R v Karuranga, 2021 SKCA 90

Court of Appeal for Saskatchewan Docket: CACR3265 Citation: R v Karuranga , 2021 SKCA 90 Date: 2021-06-11 Between: Christian Karuranga Appellant And Her Majesty the Queen Respondent Before: Jackson, Whitmore and Kalmakoff JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Whitmore On appeal from: CRM 41 of 2018, Estevan Appeal heard: May 5, 2021 Counsel: John Mark Goby for the Appellant Wade E. McBride, Q.C. for the Respondent Kalmakoff J.A. I.

INTRODUCTION [ 1 ] After a judge alone trial, Christian Karuranga was found guilty of trafficking in cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act , SC 1996, c 19 , and obstructing a police officer engaged in the lawful execution of his duty, contrary to s. 129 (

a) of the Criminal Code . Mr. Karuranga appeals against only the conviction on the cocaine trafficking charge. He says the trial judge made a number of errors in his treatment of the evidence and failed to grant a proper remedy for breaches of his rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms . [ 2 ] In my opinion, Mr. Karuranga’s appeal must succeed. The trial judge erred by admitting the opinion evidence of a police officer without holding a voir dire to determine whether it was properly admissible and the improperly admitted evidence had a clear impact on the verdict.

I would allow Mr. Karuranga’s appeal, quash the conviction, and enter a verdict of acquittal. My reasons for reaching this conclusion follow. II. BACKGROUND A. The charges in the Indictment [ 3 ] Mr. Karuranga was tried on a four count Indictment. The two counts on which he was convicted read as follows: 1. On or about January 10, 2018, at or near Estevan, Saskatchewan, did wilfully obstruct a peace officer, to wit a police constable for the City of Estevan engaged in the execution of his duty by refusing to provide his correct name contrary to

section 129 (

a) of the Criminal Code . 2. On or between November 23, 2017 and March 15, 2018, both dates inclusive, at or near Estevan, Saskatchewan and Bienfait, Saskatchewan did traffic in a substance included in

Schedule I, to wit: Cocaine contrary to section 5(1) of the Controlled Drugs and Substances Act . [ 4 ] Mr. Karuranga was acquitted on charges of possessing a prohibited weapon and failing to attend court. B. The obstruction charge [ 5 ] Even though Mr. Karuranga has not appealed against the conviction for obstructing a police officer, a brief review the circumstances of that offence is useful for context. The charge arose from an incident that occurred on January 10, 2018. That evening, Mr. Karuranga was a passenger in the vehicle of a person named Iaroslav Smolianiuk.

At around 11:30 p.m., a police officer, Cst. Paul Chabot, spotted Mr. Smolianiuk’s vehicle driving through an industrial area in the City of Estevan. Citing the time of night, the location, and the fact that there had recently been several break-ins in the area, Cst. Chabot stopped the vehicle. [ 6 ] Constable Chabot asked Mr. Smolianiuk to provide his licence and registration. Mr. Smolianiuk complied. Constable Chabot then asked Mr. Karuranga to identify himself. Mr. Karuranga gave a false name. Feeling that the actions of both men were suspicious, Cst. Chabot instructed them to wait in Mr.

Smolianiuk’s car while he returned to his police car to communicate with other officers and gather more information. This took approximately 20 minutes, throughout which Cst. Chabot had still not informed Mr. Smolianiuk and Mr. Karuranga of the reason for their detention. Constable Chabot was advised that the officers with whom he had communicated would be attending the scene, as they had information that led them to believe Mr. Smolianiuk was involved in drug trafficking, and they wished

to investigate that further. [ 7 ] When the other officers arrived at the scene, Mr. Smolianiuk and Mr. Karuranga were ordered to get out of the car. The police asked Mr. Smolianiuk if they could search his vehicle. He consented to the search and a drug detecting dog was brought in for that purpose. A small bag of marijuana was discovered on the passenger side of the car, near where Mr. Karuranga had been sitting. With that, the police arrested Mr. Karuranga for possession of marijuana and let Mr. Smolianiuk go. At the time of arrest, Mr.

