COURT FILE NO.: 7875-18 DATE: 2019-07-05 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Joseph Chapman, Federal Prosecutor
- and -
MICHEL BERTRAND Jasmine Gassi Harnden, Counsel for the Defendant
HEARD: May 31, 2019
MCMILLAN J.
REASONS FOR JUDGMENT
[1] On May 31, 2019, the accused appeared before me for his trial on a single-count indictment, dated July 3, 2018, charging Mr. Bertrand that:
On or about the 27th day of April 2017 at the Town of Dubreuilville, in the District of Algoma, in the Northeast Region, he did traffic in a substance included in schedule I of the Controlled Drugs and Substances Act, to wit: methamphetamine, contrary to section 5(1) of the Controlled Drugs and Substances Act.
BACKGROUND
[2] In the months of April and May 2017, more particularly April 25 to May 4, 2017, an Ontario Provincial Police unit was conducting an undercover project aimed at infiltrating illicit drug trafficking in the towns of Dubreuilville and Wawa in Northern Ontario. There were in excess of ten individuals who had been targeted as suspects.
[3] The main undercover officer, the one involved in this matter, was Detective Constable Darryl Wenger, the only police officer involved with the accused prior to the arrest. He has been a police officer since 2009, now a member of the Organized Crime Enforcement Bureau, Drug Enforcement Unit, stationed in Thunder Bay, Ontario.
[4] The officer relied on his notes in the course of his testimony for “dates, locations, time and just the fine details of the conversation”. He attended a briefing on the morning of April 27, 2017 and was assigned an objective of attending the accused’s residence at 853 St. Joseph, Dubreuilville, to purchase an eighth of an ounce of cocaine and/or ten methamphetamine pills from him.
[5] The officer attended in Dubreuilville on April 27, 2017 and located the address he had been given as that of the accused. He attended that residence on two occasions that day; initially at 1:59 p.m. unannounced, and again at 6:11 p.m. as pre-arranged with the accused.
THE FACTS
a) The Initial Attendance at 1:59 p.m.
[6] The officer knocked on the door and was admitted entry by an unknown female. The accused was not home at the time. The female placed a phone call to some unknown individual advising that Darryl was there. She advised the officer that Tibert (Bertrand) would be right back and she and the officer sat at the kitchen table and made small talk.
[7] A short time later, an unknown male (Bertrand) arrived and they introduced themselves. The officer advised that he hadn’t previously attended but referenced a person named Pedro from whom he had previously purchased marijuana. The officer told the accused that he was “looking to purchase a ball” referring to an eighth of an ounce of cocaine. The officer also said he was “looking for speed” in reference to methamphetamine pills. The accused responded, “I sell blow, I don’t sell speed”.
[8] The accused told the officer that “he can introduce me to a guy for the speed”. The officer again inquired about the cocaine and he was told to return after 5:00 p.m. since Mr. Bertrand didn’t “have any at the time” and the price would be $300. The officer told the accused to “not worry about the speed” at that time and obtained Bertrand’s phone number so as to call before returning. The officer departed Dubreuilville at 2:09 p.m.
b) The Second Attendance at 6:11 p.m.
[9] At 5:07 p.m., the officer telephoned the accused and arranged to re-attend around 6:30 p.m. At 6:11 p.m., the officer attended Bertrand’s residence and was admitted. The same unknown female was present. The officer sat at the kitchen table and was informed by the accused that he couldn’t get blow but could get beans for him. Bertrand placed a phone call and said, “Hey Shawn, come by”, and hung up. The two then continued to have a conversation and the accused regaled the officer regarding the quality of the cocaine and the summer’s supply he would be receiving the next week.
[10] A short time later an unknown male attended, subsequently identified as Shaun Gravelle, at the accused’s residence. The accused closed the kitchen blinds. The officer and Shaun introduced each other. The accused asked Shaun, “How much for the speed” and he responded “$10 a piece”. The officer “told Shaun that I needed ten, and he said, “So $100.00” and the officer “handed Shaun $100.00” who placed it in his wallet.
[11] The officer testified that, “Shaun then removed a clear sandwich bag from his left pocket containing several white pills, and he counted 11 pills and said to me it looks like you get 11”. Shaun put the remaining pills back in the bag and into his pocket.
[12] The officer inquired of Shaun if he could return the next week and Shaun provided direction to his residence, including a description of his vehicle. Shaun also provided the officer with his telephone number so that he could advise when he was back in town but that there was not to be any drug talk or text by phone. The officer advised the accused that he would contact him the following week and the accused said to come by, “he’ll be good”. The officer departed at 6:23 p.m. and turned the purchased pills over to the exhibit officer, Detective Constable Marotta, at approximately 7:30 p.m.
