Her Majesty the Queen - v. -, 2011 SKPC 81

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 081 Date: May 20, 2011 Information: 44302064, 44302065, 44302114 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lindsay Siemens Appearing: Lynn Hintz and Bruce Bauer For the Crown Kevin Hill For the Accused JUDGMENT D.E.

LABACH , J INTRODUCTION [ 1 ] In late August 2009, the Saskatchewan Combined Forces Special Enforcement Unit (CFSEU) began an investigation into an individual by the name of Clayton McLeod who was suspected of trafficking in methamphetamine (crystal meth). CFSEU officers began surveilling Mr. McLeod and researching his associates. Over time, they identified other potential targets as Alyssa Holmes,

Clayton Soare and Henry Peters. In November 2009, arrangements were made to introduce a female undercover officer to Alyssa Holmes. Once this relationship was established the undercover officer was able to purchase crystal meth from Ms. Holmes and the others. [ 2 ] As the investigation progressed, it became apparent to CFSEU officers that some of the crystal meth being trafficked by Ms. Holmes, Mr. Soare, Mr. McLeod and Mr. Peters was coming from someone in British Columbia.

Consequently the officers running Project DECOY instructed their undercover officer to attempt to determine who this person was and/or meet with this person to purchase crystal meth. [ 3 ] The undercover officer was never able to find out the name or speak directly to the person from British Columbia who was supplying the Saskatoon targets with their crystal meth. Nor was the officer ever able to purchase crystal meth from this person.

However, based on information the undercover officer obtained from the Saskatoon targets, surveillance carried out by CFSEU members, data recorder intercepts and information from a Budget Rent-a-Car outlet, CFSEU officers reached the conclusion that the British Columbia supplier was the accused, Lindsay Siemens. [ 4 ] On March 1, 2010, CFSEU officers arrested Mr. Siemens and the other targets in Saskatoon. The accused was charged with a number of drug offences and other offences.

He pled not guilty to conspiring to traffick in methamphetamine, trafficking in methamphetamine, possession for the purpose of trafficking in methamphetamine and three breaches of his outstanding recognizances. His trial proceeded in Provincial Court before me. [ 5 ] At the outset of the accused’s trial, the Crown advised that their case against Mr. Siemens was entirely circumstantial. Their undercover officer never met the accused, never spoke with him and never purchased any drugs from him. No other officers witnessed the accused selling drugs to any of the co-accused.

However, it is the Crown’s view that the only reasonable conclusion that can be drawn from the whole of the evidence is that the accused was supplying crystal meth to Ms. Holmes, Mr. Soare, Mr. Peters and Mr. McLeod. Defence counsel resists this as being a reasonable conclusion. [ 6 ] It was the Defence position that much of the Crown’s evidence was inadmissible. He argued that the information from Budget Rent-a-Car linking the accused to a specific vehicle that was surveilled meeting with Ms. Holmes and Mr. Soare in Rosedale, Alberta was obtained in a manner that violated the accused’s

section 8 Charter right. As such the Budget contract and other information the accused provided to rent the car as well as any evidence derived from this information should be excluded pursuant to section 24(2) of the Charter . Secondly, he argued that much of the evidence from the undercover officer was hearsay and as such, not admissible. In his view, neither the admissible evidence nor any inferences that could reasonably be drawn from that evidence implicated the accused in any scheme to supply the co-accused with crystal meth and the accused should be acquitted of the charges he is facing. Even if he was wrong in this

interpretation of the evidence, at worst, the evidence only showed that the accused was buying from the co-accused(

s) not selling to them. [ 7 ] The Defence allegation that the police seizure of the Budget Rent-a-Car contract was a violation of the accused’s

section 8 Charter right was dealt with in a voir dire . In a separate ruling, I determined that the accused did not have a reasonable expectation of privacy in the information he provided to Budget Rent-a-Car and in the contract the accused signed with Budget to rent a vehicle. As a result, I found no

section 8 Charter breach and dismissed the Defence application. The Budget Rent-a-Car contract and all evidence flowing from it was admissible on the trial proper. See R. v. Siemens, 2011 SKPC 57 [ 8 ] On the trial proper, the Crown called thirteen witnesses and the Defence called none. In order to address the outstanding issues on the trial, a

summary of the evidence is necessary.

