R. v. Chartrand, 2023 NSCA 43

Nova Scotia Court of Appeal Citation: R. v. Chartrand , 2023 NSCA 43 Date: 20230614 Docket: CAC 505479 Registry: Halifax Between: Heidi Chartrand Appellant v. His Majesty the King Respondent Judge: The Honourable Justice David P. S. Farrar Appeal Heard: March 23, 2023, in Halifax, Nova Scotia Subject: Constitutionality of s. 5(2) of the Controlled Drugs and Substances Act ( CDSA ) and Access to Cannabis for Medical Purposes Regulations ( ACMPR ); validity of search warrant; motion to introduce fresh evidence; bias of the trial judge; failure to properly assist the appellant; Jordan 11(b); fit and proper sentence;

Summary: The appellant, Heidi Chartrand, operated the Higher Living Wellness Centre in Greenwood, Nova Scotia. The RCMP executed two search warrants on Higher Living—one on the premises itself and the other on its electronic devices. As a result the appellant was charged with two counts of possession for the purposes of trafficking cannabis and cannabis resin pursuant to s. 5(2) of the CDSA . She was sentenced to an 18-month conditional sentence order. The appellant appeals from both conviction and sentence. Issues:

(1) Should the appellant be permitted to introduce fresh evidence?

(2) Did the trial judge err in concluding there was no breach of the appellant's s. 8 Charter rights in relation to the two search warrants?

(3) Did the trial judge err in refusing to hear the appellant's constitutional challenge to s. 5(2) of the CDSA and ACMPR , and did this refusal preclude the appellant from advancing a defence of necessity at trial?

(4) Was there bias on behalf of the trial judge or a failure to properly assist the appellant as a self- represented defendant?

(5) Can the appellant raise a s. 11(

b) Charter delay breach on appeal, and if so was there any unreasonable delay?

(6) Was the sentence handed down by the trial judge a fit sentence?

Result: The motion to introduce fresh evidence was dismissed—it did not meet the Palmer test for admission. The trial judge did not err in finding the CDSA and the ACMPR were constitutionally valid. Nor did she err in finding that the warrants were valid. There is no basis upon which to argue that the trial judge was biased or failed to properly assist the self-represented appellant. The Court declined to enter into a s. 11(

b) Charter analysis on appeal. The appellant did not make a s. 11(

b) application before the trial judge, nor did she make any submissions on it in her factum. Finally, the sentence imposed was fit and proper. Appeal from conviction and sentence dismissed. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 135 paragraphs. Nova Scotia Court of Appeal Citation: R. v. Chartrand , 2023 NSCA 43 Date: 20230614 Docket: CAC 505479 Registry: Halifax Between: Heidi Chartrand Appellant v. His Majesty the King Respondent Judges: Farrar, Scanlan and Van den Eynden JJ.A.

Appeal Heard: March 23, 2023, in Halifax, Nova Scotia Held: Motion for fresh evidence dismissed; appeal dismissed, per reasons for judgment of Farrar J.A.; Scanlan and Van den Eynden JJ.A. concurring Counsel: Heidi Chartrand, appellant, on her own behalf Jude Hall, for the respondent Reasons for judgment: Introduction

[ 1 ] The appellant, Heidi Chartrand, operated the Higher Living Wellness Centre Inc. located in Greenwood, Nova Scotia. On September 21, 2018, a warrant to search the premises was issued by Justice of the Peace, Kelly Shannon, and executed on that same date. The Royal Canadian Mounted Police found cannabis and cannabis resin, cash and advertising signs inside the premises. They also located and seized computers. [ 2 ] In October, the RCMP executed a second search warrant which authorized the search of the seized computers. [ 3 ] As a result of the execution of the search warrants, Ms.

Chartrand was charged with two counts of possession for the purposes of trafficking of cannabis and cannabis resin pursuant to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (“ CDSA ”). [ 4 ] By oral decision on November 5, 2020, Judge Ronda van der Hoek convicted Ms. Chartrand on both charges. On March 4, 2021, the trial judge sentenced her to an 18-month Conditional Sentence Order (“CSO”) [1] . [ 5 ] Ms. Chartrand appeals both her conviction and sentence and seeks to introduce fresh evidence on appeal.

She has been representing herself throughout the trial and the appeal. [ 6 ] For the reasons that follow, I would dismiss the motion to admit fresh evidence and dismiss both the appeal from conviction and the appeal from sentence. Background [ 7 ] This matter has a substantial procedural history which I will set out in some detail in light of the issues raised by Ms.

Chartrand. [ 8 ] The appellant made initial appearances for arraignment, plea and application to vary her conditions of release at Kentville Provincial Court on September 24, 2018, October 23, 2018, November 1, 2018 and November 21, 2018. [ 9 ] On November 21, 2018, the appellant gave notice she intended to apply to quash the Information charging her with the offences. On December 19, 2018, the trial judge dismissed the application to quash.

Also on December 19, 2018, a Replacement Information, naming the appellant and two co-accused, was filed dealing with the same allegations. [ 10 ] On January 15, 2019, the appellant appeared for plea which was adjourned to February 12, 2019. On that day, the original Information with the appellant named singularly was withdrawn and the Replacement Information naming the appellant and two co- accused was before the court. The co-accused entered not guilty pleas and a trial date of July 9, 2019 was set.

The appellant declined to enter a plea as she believed there was a video of her interaction with police and she was seeking disclosure. [ 11 ] On April 4, 2019, the application for disclosure was heard, during which or shortly thereafter all remaining available video materials relating to the matter were located and disclosed to the appellant. [ 12 ] On April 15, 2019, the Information was amended to state that the amount of cannabis and cannabis resin from both charges was less than three kilograms. At this appearance, the trial judge deemed a plea of not guilty on behalf of the appellant.

The trial date of July 9, 2019 remained in place.

The appellant, however, indicated she intended to file notices for both an application concerning breaches of the Charter of Rights and Freedoms (“ Charter ”) in respect of the search warrants and a Constitutional challenge regarding the validity of s. 5(2) of the CDSA and the Access to Cannabis for Medical Purposes Regulations , S.O.R./2016-2309 (“ ACMPR ”). [ 13 ] On May 7, 2019, the appellant filed her Notice of Constitutional Question and Charter challenge to the search warrants. [ 14 ] On May 15, 2019, at a pre-trial conference, the appellant was given a filing date of June 5, 2019 for a combined brief laying out particulars for both the Constitutional Question and Charter applications.

The trial date of July 9, 2019 remained in place. [ 15 ] At a June 19, 2019 pre-trial conference, the appellant’s request for an extension of time to complete her supporting brief, due June 5, 2019, was granted. The respondent expressed concerned about delay and opposed any extension or adjournment of the assigned trial dates. The appellant was of the opinion that delay was not an issue at that time. The July 9, 2019 trial date for the appellant and her co-accused was released and converted to a filing date for the appellant. July 17, 2019 was set as a pre-trial conference date.

The trial was rescheduled to September 25, 2019. [ 16 ] At the July 17, 2019 pre-trial conference, the respondent took issue with the types of materials the appellant had filed in support of her Constitutional Question. The trial judge agreed and advised the appellant she should file affidavits from her anticipated witnesses and provide an outline of their intended testimony. [ 17 ] At this same pre-trial conference it was determined that a similar Constitutional Question was being considered by Justice Joshua Arnold of the Nova Scotia Supreme Court dealing with another s. 5(2) cannabis dispensary prosecution.

It was felt the findings in that case would be of relevance to the appellant’s application. The trial judge noted the respondent’s concern about further delay, but decided there was value in having the decision of Justice Arnold on the Constitutional Question. [ 18 ] After hearing from the appellant, respondent and the co-accused defence counsel on availability, the trial judge set dates of December 20, 2019 to hear the Constitutional Question, January 30, 2020 for the Charter application to challenge the warrants, and February 5, 2020 for trial.

