R v Dawad, 2019 SKCA 125

Court of Appeal for Saskatchewan Docket: CACR3151 Citation: R v Dawad , 2019 SKCA 125 Date: 2019-11-22 Between: Dawad Ayuel Dau Dawad Appellant And Her Majesty the Queen Respondent Before: Jackson, Whitmore and Leurer JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Whitmore On Appeal From: 2018 SKPC 47 , Meadow Lake Appeal Heard: June 7, 2019 Counsel: Michael Owens for the Appellant Wade McBride, Q.C., for the Respondent Leurer J.A. I.

Introduction [ 1 ] On June 22, 2018, Dawad Ayuel Dau Dawad and his co- accused, Karbino Mariak Deng Juach , were convicted of possession of cocaine for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ]: R v Juach , 2018 SKPC 47 [ Trial Decision ]. Mr. Dawad appeals his conviction. Mr. Dawad and the Crown previously abandoned their respective appeals against sentence. [ 2 ] The convictions of Mr. Dawad and Mr. Juach were based on the discovery of cocaine in a vehicle registered to Mr. Dawad.

The vehicle was stopped while travelling north on Saskatchewan Highway 55 towards Big River. Following this vehicle stop, Mr. Dawad and Mr. Juach, along with two other occupants of the vehicle, were arrested. All of this occurred on the strength of information provided to the police by two confidential informants. [ 3 ] At trial, Mr. Dawad and Mr. Juach argued that they had been denied their rights pursuant to ss. 8 and 9 of the Canadian Charter of Rights and Freedoms [ Charter ] and that, on this basis, evidence gathered following that breach should be excluded from admission. Mr.

Dawad renews these arguments in this appeal. Mr. Dawad also argues that the Provincial Court had no jurisdiction to hear his trial because he was not afforded an election as to his mode of trial as required by s. 536 of the Criminal Code . [ 4 ] For the reasons that follow, I would dismiss Mr. Dawad’s appeal. II. Issues [ 5 ] Mr. Dawad’s appeal raises two questions: (

a) Did the Provincial Court act without jurisdiction? (

b) Did the trial judge err in failing to exclude the evidence of cocaine discovered during the search of Mr. Dawad’s vehicle, based on a breach of Mr. Dawad’s Charter rights? I. Analysis A. Did the Provincial Court act without jurisdiction? [ 6 ] Certain criminal charges may be tried in different courts at the election of the accused. In this regard, s. 536 of the Criminal Code provides, in relevant part, as follows: Remand by justice to provincial court judge in certain cases 536

(1) Where an accused is before a justice other than a provincial court judge charged with an offence over which a provincial court judge has absolute jurisdiction under

section 553, the justice shall remand the accused to appear before a provincial court judge having jurisdiction in the territorial division in which the offence is alleged to have been committed. Election before justice in certain cases

(2) If an accused is before a justice charged with an indictable offence, other than an offence listed in

section 469, and the offence is not

one over which a provincial court judge has absolute jurisdiction under

section 553, the justice shall, after the information has been read to the accused, put the accused to an election in the following words: You have the option to elect to be tried by a provincial court judge without a jury and without having had a preliminary inquiry; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury.

If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried? Procedure where accused elects trial by provincial court judge

(3) Where an accused elects to be tried by a provincial court judge, the justice shall endorse on the information a record of the election and shall (

a) where the justice is not a provincial court judge, remand the accused to appear and plead to the charge before a provincial court judge having jurisdiction in the territorial division in which the offence is alleged to have been committed; or (

b) where the justice is a provincial court judge, call on the accused to plead to the charge and if the accused does not plead guilty, proceed with the trial or fix a time for the trial. [ 7 ] Section 536(2) is in play in this case because s. 5(2) of the CDSA is not an offence referenced in s. 469 of the Criminal Code . Further, s. 5(2) does not fall within the absolute jurisdiction of the Provincial Court pursuant to s. 553 of the Criminal Code . Accordingly, faced with this charge, Mr. Dawad had the right to elect to be tried (

a) by a Provincial Court judge without a jury and without having had a preliminary inquiry, (

b) by a Queen’s Bench judge without a jury, or (

c) by a court composed of a Queen’s Bench judge and jury. [ 8 ] The Crown and Mr. Dawad agree that if Mr. Dawad was not afforded this right to elect his mode of trial, then the trial judge had no jurisdiction to hear Mr. Dawad’s trial and this Court should vacate his conviction. Agreement on this common ground reflects the notion that the assumption of jurisdiction by the Provincial Court depends on the decision of the accused to be tried in that court. [ 9 ] It is central to Mr.

Dawad’s arguments in this appeal that the Criminal Code directs the specific manner in which he was to be told of his right to make this election. His position is that he was denied this opportunity and, as a result, the Provincial Court never had, or it lost, jurisdiction to try him. [ 10 ] To more fully understand Mr. Dawad’s argument, it is helpful to understand certain background facts leading up to his trial. [ 11 ] On the same day that the cocaine was found in Mr. Dawad’s vehicle, information #90122402 [402] was sworn, alleging that Mr.

Dawad had committed the offence of possession of cocaine for the purposes of trafficking contrary to s. 5(2) of the CDSA . The other occupants of the vehicle were charged separately with the same offence. [ 12 ] Various court appearances followed the swearing of information 402. Mr. Dawad appeared in Provincial Court on September 12, 2016, at which time the presiding judge advised him that the Crown had proceeded by way of indictment on the charge. In response to a question from the judge, Mr. Dawad advised that he intended to represent himself at the trial.

In substantial compliance with s. 536(2) of the Criminal Code , the presiding judge also advised Mr. Dawad of his right to elect the mode of his trial. In this regard, the following exchange took place: THE COURT: And so, sir, with respect, you have the right to elect. Sir, you can elect to be tried by a Queen’s Bench, judge alone, and have a preliminary hearing; you have the right to be tried by a Queen’s Bench judge and jury and have a preliminary hearing; or, sir, you can be tried in Provincial Court, which is this court, and you do not have a preliminary hearing.

