Docket: CACR2034 Her Majesty the Queen Appellant - v. -, 2012 SKCA 34

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 34 Date: 20120316 Between: Docket: CACR2034 Her Majesty the Queen Appellant - and - Adrian Jerome Charles Respondent Coram: Lane, Smith and Caldwell JJ.A. Counsel: W. Dean Sinclair for the Crown George Combe for the Respondent

Appeal: From: Provincial Court Heard: January 10, 2012 Disposition: Appeal allowed Written Reasons: March 16, 2012 By: The Honourable Madam Justice Smith In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Caldwell Smith J.A. [ 1 ] This appeal is brought from the decision of White P.C.J. who acquitted the respondent on firearms charges.

Following a voir dire at trial, the trial judge excluded evidence tendered by the Crown on the basis that it was obtained as a result of an unreasonable search and seizure of the respondent’s automobile in breach of his rights pursuant to s. 8 of the Charter . It is the Crown’s position that the evidence was seized in the context of a lawful warrantless search incident to the respondent’s arrest. The case therefore turned on whether the arrest itself was lawful. [ 2 ] The background facts are somewhat unusual.

In October, 2008, a justice of the peace in Ontario issued a warrant for the arrest of the respondent on two counts of attempted murder and one count of conspiracy to commit murder. In effect, the warrant commanded peace officers in the Province of Ontario to arrest the respondent and bring him before a judge of that Province in accordance with s. 511 of the Criminal Code . [ 3 ] At the time the warrant was issued, the respondent was in Saskatchewan. Two members of the Ontario Provincial Police were sent to Saskatchewan with the warrant to arrest the respondent and return him to Ontario to face the charges.

The Ontario police officers requested the assistance of members of the RCMP in Saskatoon to execute the warrant. They advised the RCMP members that they had what they described as a “Canada-wide” warrant for the arrest of the respondent, and extensively briefed the Saskatchewan officers as to the circumstances of the charges. RCMP Corporal Kenneth West testified as to this one hour meeting at the voir dire at trial: At that briefing, our assistance was requested from Durham Regional Police to arrest Adrian Charles on three charges that occurred out of Pickering, Ontario.

During the course of that briefing there, I was advised by members of Durham Regional Police Service of the reason why we would be assisting them. The members had indicated that in May of 2008, in Pickering, Ontario, Mr. Charles was at a function in Pickering at an automotive dealership, I believe the name of it was Supreme Automotive. There was a customer appreciation day along there at this dealership on that date. An individual attended to this event by the name of Myesh Williams. Later on at— towards the end of this function at Supreme Automotive, I was informed by Durham Regional Police Service, that Mr.

Charles had brought Myesh Willams to the back of the business. When Myesh Williams exited the business there, he observed that the vehicle that he was driving had the tires slashed on the driver’s side. And shortly thereafter, two persons began opening up gunfire on Myesh Williams, for a total of 13 shots that were fired at that time. I was also advised by members of Durham Regional Police that Mr. Charles contacted Myesh Williams the next day and apologized to him for putting him in that position. During the course of that meeting, too, I was advised by Durham Regional Police Service members that Mr.

Charles had also been the subject of previous traffic stops in the past in that area, and it had been learned from them that firearms had been located in vehicles that Mr. Charles had been in. [Transcript at T4-T5] [ 4 ] More details of the briefing were included in the police incident

summary filed as an exhibit at the voir dire . This report clarified that Mr. Williams had been in the company of his cousin, Damian Fairclough, at the time of the shooting. Mr. Fairclough, a former gang member, was a witness in a trial involving an alleged attempt on his life by a former gang associate after Mr. Fairclough left the gang. The police believed that the May 2008 attempt on Mr. Fairclough was related to this matter. The incident report clarifies that during the call from Mr. Charles to Mr. Williams the day after the May 2008 shooting, Mr. Charles apologetically told Mr.

Williams that there had been only one intended victim of that shooting. [ 5 ] The Durham Regional Police officers showed the Saskatoon officers the arrest warrant for Mr. Charles that had been issued in Ontario. They informed the Saskatoon officers that it was a “Canada-wide” warrant.