A pre-trial conference was set for September 25, 2019, instead of using that day for the trial. [ 19 ] On September 25, 2019, one of the co-accused’s lawyers indicated he was unavailable on February 5, 2020. The trial date was changed to March 2, 2020. Counsel for the co-accused confirmed at that time they were not making pre-trial applications. [ 20 ] On December 20, 2019, the date set for the Constitutional Question hearing, it was determined that the appellant had not properly served the Attorney General of Nova Scotia. The trial judge ruled the Constitutional Question could not be heard until proper

service was complete. Additionally, the trial judge indicated to the appellant that citing various articles in her Motion to Amend theConstitutional Question without any intention to call the authors of those articles to give evidence at a hearing was not acceptable froman evidentiary point of view. [21] On December 19, 2019, the Crown gave notice that it would be seeking to have the Constitutional Question summarilydismissed based on the principles set out by the British Columbia Court of Appeal in R. v. Vukelich, (BC CA), 108C.C.C. (3d) 193 (BCCA), as endorsed by the Supreme Court of Canada in R. v.

Pires and R. v. Lising, 2005 SCC 66 , [2005] 3S.C.R. 343. [22] On January 15, 2020, the appellant appeared to provide a status report on the Constitutional Question application. Service ofthe Attorney General of Nova Scotia was now perfected. The date to hear the respondent’s Vukelich application, and potentially to hearthe Constitutional Question itself, if the Vukelich application failed, was pushed to January 30, 2020.

The Charter challenge to thewarrants was set for March 2, 2020, and a new trial date was put in place for March 30, 2020. [23] At the next appearance on January 30, 2020, the trial judge determined the court would hear the respondent’s Vukelichapplication on March 2, 2020. The appellant was given a date of February 17, 2020 to respond to the Vukelich application. It wasdecided that the March 2, 2020 date would also be used as a hearing for the appellant’s Charter application to challenge the searchwarrants.

The trial date of March 30, 2020 remained in place. [24] In advance of the March 2, 2020 application, the appellant filed a Record of Motion for a Garofoli application for leave tocross-examine the affiant on the Information to Obtain (“ITO”) that supported the search warrants. She also filed a factum and heraffidavit. [25] On March 2, 2020 the trial judge heard the respondent’s Vukelich application.

The trial judge granted the application anddismissed the appellant’s Constitutional Question and Motion to Amend Constitutional Question. [26] At this same appearance, the trial judge proceeded to hear the appellant’s Garofoli application and her challenge to the searchwarrants. [27] The trial judge did not grant leave to the appellant to cross-examine the affiant on the search warrant ITOs. She then found thesearch warrants to be valid and dismissed the appellant’s Charter application.

The trial date of March 30, 2020 was confirmed. [28] The March 30, 2020 trial did not proceed as the COVID pandemic closed in-person court appearances in Nova Scotia. [29] On June 29, 2020, the appellant appeared with the co-accuseds’ counsel, and the trial judge set dates of September 17 and 18,2020 for trial with a pre-trial conference date of August 17, 2020. [30] In the intervening timeframe, and prior to the trial, the appellant filed a series of documents requesting exclusion of evidence,Motion for Charter 24(2) Exclusion of Evidence, three supporting affidavits, Written Representation, and Memorandum of Fact of Law,requesting further pre-trial applications. [31] The trial judge at the August 17, 2020 pre-trial conference ruled there was no merit to any of these pre-trial applications andthe trial proper would commence as scheduled on September 17 and 18, 2020.

She found the motions and applications largely repeatedthe earlier Garofoli motion, which had been dismissed on March 2, 2020, or were the subject of issues the court could not properlyaddress as pre-trial applications. [32] The trial commenced on September 17, 2020, and continued with evidence called by the respondent on September 18, 2020.The respondent called three witnesses and tendered various exhibits at trial. Neither the appellant, nor co-accused, called any evidence indefence.

October 9, 2020 was selected as a return date for closing submissions of all parties. [33] Closing submissions were heard on October 9, 2020. The matter was then set down for decision on November 5, 2020. [34] On November 5, 2020, the trial judge dismissed the charges against the co-accused, and returned convictions on both chargesagainst the appellant. The trial judge found the following: (

a) RCMP initiated an investigation into Higher Living Wellness Incorporated located at 1113 Argus Drive, Greenwood, NovaScotia following complaints it was a cannabis dispensary. (

b) Police attended the premises and located and seized products from a locked room, which upon subsequent testing wereconfirmed to be marihuana and marihuana resin. Some of the products had prices on them. The products were for sale. Police also foundcash, posters, video machines, computers, refrigerators, a display cabinet, and a price list for edibles on top of a refrigerator. (

c) There were other rooms in the premises that contained information on the consumption and use of marihuana, a smokinglounge and various paraphernalia for consuming marihuana such as bongs, which are legal for sale. (

d) Forensic examination of computers seized at the premises revealed that the appellant had a joint bank account with HigherLiving. The computers also contained documents of the appellant’s personal bank account. (

e) The appellant had control over Higher Living, and the premises at 1113 Argus Drive are Higher Living’s because that nameis on the front door of the establishment. [35] The appellant returned to court for sentencing submissions on November 12, 2020. The respondent and appellant made theirrespective submissions and the trial judge put the matter over to December 9, 2020 for her decision, and to allow the appellant andrespondent to file sentencing briefs, and any ancillary sentencing materials.

[ 36 ] On December 9, 2020, instead of giving a decision on sentence, the trial judge ordered a Pre-Sentence Report be completed for the appellant, with a return date of February 12, 2021 for sentencing. [ 37 ] The appellant filed a sentencing brief with letter to the trial judge on or about February 10, 2021. On February 12, 2021, the appellant and respondent made further submissions and the appellant claimed a conviction would result in the loss of her license as a massage therapist with the Massage Therapist Association of Nova Scotia.

The trial judge further deferred pronouncing sentence and ordered the PSR author to look into the implications of conviction on the appellant’s massage therapy licence. A return date for sentence was set down for March 4, 2021. [ 38 ] It was not established a criminal conviction would result in the appellant losing her massage therapy license. [ 39 ] On March 4, 2021, the trial judge sentenced the appellant to an 18-month CSO, and issued a 12-month probation and forfeiture order that included all offense related property. Issues [ 40 ] The appellant lists the following three issues in her factum: 1.

Did the trial judge err in not finding that a violation of s. 8 of the Charter occurred when an erroneous and factually impossible search warrant was executed by the RCMP, and the exclusion of the evidence was denied? 2. Did the trial judge err in not finding that a violation of s. 8 of the Charter occurred when an electronic warrant with an erroneous and factually impossible issue date was executed by the officers who did not note the error? 3.

Did the trial judge err in not requiring the Crown to prove both elements of the offence ( mens rea and actus rea ) were occurring at the same time to find guilt beyond a reasonable doubt, when the Appellant’s s. 7 Charter application was dismissed, precluding a necessity defence under s. 8(3) of the Criminal Code ? [ 41 ] In various areas of her factum, as well as in her original Notice of Appeal, the appellant raises a number of additional issues that are not expressly listed as a ground of appeal. I will address all the issues raised on appeal and reframe them as follows: 1.