So, sir, first of all, how would you like to have your trial or your preliminary hearing? [MR. DAWAD]: I’ll go with Provincial because I do have some other co-accused as well. [ 13 ] In addition, on that day, Crown counsel advised of his intention to coordinate the trial of Mr. Dawad with the trials of the other three occupants of the vehicle. [ 14 ] Mr. Dawad made further appearances in court by telephone on October 17, 2016, November 28, 2016, and December 12, 2016. On January 16, 2017, a new information was sworn, #24539675 [675], alleging in a single information the commission by Mr.

Dawad and the other three occupants of the offence of possession of cocaine for the purposes of trafficking. The same day, Mr. Dawad appeared, again by telephone, before a Provincial Court judge. The following exchange took place: THE COURT: -- what’s happened is that the Crown -- and we discussed this the last day when you were on the phone. The Crown prosecutor has laid one Information charging all of you together so that there’s going to be one trial for all of you. Do you recall that, sir? [MR. DAWAD]: Yes. THE COURT: Now, sir, do you still wish to have your -- to enter a not guilty plea? [MR.

DAWAD]: Yes, I still -- THE COURT: All right. And you still -- sir, you still wish to be -- have your trial in provincial court; that’s correct? [MR. DAWAD]: Yes. [ 15 ] The presiding judge then confirmed the setting of a date for the trial against all four accused named in information 675 and that Mr. Dawad continued to intend to represent himself. The charges against Mr. Dawad and Mr. Juach alone proceeded to trial on May 10,

2018. On June 22, 2018, Mr. Dawad and Mr. Juach were both found guilty and sentence was imposed. [16] Mr. Dawad now argues in this Court that he was never provided with an election as to how he wished to be tried on the chargelaid pursuant to information 675 and, therefore, the Provincial Court either never had, or it lost, jurisdiction. [17] The Crown responds to Mr. Dawad’s argument in two ways. First, the Crown says that what occurred in this case wasanalogous to an amendment of the original information and, as such, it would not be necessary to give Mr.

Dawad a new election.Building from this proposition, the Crown further argues in its factum that “an accused is only entitled to make a new election as to modeof trial where an amendment charges a ‘new offence’ which is not included within the original charge” (emphasis in original). [18] I cannot agree with the Crown’s first argument. The situation in this case is not analogous to an amendment of an information.Rather, the proceedings under information 402 were separate from those under information 675.

The Crown cited R v Hollman (1962), (AB CA), 132 CCC 257 (Alta CA) and R v Grey, (BC CA), [1965] 4 CCC 240 (BCCA), but they aredistinguishable because those cases proceeded on the basis of a single information. There was, therefore, only one continuous proceedingin each of those cases. The Crown has offered no authority to support the notion that an election made in connection with one proceedingcan bind an accused in connection with a second, even if the two proceedings allege the same crime arising from the same factual matrix. [19] Here, the trial against Mr.

Dawad was conducted in relation to the charge alleged in information 675. It was necessary that thetrial court have jurisdiction in connection with that information. As succinctly stated in R v Albert, 2014 NBCA 27 at para 18, 419 NBR(2d) 307 [Albert] “[a]s a general rule, the Provincial Court acquires jurisdiction to act upon a plea in relation to an indictable offencetriable by judge and jury only once the accused has chosen trial in Provincial Court after being put to an election in the manner prescribedby s. 536(2) of the Criminal Code”. Therefore, the election made by Mr.

Dawad in the context of proceedings relating to information 402cannot serve as an election in connection with the proceedings relating to information 675. [20] However, I agree with the Crown’s second response to Mr. Dawad’s appeal on this ground. Specifically, I agree that Mr.Dawad “waived formal compliance with the requirement to explain the modes of trial again”, and Mr.

Dawad “was tried in the way hethen wished to be tried”. [21] Many authorities support the idea that “non-compliance with the requirements of s. 536(2) and a failure to trigger theapplication of s. 536.2 [sic] will not preclude jurisdiction where there is an effective waiver by the accused” (Albert at para 20).

Most ofthese cases can be traced to Korponay v Attorney General of Canada, (SCC), [1982] 1 SCR 41 [Korponay], which is citedin both parties’ factums. [22] In Korponay, the appellant alleged a lack of jurisdiction in the Court of Sessions of the Peace to try him due to the fact that hehad not re-elected to be tried by a judge alone. Justice Lamer (as he then was) emphasized that the facts before the Court did not involveprocedural irregularity or even substantive compliance, but rather complete non-compliance.

The question then became whether anaccused can waive compliance with procedural requirements respecting election. The Supreme Court held that, on the facts in Korponay,there had been a waiver of the accused’s rights to re-election. Justice Lamer referred to R v Park, (SCC), [1981] 2 SCR 64at 73, that “no particular words or formula need be uttered”, the substantive question being whether counsel speaking for the accused“understands the matter and has made an informed decision” in order to support a finding of waiver (at 49).

Justice Lamer continued (at49–51): Indeed, the court is saying in Park that the validity of such a waiver, and I should add that that is so of any waiver, is dependent upon itbeing clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights theprocedure was enacted to protect and of the effect the waiver will have on those rights in the process. … … The procedural step set out in s. 492(3), requiring the use of certain words, is there to ensure that an accused is properly informed of thechoice he has made and the one he now proposes to adopt.

His alternatives in the case at bar would be trial by a court composed of a judgeand jury, which he has formerly chosen, or trial by judge or magistrate alone, which he then contemplated.

