R. v. Buckshaw, 2021 BCPC 202

Citation: R. v. Buckshaw 2021 BCPC 202 Date: 20210219 File No: 247464-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. MICHAEL ANDREW HEFELE ANTHONY TYLER BUCKSHAW ORAL RULING RE ADMISSION OF STATEMENTS INTO EVIDENCE RE ACCUSED BUCKSHAW OF THE HONOURABLE JUDGE D. ST. PIERRE Counsel for the Crown: J. Lhalungpa, T.J. Cook, appearing by teleconference Counsel for the Defendant: D. Markovitz, appearing by teleconference Place of Hearing: Vancouver , B.C. Date of Hearing: February 19, 2021 Date of Judgment: February 19, 2021 [ 1 ] THE COURT : Mr. Buckshaw is charged in two counts on a 10-count information, and this is my ruling on an application by

[1] THE COURT: Mr. Buckshaw is charged in two counts on a 10-count information, and this is my ruling on an application bythe Crown to have certain statements admitted into evidence on this trial as the exception to the hearsay rule, specifically the co-conspirator's exception to the hearsay rule. [2] Mr. Buckshaw is charged that on May 10 and June 5, 2018, that he and Michael Hefele jointly sold half an ounce each day ofnarcotics laced with fentanyl to undercover officers. [3] Mr. Hefele is named on all 10 counts. He has already disposed of his matters, apparently in drug treatment court.

The Crownnow makes an application here to have certain statements made by Mr. Hefele to undercover officers admitted into evidence against Mr.Buckshaw. [4] The co-conspirator's exception to hearsay permits the admission of out of court statements made by a co-conspirator against theaccused. The exception exists because people involved in joint criminal ventures are agents of each other, their acts in the agency areadmissible against each other. The leading case on this idea of a co-conspirator's exception to the hearsay rule is R. v.

Carter, (SCC), [1982] SCJ 47. [5] That case dealt with the proof required to indicate the accused's membership in a joint venture/conspiracy before a hearsayexception becomes applicable. The case proposed a test to determine how and when the acts and declarations of one alleged party to anagreement to commit a crime can be used against another party to that agreement. [6] Briefly stated, in this particular case Mr. Hefele was under surveillance by investigators. A data recorder was set up on his phoneand could determine what calls and texts he was making and receiving.

Notably, however, there was no wiretap involved so the actualcommunications between Mr. Hefele and anyone else remain unknown to investigators. I should point out that the evidence on thisapplication comes by way of an admission of fact that was made by both counsel and filed as Exhibit A on these proceedings. [7] The undercover officers would contact Mr. Hefele on several occasions to set up purchases of mainly half gram amounts offentanyl-laced narcotics. Those amounts are worth approximately $80. On each occasion the undercover officer would get in touch withMr.

Hefele and then visit him at the Empress Hotel, where Mr. Hefele would promptly supply the drugs to the undercover officer andthen return into the Empress. That was the usual course of events. [8] On two occasions, the occasions where Mr. Buckshaw is alleged to be involved, the undercover officers would ask for half anounce of the same narcotic. That amount of narcotics is worth approximately $1500. Mr. Hefele would, around the same time that theundercover officers were making their requests for a purchase, communicate with Mr. Buckshaw and eventually Mr. Buckshaw wouldmeet with Mr.

Hefele; this was all being surveilled by the police. [9] On May 10 at 1310 hours Mr. Hefele tells undercover officers that "the guy" he had to call was on his way in a cab. No cab isobserved by the surveillance team; however, at 1340 hours a surveillance officer observed the accused, Mr. Buckshaw, quickly handsomething to Mr. Hefele, then walk away. This particular transaction was not captured on the video that was taken of that scenario and isattached to the admissions of fact. But shortly after that, at around 1356 hours, Mr.

Hefele meets up with the undercover officers andsells them the requested narcotics. [10] On June 5 the undercover officers again requested a half ounce of narcotics to purchase, and that was at 1209. Mr. Hefele toldthe undercover officers that again, "his guy" will not be around until 1330 or so. Again, the data recorder indicates that Mr. Hefelecommunicated with Mr. Buckshaw on the phone, at least he contacted Mr. Buckshaw's phone. At 1407 the accused, Mr. Buckshaw,meets with Mr. Hefele and is again seen by surveillance officers reaching out and placing some unknown item into Mr.

Hefele's hand.The officers watching this are unable to discern, again, what was exchanged. At 1437 hours the undercover officers purchased therequested narcotics from Mr. Hefele. [11] There are some further details that are set out in the admissions of fact on this application. I have read those details carefully. Iam only summarizing the gist of the relevant context here. [12] For the purposes of this case the defence says that the rule in R. v.

Carter can be stated as follows: Step one, using all of theevidence, including any acts and declarations of the alleged co-conspirators made in furtherance of the alleged conspiracy or jointventure, the Crown must prove beyond a reasonable doubt that the joint venture exists. [13] Then on to step two, if the Crown meets the first hurdle. Step two: Using only evidence that is directly admissible against theaccused, the Crown must establish on a balance of probabilities that the accused was a member of that joint venture.