SUMMARY OF THE EVIDENCE [ 9 ] In late August, 2009, CFSEU officers began an investigation, code named project DECOY, into Clayton McLeod regarding allegations he was trafficking crystal meth in Saskatoon. On September 15, 2009, officers surveilling Mr. McLeod observed him at the Saskatoon Provincial Courthouse dealing with a criminal matter. When Mr. McLeod’s case was called, officers noted a female in the gallery whom they knew to be Alyssa Holmes. She was paying particular attention to what was going on in Mr. McLeod’s case. When

he had finished dealing with his matter, McLeod left the courthouse in the accompaniment of Ms. Holmes. The two got into Mr. McLeod’s vehicle and were followed to his residence at 435 Swan Lane. [ 10 ] Alyssa Holmes was known to one of the CFSEU surveillance officers from a previous crystal meth investigation. As a result of this information and her association with Mr. McLeod, she became a target in the Project DECOY investigation. [ 11 ] Surveillance officers noted further meetings between Clayton McLeod and Alyssa Holmes indicative, in their view, of drug activity. In October, officers watched Ms.

Holmes meet with Mr. McLeod at the Husky service station in Saskatoon. She took something from the trunk of her vehicle and got into McLeod’s truck. They drove out of the parking lot and across the street behind the Motel Six. A few minutes later the truck returned to the Husky service station and Ms. Holmes got out and returned to her car. Officers then followed her to a farm a short distance away associated to Henry Peters. He, too, became a target in the investigation. [ 12 ] The supervising officers of project DECOY decided to use Ms. Holmes to get to Mr. McLeod.

On November 2, 2009, Alyssa Holmes was arrested on some outstanding warrants and held in custody at the Saskatoon RCMP Detachment. Unbeknownst to her, she was placed in a cell with Corporal Etienne, a female undercover RCMP officer. She quickly struck up a conversation with Ms. Holmes. They talked about a number of mundane things but soon the conversation turned to drugs. The undercover officer told Ms. Holmes that she liked crystal meth and that she purchased it for $200.00 to $250.00 a gram. Ms. Holmes told her that she was paying too much and that she could do better for her. Ms.

Holmes gave the undercover operator her phone number and told her to call when she got out and she would set up a sale of crystal meth. The number she gave to the undercover officer was 292-4869. When Ms. Holmes was eventually arrested and charged as a result of this investigation, an LG cell phone with this phone number was seized from her. In her testimony she confirmed that 292-4869 was her phone number. [ 13 ] A couple of days after Alyssa Holmes was released from custody, the undercover officer made contact with her via text message. The text messaging quickly turned to drugs and price.

The officer texted that she would like a gram and Ms. Holmes texted back that the best she could do was “$160.00 or $180.00 depending on the day”. [ 14 ] On November 10 th the undercover officer made contact with Ms. Holmes to try and set up a drug purchase. In the course of various text messages going back and forth between them, it came to light that Ms. Holmes wanted to meet with the officer. The officer begged off this meeting but found out from Ms. Holmes that “her guy was here from California” and she was making a purchase of drugs from him. She ended by texting the officer “We’re going to love this stuff.

It’s so good.” [ 15 ] On November 12 th the undercover officer contacted Ms. Holmes about making a purchase of crystal meth. There was a text and a number of phone calls between them. At one point, Ms. Holmes had to call the undercover officer from a phone number of 880- 7992, which she explained was her boyfriend, Clayton Soare’s phone. Her cell phone was out of minutes. Ms. Holmes said that a gram might cost $200.00 because she was “not getting a drug from her regular source”. They agreed to meet at the Burger King at Preston Crossing in Saskatoon to do the deal. [ 16 ] Approximately two hours later Ms.

Holmes began texting the undercover officer asking how much she wanted to spend. When the officer texted “four bills”, Ms. Holmes texted back and said “Buddy’s bag is low too. Four will get you two only unless you want to wait for tomorrow when I get my own again”. The undercover officer advised her that spending four to get two would be okay. However they did not end up getting together. After changing the meeting place from Burger King to the Husky service station at the corner of Highway 16 and Marquis Drive, Ms.