An informed waiver musttherefore be, as regards that portion of s. 492, a clear and unequivocal indication by the accused himself or through his counsel that heknows the words that the law says must be used when putting him to his re-election, that he does not require that those words be uttered tohim, that he knows he was going to have a trial before a judge and jury, that he still has the right to such a trial but that he still has theright to re-elect for a trial before a judge sitting without a jury or a magistrate. (Underline emphasis in original; italics emphasis added) [23] Recently, this Court, referring to Korponay, held that the “formalities” of s. 536 (and re-election pursuant to s. 561) can bewaived, provided such waiver is clear and unequivocal (R v Ali, 2019 SKCA 83 at para 46). [24] The present case has many similarities to R v Vuong, 2010 ONCA 798, 272 OAC 101 [Vuong].

In that case, Mr. Vuongappealed his conviction for the offence of having care and control of a motor vehicle while having more than 80 mg of alcohol per 100 mlof blood. The primary ground of appeal was that the trial judge erred by failing to put Mr. Vuong to his election as required by s. 536(2) ofthe Criminal Code. Justice Sharpe, speaking for the Ontario Court of Appeal, noted that it was “clear from the record that the prescribedwords of the formal election were never put to the appellant” (at para 8). Mr.

Vuong was represented throughout by counsel, including atan appearance before a Justice of the Peace to set a date for either a preliminary hearing or a trial in Provincial Court. The trial coordinatorasked Mr. Vuong’s counsel whether Mr. Vuong would be electing a preliminary hearing or a trial (with no reference to what level of courta trial before a judge alone would occur or to the possibility of a jury trial). Mr. Vuong’s counsel simply indicated he intended to proceedto “a trial” (at para 12). At a later appearance to set a trial date, the Justice of the Peace asked: “Have elections been made?”.

The clerkresponded: “By indictment” (at para 13). Nothing was said as to Mr. Vuong’s election under s. 536(2), and the matter was set down for aone-day trial, which was held and resulted in a conviction. Subsequent to trial, Mr. Vuong sought different counsel who raised the failureto put him to his election as required by s. 536(2). On the facts, Sharpe J.A. held that, while the exchange that first occurred did notamount to a waiver of the procedural requirement laid down by s. 536(2), what occurred later did. The focus of the court was on the

combination of the words spoken by Mr. Vuong’s counsel at the first appearance together with his subsequent appearances and actions.Justice Sharpe observed that “every action taken by the appellant, through his counsel, was consistent with an election to proceed with aprovincial court trial and inconsistent with any equivocation as to that choice” (at para 29).

He continued: [30] In my view, when the words spoken by the appellant’s counsel on July 17 are considered together with what transpired thereafter,it was, to paraphrase Korponay, clear and unequivocal that the appellant was waiving the procedural safeguard contained in s. 536(2) andthat he did so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver would have on thoserights in the process. [25] Mr.

Dawad relies on R v Doyle, (SCC), [1977] 1 SCR 597 [Doyle]; R v Mitchell (1997), (ON CA), 121 CCC (3d) 139 (Ont CA) [Mitchell]; R v Spence, 2001 BCCA 521, 46 CR (5th) 387 [Spence]; R v Varcoe, 2007 ONCA 194,219 CCC (3d) 397 [Varcoe]; R v Shia, 2015 ONCA 190, 320 CCC (3d) 111 [Shia]; and R v Stark, 2017 ONCA 148, 347 CCC (3d) 73[Stark] to support his contention that no waiver had occurred in this case. In my respectful view, each of these cases is distinguishable. [26] Doyle did not involve any suggestion of a waiver.

Doyle also predates Korponay, and is of little relevance to this appeal, otherthan to support the idea that some defects in procedure are jurisdictional in nature. [27] In Mitchell, Doherty J.A. made clear that an accused can waive the procedural requirements of s. 536(2). On the facts of thatcase, a waiver was found to have been made.

Justice Doherty quoted from Korponay as establishing the principles applicable todetermining whether a waiver had occurred, describing this as a “fact-specific inquiry” (at para 31). [28] Varcoe confirms that in order to undertake the fact-specific inquiry contemplated in Mitchell, an appellate court faced with anargument such as that made in this case “must look to the record” (at para 18). [29] In Spence, the appellant was found to be not criminally responsible by reason of mental disorder in connection with 11 offencescontained in two informations.

After a detailed recitation of events, Low J.A. determined that it could not “be said with any confidencethat the appellant knew the charges against him or understood his options as to electing a mode of trial” (at para 14).

Based on all of this,and what he referred to the “almost complete failure to comply with the procedural requirements of s. 536(2) of the Criminal Code”, LowJ.A. said that he was not able to conclude that there had been a “waiver by the appellant of compliance with the procedural requirements”(at para 16). [30] Shia involved a case where a guilty plea was set aside because the required election was not given to the accused. The accusedwas represented by counsel. The court clerk asked if there was an election and “[t]he Crown responded ‘summarily’” (at para 13). Theappellant’s guilty plea followed.

There was no compliance of s. 536(2) of the Criminal Code. The judgment of Watt J.A. in respect to thisissue is brief. After noting the complete absence of the making of any election, he simply concluded that the “absence of an electionmeant that the provincial court judge had no authority to try the appellant or to receive his plea of guilty” (at para 27). [31] In Stark, the appellant was granted a new trial on the basis that he had not been given an adequate opportunity to considerelecting his mode of trial as provided by s. 536 of the Criminal Code.

It appears that the accused had expected the Crown to beproceeding summarily but, somewhat unexpectedly – at least to the accused, if not his counsel – the Crown proceeded by indictmentbecause, although one of the charges in the information was a hybrid offence, one of the others was indictable. [32] In my respectful view, none of these cases assist Mr.

Dawad in his appeal beyond supporting the contention that, in the absenceof a waiver, a failure to comply with the substance of s. 536(2) gives rise to a jurisdictional defect that results in proceedings being anullity. [33] I have not lost track of the fact that in Korponay and Vuong the accused were represented by counsel. While this fact isimportant, it is not determinative. In Korponay, Lamer J. said only that “always relevant will be the fact that the accused is or is notrepresented by counsel” (at para 16, emphasis added).