[ 6 ] By way of cooperation with the Durham Regional Police Service, the Saskatoon officers had set up surveillance on Mr. Charles. Corporal West and his partner Corporal Nordick, two members of the Saskatoon RCMP detachment, were advised by the surveillance unit that Charles’ vehicle was driving down 1 st Avenue in Saskatoon. They spotted the vehicle parked on 1 st Avenue outside the Scotia Centre, activated their emergency lights, approached the vehicle and arrested Mr. Charles, who was in the driver’s seat. As they were approaching the vehicle the officers saw the driver, Mr.

Charles, lean over to the passenger side of the vehicle and then look back at them. Following the arrest of Mr. Charles, these officers searched the vehicle and found a semi-automatic handgun under the floor mat on the passenger side of the vehicle. There was a loaded magazine in the pistol with six 9 mm rounds of ammunition. The serial number of the gun had been defaced and almost totally removed. Mr.

Charles was charged with being an occupant of a vehicle in which he knew there was an unlicensed firearm, possession of a prohibited weapon, and possession of a firearm knowing that the serial number on it had been removed, contrary to sections 94 , 95 and 108(1) of the Criminal Code . [ 7 ] Both officers testified at trial that they believed the Ontario arrest warrant to be valid and had set out to perform a “scripted” arrest of the respondent, by which they meant that they intended to arrest the respondent in reliance on the arrest warrant.

Both also testified that they believed that they had reasonable and probable grounds for the arrest, based on the warrant and also on the briefing they had received from the Ontario police outlining the circumstances of the warrant. [ 8 ] In the context of the voir dire , much emphasis was placed on the question of whether the Ontario arrest warrant was sufficient in itself to authorize the arrest of the respondent in Saskatchewan.

The issue arose because the warrant was issued by a justice of the peace in Ontario, but had never been endorsed by a justice in Saskatchewan. [ 9 ] The provisions in the Criminal Code that address the issuance and effect of a warrant of arrest are somewhat confusing. The necessary content of a warrant is set out in s. 511(1), as follows: 511.

(1) A warrant issued under this Part shall (

a) name or describe the accused; (

b) set out briefly the offence in respect of which the accused is charged; and (

c) order that the accused be forthwith arrested and brought before the judge or justice who issued the warrant or before some other judge or justice having jurisdiction in the same territorial division, to be dealt with according to law. Thus it is clear that execution of a warrant to arrest authorizes and requires two things: the arrest of the accused, and that the accused be brought before a judge in the territorial division in which the warrant issued. [ 10 ] The question of where and by whom a warrant may be executed, particularly one that issued in another jurisdiction, is a more complicated question.

Section 514 provides as follows: 514.

(1) A warrant in accordance with this Part may be executed by arresting the accused (

a) wherever he is found within the territorial jurisdiction of the justice, judge or court by whom or by which the warrant was issued; or (

b) wherever he is found in Canada, in the case of fresh pursuit.

(2) A warrant in accordance with this Part may be executed by a person who is one of the peace officers to whom it is directed, whether or not the place in which the warrant is to be executed is within the territory for which the person is a peace officer. Nonetheless, s. 703 introduces the idea of a warrant effective throughout Canada, as follows: 703(1) Notwithstanding any other provision of this Act, a warrant of arrest or committal that is issued out of a superior court of criminal jurisdiction, a court of appeal, an appeal court within the meaning of

section 812 or a court of criminal jurisdiction other than a provincial court judge acting under

Part XIX may be executed anywhere in Canada.

(2) Despite any other provision of this Act but subject to subsections 487.0551(2) and 705(3), a warrant of arrest or committal that is issued by a justice or provincial court judge may be executed anywhere in the province in which it is issued. Since the warrant in question was issued by a justice of the peace, and not a superior court of criminal jurisdiction, s. 703(1) did not apply in this case. However, s. 528 adds another twist: 528.

