R v Protz, 2020 SKCA 115

Court of Appeal for Saskatchewan Citation: R v Protz , 2020 SKCA 115 Date: 2020-10-07 Docket: CACR3282 Between: Clark Protz Appellant And Her Majesty the Queen Respondent Docket: CACR3290 Between: Crystal Paige Ford Appellant And Her Majesty the Queen Respondent Before: Ottenbreit, Caldwell and Leurer JJ.A. Disposition: Appeal dismissed – CACR3282 Appeal dismissed – CACR3290 Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Leurer On appeal from: 2019 SKPC 26 , Yorkton Appeal heard: June 11, 2020 Counsel: Brian Pfefferle for the Appellant, Clark Protz Thomas Hynes for the Appellant, Crystal Paige Ford Wade McBride, Q.C., for the Respondent Ottenbreit J.A. I. Introduction [ 1 ] Clark Protz and Crystal Paige Ford appeal their convictions after trial in the Provincial Court of Saskatchewan for possession of cocaine and methamphetamine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ]. [ 2 ] Both Mr. Protz and Ms.

Ford were sentenced to terms of incarceration of 40 months concurrent for each of the offences. As well, the usual ancillary firearms and DNA orders were imposed. Each received credit for time each spent in remand. They do not appeal their sentences. [ 3 ] Neither Mr. Protz nor Ms. Ford challenge the trial judge’s statement of the law or his findings of fact. They each challenge the trial judge’s finding in a voir dire that there were reasonable grounds for their arrest: R v Ford , 2019 SKPC 26 [ Decision ]. For the reasons set forth hereafter, their appeals are dismissed. II.

Facts and background [ 4 ] During the first ten days of December 2018, Corporal Newton received information from three confidential informants she named A, B and C that Mr. Protz was selling cocaine in Yorkton and that Ms. Ford was working with him. As a result, the police undertook an investigation based on this information. During the investigation, Cpl. Newton was the handler for informants B and C. Constable Nelson was A’s handler. When A provided information to Cst. Nelson, he in turn relayed it to Cpl. Newton. [ 5 ] C told Cpl. Newton that Ms.

Ford had sold her house at 159 Allanbrooke Drive in Yorkton and was going to use the funds to “head out west” to buy and bring back a shipment of controlled substances to Yorkton ( Decision at para 29). This informant also said that Ms. Ford now resided at 215 Betts Avenue in Yorkton. [ 6 ] Corporal Newton verified C’s information by examining an email a co-worker had received confirming the sale of Ms. Ford’s Allanbrooke house and by confirming the sale on the Multiple Listing Service website. As well, she obtained a copy of a previous court undertaking given by Ms.

Ford on another matter, which ordered her to live at 215 Betts Avenue as a condition of her release from custody.

[ 7 ] A few days after C had provided the initial information to Cpl. Newton, C called again and said Ms. Ford and Mr. Protz had been in an accident out west, the two of them were bringing drugs back to Yorkton and that people were waiting for their return. C also said that Ms. Ford was heavily using crystal meth and Mr. Protz was staying with Brad Chernipeski in Yorkton. [ 8 ] Corporal Newton confirmed that information from C by checking the police information portal. From this check, she learned that on November 30, 2018, Mr.

Protz had been in a motor vehicle accident involving a deer near Chase, British Columbia, and that Ms. Ford had been a passenger in the vehicle and a tow truck had removed the vehicle from the scene. Corporal Newton also learned by accessing a police database that Brad Chernipeski resided at 12 Gladstone Avenue in Yorkton. [ 9 ] Based on the information to this point, Cpl. Newton believed that Ms. Ford and Mr. Protz had been “out west” and were driving back towards Yorkton. She did not know, however, what vehicle they were using after the accident. [ 10 ] Thereafter, Cpl. Newton was advised by C that Ms.

Ford had arrived back in Yorkton, that she was keeping a low profile because she had brought back drugs and that she was driving around with a man named Mike McDonald in a red SUV. [ 11 ] Corporal Newton then spoke to B, who told her that Ms. Ford had travelled out west with Mr. Protz and had brought back a large amount of drugs. B also told her that Ms. Ford had returned a few days earlier and that she had sold her house, giving her access to money from the sale. B said she had moved into a house on Betts Avenue with a person named Skippy. B also said the vehicle Ms.

Ford was travelling in when she was out west had broken down and that she had returned in a rental vehicle that Mr. Protz was driving. [ 12 ] Corporal Newton believed the information from B corroborated the information received from C. At that point, however, Cpl. Newton was unable to determine what vehicle Ms. Ford or Mr. Protz may have rented. [ 13 ] Corporal Newton talked with B again, who then told her that Mr. Protz was staying at a house on Gladstone Avenue in Yorkton, north of the intersection near Broadway and Gladstone. B also said that Ms. Ford and Mr.

Protz were planning another trip out west very soon and that an individual in Yorkton named Darwin Whitehawk was helping Ms. Ford sell “product” in Yorkton. [ 14 ] Corporal Newton drove to the area north of Broadway and Gladstone and discovered that 12 Gladstone Avenue (where Brad Chernipeski was residing) was located just north of the intersection of Broadway and Gladstone. In Cpl. Newton’s view, this corroborated the information provided by B and C. [ 15 ] Corporal Newton then contacted Budget Rent-a-Car [Budget] near Chase, British Columbia.