Holmes texted the undercover officer stating “I’m so sorry girl, my buddy doesn’t want to part with it until he gets his shipment. I will let you know tonight if something changes, otherwise it will be tomorrow.” [ 17 ] On November 13 th the undercover officer set up a meet with Alyssa Holmes at Grasswood Esso, a service station on the southeast outskirts of Saskatoon, to purchase some crystal meth. When Ms. Holmes showed up, the undercover officer got into her vehicle.

She was on her phone talking about meeting someone at Preston Crossing Mall and as she was talking, she pulled out a big baggie of crystal meth from under her seat. She poured some of the big baggie into a smaller baggie and sold that to the undercover officer for $400.00. She placed the large baggie back under her seat. The officer asked her if this was the stuff from the California guy and she said yes. This transaction was witnessed by CFSEU members who were surveilling the undercover officer and Ms. Holmes. The bag of crystal meth the officer purchased was later found to weigh 1.8 grams.

[ 18 ] On November 14 th the undercover officer texted Alyssa Holmes at 292-4869 asking about the price for a half ounce and an ounce of meth. Ms. Holmes responded with texts indicating that a half ounce would be $1,800.00 and an ounce, $3,600.00. The officer inquired about when she needed to place the order to which Ms. Holmes texted back “k, so either tomorrow or the day after will you have money for the shit you want? I ordered 4 coming from BC.” Later that evening the undercover officer sent a text to Ms. Holmes stating “have the paper for 1 oz., what the price?” An hour later Ms.

Holmes texted back “k it will be 35 buddy left BC today, so tomorrow.” [ 19 ] Just after midnight on November 16 th the undercover officer received an urgent text from Ms. Holmes to contact her as soon as possible. A few minutes later Ms. Holmes called to say that her BC friend would not come all the way to Saskatoon and her boyfriend, Clayton Soare, would have to go to meet her BC friend to do the pickup. However, as the day progressed the arrangements changed. The undercover officer received a text from Ms.

Holmes that “I need you to either send your money with my boyfriend while we wait like 4 hrs at my place, or either ride with me. I’d like to buy 4 myself.” The undercover officer texted back, declining to ride with her. Holmes responded by text “So he wouldn’t even wanna ride along? It’s just such a big loss for me to give it to you for what I pay. I can only meet him every two weeks so it’s just kind of losing a pretty big chunk of coin just to help you out. That’s usually why I charge $250.00 a gram.” The undercover officer held firm that she could not go.

Eventually Ms Holmes texted the officer stating “K wanna send me with like 500. I will even score you the shit for it now then the rest of your zip when my boyfriend gets back. That’s all am short to get my 5.” [ 20 ] The undercover officer agreed to this. Holmes texted the officer her bank account information. The officer went to a TD Canada Trust branch in Regina and deposited $500.00 into a bank account in the name of Alyssa Holmes, account no. 6322585. Ms.

Holmes and her boyfriend, Clayton Soare, were to travel to pick up the drugs and arrangements were made to meet with the undercover officer to do a deal later that night when they returned to Saskatoon. [ 21 ] Aware of this information, CFSEU officers began surveilling Ms. Holmes and Mr. Soare. They observed Mr. Soare attend at a branch of the Toronto-Dominion bank in Saskatoon and withdraw nineteen $100 bills. Shortly thereafter Mr. Soare picked up Ms. Holmes at their residence in a dark blue Sebring, Saskatchewan licence plate 415 GDW.

They ran a number of errands and then met Clayton McLeod at a Husky service station. Officers watched Ms. Holmes going into a yellow van associated to Mr. McLeod and then she returned to the Sebring. [ 22 ] The surveillance team then lost the Sebring for approximately an hour. They guessed that Ms. Holmes and Mr. Soare were heading towards Calgary and took up positions on the main highway from Saskatoon to Calgary. At Rosetown, CFSEU officers located the Sebring heading westbound. They followed Ms. Holmes and Mr. Soare to Drumheller, Alberta where the Sebring stopped at a Mac’s/Husky Service Station.