Karuranga had $800 cash in his pocket, comprised mostly of $20 and $50 bills. [ 8 ] Mr. Karuranga was taken to the police station for processing. There, he was strip searched. The strip search involved an examination of his rectal and genital areas, to ensure that he had not concealed any drugs there. The police also conducted a warrantless search of Mr. Karuranga’s mobile phone. [ 9 ] Throughout all of this, Mr. Karuranga did not inform the police of his real name. He was eventually released and given a document to compel his appearance in court under the false name he had originally provided. C.

The cocaine trafficking charge [ 10 ] Members of the Estevan Police Service had also conducted surveillance of Mr. Karuranga between November of 2017 and March of 2018, as part of an investigation into suspected drug trafficking. This surveillance, combined with information police had received from a confidential informant, led to the execution of a search warrant at a residence in the town of Bienfait on March 15, 2018. This was not Mr.

Karuranga’s residence; it was the home of a person named Joseph Waters. [ 11 ] Over the course of the week leading up to the search warrant, police officers had seen people coming and going from Mr. Waters’ residence in a fashion that they believed to be consistent with drug transactions. Mr. Karuranga had also been observed at the residence and appeared to have free and unrestricted access to it. [ 12 ] When the police attended Mr. Waters’ house to execute the search warrant on March 15, 2018, Mr. Karuranga was found on the couch in the living room. He had $320 in cash in his coat pocket.

A wooden box containing 41 grams of marijuana was on a coffee table next to the couch, as was a box of unused plastic sandwich bags. Officers also located a folding knife in the couch and a set of nunchuks in an area between the living room and a bedroom. In the kitchen, police officers found a digital scale with white residue on it. In the kitchen garbage can, there were used plastic sandwich bags with corners cut off. Some of them also had white residue on them. There was a knife with white residue found on a living room shelf.

The white residue on each of these items reacted positively to a presumptive test for the presence of cocaine. [ 13 ] During the execution of the search warrant, police also found a tablet and a mobile phone on the coffee table. A cursory search of the tablet and phone revealed information linking them to Mr. Karuranga. [ 14 ] At trial, the Crown’s main witness on the cocaine trafficking charge was Detective Constable Mischa Shewchuk. He testified as to general observations he had made while conducting surveillance and during the execution of the search warrant.

He also provided his opinions about the meaning or effect of various things he had observed, including: (

a) He considered a November 23, 2017 incident, where Mr. Karuranga had been seen getting out of the vehicle of a person named Robert Jones, who D/Cst. Shewchuk believed to be a cocaine user, to be “very suspicious behaviour” on the part of Mr. Karuranga. (

b) The amount of money and the denominations of the bills that had been seized from Mr. Karuranga during his January 10, 2018 arrest were “consistent with drug trafficking”. (

c) The events he observed while conducting surveillance at the Bienfait house on March 7 and 8, 2018, which involved people arriving at the residence on foot, going to the back door, and leaving a short time later, were consistent with drug transactions. (

d) He searched Mr. Karuranga’s tablet because “drug traffickers can use social media as well to talk to their customers…to line up drug transactions and such” and that a number of messages on Mr. Karuranga’s Facebook profile came from persons he believed to be drug users or traffickers. (

e) He answered an incoming call to Mr. Karuranga’s phone and communicated with the caller in coded language. The caller asked for “five”, which D/Cst. Shewchuk believed to be a request for “five packages of cocaine as that language is consistent with drug trafficking”. (

f) The white powder residue on the cut-up sandwich bags found in the Bienfait house during the execution of the search warrant had reacted to the presumptive test for cocaine was “…very common evidence that we find in cocaine trafficking investigations” and suggested cocaine trafficking because “those corners are basically cut off or ripped off, and used as packaging … for the packages that they sell to customers”. [ 15 ] The Crown also called Robert Jones as a witness. He testified that he had purchased a small bag of cocaine from Mr. Karuranga some time in November of 2017. D. The trial decision 1.