Justice Lamer did not suggest that the involvement of counsel is a requiredcondition precedent for a waiver to be effective. [34] Here, all circumstances point to Mr. Dawad having understood the choices available to him in connection with the chargealleged in information 675. Mr. Dawad was given a clear election in the context of the previous proceeding in information 402. Mr.Dawad demonstrated his understanding of the choice he had been given in that earlier proceeding by electing trial before a ProvincialCourt judge.

He also explained his reason for making that election to be the fact that the other vehicle occupants had chosen the samemode of trial. Mr. Dawad then appeared numerous times in the Provincial Court. When information 675 was sworn and presented to Mr.Dawad, he was informed that it alleged the commission of exactly the same offence arising from exactly the same factual circumstances.The other three occupants of the vehicle had again also elected to be tried in Provincial Court.

The only things that had changed were thenumber assigned to the information and that the other occupants of the vehicle would now be tried at the same time and in the sameproceeding as Mr. Dawad. [35] While Mr. Dawad’s election in the first proceeding did not bind him in relation to the proceeding in information 675, all thatoccurred in the earlier proceeding under information 402 provided context for the exchange between the presiding judge and Mr. Dawadon January 16, 2017. On that day, the presiding judge inquired of Mr. Dawad whether he “still” wished to have his trial in ProvincialCourt.

This inquiry alerted Mr. Dawad to the fact that he had a choice with respect to how he wanted to be tried in connection with the newinformation. Mr. Dawad affirmed that “yes”, he still did wish to have his trial in Provincial Court. Thereafter, he continued with his trial toits conclusion. I can interpret the dialogue between Mr. Dawad and the presiding judge, and the actions taken by Mr. Dawad after thatinquiry, in no other way but that Mr.

Dawad was aware of the choices available to him as to his mode of trial and that he clearly andunequivocally elected to proceed with a trial of the charges against him in Provincial Court. [36] Based on all of this, I do not hesitate in concluding that the conditions for an effective waiver of the requirements of s. 536(2)were met. Because of this waiver, the Provincial Court had jurisdiction to proceed with the trial of the charge against Mr. Dawad. B. Did the trial judge err in failing to exclude the evidence of cocaine

discovered during the search of Mr. Dawad’s vehicle, based on a breach of Mr. Dawad’s Charter rights? [ 37 ] The convictions of Mr. Dawad and Mr. Juach rested on the admissibility of the cocaine discovered during the search of Mr. Dawad’s motor vehicle. Mr. Dawad contended at trial that he was unlawfully arrested and that this unlawful arrest led to an improper warrantless search. He argued that both of those acts amounted to a breach of his Charter rights and an appropriate remedy would be the exclusion of the evidence discovered in connection with the breaches. Mr.

Dawad relied on ss. 8 , 9 , and 24(2) of the Charter , which provide as follows: Search or seizure 8. Everyone has the right to be secure against unreasonable search or seizure. Detention or imprisonment 9. Everyone has the right not to be arbitrarily detained or imprisoned. … Exclusion of evidence bringing administration of justice into disrepute 24.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 38 ] The trial judge held that Mr. Dawad’s arrest was lawfully made by the police acting under the authority of s. 495(1) (

a) of the Criminal Code . This provision allows a police officer to arrest without warrant “a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence”. Based on his determination that the arrest was authorized pursuant to s. 495(1) (a), the trial judge concluded that no Charter breach had occurred. The trial judge did not consider if it would have been appropriate to exclude the evidence if a Charter breach had been found. [ 39 ] Mr.

Dawad’s appeal from these rulings invites consideration of whether his arrest and the subsequent search of his vehicle were lawful. Only if either action was unlawful and a Charter breach occurred is it necessary to consider if the evidence of the cocaine should have been excluded. [ 40 ] The Crown and Mr. Dawad agree that the determination of whether his s. 9 Charter rights were violated turns on whether the arresting officers had reasonable grounds to believe that he had committed or was about to commit an indictable offence, thus authorizing his arrest pursuant to s. 495(1) (

a) of the Criminal Code . [ 41 ] Mr. Dawad’s arrest followed an investigation carried out by the Prince Albert Combined Forces Special Enforcement Unit [CFSEU] with assistance from other members of that city’s Integrated Street Enforcement Unit [ISEU]. The CFSEU is a specialized police unit comprised of RCMP and Prince Albert Police Service officers and is responsible for investigating criminal organizations and drug trafficking (“above street-level” dealers) in and around Prince Albert. The mandate of the ISEU is to investigate “street-level drug” trafficking. [ 42 ] The decision to arrest Mr.

Dawad and the others was made by Sgt. Tyler Chester and was based on information obtained from two confidential informants referred to in the proceedings and in the Trial Decision as CI-1 and CI-2, as well as certain corroborating information obtained by members of the CFSEU and ISEU on February 26, 2016. Sergeant Chester testified at the trial. The information from CI-1 was passed on to Sgt. Chester by Cst. Aaron Anderson, who received that information directly from CI-1. Constable Anderson also testified at the trial. The information from CI-2 was passed on to Sgt. Chester by Cst.

Trevor Chester, who received that information directly from CI-2. Constable Chester did not testify at the trial. [ 43 ] The trial judge made the following findings of fact in connection with the investigation and the arrest of Mr. Dawad: [5] Members of both of these specialized police units [i.e., the CFSEU and the ISEU] rely on intelligence they receive from confidential informants who they are responsible for “handling”. For security reasons, the only person who knows the identity of a confidential informant is their police handler. [6] At about 8:30 in the morning of February 26, 2016, Sgt.

Chester, of the CFSEU, received information from Cst. Anderson, an ISEU member, that, according to one of his confidential informants (CI- 1 ), a black male named “Karbino” was at a certain woman’s residence in Prince Albert, “reloading them” with methamphetamine and cocaine – meaning that the man named Karbino was supplying others with illicit drugs for distribution and sale. CI-1 also told Cst. Anderson that Karbino had access to a firearm and that “they” were driving in a newer white Dodge Ram. [7] A database search turned up a residential address for the woman identified by CI-1. Sgt.

