2012 NBCA 20, 2012 NBCA 20

COURT OF APPEAL OF NEW BRUNSWICK 41-11-CA ANTHONY WHALEN APPELLANT ANTHONY WHALEN APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Whalen v. R., 2012 NBCA 20 Whalen c.

R., 2012 NBCA 20 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Quigg CORAM : L’honorable juge Richard L’honorable juge Bell L’honorable juge Quigg Appeal from a decision of the Provincial Court: March 17, 2011 (conviction) April 27, 2011 (sentence) Appel d’une décision de la Cour provinciale : Le 17 mars 2011 (déclaration de culpabilité) Le 27 avril 2011 (détermination de la peine) History of Case: Historique de la cause : Decision und er appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: September 22, 2011 Appel entendu : Le 22 septembre 2011 Judgment rendered: February 23, 2012 Jugement rendu : Le 23 février 2012

Counsel at hearing: For the appellant: Anthony Whalen appeared in person For the respondent: Cameron H. Gunn Avocats à l’audience : Pour l’appelant : Anthony Whalen a comparu en personne Pour l’intimée : Cameron H. Gunn THE COURT The appeal against convictions is dismissed, as is the application for leave to appeal sentence. LA COUR L’appel des déclarations de culpabilité est rejeté, tout comme la demande en autorisation d’appel de la peine.

The following is the judgment delivered by THE COURT [1] Anthony Whalen was convicted of four charges under the Controlled Drugs and Substances Act , S.C. 1996, c. 19: (1) unlawfully producing cannabis (marihuana) (s. 7(1)); (2) possessing that substance for the purpose of trafficking (s. 5(2)); (3) unlawfully exporting it from Canada (s. 6(1)); and (4) trafficking (s.5(1)). [2] On April 27, 2011, a judge of the Provincial Court sentenced Mr. Whalen to imprisonment for a total of four years, less 405 days he had spent in remand. In addition, the judge issued ancillary orders under the Criminal Code . Mr.

Whalen appeals the convictions and seeks leave to appeal the sentence. [3] The only seriously disputed issue at trial related to the admissibility of the fruits of a search executed pursuant to a warrant. Mr. Whalen

submits the trial judge erred in upholding the validity of the warrant. As a self-represented appellant, Mr. Whalen also raises grounds of appeal relating to thecompetence of his trial counsel, as well as other grounds that are less clearly defined. [4] The charges against Mr. Whalen arose from an elaboratescheme for the exportation and trafficking of cannabis through the post. The schemewas discovered when a Canada Post employee saw the contents of two envelopes Mr.Whalen had deposited in the mail.

The employee in question, who testified on a voirdire into the validity of the warrant, says the contents became visible because theenvelopes had not been properly sealed. This employee reported her observations,and the information eventually formed the basis upon which a search warrant forMr. Whalen’s home was issued. Upon execution of the warrant, the police foundmuch incriminating evidence against Mr. Whalen. [5] The voir dire into the lawfulness of the search warrantfocused primarily on the truthfulness of the Canada Post employee and whether shemight have in fact opened the envelopes Mr.

Whalen had deposited in the post. Mr.Whalen submitted the informant was not credible. However, the trial judge believedthe witness, stating as follows: I have no hesitation whatsoever in unequivocally accepting the evidence of Mary Home and finding her totally credible in every regard.That is, to the effect the envelopes accidentally opened. [p. 7 of trial transcript, Nov. 10, 2010] [6] Applying the palpable and overriding error standard, areview of the record reveals no basis whatsoever to interfere with the trial judge’scredibility findings.

In any event, the credibility of the informant was not solelydeterminative. The real question to be resolved on the voir dire was whether, in thetotality of the circumstances as set out in the Information to Obtain (the “ITO”) andthe inferences that could properly be drawn, the issuing judge could have beensatisfied that reasonable grounds existed. In ruling on the validity of the searchwarrant, the trial judge applied the law set out in R. v. Allain (S.) (1998), (NB CA), 205 N.B.R. (2d) 201, [1998] N.B.J. No. 436 (C.A.) (QL), andsummarized in Arsenault v.

R., 2009 NBCA 29, 344 N.B.R. (2d) 113, and held therewas some evidence in the ITO upon which the issuing judge could rely to issue thewarrant. This was not a case of a confidential or anonymous informant, which mighthave caused the police to make further investigation. Rather, the police hadinformation from a known witness in circumstances in which there was no reason todoubt its veracity. In these circumstances, it was incumbent upon the police to makea full, fair and frank disclosure in drafting the ITO, but it was not necessary for theofficers to investigate further as to the credibility of the postal worker.

[7] Mr. Whalen also submits the trial judge erred in failing toconsider postal inspecting regulations. The record reveals the trial judge did considerthe arguments advanced on the voir dire and determined these were devoid of anymerit. In our view, the judge was correct. It was not necessary, in the circumstances,to analyse the extent of the powers available under the Canada Post Corporation Act,R.S.C. 1985, c.

C-10, and its regulations, because the trial judge found the postalemployee credible when she stated that she did not open the mail but rather that thecontents had inadvertently spilled out of the envelope. [8] Having upheld the validity of the warrant, and hence thereasonableness of the search, the trial judge did not undertake a s. 24(2) Charteranalysis.

We are convinced that even if the judge had somehow found the ITO to havebeen defective, he would nevertheless have concluded the police officers were actingin good faith in effecting the search because they were acting pursuant to informationthey believed credible and pursuant to a warrant they had every reason to expect wasvalid. Upon balancing the factors set out in R. v.

Grant, 2009 SCC 32, [2009] 2 S.C.R.353, and its companion cases, we are convinced that, in the circumstances of this case,the evidence would have been admitted even if, for some reason, the validity of thewarrant had not been upheld. [9] With respect to Mr. Whalen’s claim regarding theincompetence of his trial counsel, there is no question that his constitutional right to afair trial guarantees him the right to effective counsel.

However, for him to besuccessful on appeal with such a claim, he must establish both that his lawyer’s actsor omissions constituted incompetence, and that a miscarriage of justice resultedfrom that incompetence: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520. TheSupreme Court instructs us that “[i]n those cases where it is apparent that noprejudice has occurred, it will usually be undesirable for appellate courts to considerthe performance component of the analysis” (para. 29). This is one of those cases. Mr.

Whalen has not convinced us he suffered any prejudice as a result of anything hislawyer did or failed to do. [10] Mr. Whalen’s grounds of appeal raise a number of otherissues that have not been well defined before us. In our view, they are all withoutmerit. The only one that deserves particular mention is an argument he raised at thehearing of the appeal to the effect he was denied the opportunity to re-open the voirdire once the taking of evidence had concluded. He claims the judge erred in applyingthe test set out in R. v. Palmer, (SCC), [1980] 1 S.C.R. 759.

On thispoint, we conclude that even if this were so, nothing convinces us that the evidence hewanted to adduce would have made any difference to the judge’s final conclusions. Asa result, we find this ground to also be without merit.

[11] As for the application for leave to appeal sentence, we simply do not see any arguable basis that would justify varying the sentence imposed. This was a very sophisticated and elaborate drug trafficking scheme and the sentence imposed is far from unfit. The application for leave to appeal sentence is therefore dismissed. [12] In sum, the appeal against convictions is dismissed, as is the application for leave to appeal sentence. ________________________________ J.C. MARC RICHARD, J.A. ________________________________ B. RICHARD BELL, J.A. ________________________________ KATHLEEN A. QUIGG, J.A.