She learned that Budget had after the accident towed the vehicle used by Mr. Protz. She also learned from the Kamloops RCMP detachment that a member of that detachment had spoken to employees at Budget and Budget’s business records indicated the accident had happened on November 30 and listed the driver as Clark “Trotz”. Corporal Newton believed “Trotz” was a typographical error and that it was actually Protz. Corporal Newton learned that, after the accident, Mr.

Protz went to Budget in Kamloops to rent a vehicle but the company declined and, thereafter, a Budget employee gave him a ride to the Knights Inn in Kamloops. [ 16 ] At that point, Cpl. Newton was still unsure what vehicle Ms. Ford and Mr. Protz were using. She directed Cst. Kelly to set up surveillance at the residence of Ms. Ford at 215 Betts Avenue in Yorkton. Constable Kelly observed an Indigenous male exit that residence and get into a red Impala. Constable Kelly could not read the licence plate of that vehicle because it was obscured by snow.

Twenty minutes later, this male returned to the residence. [ 17 ] Corporal Newton checked police databases regarding Darwin Whitehawk and determined that he lived at 465 Lakeview Road in Yorkton. She drove by that residence and saw a red Impala vehicle (similar to the one seen previously by Cst. Kelly in front of the Betts Avenue residence) parked in a side alley with its engine running. Corporal Newton could see a male in the driver seat but was not able to determine what the male was doing. She watched the vehicle for 45 minutes.

The male was slumped over in the driver’s seat. [ 18 ] Corporal Newton called Yorkton police to check on the occupant of the red Impala. Constable Nelson attended and checked on the occupant. The driver of the vehicle was Darwin Whitehawk. Constable Nelson arrested Mr. Whitehawk and searched him. He had cocaine in his possession. Corporal Newton believed this was the same Indigenous male that Cst. Kelly had seen leaving the Betts Avenue address. She also believed that this information corroborated B’s information about Mr. Whitehawk assisting Ms. Ford to sell drugs. [ 19 ] Shortly thereafter, Cpl.

Newton received information from B that Ms. Ford and Mr. Protz had left for the west coast to pick up “product” and would be coming back to Yorkton later on the weekend. On Sunday, December 9, 2018, B contacted Cpl. Newton and said that Mr. Protz and Ms. Ford were on their way back to Yorkton and that Ms. Ford was bringing “product” back with her. [ 20 ] That same day, Cst. Nelson informed Cpl. Newton that A had told him Mr. Protz and Ms. Ford were travelling back to Yorkton. Corporal Newton understood that Cst. Nelson had spoken to A two to three times that week.

Constable Nelson also told her that A had said Ms. Ford had sold her house and intended to use the money to buy a large amount of contraband substance. [ 21 ] On December 9, Sergeant Greg Smith advised Cpl. Newton that an RCMP member had spoken with a staff member at the Ramada Hotel in Yorkton who told them that she had received a telephone call from Ms. Ford, who had attempted to rent a room for Mr. Protz. The staff member said that Ms. Ford was calling from Hinton, Alberta, and wanted to rent a room for one week. When the staff member said that pre-payment was required, Ms.

Ford did not rent the room. [ 22 ] Corporal Newton now believed that Ms. Ford and Mr. Protz were in Hinton, Alberta, about 1,133 kilometers from Yorkton. She estimated they faced an 11 to 12-hour drive to get to Yorkton. Based on information from B, she believed they were travelling in a rental vehicle. As a result, she set up a team of members in unmarked vehicles to the west of Yorkton, as well as in Yorkton. [ 23 ] At 2:50 a.m., Sgt. Smith radioed Cpl.

Newton that he had been following a grey van bearing Alberta licence plate E55 177 that was driving on highway #16 and learned through a computer check that the vehicle had been rented from Enterprise Rent-a-Car in Calgary. Corporal Newton then directed two police constables to locate this grey van and, if they were able to identify Ms. Ford and Mr. Protz as the occupants, the officers were then to arrest them both for an offence under s. 5(2) of the CDSA .

[24] The constables were able to locate the rental van. They stopped the vehicle and confirmed that Ms. Ford and Mr. Protz were theoccupants and arrested them. When the police searched the vehicle, among other items, they found and seized bags containing 140.13grams of cocaine and 198.43 grams of methamphetamine. [25] Corporal Newton testified that she believed the information provided by all three confidential informants was within theirfirst-hand knowledge and was not rumour. To protect the identity of these informants, Cpl.

Newton testified that she could not repeat wordfor word what each had said, so she described their information in a generalized form. [26] Corporal Newton believed all of the informants were reliable and credible. The basis for her belief was that: (

a) A had been a confidential informant for the Yorkton detachment for two years. Information from this informant had led tothree search warrants. A had received payment for the information provided but was also motivated to assist in protecting the community; (

b) B had provided information to Cpl. Newton for 18 months and had received payment for this information. Information from Bhad led to two search warrants and, in this investigation, B’s information corroborated information received from A; and (

c) C had been an informant for seven months and had received payment for information he or she had previously provided.Information from C had never been used in a search warrant application, but the information provided by C was consistent with, andsimilar to, the information received from A and B. [27] Corporal Newton personally knew informant B and C. Informant A was personally known to Cst. Nelson, but he did not testify. III. The Decision [28] The case against Mr. Protz and Ms. Ford rested on the admissibility of the evidence of the drugs seized upon their arrest. Mr.Protz and Ms.