(1) Where a warrant for the arrest or committal of an accused, in any form set out in

Part XXVIII in relation thereto, cannot be executed in accordance with

section 514 or 703, a justice within whose jurisdiction the accused is or is believed to be shall, on application and proof on oath or by affidavit of the signature of the justice who issued the warrant, authorize the arrest of the accused within his jurisdiction by making an endorsement, which may be in Form 28, on the warrant.

(1.1) A copy of an affidavit or warrant submitted by a means of telecommunication that produces a writing has the same probative force as the original for the purposes of subsection (1).

(2) An endorsement that is made upon a warrant pursuant to subsection (1) is sufficient authority to the peace officers to whom it was originally directed, and to all peace officers within the territorial jurisdiction of the justice by whom it is endorsed, to execute the warrant and to take the accused before the justice who issued the warrant or before any other justice for the same territorial division. Finally, s. 503(3) addresses the question of how to get an accused before a judge of the issuing jurisdiction when he or she is arrested in another Canadian jurisdiction without warrant: 503.

(3) Where a person has been arrested without warrant for an indictable offence alleged to have been committed in Canada outside the territorial division where the arrest took place, the person shall, within the time prescribed in paragraph (1)(

a) or (b), be taken before a justice within whose jurisdiction the person was arrested … and the justice within whose jurisdiction the person was arrested (

a) If the justice is not satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, shall release that person; or (

b) If the justice is satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, may (

i) Remand the person to the custody of a peace officer to await execution of a warrant for his or her arrest in accordance with

section 528, but if no warrant is so executed within a period of six days after the time he or she is remanded to such custody, the person in whose custody he or she then is shall release him or her….. [ 11 ] In the instant case, the Ontario warrant to arrest the respondent was issued by a justice of the peace in Ontario. Thus, not having been issued by a superior court, in accordance with both s. 514 and s. 703, it could be executed only in Ontario unless it was endorsed in another province pursuant to s. 528.

Endorsement pursuant to s. 528 would authorize either the Ontario or the Saskatchewan police officers to arrest the accused in Saskatchewan and also to transport him back to Ontario to face the Ontario charges. The Ontario police officers who brought the warrant to Saskatchewan had apparently prepared to effect this endorsement, for attached to it was Form 28, and an affidavit by Ontario Police Cst. Nancy Vanrooy attesting to the signature of the issuing justice of the peace, all as required by s. 528.

However, the endorsement had never been obtained. [ 12 ] The trial judge concluded that the warrant was therefore ineffective in Saskatchewan and that the Saskatchewan officers had been misled in believing it to be a “Canada-wide warrant”. He further concluded that, as the arresting officers had admittedly relied on the warrant in effecting the arrest of the respondent, the arrest was unlawful. As the arrest was unlawful, the ensuing search could not be justified as a warrantless search incident to arrest and it was therefore unreasonable.

Thus, the trial judge found a breach of the rights of the respondent pursuant to sections 8 and 9 of the Charter . Following a brief analysis of s. 24(2), he excluded the evidence of the semi- automatic pistol found in the respondent’s vehicle.

Evidence from the voir dire , apart from the excluded evidence, was applied at the trial, the respondent called no evidence and the respondent was acquitted of the charges. [ 13 ] The Crown argues that the trial judge misunderstood the way in which extra-territorial warrants are normally executed in Canada and, as a result, misconstrued the evidence of the arresting officers. The phrase “Canada-wide warrant” is not a phrase actually used in the Criminal Code .

Rather, the Crown contends, it is a phrase regularly used by police officers to indicate, not that the warrant has been issued by a superior court judge and can therefore be executed anywhere in Canada without further endorsement (an occurrence that would actually be quite rare), but, rather, that if an accused named in the warrant is arrested in another jurisdiction, the issuing province or territory is willing to bear the expense of transporting the accused back to that jurisdiction to face trial.

Without that willingness, the warrant cannot be fully executed in another jurisdiction, for there would be no way to bring the accused before the judges of the jurisdiction where the warrant was issued, as is required by s. 514 of the Code .