Chester ordered a CFSEU officer, Cst. Jordan, to check that residence. Cst. Jordan drove by the residence and reported that a newer white Dodge Ram pickup truck, bearing an Alberta license [ sic ] plate, was parked in the driveway of the residence. For this reason, Sgt. Chester ordered the officer to surveil the residence. [8] Cst. Jordan took up a position where he could observe any comings and goings on the street side of the home. Cst.

Anderson joined him and parked his vehicle in the back alley to watch the residence from that side. [9] Neither officer reported any movement in or out of the home for about 45 minutes. Then Cst. Jordan saw three black males and an Indigenous female leave the residence, board the Dodge Ram, and drive away.

[10] Constables Jordan and Anderson began following the pickup truck in separate vehicles. A third CFSEU officer, Cst.

Ackerman,joined the surveillance team in his own vehicle. [11] The pickup truck went through a Tim Horton’s drive-through and then proceeded out of Prince Albert travelling west, in thedirection of Shellbrook, Saskatchewan. [12] By this time, all three CFSEU officers had a photograph of the accused, Karbino [Juach], and had been informed that a mannamed Dawad Dawad was the registered owner of the pickup truck. [13] While on the road to Shellbrook, and beyond, Constables Jordan, Anderson, and Ackerman, took turns as the lead vehicle – or, asthey described it in their testimony, the “eye” – of the surveillance team.

Throughout their journey, they kept Sgt. Chester up-to-date aboutwhat they observed. [14] The Dodge truck stopped at a gas station in Shellbrook. A black male exited the truck from the driver’s side and went into the gasstation. Cst. Anderson had the “eye” at that time, and believed that the man he saw was Mr. [Juach]. [15] After the driver returned to the white pickup, it began travelling north on Highway 55 toward Big River, Saskatchewan. The truckstopped at an Esso station in Big River. At this time, Cst. Jordan was in the lead surveillance position. [16] Cst. Jordan saw Mr.

Dawad exit the truck from the driver’s side, open the tailgate of his truck, remove a jerry can, and fill it withfuel. He then placed the jerry can back in the truck box, returned to the driver’s seat of his truck, and continued driving on Highway 55toward Green Lake, Saskatchewan. [17] While his surveillance team was on the way to Green Lake from Big River, Sgt. Chester spoke to his brother, a constable and amember of the CFSEU. Cst. Chester told Sgt.

Chester that he had received information from a confidential informant [CI-2] that three orfour black males, one of whom was named “Karbino”, were on their way to Pinehouse or Beauval for the purpose of supplying cocaine tothe community. [18] Secondary Highway 155 is the only route by which anyone can reach Beauval and Pinehouse by road. Secondary Highway 155begins at Green Lake. Highway 55 is the only highway by which drivers can access Secondary Highway 155. [19] With this information, Sgt.

Chester believed he had the necessary grounds to direct police to intercept and stop the Dodge truck,and to arrest the truck’s occupants for possession of cocaine for the purpose of trafficking. For this reason, he contacted the BeauvalRCMP detachment and asked the detachment’s sergeant to coordinate the high risk vehicle stop which ultimately took place a couple ofkilometres east of Green Lake, before the Secondary Highway 155 turnoff. [20] During the post-arrest search of Mr. Dawad’s Dodge Ram, the RCMP located approximately 52 grams of crack cocaine in rockform, separated into three separate chunks.

One portion was found in a plastic bag, inside a knotted sock which was stuffed in a discardedTim Horton’s bag on the floor in front of the back passenger seat where Mr. [Juach] had been seated. The other two chunks were placed inseparate plastic bags hidden inside what appeared to be a discarded rubber boot. The officer who found the latter stash of drugs, did soafter he opened the truck box’s tonneau cover and searched through the mess of tires, work clothing, and loose footwear strewn aboutinside the box. [44] In order to justify a warrantless arrest pursuant to s. 495(1)(

a) of the Criminal Code, the arresting officer must have thesubjective belief that the individual arrested had committed or was about to commit an indictable offence, and that belief must beobjectively reasonable. In respect to the second element of the test, it must be objectively established that “a reasonable person, standing inthe shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest” (R v Storrey, (SCC), [1990] 1 SCR 241 at 250 [Storrey]). The requirements were further summarized in Storrey in this way (at 250–251): In

summary, then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on whichto base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable personplaced in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On theother hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically, they are not required toestablish a prima facie case for conviction before making the arrest. [45] Here, no challenge was made as to the arresting officers’ subjective belief. In respect to the second element of the Storrey test,the trial judge considered that because the police officers who carried out the arrest were acting on orders from Sgt. Chester, “it is Sgt.Chester’s grounds for directing the arrest of the occupants of Mr.

Dawad’s vehicle that [the trial judge] must assess for its objectivereasonableness” (Trial Decision at para 26). [46] The trial judge was conscious that the decision to arrest was grounded in information provided by two confidential informants.He turned to R v Debot, (SCC), [1989] 2 SCR 1140 [Debot] as providing the framework to consider whether reasonablegrounds existed for making an arrest based on information received from a confidential informant.

Debot invites consideration of threequestions to assist reviewing courts when assessing the reasonableness of a warrantless search, which also apply in the circumstances of awarrantless arrest. As summarized by Wilson J. in that case (at 1168): In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search.First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a“tip” originating from a source outside the police, was that source credible?

Finally, was the information corroborated by policeinvestigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, Iconcur with Martin J.A.’s view that the “totality of the circumstances” must meet the standard of reasonableness. Weaknesses in one areamay, to some extent, be compensated by strengths in the other two. [47] Here, in respect to the credibility of the tipsters, the trial judge concluded that because the decision to arrest had been made bySgt.