Ford submitted that it was unlawful because the police did not have reasonable grounds for their arrest without warrant andtherefore their ss. 8 and 9 Charter rights had been violated. They applied under s. 24(2) of the Charter to exclude the drugs found on thatbasis. These issues were dealt with in a voir dire. [29] At the voir dire, the trial judge first generally reviewed the facts. He then turned to the law governing reasonable grounds forarrest. He noted that s. 495(1)(

a) of the Criminal Code authorizes a police officer to arrest a person without warrant who he believes, onreasonable grounds, to be committing, or is about to commit, an indictable offence. He appropriately referred to the governing law asfound in R v Debot, (SCC), [1989] 2 SCR 1140 [Debot], R v Shinkewski, 2012 SKCA 63, 399 Sask R 11 [Shinkewski],and R v Todd, 2019 SKCA 36, [2019] 9 WWR 207 [Todd], as well as other jurisprudence that dealt with reasonable grounds to arrest. [30] The trial judge stated the issue before him on the voir dire as being whether Cpl. Newton had reasonable grounds for the arrestof Mr.

Protz and Ms. Ford. He noted that much of the information Cpl. Newton had to support the grounds for the arrest came from thethree informants, namely A, B and C. Corporal Newton testified the information provided by all three informants was first-handknowledge.

The trial judge reviewed the evidence in this regard. [31] After that review, he determined the arrest was lawful, concluding: [45] Having considered the meaning of lawful grounds to arrest set out by the Supreme Court of Canada in [R v Storrey, (SCC), [1990] 1 SCR 241] and Debot, and as well by the Saskatchewan Court of Appeal in Shinkewski, and having considered theinformation possessed by Cpl. Newton in the early morning hours of December 10, 2018, I am satisfied that the arrest of Mr. Protz andMs. Ford was lawful. That is because: (

a) Taken together, I am satisfied that Cpl. Newton had a subjective belief that Mr. Protz and Ms. Ford had committed the offence ofpossession for the purpose of trafficking under the CDSA, and that, given everything known to her cumulatively, and as well consideringall the circumstances of this case, that belief was in my view reasonable, and clearly was more than a suspicion or a hunch; (

b) While not all of the information Cpl. Newton received from the confidential informants was corroborated, while confidentialinformant C was a recent source whose information had not in any sense been judicially tested, and while there were no observations ofMs. Ford or Mr. Protz in Yorkton over this ten day period, I am satisfied that there was significant corroboration of much of theinformation provided by these confidential informants, both between the informants and externally. In particular: (

i) information from C that Ms. Ford had sold her house and was living on Betts Avenue in Yorkton was corroborated by Cpl. Newtonfrom the MLS web site and by her getting a copy of Ms. Ford’s undertaking; (ii) information from C that Ms. Ford was working with Mr. Protz was corroborated by Ms. Ford’s telephone call to the Ramada Hotelin Yorkton, from Hinton, Alberta, when she attempted to rent a room for him; (iii) information from B that Ms. Ford was out west with Mr. Protz and that the vehicle she was in broke down, was corroborated by Cpl.Newton’s inquiries about Mr.

Protz’s accident near Chase, British Columbia; (iv) information from B that Ms. Ford and Mr. Protz were travelling in a rental vehicle was supported by the information discovered byCpl. Newton that Mr. Protz, with Ms. Ford as passenger, hit a deer near Chase British Columbia, and then tried to rent a vehicle at BudgetRent a Car in Kamloops; (

v) information from B that Ms. Ford had sold her house and used the proceeds to purchase a large amount of drugs and she wastravelling back to Yorkton with Mr. Protz was corroborated by A; and (vi) information from B that Darwin Whitehawk was helping Ms. Ford sell drugs in Yorkton, was supported by the arrest of DarwinWhitehawk in possession of cocaine, and in a red Impala outside his residence in Yorkton, which I am satisfied Cpl. Newton reasonably

believed to be the same person seen leaving the Betts Avenue residence in the same vehicle a few days earlier; (

c) While, as noted, each detail in the information provided by the confidential informants was not confirmed by Cpl. Newton, or theother officers working on this investigation, I am nevertheless satisfied that the information possessed by Cpl. Newton, about thissequence of events which was unfolding quickly over the weekend of December 9 and 10, and was believed to be occurring in a rentalvehicle on a major highway, conformed sufficiently to the pattern Cpl. Newton was expecting so as to remove the possibility of aninnocent coincidence; and (

d) While the decisions cited by counsel on the issue of reasonable grounds to arrest - which include R v Morin/Lachance, 2012SKQB 61, Shinkewski, R v Hardy, 45 BCAC 146, and R v Protz, 2014 SKQB (unreported) - depend on the unique circumstances of eachcase, I have read and considered these cases, and I am of the view that, while some of them have stronger grounds for arrest than others,the issue for me to determine is whether the standard for arrest without a warrant from Shinkewsky [sic] has been met. For the reasonsstated above, I am satisfied that it has.

I, as well, note that the [R v Omeasoo, 2019 MBCA 43] decision of the Manitoba Court of Appeal,rendered two weeks ago, found an arrest without a warrant in a vehicle to be objectively reasonable, based on the constellation of factorsknown to the police officers. Having read and considered that decision, I am satisfied that the information possessed by Cpl. Newton wasat the least equal to that possessed by the officers in Omeasoo. Because I am satisfied that Cpl. Newton held the requisite grounds to arrest both Mr. Protz and Ms.