Accordingly, it is argued, where police learn that an accused in their own territorial jurisdiction is subject to a “Canada-wide” warrant from another jurisdiction, relating to an indictable offence, they will often rely on the fact of the warrant and any other information provided to effect a warrantless arrest pursuant to s. 495(1) of the Criminal Code on reasonable and probable grounds that the accused has committed the offence or offences detailed in the warrant.

The accused is then taken before a judge in the arresting jurisdiction pursuant to s. 503(3) to await formal endorsement of the writ permitting his or her return to the issuing jurisdiction.

If the extra-territorial warrant is not known to be “Canada-wide” in this sense, officers will normally not affect the arrest because they would not be in a position to return the accused to the issuing jurisdiction, even if they did have reasonable and probable grounds to believe that he or she had committed the offences detailed in the warrant. [ 14 ] Some of the Crown’s argument on this point depends on evidence of normal police practice that was not before the trial judge, particularly in relation to usage of the phrase “Canada-wide warrant”. Nor was such evidence before this Court.

Part of the argument also depended on the proposition that knowledge of the existence of a warrant for the arrest of an accused on an indictable offence is itself sufficient to constitute reasonable and probable grounds for his arrest for that offence. No compelling authority was cited to us on this point.

[15] However, it is not, in my view, necessary to decide these questions in this case, for a review of the transcript makes it abundantlyclear that the police had considerable information of the circumstances of the offences charged in this case that went well beyond themere existence of the extra-jurisdictional warrant. They were briefed by the Ontario police in an hour long meeting and knew all the factsrelied upon by the Ontario police who obtained the warrant.

These facts, especially when coupled with the existence of the arrest warrantbased on these facts, clearly provided objectively reasonable and probable grounds for the arresting officers to believe that therespondent had committed indictable offences. [16] Moreover, both arresting officers, in their testimony, made it clear that they held a subjective belief that they had reasonable andprobable grounds for the arrest.

Accordingly, even if the warrant for arrest was not endorsed for execution in Saskatchewan, the questionwas whether the officers could rely on reasonable and probable grounds for the arrest. [17] In rejecting the possibility of a valid warrantless arrest pursuant to s. 495(1) of the Code, the trial judge in my view made severalerrors. First, he appears to have assumed that knowledge of the circumstances relating to the charges in Ontario against the respondentcould not meet the objective test for reasonable and probable grounds because this information was secondhand, or hearsay.

Second, heappears to have concluded that, because the officers admittedly would not have arrested Charles had there been no warrant for his arrest,it followed that they did not subjectively believe that they had reasonable and probable grounds for his arrest within the meaning of s.495(1). Both assumptions are reflected in the following exchange between the trial judge and Cst. Nordick during the voir dire. Thisexchange followed immediately after Cst.

Nordick had testified that, in arresting the respondent, he relied on the information that hadbeen provided by the Ontario police to conclude that he had reasonable grounds to believe that Mr. Charles committed the offencesdetailed in the warrant, and that he relied on that knowledge as well as on the warrant itself as the basis to believe that the arrest of Mr.Charles would be lawful. (See transcript, at 61, ll. 4-9, quoted below.) At this point in the cross-examination of Cst.

Nordick, the trialjudge intervened, as follows: The Court Examines the Witness THE COURT: I-I gather that you wouldn’t have effected the arrest, unless you thought you had a valid Canada-widewarrant; is that right? THE WITNESS: Yeah, we were – at this point in time, we were assisting Durham Regional Police, and that’s – and that’swhat they had requested us to do – THE COURT: But – THE WITNESS: -- and with the warrant – with the warrant there, we wouldn’t have taken effect on Adrian Charles. Itwasn’t our offence to investigate, so – THE COURT: Right.

Because your knowledge of the circumstances was so far secondhand because Durham were theprincipal investigators – THE WITNESS: Correct. THE COURT: -- so basically – THE WITNESS: Correct, Your Honour THE COURT: -- you relied upon their assurances that the warrant was a valid Canada-wide warrant, and it was solely onthe strength of that, that you assisted them in the arrest of Mr. Charles – THE WITNESS: Yes. THE COURT: -- here, right?

