arrest
    drug sales to an undercover police officer as a factor on sentence.

[166]

Evidence was adduced at trial that a sale of cocaine and MDMA to an
    undercover police officer took place in UPH01 about four months before the
    appellant's arrest. When the officer and his source arrived at the penthouse, David
    Davidson admitted them. Davidson walked into bedroom #1, had a conversation
    with an unknown man and came out of the room seconds later carrying a bag with
    brown capsules. It was this same bedroom in which the appellant was found and arrested
    four months later, along with a stash of drugs, cash and a drivers licence.

[167]

The record contains no evidence of a second drug sale to an
    undercover police officer at UPH01. Even if it could be inferred that the
    appellant was the person in bedroom #1 to whom Davidson spoke when he returned
    with the drugs to complete the sale to the undercover officer, there was no
    evidence of the appellants participation in two undercover sales. The trial
    judge erred in finding otherwise.

[168]

Despite this erroneous reference by the trial judge, I would not
    give effect to the submission that this mistake had an impact on the sentence
    imposed.

[169]

The erroneous reference appears only in an introductory portion of
    the reasons for sentence in which the trial judge described the circumstances
    leading up to the appellants arrest. It forms no part of the judges
    discussion of the positions of the parties, the applicable sentencing
    principles, the aggravating and mitigating factors, or the analysis and
    conclusions. It is of no moment to the sentencing decision.

[170]

The second ground of appeal asserts error in the failure of the
    trial judge to consider the appellants mental health as a mitigating factor on
    sentence.

[171]

In some circumstances, the mental illness or mental health of an
    offender may be considered as a mitigating factor on sentence. However, to have
    a material effect as a mitigating factor on sentence, the offender must show a
    causal link between their illness and their criminal conduct. Said in another
    way, the illness must be an underlying reason for the conduct. And there must
    also be evidence that a lengthy sentence would have a serious negative effect
    on the offender such that the sentence should be reduced on compassionate
    grounds:
R. v. Prioriello
, 2012 ONCA 63, 288 O.A.C. 198, at paras. 11-12.

[172]

In this case, the appellant relies upon his own description of a
    prolonged psychotic break"; a letter from his mother expressing concerns
    about the effect of negative minded people" whom the appellant will
    encounter in custody on his progress in life; and a certification from a
    medical practitioner, apparently connected with the appellants attendance at a
    community college. The document contains a primary diagnosis of anxiety
    disorder without further explanation and post-dates the appellant's arrest by
    almost three years.

[173]

However, none of this information on which reliance is placed
    suggests any real link between the appellants mental health and his
    involvement in an apparently well-established, for-profit drug trafficking
    operation. Nor did the information provide any support for a conclusion that a
    lengthy sentence would have a serious negative effect on the appellant. The
    operation offered a full menu of controlled substances. Significant quantities.
    Many Schedule 1 substances. Paraphernalia used for preparation and sale. And
    substantial funds reflecting prior commerce.

[174]

The trial judge did not err in her rejection of the appellants
    mental health as a mitigating factor on sentence. This ground of appeal fails.

Disposition

[175]

For these reasons, I would dismiss the appeal from conviction. I
    would grant leave to appeal sentence but dismiss the appeal from sentence
    except to the extent that I would set aside the victim surcharge of $1,600.

Released: DW April 27, 2021

David Watt J.A.

I agree. M. Tulloch J.A.

I agree. L.B. Roberts J.A.