Ford for an indictable offence, unders. 5(2) of the CDSA, I am not satisfied that the rights of either under ss. 8 or 9 of the Charter were violated. As a result, the defenseapplication under s. 24(2) of the Charter is dismissed. (Emphasis in original) [32] The trial judge did not go on to conduct a s. 24(2) Charter exclusion analysis pursuant to R v Grant, 2009 SCC 32, [2009] 2SCR 353 [Grant]. [33] The trial judge applied the evidence from the voir dire to the trial proper with the agreement of the parties. There was nofurther Crown evidence. Neither Mr. Protz nor Ms. Ford called any evidence.

The trial judge accordingly found that Mr. Protz’s and Ms.Ford’s ss. 8 and 9 Charter rights were not violated and that they were guilty of the offences. IV. Analysis [34] The crux of these appeals is whether the trial judge erred in finding the police had reasonable grounds to arrest without warrantboth Mr. Protz and Ms. Ford for possession for the purpose of trafficking. If he did, then he may, subject to undertaking a Grant analysis,also have erred in admitting the evidence of the drugs. A.

Standard of review [35] The standard of review applicable to the trial judge’s findings of fact is palpable and overriding error (R v Chapman, 2020SKCA 11 at para 37, 60 CR (7th) 273 [Chapman], citing R v Côté, 2011 SCC 46 at para 44, [2011] 3 SCR 215). Whether the facts asfound by the trial judge amount at law to reasonable grounds to arrest under s. 495(1)(

a) of the Criminal Code is reviewable on a standardof correctness (Chapman at para 37). B. Reasonable grounds [36] A peace officer’s power to arrest without warrant is found in s. 495(1)(

a) of the Criminal Code: 495(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit anindictable offence[.] [37] The standard of proof required to establish reasonable grounds for a search or arrest based on a belief a person is in possessionof drugs is described in Debot as “one of ‘reasonable probability’ rather than ‘proof beyond a reasonable doubt’ or ‘prima facie case’. Thephrase ‘reasonable belief’ also approximates the requisite standard” (at 1166). [38] This Court summarized the law governing reasonable grounds to arrest pursuant to s. 495(1) in Shinkewski: [13] … (

a) an arresting officer must subjectively hold reasonable grounds to arrest and those grounds must be justifiable from an objective pointof view – in other words, a reasonable person placed in the position of the arresting officer must be able to conclude there were indeedreasonable grounds for the arrest: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241; (

b) an arresting officer is not required to establish the commission of an indictable offence on a balance of probabilities (Mugesera v.Canada (Minister of Citizenship & Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100) or a prima facie case for conviction (R. v. Storrey)before making the arrest; but an arresting officer must act on something more than a “reasonable suspicion” or a hunch (R. v. Morelli,2010 SCC 8, [2010] 1 S.C.R. 253, at para 91; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Simpson (1993), (ONCA), 79 C.C.C. (3d) 482 (Ont. C.A.)); (

c) an arresting officer must consider all incriminating and exonerating information which the circumstances reasonably permit, but maydisregard information which the officer has reason to believe may be unreliable: R. v. Storrey;

(

d) a reviewing court must view the evidence available to an arresting officer cumulatively, not in a piecemeal fashion: R. v. Savage, 2011SKCA 65, 371 Sask. R. 283; R. v. Nguyen, 2010 ABCA 146, 477 A.R. 395; and R. v. Storrey; and (e) “…the standard must be interpreted contextually, having regard to the circumstances in their entirety, including the timing involved,the events leading up to the arrest both immediate and over time, and the dynamics at play in the arrest”: R. v. Nguyen, at para. 18; and,context includes the experience and training of the arresting officer: R. v. Nolet, at para 48; R. v.

Whyte, 2011 ONCA 24, 266 C.C.C. (3d)5, at para 31; and R. v. Luong, 2010 BCCA 158, 286 B.C.A.C. 53, at para. 19. [39] To establish reasonable grounds, it is not necessary that the belief of the arresting officer was correct or that the inferencedrawn by the police officer from the available information be the only or most compelling inference.

This was highlighted in Chapman: [59] A belief does not need to be correct in order to be reasonable; reasonable grounds can be based on an officer’s belief that certainfacts exist, even if that belief turns out to be mistaken: Shinkewski; [R v Gerson-Foster, 2019 ONCA 405]; [R v Kossick, 2018 SKCA 55,365 CCC (3d) 186]; R v Churko, 2014 SKCA 41 at para 5, 433 Sask R 317; R v Valentine, 2014 ONCA 147, 316 OAC 302; R v Robinson,2016 ONCA 402, 336 CCC (3d) 22.

Furthermore, the inference drawn by the officer need not be the only inference that may be drawnfrom the available information, or even the most compelling one, as long as it is a reasonable inference to have drawn.

The presence ofother plausible, innocent explanations for police-observed behaviour does not automatically negate reasonable grounds to believe: R vGunn, 2012 SKCA 80, [2013] 1 WWR 495; R v Ha, 2018 ABCA 233, at para 34, 363 CCC (3d) 523 [Ha]. [40] Where officers are acting as a team, it is not necessary that the arresting officer personally know each and every fact necessaryto establish reasonable grounds; the collective knowledge of the entire group is relevant (R v Labelle, 2016 ONCA 110). [41] In assessing whether reasonable grounds existed, the trial judge must ask “whether the inference drawn by the arresting officerwas a reasonable one to have made at the time of arrest based on the circumstances known to the officer at that time” (Todd at para 29).The trial judge must examine the “indicators” of criminal activity as a constellation, or cluster, leading or tending to a general conclusion.If the conclusion is objectively reasonable, the arrest will be lawful. [42] I turn now to the factors bearing on whether reasonable grounds to arrest have been established in this case.