A short time later, a red four door Chevrolet Cobalt, British Columbia licence plate 957 LBT arrived at this service station. The Sebring and the Cobalt left together heading west out of Drumheller on Highway 10. [ 23 ] The surveillance team followed the vehicles to Rosedale, a small town some five kilometres from Drumheller. There, the vehicles parked in front of the Roadhouse Saloon. The driver of the Cobalt got out and went and sat in the Sebring with Ms. Holmes and Mr. Soare. A few minutes later, this person got out, went back to the Cobalt and then into the bar.

Officers noted this person to be a male in his late 30's or early 40's with a shaved head and some facial hair. [ 24 ] Ms. Holmes and Mr. Soare did not get out of the Sebring. After this male exited the Sebring, officers observed the Sebring travel back to Saskatoon. Ten minutes after the Sebring left Rosedale, Ms. Holmes texted the undercover officer to meet her at her home in Saskatoon in four hours to do a deal for some crystal meth. [ 25 ] At 1:28 a.m. on November 17 th the undercover officer met Alyssa Holmes at 436 Berini Drive in Saskatoon.

The officer purchased 28 grams of crystal meth for $3,000.00 plus the $500.00 deposited to Ms. Holmes account the previous day. The undercover officer asked if the meth came from California and Ms. Holmes responded “No, it came from BC”. [ 26 ] None of the CFSEU officers on the surveillance team saw any drugs or any money change hands between Ms. Holmes, Mr. Soare and the fellow from the red Cobalt. They observed them together in the Sebring but they could not see what they were doing nor hear what was being said.

The male from the Cobalt was not known to the officers and he was not an identified target in Project DECOY at that point in the investigation. [ 27 ] CFSEU member, Constable Hicks, was tasked with trying to find out who the male in the red Cobalt was. She ran the BC licence plate from the Cobalt on CPIC and found out that this vehicle was registered to Phelps Leasing Ltd. in Richmond, BC. Further

investigation determined that Phelps Leasing ran a number of Budget Rent-a-Car franchises in that province. [ 28 ] Constable Hicks contacted the business manager for Phelps Leasing, a David Chang. She identified herself as a police officer and asked for information regarding the person who had rented this red Cobalt on November 16, 2009. After being told that their vehicle was involved in a drug trafficking investigation, Mr. Chang advised Constable Hicks that it had been rented to a person by the name of Lindsay Siemens.

Constable Hicks faxed a written request for a copy of the agreement Lindsay Siemens signed to rent the Cobalt. Chang complied with the request and sent the officer the contract and all other information attached to the contract. From this rental contract, officers obtained Mr. Siemens name, address, driver’s licence number and Mastercard number. Attached to the contract was a photocopy of his driver’s licence which included his picture. Constable Hicks showed this picture to the officers who had surveilled Mr. Soare and Ms. Holmes to Rosedale, Alberta and they identified Mr.

Siemens as the male who had met Holmes and Soare in Drumheller and then later, outside the bar in Rosedale. [ 29 ] On the cell phone seized from Ms. Holmes when she was arrested, officers located a text message received by her on November 17 th containing chequing account information for the accused. The text read as follows: fr. Vinny TD Canada checking acc. transit num 92720. Institution num 004. Acc num 09696286868 lindsay siemens 2:35 pm Tues Nov 17. Further investigation confirmed that on November 18 th , a $600.00 deposit and a $1200.00 transfer were made by A.

Holmes from the same account the undercover officer had deposited money to, to this chequing account of the accused. [ 30 ] The undercover officer and Ms. Holmes continued to discuss more drug transactions. On November 25 th Alyssa Holmes sold 7.42 grams of cocaine to the undercover officer but advised her that she needed to follow her and Clayton Soare to a farm off the Dalmeny grid if she wanted some crystal meth. In the course of discussing this, the undercover officer asked Ms. Holmes if she could arrange to buy larger quantities of methamphetamine from her California supplier.

Holmes response was summarized by the undercover officer as follows: She said that her buddy who lives in Chilliwack would be better. I asked when she would be meeting with him next and she told me that she didn’t know but could call him. She also said that he doesn’t like talking on the phone. I asked how much it would cost per ounce if my buddy could get enough coin for four or five and she said well maybe 3.

