Her Majesty the Queen - v. -, 2013 SKPC 10

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 010 Date: January 17, 2013 Information: 24482050 Location: Yortkon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brady Thomas Baumgartner Appearing: D. Rusnak For the Crown R. Yaholnitsky For the Accused An order prohibiting publication of the evidence taken at this preliminary inquiry was made pursuant to s. 539 of the Criminal Code . As this action is now complete, this judgment is being published. Witnesses under the age of eighteen years of age are referred to by their initials, to protect their identity. DECISION ON COMMITTAL R. GREEN , J

I. OVERVIEW [1] Brady Baumgartner is charged with trafficking cocaine, contrary to s. 5(1) of the Controlled Drug and Substances Act. Theoffence is alleged to have been committed on November 23, 2012 at Yorkton. The Crown does not allege that Mr. Baumgartner was theprincipal seller of cocaine, but rather claims that he was a party to the offence, pursuant to sections 21(1)(

b) and 21(1)(

c) of the CriminalCode, on the basis that he aided and abetted the principal seller. [2] Pursuant to s. 548 of the Criminal Code, at the conclusion of a preliminary inquiry, if satisfied that there is sufficientevidence to put Mr. Baumgartner on trial for this offence, or any other indictable offence arising from the same transaction, I am tocommit him to stand trial. If not so satisfied that a sufficient case for committal has been made out, I am to discharge him. The SupremeCourt of Canada in USA v.

Sheppard, (SCC), [1977] 2 S.C.R. 1067, said the test for committal was whether a reasonablejury, properly instructed, could return a verdict of guilty on the charge in question. II. EVIDENCE PRESENTED AT THE PRELIMINARY INQUIRY

a) K.T. [3] K. T., is 14 years of age. On November 23, 2012, she travelled from her home of Estevan to Yorkton. She was with twoschool mates of a similar age, T.K. and S.Y., together with three young adults: MacKenzie Hanson, Kyle Schell (sic) and Jordan Fleck. K.T. knew Brady Baumgartner from when he lived in Estevan. The day before the trip to Yorkton, she made a request, throughFacebook, to Mr. Baumgartner to find cocaine for them. She did not indicate any response by him. She spoke to Mr. Baumgartner bycell phone enroute to Yorkton. They arranged to meet at 7-11, and then followed Mr.

Baumgartner back to his residence. At thatresidence, she said there was a conversation with Kyle, Brady and Jordan, to do with how to get and how to pay for cocaine. She did notappear to recall what specifically Mr. Baumgartner said. [4] K. T. said the group from Estevan left Mr. Baumgartner’s house, with Mr. Baumgartner, in a limousine. They went to theYorkton liquor store and purchased alcohol, and then drove until the vehicle stopped. The vehicle stopped because Mr. Baumgartner hadarranged to pick up two men whom she did not know.

One of the men was named Shawn. [5] When asked why the two men were picked up, K.T. said Mr. Baumgartner was going to get cocaine. The group drovearound drinking while Shawn made calls on S.Y.’s cell phone. She said McKenzie and Mr. Baumgartner asked Shawn to make thecalls. She said after about an hour of driving, Mr. Baumgartner had too much to drink and was sick. They dropped him off at his placeand, after that, they drove to a hotel. At the hotel, Jordan and Shawn discussed a price of $180 to $200 for the cocaine. Jordan then gavemoney to Shawn, and Shawn got out of the vehicle to make the purchase.

She did not see the seller that Shawn bought the cocainefrom.

b) Shawn McNeil [6] Shawn McNeil is 32 years of age. He said he used cocaine with Mr. Baumgartner one or two months before this day. Hewas going over to his neighbour’s place and saw a limousine parked out in front. He then spoke to Mr. Baumgartner who asked him tocome with them. Mr. McNeil said he got into the limousine with two of his friends. The people inside said Mr. McNeil and his friendscould join them, because Mr. McNeil was going to get cocaine for them. [7] Mr. McNeil said, in the limousine, Mr. Baumgartner gave him a pill, he thought something like Ritalin.

He said Mr.Baumgartner asked him to get cocaine, and Mr. McNeil then made phone calls while they drove around. After Mr. Baumgartner wasdropped off at his residence, the limousine drove to the Comfort Inn and he purchased cocaine. He said no one spoke to him before hegot into the limousine about buying cocaine for these people. He was charged with trafficking as a result of what he did this night.

c) S.Y. [8] S.Y. said the group in the limousine picked up someone that Mr. Baumgartner knew. When asked why, she said becausethis man (who was picked up) knew people who had drugs.

d) Jordan Fleck [9] Jordan Fleck said he did not know Mr. Baumgartner before this date, but once at his place in Yorkton, Mr. Fleck decided torent a limousine for the evening. A man was picked up by the limousine that he did not know. He said he, personally, and Mr.Baumgartner and one of the girls talked about cocaine. He was not paying attention to any phone calls made in the limousine. At somepoint, after Mr. Baumgartner was dropped off at his residence, he gave $200 to the man who was picked up by the limousine forcocaine.