C. The Debot factors [43] Where a decision to arrest is based on information provided by confidential informants, courts must explore three lines ofinquiry: the compelling nature of the information, the credibility of the informant, and the corroboration of the information provided[Debot factors]. Justice Wilson explained this inquiry as follows in Debot 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. [44] The persuasive weight of source information will vary depending upon the Debot factors.

The Debot factors are not to beexamined in isolation and the test is not to be applied formulaically (R v Garofoli, (SCC), [1990] 2 SCR 1421 at 1457). Itis the totality of the circumstances that determines whether the information substantiates reasonable grounds for arrest: “it is not necessarythat all three conditions of the Debot test be entirely satisfied, as a weakness in one component can be overborne by strengths in others” (Rv M. (M.R.), (SCC), [1998] 3 SCR 393 at para 84).

The totality of the circumstances provides the important contextualinformation as “what is suspicious in one context may tend to be neutral or exculpatory in a different setting” (R v Dawad, 2019 SKCA125 at para 57, 381 CCC (3d) 557 [Dawad]). [45] The first Debot factor concerns the compelling nature of the information.

The court will look at the level of detail and precisionof the tip: “the degree to which a confidential tip is compelling is a function of its detail” (Dawad at para 59). [46] The “more detail a tip includes the more compelling it will be, and this is particularly so if the tip includes information notpublicly known” (Steve Coughlan & Glen Luther, Detention and Arrest, 2d ed (Toronto: Irwin Law, 2017) at 106 [Detention and Arrest]).This factor also involves an examination of how the informant purports to have acquired the information; that is whether the informationwas obtained first-hand or through hearsay (R v Pavlik, 2019 SKCA 107 at para 29, 380 CCC (3d) 417 [Pavlik]). [47] The information cannot simply be in the form of “bald conclusory statements” and must be more than “mere rumour or gossip”(Debot at 1168–69).

However, this does not mean that the Crown is “required to show that the detail and precision of a tip ‘excludes’ or‘rules out’ the possibility of mere rumour or gossip or of coincidence” (Pavlik at para 32, emphasis in original). [48] Dated information is less compelling, as is more general information (R v Holmes, 2019 BCCA 138 at para 38 [Holmes]) andinformation in the public domain (R v Chioros, 2019 ONCA 388 at para 19, 436 CRR (2d) 104). [49] No individual piece of information may be compelling but the information looked at in totality may meet the “compelling”criterion (Holmes at para 38). [50] The second Debot factor concerns credibility.

An assessment of this factor involves scrutiny of the informant. The informant’scriminal record, particularly if this involves perjury or crimes of dishonesty, is a relevant consideration as is the existence of outstandingcharges or investigations pending against the informant (Pavlik at para 43). [51] The history of the informant’s tips is also relevant in assessing credibility, such as whether these previous tips had containedreliable information (R v Lowe, 2018 ONCA 110 at para 55, 358 CCC (3d) 423). The length of the relationship between the informant and

the police officer involved can enhance credibility as can the volume of tips provided during the relevant period (Dawad at para 60).Further, a tipster’s credibility is increased if the previous tips related to the same type of offence as the current information (R v Whyte,2011 ONCA 24 at paras 21–22, 266 CCC (3d) 5). [52] The informant’s reason or motivation for offering the tip is also relevant (Detention and Arrest at 107). [53] Credibility must be established either on the testimony of the officer dealing with the informant or some other evidence (Pavlikat para 43). [54] The lack of evidence about an untried informant can be overcome on the balance of the Debot test if the information providedin the tip is sufficiently precise and corroborated (R v Dhillon, 2016 ONCA 308 at para 33, 335 CCC (3d) 144). [55] The third Debot factor concerns corroboration.

This factor does not require the police to substantiate each aspect of the tip intheir subsequent investigation and surveillance “so long as the sequence of events actually observed conforms sufficiently to theanticipated pattern to remove the possibility of innocent coincidence” (Debot at 1172). [56] Corroboration evidence need not confirm illegal activities (R v Caissey, 2008 SCC 65, [2008] 3 SCR 451, affirming 2007ABCA 380, 227 CCC (3d) 322; and R v Lewis (1998), (ON CA), 122 CCC (3d) 481 at para 22 (WL) (Ont CA)).However, while there is no general requirement “to corroborate any criminal activity, or any activity that, although not illegal, could beviewed as reasonably anticipatory to illegal activity”, a lack of this evidence can, depending on the totality of the circumstances,undermine the case for an objectively reasonable grounds for arrest (Pavlik at para 37). [57] The criminal record of a suspect can often provide corroboration although “the cogency of the criminal record depends on itssimilarity to the criminal activity alleged by the tipster and the age of the record” (R v MacDonald, 2012 ONCA 244 at para 23, 290 OAC21). [58] Corroboration may, depending on the circumstances, be provided from “confirmation of neutral data” (R v Al-Amiri, 2015NLCA 37 at para 29, 328 CCC (3d) 266). [59] Information from multiple informants can be corroborative inter se (R v Saunders, 2003 NLCA 63 at para 15, 181 CCC (3d)268, aff’d 2004 SCC 70, [2004] 3 SCR 505). [60] The parties acknowledge the trial judge properly identified the legal test and factors set out in Debot.