Cross-Examination of Detective Constable Wenger
[13] The officer testified under oath that he did not have any knowledge, in relation to this matter, that the accused:
(a) Ever transported any illegal substances; (b) Delivered methamphetamine; (c) Sent methamphetamine anywhere; (d) Transferred any methamphetamine; (e) Assisted in administering any methamphetamine; (f) Gave somebody methamphetamine; (g) Ever sold any methamphetamine; (h) Ever offered to sell any.
[14] The officer acknowledged that the accused was “calling a friend on my behalf” in reference to methamphetamine or speed, and that “he does not sell meth, yes”. The accused used the word speed. The officer did not have any knowledge that the accused was acting on behalf of the supplier in this matter nor that he had ever acted on behalf of Mr. Shaun Gravelle on such a matter as this. The accused introduced the officer to the supplier from whom the officer purchased 10 pills, receiving 11, which he believed to be methamphetamine.
POSITION OF THE PARTIES
[15] The federal prosecutor submits that on the evidence before the court the accused is guilty of trafficking methamphetamine as charged, contrary to s. 5(1) of the Controlled Drugs and Substances Act, or at minimum, as a party to that offence, pursuant to s. 21(1) of the Criminal Code.
[16] Defence counsel contends that the accused, acting on behalf of the purchaser/undercover agent, merely introduced the officer to a supplier from whom he could purchase methamphetamine and that one who buys a narcotic is not guilty of trafficking.
[17] Both counsel agree that possession is not an included offence within s. 5(1) of the Controlled Drugs and Substances Act.
ANALYSIS
[18] It was acknowledged at the opening of this trial that the 11 white pills purchased by undercover officer Wegner from the third party vendor Shaun Gravelle were in fact a controlled substance, namely methamphetamine pills. The prohibited substance was also referred to inter-changeably throughout the trial as speed or beans.
The Transaction
[19] In the course of an OPP undercover drug operation, Officer Wenger attended the accused’s residence in Dubreuilville on April 27, 2017 at approximately 2:00 p.m. intending to purchase as much as an eighth of an ounce of cocaine and/or ten methamphetamine pills given various sources of intelligence and a team briefing. An unknown female greeted him and permitted him entry. He was looking for “Tibert”. She said he wasn’t home; made a phone call; and shortly thereafter a male person attended who proved to be the accused.
[20] Officer Wenger advised the accused that he was “looking to purchase” an eight ball of cocaine as well as speed. Based on a reference and reliance upon his notes, the response of the accused was, “I sell blow, I don’t sell speed”. However, the accused went on to say that he could “introduce me to a guy for the speed” and that he didn’t have any cocaine at that time but to return later after five o’clock. The price for the cocaine was to be $300. Again, the accused offered to “introduce me to his buddy” who lived nearby but the officer said not to worry about the speed at that time.
[21] Officer Wenger departed at approximately 2:10 p.m. and later telephoned the accused and arranged to return around 6:30 p.m. At approximately 6:10 p.m., the officer entered the accused’s residence only to be informed by him that he couldn’t get blow, referring to cocaine, but that the officer could get beans and which he advised would be fine. The accused placed a phone call and said, “Hey Shaun, come by” and hung up.
[22] The accused and the officer proceeded to make small talk for some five or ten minutes regarding work, mining and the accused’s truck. The accused regaled the officer with respect to the quality of the cocaine he sells, the reliability of his supplier, and availability the next week.
[23] An unknown male, later identified as Shaun Gravelle, attended and introductions ensued. The accused closed the kitchen blinds. The accused inquired of Gravelle what the price was for the speed and Gravelle responded “$10.00 a piece”. The officer told Gravelle he needed 10 and Gravelle responded, “So, $100.00”. The officer directly paid Gravelle $100.00 which he then placed in his wallet. Gravelle took out a clear sandwich bag, counted out 11 white pills and said to the officer, “Looks like you get 11”.
[24] Gravelle and the officer discussed future transactions. Gravelle said he lived down the road and drove a blue Dodge truck. Gravelle initially discouraged related drug communication via texting or talking by phone but did provide the officer with his phone number. Officer Wenger departed at approximately 6:25 p.m. and was not involved in the accused’s arrest on May 4, 2017.