Chester, he did “not need to delve into the actual credibility or reliability of CI-1 and CI-2” (at para 30). Instead, he determined that

what he “must do is decide whether it was reasonable for Sgt. Chester to rely on CI-1 and CI-2 as being credible informants, based on the information he knew about them at the time” (at para 30). In this regard, the trial judge considered that neither CI-1 nor CI-2 were anonymous tipsters and both had been found by the officers who conveyed their tips to have been proven reliable in the past. Having received these assurances, “Sgt. Chester had no reason to question the credibility of CI-1 and CI-2” (at para 31). The trial judge also found the information was compelling because of its detail.

Lastly, the trial judge found that much of the information provided by the tipsters had been corroborated. [ 48 ] Based on all of this, the trial judge concluded that “Sgt. Chester’s subjective belief that he had reasonable grounds to order the immediate arrest of the occupants of Mr. Dawad’s truck was subjectively reasonable” (at para 35), and therefore the arrest was justified pursuant to s. 495(1) (

a) of the Criminal Code . It is this conclusion that is at stake in this aspect of Mr. Dawad’s appeal. [ 49 ] The issue of whether the facts, as found by a trial judge, amount at law to reasonable grounds to arrest under s. 495(1)(

a) is a question of law subject to appellate review on the standard of correctness (see: R v Sheppard , 2009 SCC 35 at para 20 , [2009] 2 SCR 527; and R v Pavlik , 2019 SKCA 107 at para 18 [ Pavlik ]). [ 50 ] Mr. Dawad makes several arguments as to why the trial judge erred in his legal analysis. His first is that the trial judge was incorrect when he said that he “did not need to delve into the actual credibility or reliability” of either informant. To understand Mr.

Dawad’s point, it is helpful to reproduce more fully the trial judge’s reasons insofar as they relate to the “credibility” component of the three-factor test set out in Debot . In this regard, the trial judge stated as follows: [30] One key difference between the case before me and the evidence heard at trial in Debot , is that in Debot , the police officers who carried out the investigation leading to Mr. Debot’s arrest testified, but the police sergeant who ordered his arrest, did not; whereas, in the case before me, the officer who directed the arrest of the accused did testify.

Because of this key difference, I do not need to delve into the actual credibility or reliability of CI-1 and CI-2. What I must do is decide whether it was reasonable for Sgt. Chester to rely on CI-1 and CI-2 as being credible informants, based on the information he knew about them at the time. [31] Sgt. Chester did not know anything about either CI-1 or CI-2, but he knew they were not anonymous tipsters. He asked both Cst. Anderson and Cst. Chester whether their respective informants had proven to be reliable in the past. Both officers responded affirmatively.

He also asked the two constables whether their informants ever had been charged with lying to the police. Both officers replied “No”. Having received these answers to his questions, Sgt. Chester had no reason to question the credibility of CI-1 and CI-2. [ 51 ] I understand the trial judge to be saying, in effect, that because the decision to arrest was made by Sgt. Chester, the credibility of the informants for the purposes of the Debot analysis was established as soon as Sgt. Chester had determined this to his own reasonable satisfaction through his inquiries with Cst. Anderson and Cst. Chester.

If this is the trial judge’s conclusion, I agree with Mr. Dawad that it is one based on a misunderstanding of the analysis directed in Debot . The point I am making emerges from the recent decision of this Court in Pavlik . [ 52 ] In Pavlik , arrests were made on the strength of information given to a police officer (as it happens, also a Cst. Anderson), that the accused would be involved in drug trafficking at a specific location in Prince Albert. The officer directing the arrest was assured by this Cst.

Anderson that the informant was reliable, but otherwise made no inquiries about the tipster or the tipster’s prior involvements with police. However, this Cst. Anderson did not testify at Mr. Pavlik’s trial. Justice Caldwell observed that the case was different than many others because “the police officer who most directly relied on the tip, who assessed the tipster’s credibility, and who advised the on-the-ground police officers that Mr. Pavlik was ‘arrestable’, did not testify” (at para 25).

As explained by Caldwell J.A., “the failure of the Crown to put forward Constable Anderson as a witness, or to otherwise establish the credibility of the tipster, means that one of three pillars for the Crown’s assertion that the warrantless arrest was lawful is absent” (at para 28). Justice Caldwell went on, after quoting extensively from Debot , to state: [30] These passages from R v Debot serve to highlight the relevance and importance of the objective basis for Constable Anderson’s belief that Mr. Pavlik and Ms. Werminsky were “arrestable”.

To put an evidentiary point on it, because Constable Anderson did not testify, there was no evidence before the trial judge akin to that which Wilson J. had used in R v Debot to conclude the tip in that case “did not take the form of bald conclusory statements or ‘mere rumour or gossip’” . None of the on-the-ground officers testified to having prior knowledge that Mr. Pavlik or Ms. Werminsky were involved in the drug trade or other criminal activity. None of the on-the-ground officers testified that either of Mr. Pavlik or Ms. Werminsky were otherwise known to the police.

While Constable Anderson may have had this information, on the evidence adduced in the voir dire , the two were completely unknown to the police prior to their receipt of the tip. Indeed, the trial judge noted Sergeant Dunn had testified that, without the tip, the police “would not have had reasonable grounds to believe either that Ms. Werminsky or Mr.

Pavlik were engaged in unlawful conduct” [citation omitted]. (Emphasis added) [ 53 ] Later, after reviewing other aspects of the record in Pavlik , Caldwell J.A. returned to the point again, stating as follows: [40] To put all of this together, Constable Anderson had told Sergeants Mudry and Dunn that the tipster was credible. The on-the- ground officers were entitled to rely on that communication to effect the arrest.

Given that they had received a tip with some compelling details, and had corroborated most of the neutral circumstances it predicted, the on-the-ground officers had grounds to subjectively believe that Mr. Pavlik had or was about to commit an indictable offence and was, therefore, subject to being arrested under s. 495(1) (

a) of the Criminal Code . Critically, however, the lawfulness of the arrest nonetheless remained subject to judicial review if challenged. This is where the matter turns, and it does so because the Crown had given the trial judge no evidence upon which he could evaluate the credibility of the tipster or the objective reasonableness of Constable Anderson’s belief that the tipster was credible and that Mr.