However, both Mr. Protzand Ms. Ford argue he incorrectly applied the test and factors. I turn now to the analysis of their arguments. 1. Was the information compelling? [61] Mr. Protz acknowledges that the information was compelling but submits it was barely so. [62] In contrast, Ms. Ford argues the information was not at all compelling. She cites several reasons for this. She submits that,beyond the understanding of Cpl. Newton that the information was personally known by the informants, there was no basis for theassertions they made.

She submits the information was largely common knowledge and provided no intimate details about her. She notesthat some of it was inconsistent in that the information of one informant did not match the detail provided by another. As well, some of theinformation about the type of drugs involved was imprecise. There was also insufficient detail about the directionality of the travels andthe time frames in the information. She submits the trial judge erred in determining that the information provided by A, B and Cconformed sufficiently to the pattern Cpl.

Newton was expecting to take it beyond the possibility of innocent coincidence. [63] The compelling nature of information predicting the commission of an offence is a function of its content, detail and precisiontaken as a whole as explained above. The more detailed it is, the more compelling it is. However, it may be expected that the detail frommultiple sources will not necessarily be exact.

If the detail provided by two informants, although not exactly the same, is similar andconsistent in crucial respects that bear on the question of “what, when, where, how and why” something is happening, the compellingnature of the information is not necessarily diminished. It is open to a court to infer the two versions of the information refer to the sameevent or provide information about the same action. [64] In this case, despite some divergence in the detail provided by each of the informants regarding the final trip west by Mr. Protzand Ms.

Ford and their predicted return to Yorkton with drugs, I am satisfied that each informant referred to the same trip, the same peopleand the same impending return, as well as their possession of drugs. The information of all three informants, while not exact and whilediffering in detail, is consistent. Seen as a whole, it is compelling. [65] Likewise, the suggestion that there was vagueness or inconsistency regarding the kind of drugs that were being trafficked andbrought back is not borne out by the evidence. All three informants stated that illicit drugs were being trafficked.

Informant C specificallyindicated that Mr. Protz was trafficking cocaine and Ms. Ford was helping him do that. All three informants said that Mr. Protz and Ms.Ford were involved in acquiring controlled substances out west and bringing them back to Yorkton. [66] Informant B indicated that Mr. Whitehawk was helping Ms. Ford sell her product. The surveillance done by the police showedMr. Whitehawk attending Ms. Ford’s residence. The next morning, he was arrested for possession of cocaine.

This is evidence that Mr.Whitehawk was associated with her residence and possibly helping her. [67] Although some of the information provided relating to the sale of the residence of Ms. Ford was capable of being known frompublic sources, the information about the use of the funds from the sale of her house to acquire drugs would not have been in the publicdomain or widely known. Informants A and C indicated that she would be using the money from the sale of her house to buy drugs.Informant B indicated she had sold her house and had access to money. [68] Nor would the timing of the trips out west by Mr.

Protz and Ms. Ford be common knowledge. B provided information thatanother trip west for drugs would be made. As well, the information provided by A and B about the breakdown of their vehicle on their

way back to Yorkton after the first trip would not have been common knowledge or widely known. The information provided by B that the vehicle Mr. Protz was driving had been in an accident or broken down and that he was driving a rental vehicle was both detailed and not widely known. This made it more compelling. [ 69 ] The information provided by the informants spoke of recent past actions and imminent actions. Both A and B told the police that Ms. Ford and Mr.

Protz were travelling back to Yorkton on December 9, 2018, after earlier indicating that they had taken the trip to bring back drugs or “contraband substance” ( Decision at para 40). This makes the information more compelling. [ 70 ] A review of the information provided by all three sources about Mr. Protz and Ms. Ford’s trip west and their return establishes that the allegation they were bringing back drugs was not a bald assertion.

Likewise, the information provided about the destination out west and the manner of travel was detailed enough to allow for a conclusion that the information was more than gossip and rumour. [ 71 ] Last, how the informants acquired the information is relevant. Corporal Newton testified that all their information provided was first-hand. She explained to the court this meant that the information was provided directly to the informant and that it was not rumour. [ 72 ] Mr. Protz submits the trial judge did not do an analysis of the compelling nature of the tips. I disagree.

While not an extensive analysis, the relevant portion of paragraph 45(

c) of the Decision is worth repeating: (c) … I am nevertheless satisfied that the information possessed by Cpl. Newton, about this sequence of events which was unfolding quickly over the weekend of December 9 and 10, and was believed to be occurring in a rental vehicle on a major highway, conformed sufficiently to the pattern Cpl. Newton was expecting so as to remove the possibility of an innocent coincidence …. [ 73 ] Taken as a whole, the content of the information and detail provided by the informants was compelling. It spoke of a past trafficking of a controlled substance by Mr. Protz and Ms. Ford.

It predicted an ongoing trafficking of a controlled substance and an imminent arrival of that substance in Yorkton. It predicted that Mr. Protz would be driving a rental vehicle on the way back to Yorkton. Most, if not all of it, was confirmed directly or indirectly. There was sufficient assurance that the information was reliable and was first-hand. [ 74 ] I conclude that, taken as a whole, the information upon which the police acted to arrest Mr. Protz and Ms. Ford was compelling. 2. Was the information credible? [ 75 ] Both Mr. Protz and Ms.