Should the appellant be permitted to introduce fresh evidence? 2. Did the trial judge err in concluding there was no breach of the appellant’s s. 8 Charter rights in relation to the two search warrants? 3. Did the trial judge err in refusing to hear the appellant’s constitutional challenge to s. 5(2) of the CDSA and ACMPR , and did this refusal preclude the appellant from advancing a defence of necessity at trial? 4. Was there bias on behalf of the trial judge or a failure to properly assist the appellant as a self-represented defendant? 5. Can the appellant raise a s. 11(

b) Charter delay breach on appeal, and if so was there any unreasonable delay? 6. Was the sentence handed down by the trial judge a fit sentence? Standard of Review Issue 1: Should the appellant be permitted to introduce fresh evidence? [ 42 ] The first issue does not involve an appellate standard of review. I will set out the test to be applied when considering the introduction of fresh evidence later in these reasons.

Issue 2: Did the trial judge err in concluding there was no breach of the appellant’s s. 8 Charter rights in relation to the two search warrants? [ 43 ] The standard of review on this issue was recently stated by this Court citing R. v. Farrah , 2011 MBCA 49 (Man. C.A.), in R. v. Campbell , 2018 NSCA 42 : [17] The standard of review with respect to alleged Charter breaches was discussed by this Court in R. v. West , 2012 NSCA 112 . The Court endorsed the standard as articulated by the Manitoba Court of Appeal in R. v.

Farrah (D.) , 2011 MBCA 49 where Chartier, J.A. (as he then was) wrote: 7 By which standard is this court to review the issue of whether there is a Charter breach? There are several components to this question. They are as follows:

a) When examining a judge’s decision on whether a Charter breach occurred, the appellate court will review the decision to ensurethat the correct legal principles were stated and that there was no misdirection in their application. This raises questions of law and thestandard of review is correctness.

b) The appellate court will then review the evidentiary foundation which forms the basis for the judge’s decision to see whetherthere was an error. On this part of the review, the judge’s decision is entitled to more deference and, absent palpable and overridingerror, the facts as found by the judge should not be disturbed (see Grant at para. 129).

c) The appellate court will also examine the application of the legal principles to the facts of the case to see if the facts, as found bythe judge, satisfy the correct legal test. In the criminal law context, this is a question of law and the standard of review is correctness (seeR. v. Shepherd, 2009 SCC 35 at para. 20, [2009] 2 S.C.R. 527).

d) The decision on whether to exclude under s. 24(2) of the Charter is an admissibility of evidence issue which is a question of law.However, because this determination requires the judge to exercise some discretion, “considerable deference” is owed to the judge’s s.24(2) assessment when the appropriate factors have been considered (see Grant at para. 86, and R. v. Beaulieu, 2010 SCC 7 at para. 5,[2010] 1 S.C.R. 248).

Issue 3: Did the trial judge err in refusing to hear the appellant’s constitutional challenge to s. 5(2) of the CDSA and ACMPR, and did thisrefusal preclude the appellant from advancing a defence of necessity at trial? [44] The standard of review is one of deference to the trial judge’s discretion to dismiss a Charter application. Absent an argumenton appeal that demonstrates the discretion was not exercised judicially a court should not disturb the ruling. This Court set out thisstandard of review in R. v.

Greenwood, 2022 NSCA 53: [146] The decision to summarily dismiss a Charter claim is discretionary and attracts deference on appeal. In R. v. Orr, 2021 BCCA42, the court explained why this is so: [53] The standard of appellate review governing the

summary dismissal of a Charter claim was set out this way by Bennett J.A. inVickerson: [61] The discretion to decline to hold a voir dire is founded in the need for trial judges to control the course of proceedings and to notembark upon enquiries that will not assist the real issues in the trial: M.B. at para. 45. These case management powers are a critical toolthat trial judges should use to minimize delay: R. v.

Cody, 2017 SCC 31 at para. 38, citing Vukelich with approval on this point. [62] Absent an argument on appeal demonstrating that the trial judge’s discretion in declining to hold a voir dire was not exercisedjudicially, this Court cannot and should not disturb such rulings. [Original emphasis] [54] The importance of the deferential standard cannot be overstated.

As explained by Charron J. in Pires, Lising, without deferenceto the discretionary exercise of case management powers, judges are “likely to embark upon many unnecessary hearings rather than riskvitiating an entire trial,” and the trial court’s “power to control the proceedings then becomes more illusory than real” (at para. 47). Sucha result would be antithetical to the increased jurisprudential calls to avoid unnecessary delay in criminal proceedings and the “specialrole” judges play in heeding that call: R. v.

Jordan, 2016 SCC 27 at paras. 41, 45, 114, 116, 139; Cody at paras. 1, 36-39; R. v.Thanabalasingham, 2020 SCC 18 at para. 9. [147] In R. v. Cody, 2017 SCC 31, the Supreme Court of Canada emphasized the importance of trial judges exercising their casemanagement powers to minimize delay: [38] In addition, trial judges should use their case management powers to minimize delay. For example, before permitting anapplication to proceed, a trial judge should consider whether it has a reasonable prospect of success.

This may entail asking defencecounsel to summarize the evidence it anticipates eliciting in the voir dire and, where that

summary reveals no basis upon which theapplication could succeed, dismissing the application summarily (R. v. Kutynec (1992), (ON CA), 7 O.R. (3d) 277(C.A.), at pp. 287-89; R. v. Vukelich (1996), (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.)). And, even where anapplication is permitted to proceed, a trial judge’s screening function subsists: trial judges should not hesitate to summarily dismiss“applications and requests the moment it becomes apparent they are frivolous” (Jordan, at para. 63). This screening function appliesequally to Crown applications and requests.

As a best practice, all counsel — Crown and defence — should take appropriateopportunities to ask trial judges to exercise such discretion. [45] Recently, the Supreme Court of Canada in R. v. Haevischer, 2023 SCC 11, set the benchmark for

summary dismissal of aCharter challenge as whether the application is “manifestly frivolous”: [66] I conclude that the appropriate standard for

summary dismissal is whether the underlying application is manifestly frivolous.This standard draws on the case law concerning frivolous applications, as advanced by some parties and interveners, including Mr.Johnston, Mr. Haevischer, the Independent Criminal Defence Advocacy Society, the Canadian Civil Liberties Association, and the TrialLawyers Association of British Columbia. However, it also requires that the flaws in the application are manifestly apparent.

Issue 4: Was there bias on behalf of the trial judge or a failure to properly assist the appellant as a self-represented defendant? [46] The test for addressing whether there was bias on behalf of the trial judge was reviewed by this Court in C.B. v. T.M., 2013NSCA 53:

[31] If a reasonable apprehension of bias arises from a judge's words or conduct, then the judge has exceeded his or her jurisdictionand erred in law: R. v. S. (R.D.), (SCC), [1997] 3 S.C.R. 484 at ¶ 99. In C.H.D. at ¶ 25, Hamilton J.A., for this courtset out the test for reasonable apprehension of bias: 25 The test for a reasonable apprehension of bias is set out in R. v. R.D.S., (SCC), [1997] 3 S.C.R. 484: [31] The test for reasonable apprehension of bias is that set out by de Grandpré J. in Committee for Justice and Liberty v. NationalEnergy Board, (SCC), [1978] 1 S.C.R. 369.

Though he wrote dissenting reasons, de Grandpré J.'s articulation of the testfor bias was adopted by the majority of the Court, and has been consistently endorsed by this Court in the intervening two decades: see,for example, Valente v. The Queen, (SCC), [1985] 2 S.C.R. 673; R. v. Lippé, (SCC), [1991] 2 S.C.R.114; Ruffo v. Conseil de la magistrature, (SCC), [1995] 4 S.C.R. 267.

De Grandpré J. stated, at pp. 394-95: ... the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the questionand obtaining thereon the required information ... [T]hat test is "what would an informed person, viewing the matter realistically andpractically and having thought the matter through conclude.