Cross-Examination
[25] Officer Wenger acknowledged to defence counsel that he did not have any knowledge - perhaps more appropriately evidence - that the accused, in relation to Officer Wenger’s request to purchase methamphetamine, ever met any of the definitions of “traffic” as defined in section 2(1) of the Controlled Drugs and Substances Act. Specifically, that Mr. Bertrand did not:
“traffic” means, in respect of a substance included in any of Schedules I to V, (a) To sell, administer, give, transfer, transport, send or deliver the substance, (b) To sell an authorization to obtain the substance, or (c) To offer to do anything mentioned in paragraph (a) or (b), otherwise than under the authority of the regulations.
[26] In his evidence, Officer Wenger testified that the accused made it quite clear that he didn’t “sell speed”. It is equally clear to me that the accused simply stated to Officer Wenger, “he can introduce me to a guy for the speed”. The term “introduce me” was used several times during the officer’s evidence and that is precisely what the accused proceeded to do.
[27] On the facts as found by me, the accused never took on the role of an intermediary between the officer and Gravelle. There is not any evidence that the accused consorted with Gravelle in trafficking methamphetamine. The evidence is to the contrary. Bertrand, for example, asked Gravelle what the price of the speed was; not to be confused with negotiating a price on behalf of the officer. If there was any affiliation as an intermediary, Betrand would have known the price.
[28] Further, Bertrand’s assertion that “I sell blow, I don’t sell speed” connotes a dismissiveness that he wouldn’t stoop to selling methamphetamine. Of additional significance is the evidence that in the future Officer Wenger would be dealing directly with Gravelle and the implication being, to the exclusion of the accused. Payment was made directly by Officer Wenger to Gravelle who was solely in possession of the methamphetamine prior to the sale and until it was handed over directly to the purchaser, Wenger.
[29] The prosecution argues that the closure of the kitchen blinds by the accused during the officer’s attendance at the accused’s residence to conduct his purchase of speed from Gravelle is persuasive evidence that the accused was complicit in Gravelle’s sale of the methamphetamine. That action is as equally consistent with shielding the officer’s purchase and possession of methamphetamine as anything else particularly when considering Officer Wenger to be a potential purchaser of cocaine.
CONCLUSION
[30] There exists a dearth of jurisprudence on the issue pertaining to this accused and the outcome turns on the facts in each of those cases. In the case of R. v. Greyeyes, [1997] 2 S.C.R. 825 at paragraph 8, Madame L’Heureux-Dubé held:
[8] In my view, this excerpt clearly demonstrates the important distinction between vendor and purchaser. I agree that despite his or her crucial assistance in helping to complete the sale of narcotics, the purchaser cannot by this action alone be found guilty of the offence of aiding or abetting the offence of trafficking. Frankly, I see no reason why this reasoning should not be extended to third parties as well. In situations where the facts reveal no more than incidental assistance of the sale through rendering aid to the purchaser, it stands to reason that these persons should be treated as purchasers, and not as traffickers. The proper charge in these circumstances would be aiding or abetting the possession of a narcotic, and not trafficking.
She went on to comment that the offence of aiding and abetting possession of a narcotic “is a permissible legal result”. An accused cannot be found guilty of aiding and abetting trafficking on the basis of the purchase alone.
[31] My colleague, Molloy J., in R. v. Ahamad, [2003] O.J. No. 4246 reviewed the applicable case law in coming to the same conclusion based on the facts of that case which involved rendering assistance to a purchaser of cocaine who was disabled and susceptible to being victimized. There the accused actually handled the money and the drugs and passed them to the undercover officer. With regard to the conduct of that accused, Justice Molloy observed in paragraph 27 of her reasons:
[27] . ..[H]e purchased an illegal substance and he had that substance in his possession, which is a criminal offence. However, everything he did was for the assistance of the purchaser. His intention was to facilitate the purchase, and not to facilitate the sale. It seems to me, following the direction of the Supreme Court of Canada in Greyeyes, that such conduct, although wrong, should not be stigmatized as drug trafficking.
[32] Here, the accused simply did that which he conveyed to Officer Wenger he would do on his behalf; introduce him to someone from whom he could purchase speed or beans or methamphetamine pills. He did not involve himself in procuring the drug, settling the price, delivering the drug or otherwise handling the drugs or the purchase money. I find that the accused’s conduct was merely incidental assistance in the introduction of Officer Wenger to the vendor Gravelle and notwithstanding that his involvement would have assisted the vendor to traffic in the drug.
[33] In the result, I am not satisfied beyond a reasonable doubt that the accused is guilty of trafficking methamphetamine as charged. As referenced in R. v. Greyeyes, these circumstances could have resulted in a charge of aiding or abetting the purchaser in the possession of the narcotic, but Mr. Bertrand was not charged with possession. Accordingly, a verdict of not guilty is to be endorsed on the single-count indictment.