R v Bartel, 2023 ABCJ 227

In the Alberta Court of Justice Citation: R v Bartel, 2023 ABCJ 227 Date: 20231101 Docket: 220616858P1 Registry: Calgary Between: His Majesty the King - and - Reece Richard Bartel Decision of the Honourable Justice B.C. Stevenson The Alleged Offences [ 1 ] The accused Bartel is charged with possession of stolen property valued at more than $5,000., contrary to

section 355(

a) and trafficking that stolen property, contrary to

section 355.2 of the Criminal Code . Crown Evidence: [ 2 ] The Calgary Police Service was notified by Ruth Falk that while she was visiting in Calgary in 2022 her flute was stolen from her car. [ 3 ] She did not report the theft to the police. [ 4 ] The flute was valued by her to be $38,000. [ 5 ] She found her flute – a 14k rose gold-plated flute - advertised for sale on Kijiji. [ 6 ] She advised the Calgary Police online stolen property unit of her finding. [ 7 ] Constable Steve Adair, a veteran police officer with 22 ½ years of service, was assigned to investigate.

[8] Ms. Falk had been trying to sell the flute previously on three other online platforms, valuing the flute at between $25,000.and $34,500. [9] Following a review of materials concerning the previous sale attempts, Constable Adair believed that the flute advertised onKijiji was Ms.

Falk’s flute. [10] Adair checked the phone number of the seller and found an e-mail for the accused by the name of reecebartel@hotmail.com. [11] Adair was of the opinion that there was probably no other flute of its kind in Canada. [12] Following determining that the seller was the accused, the unit decided to set up what is colloquially known as a “sting”operation and contacted the seller’s phone number in the Kijiji ad. [13] Adair offered the accused $20,000 for the flute, and a meeting between Adair and the accused was arranged to take place inthe parking lot of the Royal Bank Canada branch at the corner of 52nd Street and Memorial Drive Northeast. [14] At that meeting the accused showed Adair the flute in a case. [15] Adair testified that he was able to confirm that it was the stolen flute from the serial numbers on it and its characteristics. [16] With the help of Constable Gass, he arrested the accused and charged him the offences previously mentioned. [17] He cautioned the accused, and when Adair asked him where he had obtained the flute the accused advised him that he hadbought it on Kijiji for $5000. [18] He also told Adair that his mother could corroborate his statement as to how he had obtained it. [19] The accused testified in his defence.

He stated that he had found an ad on Kijiji offering to sell the flute for $5000. [20] He stated that he had looked at “comparables”, and after finding a listing was listed higher than that, decided to buy and sell itto make money. [21] He called the seller who had listed the and set up a time to meet with him, and bought the flute for $4,500. [22] When asked where he got the money, he testified that he had borrowed it from his mother, who gave it to him in an envelopecontaining cash in $100 bills. [23] He further testified that he had bought and re-sold several items of various values on Kijiji and made money on thosetransactions. [24] With respect to the seller of the flute to him, the accused described him as a white male, wearing a ball cap and driving anewer luxury car. [25] He described the location where he and the seller met in a parking lot near his house in front of “Atlas Pizza”. [26] He stated that he used the name of “Arby” when he placed his ad on Kijiji, and he testified that he did not think the flute wasstolen – “not at all”. [27] In cross-examination, when asked about his research into “comparables” and the higher listing that he found, his recollectionwas that the higher listing was $20,000. [28] The accused’s mother testified that she had participated with him on other Kijiji transactions, and corroborated much of theaccused’s testimony.

Position of the Crown: [29] The theory of the Crown is that in the circumstances the accused was wilfully blind, and that “knowledge” that the flute wasobtained by crime should be imputed to him beyond a reasonable doubt.

Position of the Defence: [30] The following cases apply to these circumstances, and should result in an acquittal of the accused on both charges: • R v Kowlyk, (SCC), [1988] 2 SCR 59 • R v Briscoe, [2010] SCC 13 • R v W(D) 1991 CanlLII 93 (SCC) [31] While the evidence is clear that the flute had been stolen, that its value was more than $5000., that the accused had it in hispossession, and that he intended to sell it, the defence submits that the Crown had not proven that he knew that the property had beenunlawfully obtained by crime.

[ 32 ] I agree with the defence that in the circumstances of this case the doctrine of recent possession has no application. ( Kowlyck , (supra), para 7; R v Farnsworth (2017), ABCA 358 at para 75). [ 33 ] With respect to the application of the doctrine of willful blindness, the defence refers to the Alberta Court of Appeal’s decision of Briscoe , (supra) at paras 19-20. [ 34 ] Justice Martin states at para. 19: “Wilful blindness refers to the accused’s state of mind. the doctrine attributes “knowledge to a party whose strong suspicions have been aroused but who refrains from making inquiries to have those suspicions confirmed. the doctrine serves to override attempts to self- immunize against criminal liability by deliberately refusing to acquire actual knowledge”. [ 35 ] In the next paragraph of Briscoe Justice Martin states: “It is important to keep in mind that the application of the wilful blindness doctrine focuses on the accused’s state of mind.

Moreover, it applies where the accused not only had a suspicion, but virtually knew the critical fact, and intentionally declined to secure that knowledge”. [ 36 ] Here the evidence advanced by the Crown doesn’t even go as far as to prove suspicion in the mind of the accused . (underlining mine). [ 37 ] The defence points to the following factors that support the submission that the accused did not have any suspicion that the flute had been obtained by crime: − He met the seller in a public parking lot near his house in daylight hours; − The seller appeared to be respectable, and was driving a luxury vehicle; − The seller stated that he was selling the flute because he needed the money; − When he was trying to re-sell the flute on Kijiji, he used an easily traceable identity; − It was posted for sale within a few days of purchasing it; − He met Constable Adair in daylight in public outside a bank; − Upon apprehension he immediately told Adair how he had obtained the flute, and that his mother could corroborate his explanation. [ 38 ] With respect to the testimony of both the accused and his mother, I am satisfied that they were both credible. [ 39 ] I am reminded by defence counsel of my brother Fradsham’s statement in his decision of R v Le (2005), ABPC 244 at para 16: “However, in this case, after careful consideration, I must conclude that my view of the accused’s explanation of events is coloured by the fact that his conduct is different from how I would conduct my affairs.

I have difficulty in seeing myself attempting to effect a car repair while being directed by the car’s owner. I cannot see myself then deciding to have a shower in that person’s house while the owner of the house simply left. I cannot see myself keeping receipts belonging to others after I had helped them with their banking. [ 40 ] Fortunately for the accused, that is not the test.

I should not reject the accused’s explanation only because it does not conform to how I would have acted in the circumstances”. [ 41 ] As defence counsel submits: “…….a judge cannot compare what he or she would have done or thought in a similar situation”. Verdict [ 42 ] The Crown has not proven, beyond a reasonable doubt, that the accused had actual knowledge that the flute was stolen, nor that he should have had suspicions to that possibility and was wilfully blind to that possibility. [ 43 ] He is not guilty of both charges. Heard on the 1 st day of November, 2023.

Dated at the City of Calgary, Alberta this 1 st day of November, 2023.

B.C. Stevenson A Justice of the Alberta Court of Justice Appearances: Brianna Walsh for the Crown Andrea Serink for the Accused Danielle Gregoire for the Accused