Would he think that it is more likely than not that [the decision-maker],whether consciously or unconsciously, would not decide fairly." The grounds for this apprehension must, however, be substantial and I ... refus[e] to accept the suggestion that the test be related to the"very sensitive or scrupulous conscience". [Emphasis added] [32] In S. (R.D.) at ¶ 35, the Supreme Court of Canada observed that according to its Commentaries on Judicial Conduct (1991), theCanadian Judicial Council stated at p. 12: True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free toentertain and act upon different points of view with an open mind. [33] According to S. (R.D.), to successfully assert that a judge might be partial, one must demonstrate that the beliefs, opinions, orbiases held by the judge prevent him or her from setting aside any preconceptions and reaching a decision based only on the evidence: 113 Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that thethreshold for a finding of real or perceived bias is high.

It is a finding that must be carefully considered since it calls into question anelement of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrityof the judge, but the integrity of the entire administration of justice. See Stark, supra, at paras. 19-20. Where reasonable grounds to makesuch an allegation arise, counsel must be free to fearlessly raise such allegations.

Yet, this is a serious step that should not be undertakenlightly. [Emphasis added] [47] In respect of the claim that the trial judge failed to adequately assist the appellant, this Court must first determine if there wassuch a failure, and if so did the failure gave rise to a miscarriage of justice. Given the extent to which assistance is provided is adiscretionary decision of the trial judge, it is subject to appellate deference (R. v. Woolsey, 2021 BCCA 253). Issue 5: Can the appellant raise an s. 11(

b) Charter delay breach on appeal, and, if so, was there any unreasonable delay? [48] As the trial judge made no decision on this issue no standard of review applies. If this Court choses to make an assessment ofany unreasonable delay in the first instance, it does so in accordance with the principles as recently laid out in R. v. Pearce, 2021 NSCA37.

Issue 6: Was the sentence handed down by the trial judge a fit sentence? [49] The standard of review on sentencing is one of deference to the sentencing judge’s decision, and should only be interfered withwhere the sentence imposed was demonstrably unfit, or where the sentencing judge commits an error in principle, fails to consider arelevant factor, or erroneously considers an aggravating or mitigating factor, and such an error has an impact on the sentence imposed (R.v. White, 2020 NSCA 33).

Analysis Issue 1: Should the appellant be permitted to introduce fresh evidence? [50] The appellant has filed a fresh evidence motion as part of her appeal. Courts recognize two types of fresh evidence, evidencedirected to an issue at trial and evidence directed at other matters such as the regularity of the trial process itself or when an appellantrequests a remedy such as a stay of proceedings (R. v. West, 2010 NSCA 16, at ¶28). [51] The first type of fresh evidence is assessed using the four-step test in R. v. Palmer, (SCC), [1980] 1 S.C.R. 759:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in criminal cases as in civil cases;

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) The evidence must be credible in the sense that it is reasonably capable of belief; and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result.

[ 52 ] The fresh evidence can only affect the result, under Palmer’s fourth factor, if it is admissible under the usual rules of evidence that govern criminal proceedings ( R. v. West , ¶34). In other words, it must be in an admissible form. [ 53 ] For the second type of fresh evidence, the Palmer factors are relaxed and any admission of fresh evidence will depend on the nature of the issue raised. The evidence must still be credible and sufficient ( R. v.

West , at ¶28). [ 54 ] The appellant’s factum contains themes of abuse of process throughout her experience with the criminal justice system, and, in particular, alleges bias on the part of the trial judge. While there is no mention of fresh evidence in the appellant’s factum, or specifically how it may relate to an issue decided at trial, the appellant filed an affidavit attaching a document entitled “Fresh Evidence”.

I will address each of the eight listed “Exhibits” in the document according to both tests for fresh evidence where applicable. [ 55 ] Exhibit 1, Premises Warrant & ITO & Affidavit & Ex Parte Application, and Exhibit 2, Electronics Warrant & ITO, are not fresh evidence. Both of these documents were before the trial judge and referred to during the appellant’s Charter application challenging the search warrants. These documents were not formally tendered as exhibits on the voir dire .

However, they have been included in the Supplementary Appeal Book filed by the respondent. [ 56 ] Exhibit 3, entitled Chris Manning Judicial Appointment, appears to be a printout from a Nova Scotia Courts website. [ 57 ] The printout references the appointment of Chris Manning as a judge of the Nova Scotia Provincial Court on June 4, 2018. Judge Manning signed the warrant to search the electronics. The ITO was sworn on October 10, 2018, the judge granted the warrant to be in effect from October 12, 2018 to May 12, 2019.

However, the warrant is dated the “12th day of May, 2018”, which was approximately five months before the ITO/warrant was filed and before Judge Manning was appointed. The date was clearly a simple clerical error on behalf of Judge Manning.

It is irrelevant to any issue in this appeal. [ 58 ] Exhibit 4, entitled Systemic Abuse, is accompanied by an affidavit from the appellant describing the exhibit, but no affidavit from the author of what is a letter dated July 5, 2022 from RCMP Commissioner Brenda Lucki to the Chair of the Civilian Review and Complaints Commission for the RCMP. [ 59 ] The letter references a complaint regarding Cst. Peter Marshall filed by complainant Jeremy Barton. Neither Cst. Peter Marshall nor Jeremy Barton had any involvement in the appellant’s case.

It appears to be offered as evidence of alleged systemic abuse such as lack of training or adherence to the Criminal Code by the RCMP generally. It is not in an admissible form and is irrelevant. It could not have affected the result. [ 60 ] Exhibit 5 is entitled “Police Misconduct” and appears to consist of: an image of four cellphone location maps; a letter from the RCMP addressed to Mr. Jonathan Jacquard (i.e., a co-accused) about a misplaced cellphone; two Health Canada documents concerning licensing of the appellant under the Marihuana Medical Access Regulations ( MMAR ) and the ACMPR.

It also lists two images and three videos taken by civilians on the day of the appellant’s arrest on September 21, 2018 in Greenwood, Nova Scotia which are separately filed on a USB thumb-drive entitled Exhibit 7. [ 61 ] The materials advanced in Exhibit 5 are not admissible for the following reasons: (

a) There are no affidavits accompanying many of these materials to address their source, purpose, date of creation or authenticity. The only supporting affidavit is from the appellant herself describing the contents of Exhibit 5, which generously applied would only confirm the authenticity of the single image of the appellant filming someone, any videos filmed of her, and the two Health Canada documents in her own name; (

b) Using the second and fourth Palmer test criterion, none of this evidence of alleged police misconduct would pass the test as fresh evidence: • Evidence of police misconduct is not relevant to the trial judge’s dismissal of the appellant’s constitutional challenge to s. 5(2) of the CDSA , nor would it have been relevant in the Charter voir dire on the sufficiency of the ITOs for the search warrants that were drafted, filed and approved before any of this evidence came into existence; • The appellant’s two Health Canada marijuana licences were in existence prior to the drafting of the search warrants and were referred to by the affiant in those documents ( Palmer criterion #1).

Had the appellant attempted to tender these documents in her defence, her licence to possess for personal use 150 grams of cannabis or to possess cannabis plants would not have been relevant or have changed the outcome of the trial judge’s determination that the cannabis product seized at 1113 Argus Drive was possessed by the appellant for the purpose of trafficking; • As with Exhibit 4, alleged police misconduct dated before charges were laid or after the trial concluded can hardly be credible or sufficient evidence of a trial irregularity affecting the integrity of the process; • The documents referencing the RCMP’s misplacing of co-accused Jonathan Jacquard’s smartphone and corresponding offer of compensation dated in 2018 are also not sufficient to suggest there is any irregularity of the trial process itself; • The appellant made only two specific references to this cellphone in pre-trial applications, essentially alleging police misconduct because of its loss, without stating what, if any, evidentiary value the co-accused’s phone may have provided in her case; • No argument was made at the trial proper that this phone would contain evidence to assist or exculpate the appellant; • The appellant, in her fresh evidence affidavit at ¶6, again raises the issue of the lost cellphone: THAT Exhibit 5 contains a display of police misconduct.