The ruling on the Charter application [ 16 ] At the trial, Mr. Karuranga applied for Charter relief. He argued that his rights under sections 8 , 9 , 10(

b) and 15(1) had been violated. Specifically, he argued that his detention in relation to the January 10, 2018 vehicle stop was racial profiling, as he had been detained only because he is black. Mr. Karuranga also argued that the strip search was unnecessary and carried out in a manner that did not

comply with the criteria set out in R v Golden , 2001 SCC 83 , [2001] 3 SCR 679 [ Golden ], and that the warrantless search of his mobile phone was also unlawful. [ 17 ] While the trial judge rejected the racial profiling argument, he found that violations of Mr. Karuranga’s Charter rights had been established. He concluded that the fact Cst. Chabot had kept Mr. Karuranga waiting at roadside for more than 20 minutes without advising him of the reason he was being detained rendered the detention arbitrary, in violation of s. 9 . He also found that the strip search violated Mr.

Karuranga’s s. 8 rights, because it was “difficult to understand why a strip search was necessary” and, in any event, it had not been conducted in accordance with the criteria set out in Golden . The trial judge also concluded that the warrantless search of Mr. Karuranga’s mobile phone violated his s. 8 rights because it had not been carried out in a manner that complied with the Supreme Court’s direction in R v Fearon , 2014 SCC 77 , [2014] 3 SCR 621 . [ 18 ] As to the question of remedy, the trial judge concluded that a stay of proceedings was not appropriate.

While he found the Charter- infringing conduct to be serious, he also observed that it had been the result of the actions of a young police officer who “was doing his best in the situation” and who did not intend to violate Mr. Karuranga’s rights. Noting that no evidence in relation to the cocaine trafficking charges had been gathered in connection with the breaches, and that there was little relationship between the January 10, 2018, arrest and the subsequent search warrant that led to Mr.

Karuranga’s arrest on March 15, 2018, the trial judge determined that an appropriate remedy would be to exclude only the evidence obtained from the unlawful search of Mr. Karuranga’s mobile phone on January 10, 2018. 2. The ruling on the trial proper [ 19 ] As mentioned at the outset of these reasons, the trial judge found Mr. Karuranga guilty of obstructing a police officer and trafficking in cocaine. In relation to the obstruction charge, the trial judge accepted that Mr. Karuranga had given a false name to Cst. Chabot when first asked to identify himself on January 10, 2018. He concluded that, even though Mr.

Karuranga had not been under any obligation to identify himself at the time of the initial stop, he became subject to an obligation to do so when the bag of marijuana was found and he was placed under arrest. Because Mr. Karuranga took no steps after that point to correct the misinformation he had initially provided, he was guilty of the offence of obstruction. [ 20 ] As to the charge of trafficking in cocaine, the trial judge also concluded that the offence had been proven. In that respect, he said: …in this case I’m satisfied based on all of the evidence cumulatively that what Mr.

Karuranga was doing was trafficking in the substance cocaine. I’m satisfied that he intended to traffic in cocaine, you know, being in a house in the middle of an afternoon with electronic devices waiting, on, and -- and with evidence that there is some communication of -- of -- of calling to purchase a drug on those devices. I’m satisfied that at that point in time that’s what Mr. Karuranga was doing was making a living by trafficking in cocaine, and of course that he intended to traffic in cocaine.

So based on all of the evidence together, there will be no evidence contrary, I want to mention at this point in time that the -- there is no -- no reason for me not to believe the evidence of any of the witnesses who testified on the part of the Crown. I don’t think any of them -- any of them had their evidence shaken during cross-examination. They all testified to the best of their recollection. It’s the only evidence that I have before me with regard to the onus of the offence of trafficking in cocaine, and I’m satisfied that that offence has been proven beyond a reasonable doubt and I find Mr.

Karuranga guilty of the offence charged in count number 2 of the indictment. III. ANALYSIS A. The trial judge erred by relying on evidence that was not properly admitted at trial [ 21 ] Detective Constable Shewchuk was permitted to give opinion evidence about whether certain things he had observed or became aware of during the course of his investigation were consistent with drug trafficking. Prior to leading that evidence from D/Cst.

Shewchuk, however, Crown counsel had not sought to qualify him as an expert witness or obtained a ruling from the trial judge permitting him to provide opinion evidence. [ 22 ] Even though defence counsel did not object to the Crown leading this evidence, the trial judge still had an obligation, in exercising his gatekeeper function, to conduct the inquiry described in White Burgess Langille Inman v Abbott and Haliburton Co. , 2015 SCC 23 , [2015] 2 SCR 182, to determine whether the opinion evidence was properly admissible. He did not do so.