When asked why he thought that man could get cocaine, he said because that man said he could. III. ANALYSIS [10] The Crown asserts that there is evidence that Mr. Baumgartner was a party to the offence of trafficking by aiding or abettingthe commission of the offence of trafficking. Section 21(1)(

b) of the Code makes a person a party to an offence if he does anything forthe purpose of aiding another to commit the offence. Section 21(1)(

c) makes a person a party by abetting another person in committingan offence. Abetting means encouraging. [11] I accept that, in law, there is a distinction between the legal liability of a purchaser and a seller, and that this distinction mayextend to a person charged with aiding and abetting the offence of trafficking. In my view, the law on this point is set out by MadamJustice L’Heureux-Dubé, speaking for a majority of four of the Supreme Court of Canada, in R. v. Greyeyes, (SCC),[1997] 2 S.C.R. 825. Justice L’Heureux-Dubé said at paragraphs 8 and 9: 8. ...

I agree that despite his or her crucial assistance in helping to complete the sale of narcotics, the purchaser cannot by this actionalone be found guilty of the offence of aiding or abetting the offence of trafficking. Frankly, I see no reason why this reasoning shouldnot be extended to third parties as well. In situations where the facts reveal no more than incidental assistance of the sale throughrendering aid to the purchaser, it stands to reason that these persons should be treated as purchasers, and not as traffickers.

The propercharge in these circumstances would be aiding or abetting the possession of a narcotic, and not trafficking. 9. The offence of aiding or abetting possession of a narcotic is a permissible legal result and has occurred on many occasions... [12] In Greyeyes, supra, Justice L’Heureux-Dubé concluded that Mr. Greyeyes did far more than to act as a purchaser. In what shedescribed as a concerted effort on his part to effect the transfer of narcotics, she noted (at para. 13) that Mr. Greyeyes: 1. Located the seller; 2. Brought the buyer to the site of the sale; 3. Introduced the buyer to the seller;

4. Acted as a spokesperson for the purchaser; 5. Negotiated the price with the seller; 6. Gave the money to the seller; 7. Accepted money for facilitating the deal; and 8. Made arrangements for the purchaser to enter the apartment building where the buyer was. [ 13 ] Clearly, in this case, Mr. Baumgartner’s involvement was much less. There is no evidence he did any of the eight acts enumerated in Greyeyes . [ 14 ] The evidence at this preliminary inquiry was: 1. A request was made by K. T. to Mr. Baumgartner, on Facebook , to find cocaine for her and her friends; 2. At his place, Mr.

Baumgartner was involved in a discussion with Kyle and Jordan about how to get and how to pay for cocaine; 3. Mr. Baumgartner and the group from Estevan drove around in a limousine for a while. Then Mr. Baumgartner invited Mr. McNeil into the limousine and asked him if he could get cocaine; 4. After Mr. Baumgartner had been in the limousine for an hour, and before any cocaine was purchased by Mr. McNeil, Mr. Baumgartner was dropped off at his home, because he was feeling sick from all the alcohol he drank in the limousine; and 5. After dropping off Mr.

Baumgartner, the limousine proceeded at some point to the Comfort Inn. Upon arrival, Mr. Fleck gave $200 to Mr. McNeil, who in turn left the vehicle and went into the hotel, where he purchased cocaine from an unidentified seller. [ 15 ] There is no evidence that Mr. Baumgartner: 1. Knew the identity or location of the seller; 2. Contacted Mr. McNeil in advance of picking him up in the limousine about purchasing cocaine for him or the others; 3. Played any

part in phoning the seller or otherwise contacting the seller; 4. Played any

part in taking the people in the vehicle to the Comfort Inn; or 5. Played any

part in giving the money to the unidentified seller in exchange for the cocaine.

IV. CONCLUSION [ 16 ] In my view the totality of the evidence at the preliminary inquiry - to use the words of Madam Justice L’Heureux-Dubé in Greyeyes - “reveal(

s) no more than incidental assistance of the sale through rendering aid to the purchaser”. As a matter of law, a jury, properly instructed, would have to be told that more involvement than such incidental assistance to the purchaser would be required to convict Mr. Baumgartner of aiding or abetting the offence of trafficking in cocaine. As a result, I am not satisfied, pursuant to s. 548(1) (a), that there is sufficient evidence to put Mr.

Baumgartner on trial for being a party to the offence of trafficking cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act , applying the test for committal from USA v. Sheppard . [ 17 ] I am, however - and without suggesting that the Crown has a strong case on this charge - satisfied, again referring to the words of Madam Justice L’Heureux-Dubé in Greyeyes , that the proper charge in these circumstances would be aiding and abetting the charge of possession of cocaine, contrary to s. 4(1) of the Controlled Drugs and Substances Act .

Therefore, I order the accused to stand trial on the charge that on November 23, 2012, at Yorkton, he was a party to the indictable offence of possession of cocaine, contrary to s. 4(1) of the Controlled Drugs and Substances Act . ______________________ R. Green, J