I asked if that was the best deal and she said maybe she could get each one for 28. . . she told me that her buddy from BC meets her half way . . . she told me that she would make a call. [ 31 ] According to phone tolls, shortly after this meeting between the undercover officer and Ms. Holmes, there was a call from Ms. Holmes cell number (306) 292-4869 to (604) 376-3534. This latter number was associated with a cell phone seized from the accused at the time he was arrested. [ 32 ] The farm that Alyssa Holmes wanted to take the undercover officer to was the residence of Henry Peters.

The undercover officer followed Alyssa Holmes and Clayton Soare to the farmyard to purchase some crystal meth, however that deal could not be consummated because Mr. Peters was waiting for a drug shipment. As a result, Ms. Holmes had the undercover officer follow her and her boyfriend to a trailer park east of Saskatoon. At the trailer park, Ms. Holmes went into a trailer and a short time later came out and sold 13.4 grams of crystal meth to the undercover officer for $1,500.00. The officer inquired again about when Ms.

Holmes was going to see her BC buddy and advised that she was interested in purchasing four or five ounces of meth. According to the undercover officer’s

summary Ms. Holmes responded as follows: She said that when she called her buddy and he was coming Friday for his girlfriend’s funeral and we could do it on Saturday. I asked if it was possible to get four or five ounces and told her I would have to work on Chubby’s buddy for the coin. I asked about a price and she told me that it would most likely be what we talked about before “28”. I asked her if we got that much from him, would she get a deal on his stuff for her. She said yah she would bring stuff for her and me and she wouldn’t let her buddy from the farm know that her BC buddy was coming.

[ 33 ] Over the next couple of days, the undercover officer pressed Ms. Holmes as to when she would be getting some more crystal meth. On November 28 th the undercover officer received the following text from Ms. Holmes: Hey it will be today or tomorrow for sure i’ll text you it will be 34 each? [ 34 ] In reponse to this text, the officer called Alyssa Holmes and spoke to her. According to the officer, their conversation went as follows: I asked her if she is going to met him then us? She said he would be getting a “hotel room” and then she would go and I could wait out in front of the “motel” room with the coin.

I asked her about the price of “34”. I told her that she said it would be “28-30”. She said that he is “coming here” and last time she got a deal because she went to “Drumheller”. She said she doesn’t know the price because he never lets her know and if he brings “more it’s less”. [ 35 ] At 1:47 p.m.on November 28 th , the undercover officer called Ms. Holmes number and spoke with her. The officer summarized her conversation with her as follows: I called Alyssa and asked her if she talked to her buddy. She said that she had just sent a text like 3 mins ago before I called . . .

She said that she would call him and I would get four if she can get ahold of him. She said that I should call her in five mins. [ 36 ] According to phone tolls at 1:55 p.m. Ms. Holmes called (604) 376-3534, the accused’s number. [ 37 ] At 1:59 p.m., Ms. Holmes called the undercover officer back. The officer testified they spoke as follows: She said that she needed to know how many. I told her “5” but 4 would be ok if she couldn’t do that. She told me that the price was the same as she said this morning. I said “34” and she said “ya”. I told her buddy wasn’t happy with the price.

She said it’s not the “same person”. I asked from “BC”? She said no he doesn’t talk on the phone so she can’t pin him down. [ 38 ] That evening the undercover officer went to Ms. Holmes residence on Berini Drive to purchase some crystal meth. Once again the officer asked about her BC buddy. The following is the officer’s

summary of their conversation: I asked her what happened with her BC buddy? She said that she didn’t really know and he is sketchy and doesn’t like to talk on the phone. She also told me that he was at his girlfriend’s funeral today at 3 but she called him and he said that he was busy. She said that she didn’t know because he doesn’t like to talk on the phone. She said that she texts her friend Vinny and he talks to the guy. She said that her friend Vinny used to live here but got into an accident with his big truck and is off work. He is working again now and met up with Buddy from BC.

I asked her where he lived again and she told me “Chilliwack”. She said her friend drives truck from BC to Calgary . . . I asked her why she gets from the guy in BC and she said because he “cuffs” and his shit is good. [ 39 ] They leave the residence and the undercover officer follows Ms. Holmes around Saskatoon. She goes to 435 Swan Lane to purchase crystal meth. Ms. Holmes makes it clear that she does not like dealing with this guy and only deals with him when she has to. Eventually she is able to purchase one ounce of meth from this fellow and then she sells it to the undercover officer for $3400.00.