A seized cellphone shown touring the town after it was supposed to be in police custody and locked in an evidence locker. A letter from the RCMP acknowledging they lost the device and attempting an

extortion effort so it would not be brought up during trial that seized evidence went missing”; During the trial the appellant cross-examined Sgt. Slade on this issue. His testimony revealed that the cellphone was never seized as anexhibit by police in this matter, rather it was taken from co-accused Jonathan Jacquard during his arrest, and lost en route to the policedetachment. Police went back over the route in an effort to find it, even deploying a police dog for that purpose to no avail; • Additionally, and perhaps most importantly, Mr.

Jacquard himself, the actual owner of the lost cellphone, never raised thisas an issue at trial. [62] Exhibit 6 is titled “Trial Judge Interference with Transcripts”.

The exhibit lists a number of images of text and papercommunications all occurring after sentencing in the matter in March 2021, between the appellant, and various individuals fromKentville Provincial Court, a transcriptionist, Public Prosecution Service of Canada and the Nova Scotia Court of Appeal. [63] These communications indicate concerns the trial judge had with the accuracy of a specific transcription of one of theproceedings and would not have affected the trial process itself. [64] Exhibit 7, as explained above, is simply a USB thumb drive containing the electronic contents of Exhibit 5, as well as anelectronic copy of the appellant’s Appeal Book and the appellant’s factum. [65] Finally, Exhibit 8 is also a USB thumb drive.

It contains a master folder entitled “Court Copy” which contains a series offolders and files that appear to be a collection of news articles, visual media (images, video), cannabis user statements and numerousother items. The appellant in her affidavit simply describes this exhibit as “documents that were removed from my provincial court filethat they allege they could not locate”, and provides no other explanation or context for the purported use of this exhibit as freshevidence on this appeal. [66] For all of these reasons, none of the offered fresh evidence is admissible on this appeal.

The motion to adduce fresh evidence isdismissed. Issue 2: Did the trial judge err in concluding there was no breach of the appellant’s s. 8 Charter rights in relation to the two searchwarrants? [67] The trial judge’s first task in assessing the appellant’s Charter application was to determine if leave should be granted to cross-examine the ITO’s affiant, Cst. Ken Slade, as directed by R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421, at p. 1465: […] Leave must be obtained to cross-examine. The granting of leave must be left to the exercise of the discretion of the trial judge.

Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answerand defence.

A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit theexistence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds. [68] The trial judge was aware this was the test to apply and specifically referenced it: THE COURT: You have to establish that cross examination will elicit testimony tending to discredit the existence of one of thepreconditions to the authorization, alright.

So, is there anything that you need to discredit and what is it? (Appeal Book, Volume 4, Tab17, pg. 47) [69] The trial judge then went on to find, after reviewing the ITOs and warrants in their entirety and addressing the appellant’sstated concerns regarding the ITOs, that there were no grounds for cross-examining the affiant: […] I don’t see any grounds, any foundation for cross examining the Affiant. The information that’s provided in this, in these Warrantsis very straight forward information.

All identified as being collected from various sources and all put into the ITO in a way that clearlylays out what […] he has as his grounds, his building blocks. [70] The appellant’s claim appears to be that the affiant somehow misrepresented her personal medical information in the ITOs. [71] The trial judge considered and rejected this claim, finding the affiant was entitled to use Health Canada licensing informationin the ITOs in support of the grounds to believe there would be evidence of cannabis trafficking at 1113 Argus Drive: Ms.

Chartrand also takes issue with the fact that medical information is contained in the ITO, that should not have been there.

Aftercareful review of the ITO, I agree with the submissions of the Crown who indicated that it was not in fact information, medicalinformation, it was information from Health Canada about where licenses may or may not exist and there certainly appeared to be someauthority to do certain things in certain places but there was no connection to an authority to do anything at 1113 Argus Street. [72] The appellant also claims she could have cross-examined the affiant on the use of the tele-warrant process—specifically why itwas impractical for the officer to appear personally before a justice.

However, the ITO to search 1113 Argus Drive contained theaffiant’s explanation: My grounds for believing that it would be impracticable to appear personally before a justice to make application for this warrant inwriting are as follows: The Court House is open but unable to review the warrants this morning and driving to Dartmouth to the Justiceof the Peace Center would be impracticable due to the distance between them and my location. [73] The trial judge made no errors of law in applying the test for leave to cross examine the affiant of an ITO.

After denying leave,the trial judge was left with the assessment of sufficiency and validity of the warrants themselves on the face of the contents in the ITOs,and whether a voir dire on facial sufficiency should be held. [74] The substantive test for the review of an issuing’s judge’s decision to grant a warrant is well established, as recently laid out by

this Court in R. v.

Wallace , 2016 NSCA 79 : [25] […] the reviewing judge or court does not determine whether the justice of the peace should have been satisfied on the evidence presented to him, but rather could he have been satisfied on the evidence set out in the ITO that there were reasonable and probable grounds for believing that the articles sought would be of assistance in establishing the commission of an offence and would be found in the premises sought to be searched. […] [ 75 ] The trial judge had the benefit of multiple court filings by the appellant prior to the March 2, 2020 Charter application, and on that day engaged extensively with her in a two-way dialogue, on the record, to allow her to explain the issues and concerns she had with the ITOs. [ 76 ] The trial judge found none of those concerns to have had any negating effect on the sufficiency of the ITOs or the validity of the warrants. [ 77 ] The trial judge understood the requirement for grounds to be present in the issuance of the ITOs, and ultimately ruled that the ITOs met the test for issuance: When I look at the entirety of the ITO granted by, I believe it was Judge Manning, the ITO certainly meets the test for issuance.

There’s no, there’s nothing that jumps out at me as, of any concern. Typically, when I allow an application to go ahead to challenge a Search Warrant, I have pretty clear statements about things that were wrong. Things that were lacking. Things that appeared to be misstated and the like. There’s nothing here that rises to [that] level of concern. […] So unfortunately Ms. Chartrand, you’ve not met the test for either the opportunity to cross examine the Affiant. A very high test to meet and not surprising on these facts that it just isn’t met. Its [ sic ] very rare that these applications proceed.

If it gives you any solace, I’ve denied them in situations where the Warrants ultimately didn’t stand. But they didn’t stand for other reasons and that came out upon scrutiny and that was many cases [ sic ] apparent, even before we entered into the Voir Dire that there would be real challenges. This case doesn’t rise to that level. There was just not enough here for me to be concerned about the issuance of the ITO. So, I’m denying the application. [ 78 ] The trial judge at times referred to the ITO or warrant in the singular.

However, throughout the Charter application on March 2, 2020 she clearly referenced she was dealing with both the ITO/warrant to search the premises of 1113 Argus Drive and the ITO/warrant to search electronics. This was a topic of discussion at the court session on June 29, 2020 during which the trial judge stated: Yeah, two separate Warrants but if my memory serves, we dealt, I dealt with both of them. I looked at both Warrants. One Warrant was exactly the same as the other one, so all the same considerations that applied to the first Warrant, apply to the second.

The only difference is that the first Warrant was executed and the items that were, the electronic items that were seized were searched based on the exact information that was in the first Warrant, the only difference being and now there are electronic items that also need to be searched. [ 79 ] The trial judge reviewed the facts surrounding the police requests for the search warrants, applied the law and found no Charter breach occurred in the issuance of the warrants. The trial judge made no error of law in the statement of the test to be applied, or in its application. The findings of fact were reasonable.