Pavlik was “arrestable”. (Emphasis in original) [ 54 ] The point I take from Pavlik is that, to the extent that the Crown places reliance upon the credibility of a confidential informant as part of the Debot analysis, that credibility must be established by evidence that is admissible to prove that point. I accept that here, as

found by the trial judge at paragraph 31, Sgt. Chester “had no reason to question the credibility of CI-1 and CI-2”. However, this does not create an evidentiary basis that the two informants were credible. Respectfully, therefore, the trial judge erred when he said that he did “ not need to delve into the actual credibility or reliability of CI-1 and CI-2” (at para 30) . [ 55 ] The question becomes, however, whether the error in the trial judge’s analysis affects the correctness of his conclusion that there was an objectively reasonable basis for the arrest.

Before turning to this question, I would like to address several other arguments made by Mr. Dawad. [ 56 ] Mr. Dawad argues that while arresting officers are entitled to consider information that implicates a person in a crime, they “must also consider ‘exonerating’ information”. Mr.

Dawad goes on to state in his factum: In the case at bar, there was no reason for the police to pull the truck over when they decided to do so: no one was in danger, it was unknown if there were drugs actually in the truck, it was day light [ sic ], and there was, at that point, no indication that the vehicle was going to the alleged location that the informants indicated (it was only pointed in that direction). [ 57 ] I agree that a finding of reasonable grounds to make an arrest must take into account the totality of all circumstances.

After all, what is suspicious in one context may tend to be neutral or exculpatory in a different setting. However, the facts Mr. Dawad points to are not exculpatory, in the sense of pointing to non-involvement of the vehicle’s occupants in criminal activity. Moreover, they were points made in oral argument to the trial judge and nothing in the Trial Decision suggests that these circumstances were overlooked by the trial judge. To the contrary, the trial judge was alert to the most important point now being made by Mr.

Dawad –that when the vehicle was stopped, it was on a public road that led to locations other than the northern communities that the second tipster indicated as being the destination for the transported drugs. In this regard, the trial judge stated as follows: [35] While it might have been better to hold off on stopping Mr. Dawad’s truck until after it turned north onto Secondary Highway 155 at Green Lake, I find that Sgt. Chester’s subjective belief that he had reasonable grounds to order the immediate arrest of the occupants of Mr. Dawad’s truck was objectively reasonable. [ 58 ] Mr.

Dawad’s other arguments challenge the overall conclusion of the trial judge that there was an objectively reasonable basis for the arrests in the totality of all the circumstances. Given that the decision by the trial judge in this regard is subject to review on a standard of correctness, and also that the trial judge erred in determining that he did “ not need to delve into the actual credibility or reliability of CI-1 and CI-2”, it is appropriate for this Court to undertake a fresh consideration of the Debot factors in the context of the evidence in this case.

In this regard, i t is important to analyze the two tips in their separate sequential contexts. I begin by examining CI-1. [ 59 ] In accordance with the Debot framework, the degree to which a confidential tip is compelling is a function of its detail. The trial judge explained why he found the information provided by CI-1 to be compelling, stating that it “included a general description and the first name of the person who was travelling in a white Dodge Ram, and who was ‘reloading’ people with illicit drugs at a certain woman’s residence in Prince Albert” (at para 32 ). Mr.

Dawad mounted no challenge to this aspect of the trial judge’s decision. I would add that the trial judge had previously recited other compelling details provided by CI-1, including the specific type of drugs that “Karbino” was trafficking, as well as that “Karbino” had access to a firearm. [ 60 ] As I have already discussed, the trial judge erred when he stated that he did “ not need to delve into the actual credibility or reliability of CI-1” (at para 30). However, there was substantial evidence that CI-1 was both credible and reliable. CI-1’s police handler, Cst.

Anderson, testified that he had known the source for “[a]pproximately one year at that time”. Constable Anderson also testified that CI-1 “had provided information to [Cst. Anderson] more than 20 times”, which had led to an unstated number of seizures of drugs and stolen property convictions, “several vehicle stops”, and “had been used in more than five judicial authorizations at the time”. In cross- examination, Cst. Anderson further clarified that at the time of testimony, of those five judicial authorizations, “charges had been laid on numerous people” and one conviction obtained.

Constable Anderson described CI-1 as having been “proven reliable”. In cross-examination, Cst. Anderson also confirmed CI-1 had a criminal record, but not for an offence involving dishonesty. Therefore, while the trial judge erred in not conducting his own independent assessment of CI-1’s credibility and reliability, the uncontradicted evidence was that CI-1 was both credible and reliable. [ 61 ] The last aspect of the Debot framework is the degree of corroboration of a confidential informant’s information.

In respect to CI-1’s information, the trial judge made specific note that the police had been able to corroborate that “[a] black man named Karbino [Mr. Juach] was travelling in a white Dodge Ram which had been parked at the residence in Prince Albert where CI-1 said that Karbino had been reloading people with illicit drugs” (at para 33). [ 62 ] It was in the context of the information provided by CI-1, and corroboration secured by the police of parts of it, that the information from the second confidential informant was received. CI-2 provided compelling detail.

Specifically, as pointed out by the trial judge, “CI-2’s information identified the same suspect, and confirmed other information that the police already had gleaned through their surveillance of the Dodge pickup truck: for example, that at least three black males were in the truck and that the truck was travelling to Beauval and Pinehouse to provide cocaine to the community” (at para 32).

In respect to this information, the trial judge identified the following details provided by CI-2 that were corroborated by the police before arrests were carried out (at para 33): • A total of three black males were in the truck [CI-2’s information was that the group consisted of three or four black males, one of whom was named Karbino]. • the Dodge truck, carrying Mr. [Juach], two other black males, and a woman, was travelling northwest on the only highway from which a motor vehicle operator could access the road to Beauval or Pinehouse, which is where CI-2 predicted they were going. [ 63 ] The fact that CI-2’s information was predictive in nature is significant, as was the fact that, while the highway Mr.