Where thesepreconditions to admissibility are met, then the judge may later in the trial apply any act or declaration of any member of the jointenterprise that is made in furtherance of the joint enterprise against all of the members of that joint enterprise. [14] It must be remembered in all of this that hearsay evidence is normally presumptively inadmissible unless it falls under anexception to the hearsay rule. However, at the first step outlined in Carter, the hearsay rule is not engaged.

In determining whether ajoint venture exists, the judge may consider all admissible evidence including provisionally considering any acts and declarations of co-conspirators. [15] One issue that arose in this case, and it is not an insubstantial one, is what the standard of proof is to be applied at step one. Bothcounsel in their submissions simply indicated that whatever standard is applied, that is, the proof beyond a reasonable doubt or thebalance of probability standard, that both of their respective positions should succeed.

While that is a reasonable submission to make, theproblem that I have, of course, as the judge, is that I have an obligation to try to determine actually what the appropriate standard is. [16] So the Crown says that where conspiracy has not been charged, and it has not here, the Crown need only prove the joint ventureat this stage on the standard of a balance of probabilities. They rely in part on the text in McWilliams' Canadian Criminal Evidence FifthEdition at paragraph 7:170.20.20, and I looked it up.

The authors note that there is what they call "an interesting argument" beingadvanced that where there is no conspiracy charge on the indictment but simply an allegation involving a common enterprise, then thestandard to be applied at the first stage should be a balance of probabilities. They note that the British Columbia Court of Appeal in a

case called Lambert appeared to accept this position but that it was far from clear that others will, and that the law was quite unsettled onthe point. Obviously that notation in McWilliams is far from authoritative, but it relies on a decision from our Court of Appeal, so it mustbe dealt with. [17] The confusion comes from Justice Newbury's comments in a case called R. v. Lambert, [2007] BCJ No. 214, at paragraph 1where she states in

part in that paragraph: …I should note, the accused in the instant case were not charged with conspiracy but with the substantive offence of fraud, so that theexistence of a “joint venture” could be shown on the balance of probabilities in accordance with R. v. Bouvier, (SCC),[1985] 2 S.C.R. 485 and R. v. Sutton, 2000 SCC 50 , [2000] 2 S.C.R. 595, which affirmed the New Brunswick Court of Appeal… [case]. [18] The defence says that the two cases relied upon there do not actually stand for the proposition asserted there, and that it wasessentially an over comment.

Bouvier was the Supreme Court of Canada upholding the Ontario Court of Appeal, where they found thatthe trial judge had erred in instructing a jury that the standard of proof beyond a reasonable doubt applied to individual pieces ofevidence. [19] Sutton, at least at the Supreme Court of Canada stage, dealt with the alleged errors on the standard to be applied at the secondstage of the Carter test. Although the Court of Appeal had also dealt with the first stage standard, the Supreme Court of Canada did notmention the standard at the first stage.

It is difficult to see how the result in the Supreme Court of Canada version of the Sutton casesupports the obiter dicta comments in the Lambert decision. [20] It must be noted that the issue on appeal in Lambert was whether the trial judge gave reasons sufficient to demonstrate that thetrial judge had applied the correct standard at step three of Carter, which we are not dealing with at this point. The standard at step onewas not in contention, it appears. [21] It is partially instructive to see how the Lambert case has been summarized by editors of the Case Digest.

For instance, thesummary provided in the reporting service Canadian Case Summaries, formerly known as Dominion Report Services, says this about thealleged errors of the trial judge [as read in]: Although he referred to whether or not Lambert's role in the fraud was proven on a balance of probabilities, he also went on to considerand base Lambert's conviction on guilt beyond a reasonable doubt. [22] That was the ultimate issue on that case, is whether the verdict was reasonable. [23] In my attempts to note up Lambert, I found only one case. There is one case, and that is R. v. Constantine, [2009] O.J.

No. 695.Now, that case is only an Ontario Supreme Court of Justice case, and the reasons that Justice Sproat sets out in that case for not applyingthe lower standard to step one are very compelling and are based directly on Supreme Court of Canada authority.

So I am going to justdeal with that at this point. [24] The Supreme Court of Canada in Mapara, 2005 SCC 23 , [2005] SCJ No. 23, for instance, which was the case wherethey determined whether Carter satisfied the reliability requirement for hearsay, the Court in Mapara carefully explained why thestandard of proof at the first stage is beyond a reasonable doubt, and it has everything to do with the reliability and the basis upon whichthis rule is formulated, and why it is an appropriate addition to the exceptions to presumptively inadmissible hearsay evidence. [25] In R. v.

Mapara, the appellant argued that Carter did not satisfy the reliability requirement because it amounts to usingcorroborating evidence to bolster the reliability of hearsay declarations against the accused, and that was contrary to the Starr case in theSupreme Court of Canada. Well, Justice McLachlin deals with that argument at paragraph 22, and the chief says, "I do not agree". Shesays at paragraph 24: The question is whether the first two stages of the Carter process provide circumstantial indicators of reliability that do not amount tosimply corroborating the statements in issue.