The Crown concedes that this was an error. [ 23 ] In addition to improperly admitting D/Cst. Shewchuk’s opinion evidence, the trial judge also erred by admitting and relying upon D/Cst. Shewchuk’s testimony regarding the incoming call that he had answered on Mr. Karuranga’s phone, in which the caller had made a request that D/Cst. Shewchuk interpreted as a request to purchase cocaine. Not only was this opinion evidence that D/Cst. Shewchuk had not been qualified to provide, his testimony about the content of this conversation was also inadmissible hearsay (see: R v Baldree , 2013 SCC 35 , [2013] 2 SCR 520).

Defence counsel objected to the introduction of this evidence at trial and, although the trial judge did not permit the Crown to pursue the line of questioning further, he gave no indication that he considered this evidence to be inadmissible. Moreover, as will be explored later, he accepted and relied on this evidence in reaching his verdict. B. The conviction cannot be sustained in light of the errors [ 24 ] The Crown argues, notwithstanding the errors noted above, that the conviction should be upheld because the trial judge accepted the testimony of Mr.

Jones, and that evidence alone was sufficient to prove that Mr. Karuranga had trafficked in cocaine. As I

will explain, this argument cannot be accepted. [ 25 ] Mr. Jones testified that he had, on one occasion, purchased cocaine from Mr. Karuranga. Mr. Jones said this incident took place some time in November of 2017. He said the cocaine had been packaged in the corner of a non-pleated baggie and that he had paid Mr. Karuranga $100 for it. Other than describing the transaction as having occurred during an encounter with Mr. Karuranga on the street and confirming that what he had purchased was “cocaine and not crack”, Mr.

Jones provided no other details about the purchase or the product. [ 26 ] In his reasons, the trial judge described his assessment of Mr. Jones’ testimony in this way: There was evidence of another person, Mr. Robert Jones, I believe his name was, who testified to have purchased cocaine from Mr. Karuranga, whom he knew at the time as Joe. Mr. Jones testified that he purchased the cocaine from him sometime in the month of November of 2017. He didn’t specifically state that it was after November 23rd, 2017. So while I would not consider that Mr.

Jones’ evidence is proof of trafficking in cocaine within the time period stated in the -- in the indictment, I’m satisfied that I can use that evidence of Mr. Karuranga having been involved in the business of trafficking in cocaine. Mr. Jones described himself as an admitted drug addict, who is off-again, on-again, and he has experience with the drug, cocaine. He never, at any time, indicated that Mr. -- the -- the substance that was sold to him by Mr. Karuranga was not cocaine or that it was poor quality cocaine, or that it was only baking soda and not cocaine.

I’m satisfied that that -- that his evidence establishes that Mr. Karuranga did sell him cocaine on -- sometime in the month of November, 2017. It might have been after November 23rd, it might have been before, but in any event it becomes part of the evidence that I believe I am able to consider with regard to the -- the charge in the indictment . (Emphasis added) [ 27 ] Immediately after this reference to the testimony of Mr. Jones, the trial judge went on to review the evidence given by D/Cst. Shewchuk. He recounted D/Cst.

Shewchuk’s testimony in detail, including his opinion that certain observations he had made while conducting surveillance – namely, short duration visits to Mr. Waters’ house by various persons – were “consistent with drug trafficking”. The trial judge also reviewed D/Cst. Shewchuk’s testimony concerning the observations made and the items located during the search of Mr.

Waters’ house, including his opinion that the presence of things like weapons, multiple electronic communication devices, cash comprised primarily of $20 bills, Ziploc bags with corners cut off, items with residue that reacted positively to a presumptive test for the presence of cocaine, and score sheets were all consistent with drug trafficking. [ 28 ] The trial judge also referred specifically to D/Cst. Shewchuk’s testimony about the incoming call he had answered on Mr. Karuranga’s mobile phone the day after the search warrant was executed.

He described that call as follows: The next day after the items had been seized, after the warrant had been executed, on March 16th and when -- as Detective Constable Shewchuk was examining the telephone, it -- it rang. A person who identified himself as Phil had a short conversation with him in which he indicated that he wanted five.