Dawad and the others were travelling led to more locations than Beauval or Pinehouse, the location was relatively remote and the list of possible destinations was finite. All of this made it far less likely that the presence of Mr. Dawad and the others on that highway was due to innocent coincidence. These facts also distinguish the circumstances in this case from those in Pavlik .

[ 64 ] It is certainly material that, in contrast to CI-1, there was no evidence that would allow the credibility of CI-2 to be independently assessed. However, “the three R v Debot questions are not separate tests; rather, they point to factors to weigh in the court’s objective assessment of the totality of the circumstances” ( Pavlik at para 27 ). As pointed out by Caldwell J.A. in Pavlik : [26] Of course, an evidentiary frailty as to the informant’s credibility does not necessarily result in a tip being incapable of establishing grounds for arrest under s. 495(1) (a).

As Wilson J. stated in R v Debot at 1170, “where the police rely on an anonymous tip or an untried informant ... the quality of the information and corroborative evidence may have to be such as to compensate for the inability to assess the credibility of the source”.

Put another way, frailties in the evidence under one of the three R v Debot questions may be compensated for where, in an assessment of the whole of the circumstances, the objective evidence under all three questions is rationally capable of supporting a belief that the arrestee had committed or was about to commit an indictable offence. [ 65 ] In oral argument, Mr. Dawad made the point, which had not been made during submissions to the trial judge or in his factum, that none of the information provided by the two confidential informants specifically mentioned his involvement in drug trafficking.

However, it is not correct to say nothing in the circumstances that presented themselves to Sgt. Chester and the arresting officers provided reasonable grounds to believe that Mr. Dawad had committed or was about to commit the indictable offence of trafficking. First, the vehicle belonged to Mr. Dawad. Second, as pointed out by the trial judge, CI-2 had indicated that three or four males were on their way to Pinehouse or Beauval to traffic drugs. The fact the informant identified the race of the individuals does not make the decision to stop and arrest the individuals the product of improper racial profiling.

Third, the other detail and corroboration supports the reasonableness of the decision to arrest all of the occupants of the vehicle. Throughout, it is important to keep in mind that “the appropriate standard is one of ‘reasonable probability’ rather than ‘proof beyond a reasonable doubt’ or ‘prima facie case’” ( Debot at 1142). [ 66 ] As is always the case, it is possible to imagine other information that, if present, would have made the grounds for the police to arrest Mr. Dawad and the others stronger.

For example, as in Pavlik , nothing in the evidence spoke to the basis for the information provided by the confidential informants. As in Pavlik , the police had not been able to corroborate any criminal activity prior to arrest. However, “there is no general requirement that they do so” ( Pavlik at para 37 ). Moreover, given the remoteness of the highway and the direction of travel, the situation began to edge toward one where the presence of the vehicle, “although not illegal, could be viewed as reasonably anticipatory to illegal activity” ( Pavlik at para 37 ).

In my respectful view, the trial judge was certainly correct when he said that it “might have been better” (at para 35) if the police had held off until the vehicle made the turn onto Secondary Highway 155 towards Pinehouse or Beauval, but in the overall context of the decision to stop the vehicle and arrest its occupants, it was not a prerequisite for a lawful arrest for the police to have waited until this later point in anticipated events.

Instead, the objective reasonableness of the belief of the arresting officer must be assessed only against the facts as they presented themselves at the time, not the facts as they might have been. [ 67 ] Here, the reasonable basis to arrest Mr. Dawad rests on the combination of (

a) the existence of two confidential informants, the credibility and reliability of one of which was grounded in evidence before the Court, (

b) the compelling detail provided by them, (

c) the corroboration of information provided by the informants, which included the presence of Mr. Dawad and others on a highway leading to a finite number of destinations, including the two small communities where CI-2 indicated the drugs were to be sold, and

d) the fact the vehicle was registered to Mr. Dawad. [ 68 ] Mr. Dawad’s submissions in this Court differed from those made at trial. At trial, the Charter arguments made by Mr. Juach and Mr. Dawad were focused exclusively on whether the officers had a reasonable basis to arrest pursuant to s. 495(1) (

a) of the Criminal Code . Mr. Juach’s arguments were presented by his counsel. Mr. Dawad offered no additional submissions, although the trial judge treated arguments advanced by Mr. Juach’s counsel as being made on behalf of Mr. Dawad as well. In this Court, Mr. Dawad advanced an argument in his factum that differentiated his position from that of Mr. Juach, asserting that he had an “increased expectation of privacy as the owner” of the truck. Mr.

Dawad expanded on this position in oral argument, asserting that there was no need for the police to conduct a warrantless search, and instead the officers could have impounded the vehicle and then obtained judicial authorization for its search, rather than searching the vehicle incidentally to the arrest of its occupants. [ 69 ] None of these arguments were presented by Mr. Dawad to the trial judge. They are, therefore, not addressed in the Trial Decision . As well, in neither his factum nor in oral argument did Mr.

Dawad attempt to engage with the case law that discusses the authority of the police to search as an incident to an otherwise lawful arrest. For these two reasons, I decline to consider these arguments further. [ 70 ] Because of my conclusion that Mr. Dawad’s Charter rights were not violated, there is no need to consider whether the evidence of the cocaine should have been excluded pursuant to s. 24(2) of the Charter . II. conclusion [ 71 ] For the reasons I have given, the Provincial Court had jurisdiction to hear and decide the case against Mr. Dawad. Mr. Dawad’s Charter rights were not violated by the police.

On these bases, I would dismiss Mr. Dawad’s appeal. [ 72 ] Mr. Dawad has been at large pending the hearing of his appeal. I would direct Mr. Dawad to present himself to a police station or correctional institution in either Saskatoon or Regina within 72 hours of the release of this judgment to his counsel. “Leurer J.A.” Leurer J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Leurer J.A.” For Whitmore J.A.