As the trial judge had found no Charter breach there was no subsequent s. 24(2) (exclusion of evidence) analysis undertaken for this Court to review. Other Challenges to the ITOs/Warrants [ 80 ] In her factum, the appellant advanced a number of sub-categories under this issue, which I will briefly address. (

a) The Unlawful Usage of the Word Dispensary [ 81 ] The appellant claims the affiant of the ITO to search 1113 Argus Drive acted unlawfully when inserting the word “Dispensary” after the business name “Higher Living Wellness Centre” at the

preamble to paragraph 3. The affiant in the same document at paragraph 16 also clearly states that the company is listed by the Nova Scotia Registry of Joint Stock Companies as “Higher Living Wellness Centre INC” – the inclusion of both names in the ITO by the affiant negates the appellant’s suggestion of an attempt to mislead the issuing justice about the name of the business. [ 82 ] In the

preamble of paragraph 3 of the ITO, the affiant also lists possible business signage and advertising materials that the affiant believes will be in that location. It does not form part of the substantive body of the ITO where the reasonable and probable grounds are articulated, and there is no relevance to the fact that a surveillance report stated there is no store signage on the outside of the building.

Further, the trial judge found the possibility there could be different business names for the alleged dispensary at 1113 Argus Drive to be of no consequence relative to the entirety of the information contained in the ITO: The information with respect to whether this was a proper business name and concerns about there were two different names of the business mentioned, I likewise find that information to be of no consequence because the research that was done by Constable Slade indicated what business Ms.

Chartrand was connected with, businesses I should say and that she is the recognized director, recognized agent and director of Higher Living Wellness Centre in Dartmouth. […] the contents of this ITO clearly link Ms.

Chartrand to the Greenwood dispensary as well. [ 83 ] There are multiple references within the body of the ITO in which an informant and documented previous complainants describe the enterprise operating at 1113 Argus Drive, Greenwood, NS as a cannabis dispensary or marijuana shop. [ 84 ] It is not reasonable to conclude, because the ITO contains the word “Dispensary” as part of the company name in select

paragraphs of the ITO, the issuing judge was unduly influenced by the mere presence of that word. (

b) Organized Crime Associations [ 85 ] In the

preamble to paragraph 4 of the ITO to search the premises at 1113 Argus Drive, the affiant lists documents related to the alleged “Dispensary criminal enterprise” he believes will be found in that location. The

preamble paragraph does not form part of the substantive body of the ITO where the reasonable and probable grounds are articulated. The appellant’s reference to the use of this terminology appears to be a complaint about the affiant’s pejorative use of the words “dispensary criminal enterprise”, and then referencing an RCMP Investigational Planning and Report containing information about [BACCHUS] an outlaw motorcycle club somehow tainted the issuance of the warrant.

This same issue was raised during her Charter application on March 2, 2020. [ 86 ] The trial judge dealt with it at the Charter application and found it did not provide a basis for the cross-examination of Cst. Slade on the ITO. (

c) Confidential Informant Credibility and Reliability [ 87 ] The appellant generally argues the use of confidential informants is an “odious” practice that should not be permissible as informants are not credible or trustworthy persons. The trial judge found the information provided by the confidential informant in the ITOs to be reliable and credible, detailed and specific, and to have been substantiated by the police: What is key is that the information provided by the Source is from personal knowledge.

Based on observation of the persons named within this Affidavit, and through direct conversations with the individuals named in this Affidavit. This is, this brings the reliability and credibility of this particular Source to a level substantially more than Sources are usually able to rise. The information that was provided by the Source was detailed in the ITO as well. Greenwood dispensary will help you obtain a prescription for a cost of seventy-five dollars. They will set an appointment for you with a doctor through Skype.

Once you explain your issues to the doctor, the doctor will provide you with a prescription. The Greenwood dispensary sells weed, shatter and edibles from their location. The Greenwood dispensary checks to see if you have a license or a prescription. There doesn’t seem to be any doubt that the dispensary is not being held out as a, basically a roadside drug joint for anyone who wants to purchase medicine. It certainly suggests strongly that this is being operated as a medical dispensary and that persons with prescriptions can buy there.

So, the Source is not, the Source is not overstating but is providing very specific information. That information was substantiated by Constable [Slade’s] investigation when he looked into the website which also disclosed pertinent and relevant information.

At paragraph 26 the Officer says he performed an open google search for the address, learned the following: Higher Living Wellness Centre opened 10:00 a.m. to 7:00 p.m. with a phone number, an address, an email address and must have a valid medical license, over 19+, accepts credit cards but interestingly and I suspect more compelling was the information that on September 18 the website talked about the pick of the month being purpose OG which is described in great deal [ sic ] and its [ sic ] also described as Heidi’s pick of the month. [ 88 ] It is clear the trial judge in arriving at a conclusion of reliability/credibility was alive to the guidance laid out in R. v.

Garofoli : (

i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds. (ii) The reliability of the tip is to be assessed by recourse to “the totality of the circumstances”. There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including: (

a) the degree of detail of the “tip”; (

b) the informer’s source of knowledge; (

c) indicia of the informer’s reliability such as past performance or confirmation from other investigative sources. (iii) The results of the search cannot, ex post facto , provide evidence of reliability of the information. [ R. v. Garofoli , at pp. 1456-57] [ 89 ] The trial judge made no errors in her analysis, and she relied on more than just the information provided by the confidential informant in finding the ITOs to be sufficient. (

d) Invalidity Based on the Erroneous Date [ 90 ] The appellant focuses on the ITO and warrant to search the electronics, claiming it should be invalid based on what is clearly a clerical dating error by the issuing judge, Judge Chris Manning. [ 91 ] I have already addressed this issue when dealing with the fresh evidence motion. This clerical error does not affect the validity of the warrant. (

e) An Allegation of Warrant Execution Deficiency [ 92 ] The appellant states she was not given a copy of the warrant when it was executed at 1113 Argus Drive. There was a brief mention of this by the appellant in her pre-trial filings but it was not raised as a reason for cross-examining the affiant or for the purposes of a declaration of invalidity at the pre-trial application on March 2, 2020. [ 93 ] In evidence, Cst. Christopher Marshall confirmed he laid a copy of the search warrant down on the front counter of the premises during the search.

(

f) An Allegation the Warrant Authorization to Search the Commercial Premises at 1113 Argus Drive did not Include a Locked Room at that Location [ 94 ] The appellant provided no authority to support her assertion a warrant to search a location excludes locked rooms. The warrant granted police the ability to search the entirety of the commercial premises located at 1113 Argus Drive. This claim has no merit. [ 95 ] In

summary, in regards to all of the appellant’s stated concerns with the ITOs/warrants the trial judge committed no error in concluding both search warrants were validly issued. As a result, there was no breach of the appellant’s s. 8 Charter right. [ 96 ] I would dismiss this ground of appeal.

Issue 3: Did the trial judge judiciously exercise discretion in refusing to hear the appellant’s constitutional challenge to s. 5(2) of the CDSA and ACMPR , and did this refusal preclude the appellant from advancing a defence of necessity at trial? [ 97 ] As previously discussed, the standard of review is one of deference to the trial judge’s discretion to refuse to hear a Charter application on the basis of deeming it without merit.

Absent a compelling argument that demonstrates the discretion was not exercised judicially, this Court should not disturb the ruling. [ 98 ] The trial judge had the benefit of numerous materials filed by the appellant and respondent in exercising her discretion not to allow the Constitutional Question to proceed.