While five is a number and does not indicate exactly what the person was wanting to purchase, Detective Constable Shewchuk testified that he has seen, on many occasions, where numbers only are used to indicate the product that -- or the quantity of product that the -- the buyer wants to purchase from a drug trafficker. The conversation did not -- did not last long, and the person named Phil apparently became suspicious and hung up on him. [ 29 ] After recounting all of this evidence, the trial judge said: Therefore, with regard to the -- the off[ence] of trafficking in cocaine, I’m satisfied that it is Mr.

Karuranga who -- who is the person that was involved in all of these various observations and transactions that were observed by Detective Constable Shewchuk. I’m satisfied that the period of late located -- or indicated in the indictment, being between November 23rd, 2017 and March 15th of 2018 is the time period within which the alleged offence was -- was occurring. … I am also satisfied that the substance which it is alleged Mr. Karuranga was -- was trafficking was cocaine.

I take into account the evidence of Robert Jones, who testified that he had purchased cocaine either during that period or shortly before from Mr. Karuranga. I am satisfied that the evidence of -- that was found in the -- in the residence indicates that there was a -- in addition to the white residue on the scale and the residue on the bags and the -- and residue on a [knife] that this is consistent with the preparation of packaging cocaine for the purpose of resale .

I’m satisfied also that the NIK tests that were conducted by Detective Constable Shewchuk, while they’re not indicative of -- necessarily of cocaine, would indicate at least that it’s not just white sugar or -- or baking soda that was -- that caused this -- the swabs to turn blue. … …in this case I’m satisfied based on all of the evidence cumulatively that what Mr. Karuranga was doing was trafficking in the substance cocaine.

I’m satisfied that he intended to traffic in cocaine, you know, being in a house in the middle of an afternoon with electronic devices waiting, on, and -- and with evidence that there is some communication of -- of -- of calling to purchase a drug on those devices. I’m satisfied that at that point in time that’s what Mr. Karuranga was doing was making a living by trafficking in cocaine, and of course that he intended to traffic in cocaine.

So based on all of the evidence together , there will be no evidence contrary, I want to mention at this point in time that the -- t here is no -- no reason for me not to believe the evidence of any of the witnesses who testified on the part of the Crown . I don’t think any of them -- any of them had their evidence shaken during cross-examination. They all testified to the best of their recollection. It’s the only evidence

that I have before me with regard to the onus of the offence of trafficking in cocaine, and I’m satisfied that that offence has been provenbeyond a reasonable doubt and I find Mr. Karuranga guilty of the offence charged in count number 2 of the indictment. (Emphasis added) [30] Reading these passages in the context of the trial as a whole leads me to two important conclusions. [31] The first is that the trial judge did not find that Mr. Jones’ evidence, on its own, was sufficient to prove Mr. Karuranga’s guilt.In fact, he specifically said that he did “not consider Mr.

Jones evidence [to be] proof of trafficking in cocaine within the time periodstated … in the indictment”. The trial judge’s reasons indicate that he treated Mr. Jones’ testimony as simply being one piece ofcircumstantial evidence he could consider in determining whether the Crown had proven the case against Mr. Karuranga beyond areasonable doubt. Contrary to what the Crown asserts, the fact that the trial judge relied on Mr.

Jones’ testimony as supporting aninference of guilt, when considered along with all the other evidence, does not mean that the trial judge can be taken as having acceptedthat the transaction Mr. Jones described, standing alone, had been proven beyond a reasonable doubt. This is because the criminalstandard of proof applies only “to the ultimate issue and not the weighing of individual pieces of evidence” (R v Morin, (SCC), [1992] 3 SCR 286 at 295; R v Morin, (SCC), [1988] 2 SCR 345 at 357-358).

Where the Crown relies oncircumstantial evidence to prove its case, the question is whether the guilt of the accused is the only reasonable inference to be drawn fromthe whole of the evidence (see: R v Wolff, 2019 SKCA 103 at para 76, 380 CCC (3d) 223). The fact that the whole of the evidence,cumulatively, reasonably supports only an inference of guilt does not mean that each piece of evidence, individually, has necessarily beenproven beyond a reasonable doubt. [32] The second important conclusion is that it is simply not possible to separate the trial judge’s apparent acceptance of Mr.