THE WITNESS: Yes. [Transcript at T61 – T62] [18] It was apparently on the basis of this intervention that the trial judge concluded, in his reasons for decision on the voir dire, that“the arrest clearly was done on the strength of a judicial warrant or an alleged judicial warrant here, not on the basis of reasonable andprobable grounds to arrest.” (At T107-T108 of trial transcript) [19] On these two points the trial judge erred, in my respectful view.

On the first point, many cases have held that the police are entitledto rely on hearsay information to provide reasonable and probable grounds for arrest, so long as that information is reasonably reliable.See for example R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421 and R. v. Warford, 2001 NFCA 64, 161 C.C.C. (3d) 309.Information provided to the Saskatchewan officers by the Ontario police was clearly from a reliable source. In addition, the existence ofthe warrant for arrest based on that information enhanced its credibility. [20] The significance placed by the trial judge on Cst.

Nordick’s concession that he would not have arrested the respondent but for the

existence of the Ontario warrant and the request of the Ontario police for assistance reflects a different confusion, in my respectful view. The trial judge seems to assume that this concession was inconsistent with the assertion by the arresting officer that he believed that the arrest was also justified to arrest on reasonable and probable grounds. This was despite the fact that both officers, in unequivocal terms, testified that they believed they had reasonable grounds to believe that the respondent had committed the offences detailed in the warrant.

In my view, the trial judge’s conclusion on this point reflects confusion on his part as to the particular significance of the Ontario police request for assistance in the context of an extra-jurisdictional warrant.

Had the Ontario police not indicated that they had come to execute the warrant by transporting the respondent back to Ontario to face the charges, the Saskatchewan officers would, indeed, have had no reason to arrest the respondent, even with the knowledge they had, and even though knowledge that constituted reasonable and probable grounds, for there would have been no power to take the respondent before a judge in the issuing jurisdiction.

In other words, the arrest would have been pointless unless the Ontario police were prepared to execute the warrant to return the respondent to Ontario to face charges. [ 21 ] However, the existence of a valid Ontario warrant, supplemented by the information that the Ontario officers wished it to be executed in Saskatchewan and sought the assistance of Saskatchewan officers in doing so, changed the circumstances. Had it been endorsed pursuant to s. 528, the Ontario police would have been authorized to transport the respondent back to Ontario after his arrest with no further order of the court.

Moreover, even though it was not endorsed at the time of the arrest, s. 503(3) provides a procedure for executing the warrant after the arrest of the person named in the warrant (presumably on reasonable and probable grounds pursuant to s. 495(1)), provided the warrant is presented for endorsement at that stage. This is in fact the procedure that occurred in this case. In either case, the existence of a valid Ontario warrant coupled with the request of the Ontario police for assistance would in fact have been crucial to the decision to arrest the respondent, and that is the point of Cst.

Nordick’s response to questions put to him by the Court that he relied on the warrant. It by no means followed that the Saskatchewan officers did not believe that they had reasonable and probable grounds for the arrest within the meaning of s. 495(1). [ 22 ] The trial judge found in this case, and not unreasonably, that the arresting officers believed that the Ontario warrant itself authorized the arrest of the respondent in Saskatchewan. In this, the officers were mistaken, since the warrant had never been endorsed pursuant to s. 528.

However, there is no inconsistency in the officers holding the subjective belief both that the warrant was sufficient to authorize the arrest and also that they had, in addition, reasonable and probable grounds to make a lawful arrest pursuant to s. 495(1). This is the inescapable conclusion of what the officers in fact believed, given their testimony. Moreover, as both were present at the briefing provided by the Ontario police, it is difficult to imagine that they would have believed otherwise. In addition to the passage from Cst. Nordick’s testimony, Cst.

