R. v. Machushek (J.K.), 2016 SKCA 41

• Judge: Jackson, Caldwell and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 09, 2015
• Jurisdiction: Saskatchewan
• Citations: 2016 SKCA 41;(2016), 476 Sask.R. 194 (CA)

R. v. Machushek (J.K.) (2016), 476 Sask.R. 194 (CA);

    666 W.A.C. 194

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. AP.003

Her Majesty the Queen (appellant) v. Jeremy Kane Machushek (respondent)

(CACR2535; 2016 SKCA 41)

Indexed As: R. v. Machushek (J.K.)

Saskatchewan Court of Appeal

Jackson, Caldwell and Herauf, JJ.A.

March 24, 2016.

Summary:

As part of an undercover operation into cocaine selling, two undercover officers entered a bar and, after several hours of socializing with some of the patrons, they left with the accused. Later that evening, the accused and the officers each purchased one gram of cocaine from an unidentified seller. The accused was subsequently charged with two counts of trafficking in cocaine (Controlled Drugs and Substances Act, s. 5(1)) and two counts of possessing proceeds of an offence (Criminal Code, ss. 354(1)(a) and 354(1)(b)). The trial judge acquitted the accused. The Crown appealed, submitting that the trial judge erred by finding that the accused did not aid or abet the trafficker.

The Saskatchewan Court of Appeal dismissed the appeal.

Criminal Law - Topic 2742

Attempts, conspiracies, accessories and parties - Parties to offences - Necessary intention or knowledge - The Saskatchewan Court of Appeal stated that "Unlike other offences that Parliament has created, the offence of being a party to an offence under s. 21(1)(b) [aiding] and s. 21(1)(c) [abetting] of the Criminal Code requires the Crown to prove not only the doing of the act but also that the accused acted with the intention of aiding or abetting the principal offender. The Supreme Court of Canada has referred to this as a 'specific mens rea' attached to the offence of being a party ... The specific mens rea for the offence of being a party requires the Crown to prove both intention and knowledge." - See paragraph 50.

Criminal Law - Topic 2744

Attempts, conspiracies, accessories and parties - Parties to offences - What constitutes aiding and abetting - [See first and second Narcotic Control - Topic 702 ].

Criminal Law - Topic 2746

Attempts, conspiracies, accessories and parties - Parties to offences - What constitutes abetting - [See first and second Narcotic Control - Topic 702 ].

Narcotic Control - Topic 505

Offences - General principles - Parties to offences - [See all Narcotic Control - Topic 702 ].

Narcotic Control - Topic 702

Offences - Trafficking - Elements of - On appeal from the accused's acquittal from trafficking, the Crown submitted that the trial judge erred by finding that the accused did not aid or abet the trafficker - The Saskatchewan Court of Appeal stated that "Crown counsel sets the bar too low when he implies that an accused must be found guilty if 'the purchase would not have taken place without the assistance of the accused' or by asking 'whether the drug transaction could have proceeded without [the accused's] assistance.' In my respectful view, these statements do not completely reflect the majority's opinion in R v Poitras, [1974] SCR 649 [Poitras] and in Greyeyes [1997 S.C.C.]. For the most part, Poitras stands for the proposition that once it is determined that an accused did not commit an act of trafficking, the issue is whether he or she is guilty of being a party to trafficking by virtue of s. 21(1)(b) or s. 21(1)(c) of the Criminal Code and the burden is on the Crown to prove all of the elements of the offence it has alleged. The issues are not resolved by having recourse to the civil law of 'agency' alone: Poitras at 653 and Greyeyes at para 34." - See paragraph 38.

Narcotic Control - Topic 702

Offences - Trafficking - Elements of - The Saskatchewan Court of Appeal stated that "... when the charge is trafficking and the theory of the Crown is that the accused is guilty of trafficking either as a principal or as a party, the analytical framework to apply is as follows: (a) has the accused committed any acts of trafficking in his or her own right? (b) if no, did any acts or omissions of the accused aid or abet the trafficker in the commission of the offence of trafficking? (c) if yes, do the facts reveal something more than incidental assistance to the trafficker through rendering assistance to the purchaser? (d) if yes, did the accused know that the trafficker intended to commit the offence of trafficking? (e) if yes, did the accused intend to aid or abet the trafficker in the commission of the offence of trafficking? The first step of the framework is important. ... [T]he trier of fact does not apply s. 21(1)(b) [aiding] or s. 21(1)(c) [abetting] of the Criminal Code when the accused has knowingly and personally committed one of the acts of trafficking defined by s. 2 of the Controlled Drugs and Substances Act. It is important to keep the two offences separate because the mens rea for each is different. Only if the answer to the first question is no does one proceed through the next steps." - See paragraphs 72 and 73.

Narcotic Control - Topic 702

Offences - Trafficking - Elements of - As part of an undercover operation into cocaine selling, two undercover officers entered a bar and, after several hours of socializing with some of the patrons, they left with the accused - Later that evening, the accused and the officers each purchased one gram of cocaine from an unidentified seller - The accused was subsequently charged with two counts of trafficking in cocaine (Controlled Drugs and Substances Act, s. 5(1)) and and two counts of possessing proceeds of an offence (Criminal Code, ss. 354(1)(a) and 354(1)(b)) - The accused and the officers testified at trial - The trial judge made findings of credibility against the officers and the accused - From what he believed of the testimony of all three, he found the following: in the context of an evening of socializing with the two officers, the accused phoned the seller of the drugs; he and the officers went together in the officers' truck to buy cocaine at a location known to the accused; each of the officers bought cocaine; the accused bought cocaine for his own use; he did not handle the officers' money or their cocaine; and he received no payment of any sort from either the seller or the officers - The trial judge acquitted the accused, holding that he neither (i) committed any acts of trafficking in his own right; nor (ii) aided or abetted the seller of the drugs so as to be guilty of the seller's act of trafficking pursuant to ss. 21(1)(b) and. 21(1)(c) of the Code - The Crown appealed the finding that the accused did not aid or abet the trafficker - The Saskatchewan Court of Appeal dismissed the appeal.

Counsel:

Wade McBride, for the appellant;

Richard Leland, Q.C., for the respondent.

This appeal was heard on September 9, 2015, by Jackson, Caldwell and Herauf, JJ.A., of the Saskatchewan Court of Appeal. Jackson, J.A., delivered the following reasons for decision for the court on March 24, 2016.