Jones’testimony from his consideration of the improperly admitted evidence. In that respect, the trial judge stated that he viewed Mr. Jones’testimony as just “part of the evidence” to be considered. He also clearly stated that his conclusion as to Mr. Karuranga’s guilt was reachedon the basis of “all of the evidence cumulatively” and “based on all of the evidence together”. When the trial judge’s decision is read as awhole, this can only be taken as meaning that the opinion evidence of D/Cst.

Shewchuk, that should not have been received, played anintegral role in his fact finding. [33] In light of that, it is apparent that the trial judge’s errors were fundamental to the verdict. To the extent that the Crown’sargument can be seen as invoking the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, it must be rejected, because the errorswere neither harmless nor trivial, and nor was the evidence so overwhelming as to make a conviction inevitable even in the absence ofthose errors (see: R v R.V., 2019 SCC 41 at para 85, 436 DLR (4th) 265). [34] In the result, Mr.

Karuranga’s appeal must be allowed and his conviction on the charge of trafficking in cocaine must bequashed. C. The appropriate remedy [35] Having determined that the appeal must be allowed, I turn now to the question of the appropriate remedy. [36] The powers that an appellate court may exercise when an appeal from conviction is allowed are set out in s. 686 of theCriminal Code. It reads, in relevant part, as follows: 686(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and (

a) direct a judgment or verdict of acquittal to be entered; or (

b) order a new trial. …

(8) Where a court of appeal exercises any of the powers conferred by subsection (2) …, it may make any order, in addition, that justicerequires. [37] These provisions give courts of appeal considerable discretion to effect justice in a given case (R v Lewis, 2012 SKCA 81 atpara 26, 399 Sask R 180 [Lewis]).

In R v Truscott, 2007 ONCA 575 at para 246, 225 CCC (3d) 321 [Truscott], the Ontario Court ofAppeal described the scope of that discretion as follows: [246] Where a conviction is quashed on appeal, s. 686(2) of the Criminal Code provides two possible remedies: the appeal court mayeither order an acquittal or a new trial. If the court orders a new trial, the residual power in s. 686(8) permits it to also order a stay of thatnew trial.

A stay is ordered in situations where a new trial, although warranted on the evidence, would be manifestly unfair to theappellant. [247] Relatively little has been written about the principles guiding the exercise of the remedial discretion in s. 686(2). It is clear that ifthe appeal court is satisfied based on the trial record as augmented by the fresh evidence, that no reasonable jury could convict, the appealcourt’s discretion must be exercised in favour of ordering an acquittal.

An acquittal is the only appropriate order in this circumstance sincea conviction following a retrial would presumably be quashed as an unreasonable verdict. An appeal court will not order a new trial togive the Crown an opportunity to make a case against an appellant when, as matters stood at the end of the proceedings in the court ofappeal, no reasonable jury could convict. [248] Apart from those cases where an acquittal is mandatory, the manner in which an appeal court should exercise its remedialdiscretion is more uncertain.

As a general rule, if the appeal court is satisfied that the entirety of the record at the end of the appeal admitsof a reasonable possibility of a conviction on a retrial, the appeal court will order a new trial.

[249] There are, however, cases where an appeal court has entered an acquittal even in the face of evidence that could reasonably supporta conviction on a retrial. For example, acquittals have been entered where an appellant has fully served his or her sentence, or has alreadybeen subjected to several trials. These authorities offer little guidance as to when an acquittal should be entered as opposed to ordering anew trial with a direction that the trial be stayed. [38] The charge of trafficking in cocaine alleged that Mr. Karuranga had committed the offence between November 23, 2017 andMarch 15, 2018.

At trial, the only admissible evidence the Crown tendered of any actual trafficking by Mr. Karuranga was the testimonyof Mr. Jones and the single transaction he described. The trial judge was not satisfied that this transaction had occurred during the timeframe specified in the indictment. [39] Mr. Karuranga contends that an acquittal should be entered because, without the inadmissible opinion evidence of D/Cst.Shewchuk, he could not have been convicted.

This, he says, is because in addition to not proving that the transaction described by Mr.Jones occurred during the time frame specified in the Indictment, the Crown also failed to produce a certificate of analysis or lead anyother evidence upon which the trial judge could properly have concluded that the substance Mr. Jones purported to have purchased fromMr.