Ford argue little was known of the informants’ credibility and that the court could therefore not assess this factor. Ms. Ford submits the Crown failed to establish the credibility and reliability of the informants. [ 76 ] Mr. Protz and Ms. Ford submit, citing Dawad at paragraph 54 , that Cpl. Newton’s opinion that informants A, B, and C were credible and reliable was not a sufficient evidentiary basis upon which a finding regarding those issues could be made. [ 77 ] In Dawad , the trial judge failed to delve into the actual credibility or reliability of two informants.

He instead relied on the bald assertion of the officer who had made the decision to arrest that “he had no reason to question the credibility” of the informants. Although this was an error, this Court went on to find that another witness had nevertheless provided ample evidence of the credibility and reliability of one of the informants, citing evidence of a kind similar to that given by Cpl. Newton. In Dawad , the reasonable grounds to arrest were affirmed even though there was an absence of evidence about the credibility of one of the informants. [ 78 ] Ms.

Ford submits the same insufficiency of Debot factors identified in Pavlik also occurs in this case. I disagree. Unlike Pavlik , where this Court found the information that the accused was dealing drugs to be a bald assertion from one tipster, in this case, three sources provided multiple tips to the police. The totality of the evidence provided amounts to more than a bald assertion. [ 79 ] Ms. Ford also submits this Court concluded in Pavlik that, without evidence from the police handler, there was no evidence respecting an informant’s credibility and, therefore, without the testimony of Cst.

Nelson, there was no evidence of the credibility of informant A before the trial judge. There is no merit to this. [ 80 ] While in Pavlik , the officer handling the informant did not testify, the officer making the arrest and testifying about the informant had not questioned the handler about the informant’s credibility. The officer handling the informant merely assured the testifying officer that the source was credible. Accordingly, all the court had to assess credibility was a bald statement that the source was credible.

Accordingly, Pavlik confirms that more evidence than a bald assertion of credibility is required to establish the source is credible. Either the handler must provide some evidence or there must otherwise be such evidence. That said, it is desirable, but not necessary in all cases, that the handler testify as to both the information received and as to the informant’s credibility. Belief in the credibility of the informant by the officer who made the decision to arrest can be established on the basis of hearsay, if necessary.

The weight to be given to such evidence will of course vary depending on the detail provided about the informant’s dealings with the police. [ 81 ] In this case, the weight to be given to Cpl. Newton’s evidence about A’s credibility and reliability may be less than what might be given to the evidence of Cst. Nelson, the handler of A, had he testified about the same matters. However, unlike in Pavlik and Dawad , the court had more than a bald conclusory statement about A’s credibility.

Corporal Newton provided evidence of A’s two-year involvement with the police as an informant, the fact that A was paid for information, that A’s information had been used to obtain three search warrants and that A appeared to be motivated to help the community by providing information. This provided an evidentiary basis for the court to assess the credibility and reliability of A. [ 82 ] Mr. Protz and Ms. Ford argue that the fact informants have provided information used in search warrants is meaningless unless there is an indication of how many convictions were achieved by the use of the information.

I disagree. This sets the bar too high. What is significant is the fact the police have used the informant on multiple occasions and incorporated his or her information into an application for a search warrant. This provides, on its own, a circumstantial indicator that the informant is credible and reliable. Depending on the

particulars of a case, the fact that an informant’s information resulted in a conviction may enhance the general credibility of that informant. However, it is not a required or indelible marker. Evidence that a source previously provided accurate information about criminal conduct demonstrates the reliability and credibility of the source. The sources in this case were not anonymous tipsters. Each had a “track record” with the police in providing information about criminal conduct.

At least two of them had a financial motivation to provide accurate and therefore reliable information because the amount they were paid depended on how helpful the information was. This was explained by Cpl. Newton in the following excerpt from the transcript: Q So you are paying that person for their information? A That’s right. Q Do you pay that person immediately upon them providing information or does it have to be corroborated information which leads to kind of an arrest? A Yes. So information is provided to us. We may execute a Search Warrant. We may make an arrest.

We take the totality of the investigation, stuff that is seized. And then a decision is made on how much is going to be paid to them. Q Okay. So they have a vested financial interest in providing you with accurate information? A Absolutely, yeah. [ 83 ] Reliability of an informant can also be demonstrated when other informants or investigative avenues confirm part, or all, of the information provided by the informant. This was the case here. Both B and C had knowledge of the accident or breakdown of the vehicle out west.

This would be information that was not widely known and supports the view that they were both closely acquainted with Mr. Protz or Ms. Ford and were thus more likely to be privy to the criminal activity they reported. Their information would be seen to be reliable and credible as a result. Moreover, their information was confirmed by police investigation further enhancing their accuracy as informants. [ 84 ] In my view, the evidence of reliability taken as a whole establishes that the credibility factor has been met. 3. Was the information corroborated? [ 85 ] Mr.

Protz submits the information received was largely uncorroborated. He argues the corroboration of the neutral aspects of the information was skeletal and corroboration of the criminal aspects was non-existent. He submits the lack of corroboration resulted in the information being little more than speculation. Ms. Ford makes essentially the same arguments and submits the information provided was insufficiently corroborated. There is no merit to this. A substantial portion of the information provided by the informants overlapped and therefore corroborated each other.