Even applying the “manifestly frivolous threshold” established recently in Haevischer , the trial judge did not err in exercising her discretion to refuse to hear the Constitutional Question as evidenced by her decision (reported 2020 NSPC 26 ). [ 99 ] The trial judge listed the appellant’s Constitutional Questions, confirming three were framed as Constitutional Questions, while two concerned police activities (i.e., as opposed to legislation) and would not be addressed within the analysis; the three remaining questions in the appellant’s words were:

(1) Should the impugned definition be declared to be of no force and effect pursuant to

section 52 of the Constitution Act, 1982 ?

(2) Further, is the prohibition on storefront cannabis distribution to medical patients in the context of medical cannabis dispensaries or compassion clubs, contrary to the ACMPR and CDSA?

(3) Do the ACMPR and the CDSA violate s. 7 of the Charter in so far as they fail to provide storefront and in person access to medical cannabis to approved patients? (¶16) [ 100 ] The trial judge listed the grounds the appellant said she intended to advance and addressed each in turn.

i) The right to interact with and smell cannabis [ 101 ] The appellant argued to have reasonable access to cannabis medicine, users must have a place they can interact visually and by way of odour with their chosen medicine. [ 102 ] The trial judge noted the appellant was not proposing to call any qualified expert testimony to form a proper foundation for this claim and its suggestion that different cannabis strains make a difference to treatment (¶24-25). ii) The inability of some to use cannabis in their rented accommodations [ 103 ] The trial judge said she could accept that some people may be prohibited by rental contracts from using cannabis in their residences, but this could not form a foundation for a remedy rendering the ACMPR unconstitutional (¶27). iii) Some doctors will not prescribe cannabis [ 104 ] The trial judge correctly explained that case law makes it clear no one has a right to a doctor or treatment of choice.

Anecdotally, the trial judge said she was aware, based on sentencing hearing, that many persons in the jurisdiction have medical cannabis prescriptions.

She also noted the respondent’s position that affidavit evidence alone of patients stating they have had trouble finding doctors to prescribe cannabis is insufficient to establish the claim without offering expert evidence (¶29-30). iv) Health Canada procedures impede access [ 105 ] The trial judge found that without a proper evidentiary foundation she could not consider the various claimed procedural issues related to access, an argument that has in large part been rejected by other courts. [ 106 ] The trial judge then listed the type of evidence the appellant was stating she would rely on in her application, provided a categorization of the proposed evidence and an assessment of relevance or non-relevance to the application.

The trial judge determined that she would not accept as evidence from the appellant materials such as articles, website links and information surrounding recalls of cannabis products from licenced producers without a proper evidentiary foundation, nor would she accept affiant evidence only without something more in regards to alleged mail order system problems related to cannabis (¶34-39). [ 107 ] The trial judge reviewed the positions of the parties, the law and principles concerning the exercise of judicial discretion in allowing or refusing to allow pre-trial applications to proceed, and turned her mind to the balance required between the appellant’s fair trial interests and the public interest in managing court proceedings.

The trial judge refused to hear the application, citing the following reasons: 1. Issues with the timing and sufficiency of notice of the application. The trial judge had concerns with the appellant’s less than forthright approach to formally serving the Nova Scotia Attorney General by using a Government of Canada email account and receiving

no reply and the delay experienced thereafter, especially with two co-accused on the file who did not join her in the application (¶70). 2. The appellant offered two witnesses whose purported qualifications were insufficient to qualify them as experts in their proposed fields of either accessibility (i.e., disability/mobility) or cannabinoids.

The former proposed expert being a disabled man who acknowledged his testimony was limited to his own personal experience, and the latter a nurse who received training at a cannabis university in the United States, but was not a toxicologist, pharmacologist or a medical doctor. Similarly, affidavit evidence of numerous persons who are clients of the appellant and prefer to source cannabis from her, presumably as opposed to under the ACMPR regime, were of limited value without any expert evidence (¶74-79). 3.

Other courts have dismissed similar challenges to the constitutionality of s. 5(2) CDSA as it relates to cannabis and ACMPR . (¶80-87) [ 108 ] The trial judge based her decision on the insufficiency of proposed evidence to demonstrate the appellant or her clients were unable to access cannabis through the ACMPR regime, or their s. 7 Charter rights were infringed, and exercised her discretion to ensure applications with no merit did not proceed. [ 109 ] The trial judge’s reasons for summarily dismissing the application highlighted fundamental flaws in the application’s legal pathway, most notably the failure of the appellant to advance any expert evidence the trial judge deemed would be necessary to establish the facts of the application.

The issues the application proposed to address had, by and large, been canvassed and dismissed by other courts. Although not using this terminology, it is clear she was of the view the underlying application was “manifestly frivolous”. The trial judge did not err in dismissing it summarily. [ 110 ] The appellant claims the dismissal of her Constitutional Question precluded her ability to advance the defence of necessity at trial. Her position is without merit. The appellant never presented this defence at trial.

Even if she had, she could not have met the air of reality test to advance the defence in the first instance as per R. v. Cinous , 2002 SCC 29 . Nor could she have established all three requisite parts of the defence described in R. v. Latimer , 2001 SCC 1 , at ¶26-31: that she or her clients were in clear and imminent peril, there was no legal alternative and there was proportionality between the harm inflicted and the harm the appellant sought to avoid in possessing cannabis for the purposes of trafficking contrary to s. 5(2) of the CDSA . [ 111 ] I would dismiss this ground of appeal.

Issue 4: Was there bias on behalf of the trial judge or a failure to properly assist the appellant as a self-represented defendant? [ 112 ] The appellant’s assertions there were various biases and unfair and improper actions by the trial judge are unfounded. [ 113 ] In her factum, the appellant accused the trial judge of bias on the basis that during proceedings when she was unsuccessful in her efforts to admit evidence from government sources to the court without a proper evidentiary basis, the trial judge was somehow biased against her as a self-represented litigant. [ 114 ] The appellant points to no specific occurrences in the transcripts to bolster this claim.

However, the appellant may be referring to the exchange that occurred at the December 20, 2019 court appearance in which evidence to be brought for the Constitutional Question was discussed, and during which the trial judge explained why website links and published articles themselves cannot simply be tendered as evidence without hearing viva voce evidence from the authors.

The appellant appeared to be concerned about the application of the hearsay rule to the “government’s” own statements about some cannabis contaminants. [ 115 ] Throughout the proceedings, the trial judge acted respectfully towards the appellant, recognizing she was self-represented, and took steps to ensure the appellant was advised on the process and procedures required to participate as a self-represented accused. Accordingly, there is no indication in the trial judge’s words or actions to support a finding of actual bias or an apprehension of bias on behalf of the trial judge ( C.B. v. T.M. ).

Inadequate Assistance [ 116 ] With respect to the appellant’s claim the trial judge failed to adequately assist her, I must first determine if there was such a failure, and, if so, if that failure gave rise to a miscarriage of justice. The extent to which assistance is provided is a discretionary decision of the trial judge, and as such, it is subject to appellate deference on review. [ 117 ] In R. v. Woolsey , a self-represented accused claimed inadequate assistance by a trial judge.

The court confirmed that while a trial judge is obligated to provide a self-represented accused with sufficient assistance to ensure trial fairness, the judge must not over-step the role of impartial arbiter or become a lawyer for the accused, and should not assist the accused with trial tactics or provide advice on tactical decisions. [ 118 ] In this matter, the appellant broadly claims she was not adequately assisted by the trial judge throughout the process.

She cites no specific examples from the record in support of this claim nor does she provide any explanation of how this gives rise to a miscarriage of justice. On my review of the record, the trial judge made appropriate efforts to explain evidentiary procedures and standards to the appellant.