This fellow was Clayton McLeod. [ 40 ] After purchasing the crystal meth, the undercover officer and Ms. Holmes have the following conversation:

I told her that if she doesn’t like this guy, we could just get from BC buddy next time. She told me that he should be here but she never knows when he is coming, he just arrives. She said that it is crazy because then he wants her to rush, and she told me I would have to rush up. I asked her what she was getting from him next time and she told me that she gets “5” at a time, and she was “$600.00” short right now but will make it up by then. She asked what I wanted to get and I told her 4 or 5 as well . . . I asked her how much she got tonight and she said she got a little but will get from BC buddy.

I told her to call me when she hears from BC buddy . . . [ 41 ] The police are very interested in this B.C. connection and as a result, the undercover officer is instructed by her handler to continue to press Ms. Holmes to find out when she is going to be getting together with her BC buddy. After a number of text messages and telephone calls, the undercover officer and Ms. Holmes talk on the phone on December 2 nd at 12:31 a.m. The officer testified that the conversation went as follows: I asked her about the BC guy and when she was going to see him. She said for sure “he called me yesterday at 5”.

She said that he told her by Friday, before the weekend . . . she said that he was coming all the way when I asked if she had to travel. [ 42 ] The phone tolls establish that on November 30 th at 4:28 p.m., (604) 376-3534 (the accused’s number) called (306) 292-4869 (Holmes number). At 4:43 p.m. Holmes called the accused back. [ 43 ] On December 2 nd at 12:14 p.m. Ms. Holmes called the undercover officer. The call went as follows according to the officer: She said so buddy called me back. I said okay when. She said he is a “little ways away” and I have to go. Where like the same as before?

She said “no up north” . . . I asked her how much and she said that he doesn’t like to talk on the phone and he didn’t say much. [ 44 ] Once again phone tolls show that at 12:09 p.m. the accused called (306) 974-4115, the home phone number for Alyssa Holmes and Clayton Soare. At 12:12 p.m. Ms. Holmes called back to the accused. [ 45 ] The undercover officer was pressing to go with Ms. Holmes to meet with her BC buddy. They met at 5:52 p.m. in the parking lot of a pharmacy on the west side of Saskatoon. Ms.

Holmes showed up with her boyfriend, Clayton Soare in their vehicle and Henry Peters showed up in a white Cadillac. Ms. Holmes was clear that the officer could not come with them and she left in the Cadillac with the two men. The phone tolls show five calls between Clayton Soare’s number, (306) 290-5996 and the accused’s number (604) 376- 3534 between 4:55 p.m. and 8:46 p.m. The tolls also show another five calls between Alyssa Holmes’ cell number and the accused’s number between 8:37 p.m. and 8:57 p.m. [ 46 ] The CFSEU surveillance team had been made aware that Ms.

Holmes would be leaving Saskatoon to make a buy from her BC buddy. Consequently the surveillance team was watching when the undercover officer met with Alyssa Holmes, Clayton Soare and Henry Peters in the pharmacy parking lot. They followed the white Cadillac as it left Saskatoon heading west. The Cadillac drove as far as Alsask and stopped there. Shortly thereafter the Cadillac drove on to Oyen, Alberta and at 9:20 p.m. stopped at a Co-op Gas Station. They got gas and then Holmes, Soare and Peters went into the restaurant attached to the gas station.

They were observed meeting the accused in the restaurant and having supper. [ 47 ] Approximately an hour later, the four of them exited the restaurant. Mr. Soare got into the Cadillac, but Ms. Holmes, Mr. Peters and the accused all got into a white Kia Rondo with Alberta plates. While they were in the Kia, an RCMP cruiser unrelated to the investigation parked beside them and the officer went into the service station. The three of them were in the Kia for only a short time. The surveillance team could not see what they were doing. Then Holmes and Peters got back into the Cadillac and drove back to Saskatoon.