In my view, they do. [26] They do provide those indicators of reliability, she says. She goes on to say: Proof that a conspiracy existed beyond a reasonable doubt and that the accused probably participated in it does not merely corroboratethe statement in issue. Rather, it attests to a common enterprise that enhances the general reliability of what was said in the course ofpursuing that enterprise. It is similar in its effect to the res gestae exception to the hearsay rule, where surrounding context furnishescircumstantial indicators of reliability.

The concern is not with whether a particular statement is corroborated, but rather withcircumstantial indicators of reliability. [27] Justice Sproat says in the Constantine case, that I referred above, at paragraph 24: Mapara was a first degree murder case. McLachlin C.J.C. specifically referred to the beyond a reasonable doubt test at step one asbolstering the reliability of the evidence and so contributing to attaining the reliability required by the principled approach in Starr.

Itwould only be relevant to refer to the beyond a reasonable doubt standard, and the fact it enhances reliability, if the Court was inagreement that it was the correct standard. The beyond a reasonable doubt standard at step one is therefore integral and essential to thereasons and result in Mapara. [28] So for the reasons set out in Constantine, Mapara and the Supreme Court of Canada authorities, I find that the standard must be,even for substantive charges, proof beyond a reasonable doubt at the first stage.

It does not supplant the "ultimate issue to bedetermined", as some folks have argued within some of these cases. It requires the establishment of an enterprise in common between atleast two persons. There is a reason for that, and it is clearly set out in Mapara.

[ 29 ] Stage two requires proof only on a balance of probabilities that the accused is a member of that enterprise in common. Only later will the criminal standard of proof, beyond a reasonable doubt, be again applied to all of the evidence that is called after the admissible evidence is determined. [ 30 ] It follows that I agree with the defence that the Crown must first prove at step one that a joint venture between Mr. Buckshaw and Mr. Hefele exists to sell narcotics to the undercover officers.

The proof of an existence of a joint venture must be on the beyond a reasonable doubt standard. [ 31 ] In this case, there is direct evidence that Mr. Hefele was communicating with the accused, Mr. Buckshaw, shortly after the undercover officers were requesting half ounce amounts of narcotics. They would meet each other briefly and then Mr. Hefele would later consummate a sale to the undercover officers. It is on these facts that the Crown suggests that an inexorable inference must be drawn. [ 32 ] There is a fundamental difference between direct and circumstantial evidence.

Direct evidence requires only one determination; that is whether the evidence is to be believed or not. Circumstantial evidence adds a second question; even if believed, what conclusions or inferences can be drawn from the evidence. With respect to whether the Crown has proved an agreement between the two men to conduct sales to the undercover officers, a number of considerations apply. [ 33 ] Firstly, there cannot be an inference made unless there are objective facts on which to infer the facts that are sought to be established.

Two, if there are no positive proven facts from which an inference can be made, the method of inference fails and what is left is mere speculation or conjecture. Thirdly, from the facts that are proven, how many intermediate inferences must be drawn by the judge in order to connect those facts to the inference that is being sought. The Crown, I should note, need not negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the established facts. [ 34 ] There is no direct evidence that Mr. Buckshaw was, in fact, even supplying narcotics to Mr. Hefele.

Transactions were observed but no officer could conclude what was being transacted. However, in this case even if you were to take the inferences as far as you could possibly take them on the evidence here, and that is that Mr. Buckshaw was in fact contacted by Mr. Hefele when Mr. Hefele required some narcotics and then met with Mr. Hefele to supply him those requested narcotics, that does not get you to the next inference I am being asked to draw, and that is that Mr. Buckshaw knew or was a part of what Mr.

Hefele planned to do with those narcotics later. [ 35 ] It is reasonable, not simply just possible, to find that Mr. Buckshaw may have simply been selling or conducting a transaction with -- selling narcotics to Mr. Hefele. Despite surveillance being conducted, there is no evidence of any follow-up meetings between Mr. Buckshaw and Mr. Hefele which may lead to an inference that Mr. Buckshaw was, you know, collecting money from him for drugs that were being sold as part of a joint venture. There is simply no proof beyond a reasonable doubt that a joint venture involving Mr. Buckshaw and Mr.

Hefele trafficking drugs to the undercover officers exists. [ 36 ] The Crown has failed to establish that a joint venture exists under stage one, and that is either on the beyond a reasonable doubt standard or the balance of probability standard, obviously, if I find that the standard is beyond a reasonable doubt. [ 37 ] If I were wrong that the beyond a reasonable doubt standard should be applied, I would still find under the balance of probability standard that there has been a failure to establish a joint venture existing, even on that lower standard.

There is no reason to go further than that, and I choose not to, so it follows that the application of the Crown to tender six statements made by Mr. Hefele to the undercover officers under the co-conspirator's exception to the hearsay rule is denied. (REASONS CONCLUDED)