For example, during the appellant’s disclosure application the trial judge assisted the appellant in structuring her questions in order to get the most useful answers from the witness given the claim she was making. [ 119 ] The level of assistance to be provided at each stage of the proceeding was at the discretion of the trial judge, and, under these circumstances, was appropriate. [ 120 ] I would dismiss this ground of appeal Issue 5: Can the appellant raise an s. 11(

b) Charter breach on appeal, and, if so, was there any unreasonable delay?

[ 121 ] The appellant did not make a s. 11(

b) application in the court below. Appellate courts have been generally reluctant to allow s. 11(

b) claims of unreasonable delay on appeal when they were not raised at trial, but they can be considered in exceptional cases ( R. v. J.F. , 2022 SCC 17 , at ¶3). [ 122 ] The topic of trial delay was raised a number of times by both the trial judge, respondent and the appellant throughout the lower court proceedings. The appellant as a self-represented accused was well aware of the decision in R. v.

Jordan , 2016 SCC 27 , and her right to a trial in a reasonable time, as indicated in this exchange on June 19, 2019 when she was seeking an extension of time to file her supporting materials for the Constitutional Question: THE COURT: All that is to say, how long do you think it will take you to have your materials together? MS. CHARTRAND: Honestly, I’m not a hundred percent sure. I had planned on having them together for the original date, but as I mentioned previously, like with my illness, it took me out for a week and half and I couldn’t do anything. So, I can sit here and tell you a date.

I don’t know what tomorrow will bring. What would Your Honour feel would be appropriate and then I will do whatever is humanly possible to make it happen by then. THE COURT: Well, here’s what I’d like to do. The trial is scheduled to start on July the 9th. I would like to see the trial start and I would like the Crown to start calling its case and we’ll start to proceed and if you would like to challenge the Warrant, and you have satisfied the Court and the Crown that your Notice is appropriate and we could consider dealing with that at some point during the trial. Do you have any opposition to that Mr. Taylor?

MR. TAYLOR: No, during the trial, but at the beginning I guess because we have to know whether or not we’re dealing with evidence that may be excluded. THE COURT: I know. See my concern is that if we, if, if your, if we don’t have enough information by July 9th, I’d like to be able to know that we’re going ahead to the trial or are we forfeiting that date right now. Because I can’t imagine that she’ll have time between now and then to get all that material together and for the Crown to have an opportunity to review it. I’m reluctant to lose the trial date but I suppose that has to happen . MS.

CHARTRAND: Even in losing the trial date though, we’re still only at nine months right now and its eighteen for the Jordan. So, I feel like even if we did have to move it to November, we could still follow along with it . THE COURT: Alright, that’s a fair point. MR. TAYLOR: Yes, it is. [Emphasis added.] [ 123 ] Delay is again discussed at a pre-trial conference on August 7, 2020, when the trial judge ruled she would not allow any additional pre-trial applications to be brought by the appellant, and that she would not allow an 11(

b) application to proceed at that time. Within the excerpt below, the appellant raises the Jordan issue. She only does so as a rebuttal to the Crown’s objection to the court allowing further unmeritorious pre-trial applications and is not asking the court to adjudicate on the matter of delay: MS. CHARTRAND: So, I don’t see where any of those issues are irrelevant, not to mention that I also bring up the Jordan timeline, which you, yourself, mention multiple times. Each time we’re in Court actually, getting there within the eighteen months timeframe.

We’re past that now and have been past that since March and nobody seems to be mentioning it anymore where it was brought up previously each and every time, we attended Court. THE COURT: You’re correct to raise the Jordan issue because as you know trials are meant to be completed within eighteen months. I note from the JEIN Report, which is the information that sets out how long a matter has been before the Court, that as of today/s date, 19.3 months have passed. There is obviously been a few months that have compromised your matter. MS.

CHARTRAND: It’s actually longer than that, Your Honour, because the date of the actual charges was September 21, 2018. THE COURT: The Information was sworn on December 19… MS. CHARTRAND: That was when we all got consolidated together and as far as I’m aware the Jordan timeline starts from the date of the arrest, not the date that everybody decided to consolidate us together. THE COURT: Well, you can consider that at another point in time. The Information I have before the Court has a charge date of December 19, 2018.

You may well be correct that there was a consolidation at some point, but it’s not the Information that I’m dealing with but it does raise, of course, an interesting issue. However, however, Ms. Chartrand, Ms. Chartrand, its my turn to speak. However there have been a number of intervening applications that have delayed matters. There have been documents filed late and documents filed at the eleventh hour. There has been a National pandemic. There has been time to prepare and hear the applications that you’ve brought and those things obviously took time.

However, I’m not going to consider a Jordan application at this point in time. The trial is scheduled for September and even taking into account a few months for the pandemic, it would appear to the Court on first, on first glance that this matter does not raise Jordan concerns. If there are Jordan concerns, we can deal with those at another time but at this point in time the objective is that this trial is going to go ahead on the date that is set, which is, as I indicated earlier September 17th.

The trial is going to go ahead on September 17th as scheduled and I will not hear any of the suggested applications that are contained in the materials that were presented to the Court. [ 124 ] In the above passages, the appellant was correct that the Information was sworn on September 21, 2018, and which started the Jordan clock. On August 7, 2020, the matter would have been ongoing for approximately 22.5 months. However, at no time did the appellant bring a s. 11(

b) application.

[ 125 ] I am not satisfied that this is an appropriate case for this Court to undertake a Jordan analysis for the following reasons: 1. I earlier set out the substantial procedural background with respect to this matter which included the appellant’s numerous pre-trial motions which the trial judge found to be without merit, late filings, requests for extensions to file documents and the appellant herself being responsible for delays in the proceeding. It is generally undesirable to have the delay assessed in the first instance at the appellate level; 2.

The appellant did not make argument on this issue in her factum, nor did she make submissions on what delay would be attributable to herself or the Crown; 3. No submissions were made to the trial judge about what impact, if any, the COVID-19 pandemic would have on the calculation of the Jordan timeline. [ 126 ] This is not one of those exceptional cases where, based on the record, this Court should undertake a s. 11(

b) analysis for the first time on appeal. [ 127 ] I would dismiss this ground of appeal. Issue 6: Was the sentence handed down by the trial judge a fit sentence? [ 128 ] The appellant has not raised the issue of fitness of sentence or forfeiture of seized items in her factum. Rather, she simply requests the sentence be “quashed”. [ 129 ] The appellant was sentenced to an 18 month CSO and select items seized from 1113 Argus Drive were ordered forfeited to the Crown. [ 130 ] The trial judge cited the relevant Criminal Code provisions that guided her sentencing of the appellant.

She cited decisions from both the Nova Scotia Supreme Court and Ontario Court of Appeal affirming that cannabis trafficking offences are indeed serious criminal offences. The trial judge viewed deterrence and denunciation as pressing concerns for the court. [ 131 ] The trial judge noted that a discharge was not an appropriate sentence, as the appellant did not establish it was in her best interest. She found it would be contrary to the public interest to grant a discharge.

Despite the Crown seeking a 24-month conditional sentence order, she determined that an 18-month conditional sentence order was appropriate. [ 132 ] Similarly, the trial judge applied the law as it pertains to forfeiture of items seized under the CDSA , and following submissions by both parties, provided her reasons for select items to be forfeited to the Crown. [ 133 ] The sentence is not demonstrably unfit, the forfeiture order is sound, and, further, the trial judge’s decisions in regards to both are entitled to deference and should not be disturbed. [ 134 ] I would dismiss this ground of appeal.

Conclusion [ 135 ] The motion to adduce fresh evidence is dismissed and the appeal from sentence and conviction is dismissed. Farrar J.A. Concurred in: Scanlan J.A. Van den Eynden J.A.