Karuranga was actually cocaine. [40] The Crown, in response, asserts that its failure to prove that the Jones transaction occurred during the time frame specified doesnot make an acquittal in this Court mandatory, because the date was not an essential element of the offence of trafficking, as charged, andnor was it an essential element of Mr. Karuranga’s defence. Here, the Crown relies on s. 601(4.1) of the Criminal Code.

The practicaleffect of s. 601(4.1) is that, even where the time of the offence cannot be determined with precision or the evidence about when itoccurred conflicts with the time frame specified in the Indictment, a conviction may still properly result as long as (

i) all the otherelements of the offence are proven beyond a reasonable doubt; and (ii) time is neither an essential element of the offence or crucial to thedefence (see: R v B.(G.), (SCC), [1990] 2 SCR 30 at 53; R v Rahimi, 2015 SKCA 85 at paras 64-65, [2015] 12 WWR436; R v Hirsch, 2017 SKCA 14 at paras 37-39, 353 CCC (3d) 230; R v Aubee, 2006 SKCA 107 at paras 11-12, 285 Sask R 218). TheCrown also submits that a certificate of analysis was not necessary to prove that the substance Mr. Karuranga provided to Mr.

Jones wascocaine, because the nature or identity of a substance is a fact that can be proven by circumstantial evidence. It asserts that it would beopen to a properly instructed trier of fact to infer from the totality of the evidence, including Mr. Jones’ testimony, that whatMr. Karuranga trafficked was, in fact, cocaine. [41] Accepting, for the sake of argument, that the Crown’s position is correct and that there is evidence which could reasonablysupport a conviction on a retrial, it does not inevitably follow that a new trial must be ordered.

As has been observed in cases such asLewis and Truscott, even where an acquittal is not mandated it may be appropriate, in some circumstances, to enter an acquittal rather thanordering a new trial. In my view, this is such a case. When all of the circumstances are considered, the proper exercise of this Court’sdiscretion is to order an acquittal for Mr. Karuranga. There are two key reasons for this. [42] First, I am concerned that, in light of how the proceedings in this case unfolded, ordering a new trial would be unfair to Mr.Karuranga. The Crown made a choice as to how it marshalled its case at trial.

It must be taken as having known that the strength of itscase relied, in large part, on the opinion evidence that would be led from its key witness, D/Cst. Shewchuk. Despite that, Crown counseldid not attempt to qualify D/Cst. Shewchuk as an expert and did so at the Crown’s peril. Mr. Karuranga defended the charge at trial on thatbasis, as he was entitled to do. Giving the Crown the opportunity to effectively have a “do-over”, so that it can correct a strategic error andlead a better case than it chose to lead at the first trial would, in my view, be unfairly prejudicial to Mr.

Karuranga. [43] Second, and at least as importantly, the trial record reflects that Mr. Karuranga has already served his full sentence on thetrafficking charge. The trial judge determined that a fit sentence for that offence was a period of imprisonment of 18 months. By the timehis trial had been completed and the sentencing hearing took place, Mr. Karuranga had already spent the equivalent of that amount of timein custody, once proper credit for pre-sentence custody was applied under s. 719(3.1).

Following the reasoning in decisions such as Lewis;Truscott; R v M.B. (1986), (SK CA), 53 Sask R 55 at para 13 (CA); R v Dillabough (1975), (ONCA), 28 CCC (2d) 482 (Ont CA) and R v Boissoneault (1986), (ON CA), 29 CCC (3d) 345 (Ont CA), I conclude thatthe fact Mr. Karuranga has already served his full sentence, when considered in light of all the other circumstances, makes it appropriateto enter an acquittal on the charge of trafficking, rather than ordering a new trial [44] Having reached that conclusion, it is not necessary to address Mr.

Karuranga’s arguments regarding the appropriate remedy forthe violations of his Charter rights. IV. CONCLUSION [45] Mr. Karuranga’s appeal is allowed. The conviction on the charge of trafficking is quashed and a verdict of acquittal is entered. “Kalmakoff J.A.” Kalmakoff J.A.I concur. “Jackson J.A.” Jackson J.A.I concur. “Whitmore J.A.” Whitmore J.A.