Some of the source information was confirmed by the police. [ 86 ] Mr. Protz’s argument there was no corroboration focuses on a number of lacunae. He submits there was an absence of corroboration regarding him or Ms. Ford “pushing” drugs. I disagree. All three sources establish an association between Mr. Protz and Ms. Ford. Informant C advised Cpl. Newton that Mr. Protz was “selling, pushing, a lot of cocaine … in Yorkton” and that Ms. Ford was working alongside him. Both B and C said that Ms. Ford was going west to buy a large amount of controlled substances to bring back to Yorkton.

This was congruent with the criminal activity identified and predicted by the informants. [ 87 ] Mr. Protz also submits there was no corroboration that he had any past involvement with criminal activity or a reputation with the police. While this is true, not every case will involve an individual who has a criminal record. [ 88 ] There was corroboration of neutral information. A and C both said that Ms. Ford had recently sold her house. This was corroborated by police investigation. B and C both said that Ms. Ford was living on Betts Avenue in Yorkton. This was confirmed by the police. [ 89 ] With respect to Mr.

Protz staying with Mr. Chernipeski at 12 Gladstone Avenue, this neutral information was originally provided by C. B corroborated this information by indicating that Mr. Protz was staying at a house near the intersection of Broadway and Gladstone. This was further corroborated by the police determining that 12 Gladstone was just north of that intersection. The corroboration of this neutral information enhanced the reliability of the information being provided by B and C. This neutral information was borne out. [ 90 ] There was corroboration between informants about Mr. Protz and Ms.

Ford having taken a previous trip out west for the purpose of bringing back drugs. Both B and C indicated that the vehicle Mr. Protz and Ms. Ford were using to bring back drugs was either in an accident or had broken down. The police independently confirmed that, on November 30, 2018, near Chase, British Columbia, Mr. Protz’s vehicle was in an accident and thereafter a Clark Trotz (it was a reasonable inference that the name “Trotz” was a typo) attempted to rent a vehicle in nearby Kamloops.

This confirmed not only that they had travelled out west and been in an accident but also that they were prepared to rent a vehicle. [ 91 ] Admittedly, C’s information that Yorkton was dry and people were waiting for drugs to arrive was not corroborated. This information speaks to the possible motivation of Mr. Protz and Ms. Ford to acquire drugs, but the lack of corroboration of their motivation is not fatal to the sufficiency of this factor. [ 92 ] There was corroboration that Mr. Whitehawk was connected to Ms. Ford, if not that he was actually helping her sell drugs. C had indicated that Ms.

Ford was living at 215 Betts Avenue. That this was her address was corroborated by court documents. B indicated that she was living on Betts Avenue and that Mr. Whitehawk was helping her to sell drugs. The police surveilled a person who they believed to be Mr. Whitehawk leaving Ms. Ford’s residence twice. The fact he was found with cocaine in his possession a short time later

– the very drug C said Ms. Ford was selling – provides further confirmation of a connection to both the person and the drug. [ 93 ] Ms. Ford’s call from Hinton, Alberta, to attempt to rent a hotel room for Mr. Protz in Yorkton is corroborative of the fact that she and Mr. Protz were “out west” and that it was her intention to imminently return to Yorkton as the informants had indicated. [ 94 ] B had indicated that Mr. Protz and Ms. Ford would be driving a rental vehicle. Both argue there was no corroboration that they would actually be driving a rental vehicle prior to their arrest. I disagree.

The police had verified that the vehicle they had been using had been in an accident on November 30, 2018. They had attempted to rent a vehicle thereafter but were unsuccessful. Given the loss of their vehicle and their previous contact with a rental company, it was a reasonable inference that they would be driving such a rental vehicle on their way back to Yorkton. Having identified a rental vehicle bearing a licence plate from the province of Ms. Ford’s last-known location, i.e., Alberta, all that remained was to verify that the people in that rental vehicle were Mr. Protz and Ms. Ford.

At that point, just prior to their arrest, the police corroborated the information of B that Mr. Protz and Ms. Ford would be returning to Yorkton in a rental vehicle. [ 95 ] Ms. Ford submits that because Cst. Nelson did not testify, there was insufficient evidence for the trial judge to consider A as corroborative of B and C. Ms. Ford has not provided this Court with any precedent that states it was necessary for Cst. Nelson, as the handler of A, to testify in order to allow the information that A provided to be corroborative of the other informants.

She also submits there was no evidence to conclude that the informants were separate people and, therefore, separate sources of knowledge. I disagree. There was clear testimony by Cpl. Newton that the three informants were separate people. [ 96 ] Based on all of the foregoing, the corroboration factor has been met.

There was, as a whole, sufficient corroboration of the information of A, B and C by each other and by way of other investigative evidence. [ 97 ] In this case, the three Debot factors looked at as a whole satisfy me that the trial judge did not err in concluding there were reasonable grounds for arrest. I can see no error in the trial judge’s conclusion that in light of their lawful arrest, Mr. Protz’s and Ms. Ford’s ss. 8 and 9 Charter rights were not violated. [ 98 ] Both Mr. Protz and Ms. Ford provided argument to this Court regarding a Grant analysis if there were a Charter breach found.

In view of the foregoing, it is not necessary to address that issue. V. Conclusion. [ 99 ] The appeals of Mr. Protz and Ms. Ford are dismissed. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Leurer J.A.” Leurer J.A.