West testified as follows, on cross-examination: Q With respect to the arrest of Mr. Charles, essentially what you were doing is relying on the warrant; is that correct? A The warrant and the information that I had learned – Q Okay. A -- from the officers from Durham Regional Police. Q But you wouldn’t have had reasonable grounds to arrest him without the warrant? A Based on what Durham Regional Police advised me, and being a homicide investigator for five years, the information – yes, I had reasonable grounds at the time, I believe, that Mr. Charles had committed those offences.

Q And you say that that was from talking to police officers? A Yes. Q These aren’t your superiors? A No. Q These are just another police officer – force from – from Ontario? A Yes. Q Okay. With respect to this matter, the participation of Mr. Charles was really the fact that he was at the location and there – he – he subsequently talked to Mr. Williams and said that, “I’m sorry, what happened”? A No. Directing him outside to the back where his vehicle tire was slashed and have two people open up 13 shots on him was my idea of what was told to me in that meeting.

When you direct somebody out back, where two armed assailants are awaiting for him – Q But that – that’s assuming that he knew that? A And calling the next day and apologizing for putting him in that way. Q Well, he didn’t – A That’s the information that I learned. Q Right. Mmhmm.

A To me, that – Q But you didn’t even know that he – he under – he knew people were out in the back? A Well, that’s the information I had learned – Q Right. A -- at the time. Q Fair enough. A That’s what I – I believed. Q Okay. And as you said, you hadn’t read any witness files or read any police files? A No. Q This was in an hour briefing? A This is a briefing, yes. [Transcript at T36-T37] [ 23 ] Immediately prior to the Court’s intervention, quoted above, in Cst.

Nordick’s cross-examination, he had testified as follows: Q And was – it was your understanding, you were to rely on the warrant to execute the warrant for Mr. – for Mr. Charles? A With the information that was provided, there was, in my mind, reasonable grounds to believe that he – that Mr. Charles did commit the offences as laid out in the warrant, and that, in addition to the warrant itself, were my basis to believe that the arrest would be lawful. [Transcript at T61] [ 24 ] In my respectful view, the trial judge misunderstood this evidence because of three errors.

He mistakenly believed that the Saskatchewan officers could not reasonably rely on the briefing provided by the Ontario officers to provide reasonable grounds for arrest due to its secondhand nature. He mistakenly reasoned that if the officers would not have made the arrest but for the existence of the warrant they could not subjectively have had reasonable and probable grounds for the arrest.

And he appears to have considered that subjective belief in the validity of the warrant and subjective belief in reasonable and probable grounds were mutually exclusive. [ 25 ] Even though the arresting officers were mistaken in their belief that the Ontario warrant was effective in Saskatchewan despite the fact that it had not been endorsed pursuant to s. 528 of the Code , I would conclude that the arrest of the respondent by Cst. West and Cst.

Nordick was a valid arrest pursuant to s. 495(1) of the Criminal Code in that both officers subjectively believed that that they had reasonable grounds to believe that the respondent had committed the indictable offences detailed in the warrant based on the briefing they had received from the Ontario officers, supplemented by the existence of a valid Ontario warrant, and that their belief was objectively reasonable. [ 26 ] It was conceded before us that if the arrest was lawful, the search of the respondent’s vehicle was a reasonable search incident to the arrest. [ 27 ] Accordingly, I would conclude that there was no breach of the respondent’s Charter rights guaranteed by s. 8 or s. 9 and therefore no basis for excluding the evidence of the firearms found in the respondent’s vehicle. [ 28 ] Given this conclusion, it is not necessary to address the question of whether the trial judge erred in excluding the evidence pursuant to s. 24(2). [ 29 ] In this case, the respondent was told that the evidence of the firearms would be excluded before he was called upon to present the case for the defence.

It was in these circumstances that he elected not to call evidence. It would therefore be unfair to set aside the acquittal and substitute an order convicting the respondent. Rather, the appeal is allowed, the acquittal is set aside and a new trial is ordered on all charges. DATED at the City of Regina, in the Province of Saskatchewan, this 16 th day of March, A.D. 2012.

_ “Smith J.A.” __________ _________ Smith J.A. I concur. “Lane J.A.” Lane J.A. I concur. “Caldwell J.A.” Caldwell J.A.