The accused was not surveilled. On the way back, there were a number of texts between Ms. Holmes and the undercover officer about how much crystal meth Ms. Holmes got and about doing a deal when they got back to Saskatoon. [ 48 ] At 12:22 a.m. on December 3 rd , Ms. Holmes texted the undercover officer asking her to meet them at the Railway gas station in Saskatoon. At 2:16 a.m. the undercover officer met Ms. Holmes and Mr. Soare at this gas station. The meeting was observed

by CFSEU surveillance. The officer purchased 14.2 grams of crystal meth from them for $2,400.00. At this time, the officer had the following conversation with Ms. Holmes: She said that it didn’t go very well, that buddy only had two for her. She said that she had to drive all the way to “Oyen” . . . She started to tell me about how I need to trust her and that buddy from BC is so “sketchy”. She said that he doesn’t like to meet people and thinks that if he is being followed he just won’t stop. She said that when they stopped for something to eat the cops were right there beside them. We laughed.

I asked how much she got and she said yah only “2” . . . She told me that buddy only brought two because he was coming back on Saturday. [ 49 ] On December 9 th the undercover officer was driving around Saskatoon with Ms. Holmes and Mr. Soare. As they were talking, Ms. Holmes said she had received a text from her BC buddy advising that he was going to be in Saskatoon today. However the text did not mention when he was coming nor how much meth he was prepared to sell her. [ 50 ] On December 15 th the undercover officer texted Ms. Holmes about wanting to make another purchase of meth.

There was considerable discussion both over the phone and in person at Ms. Holmes residence about her getting drugs for the officer from the fellow on the eastside of Saskatoon, the fellow on the farm northwest of Saskatoon or from her BC buddy. The undercover officer was lobbying to meet the fellow on the eastside of the City on the guise that he had shorted her on the previous deal that Ms. Holmes had set up. Ms. Holmes advised that this eastside fellow would not meet with her because he was very sketchy.

She indicated that the fellow from the farm and the eastside fellow were partners, but the farm fellow was trying to cut his partner out. It was decided that Ms. Holmes would try to purchase a half ounce from each of the fellow on the farm and the fellow on the eastside for the undercover officer. [ 51 ] Later that day the undercover officer and Ms. Holmes met with Clayton Soare and another male in the parking lot at Walmart in south Saskatoon. The officer purchased some crystal meth from Mr.

Soare for $1,600.00. [ 52 ] On December 17 th arrangements were made for the undercover officer to meet with the fellow from the farm and the fellow from the eastside of Saskatoon. That night at the Holmes/Soare residence, the undercover officer was introduced to Clayton McLeod, the fellow from the eastside of Saskatoon. She purchased a half ounce of crystal meth from him for $1,600.00. He gave her his number, 292-5425, if she wanted to buy again. He left the residence and a few minutes later Henry Peters, the fellow from the farm came to the residence. Mr.

Peters brought a shaving kit with him out of which he produced a baggie containing a half ounce of crystal meth. He sold this to the undercover officer for $1,900.00 and told her that she could call him at 230-1224 if she wanted more. He confirmed that he lived on a farm by the Husky gas station and that they could meet there to do the deal. [ 53 ] Just prior to Christmas, Clayton McLeod was arrested and charged with a number of offences. Henry Peters was so concerned about McLeod’s arrest that he changed his phone number to 370 - 4035. On December 29 th , the undercover officer, Ms.

Holmes and Clayton Soare met at the Husky service station and then attended to the Peters farm where the undercover officer purchased 15 grams of crystal meth for $2,000.00 from Henry Peters. She also told Mr. Peters that she would like to bump up the order to get a better price. [ 54 ] On January 13, 2010 the undercover officer met Mr. Peters at the Husky service station and purchased a half ounce of crystal meth from him for $1,600.00 and three cartons of cigarettes. As they were doing the deal, she mentioned again that she was looking to purchase larger quantities of meth.

According to the officer, this was the first of a number of conversations she had with Peters in January and February of 2010 regarding the “BC buddy”. This conversation went as follows: He said he wasn’t sure when buddy is coming back but will try to get ahold of him. I told him that I really wanted to talk to him about getting more next time. I asked if he had any idea when he was coming because I was trying to get enough for three or four ounces. I said it would take me awhile to get it together. I asked him if he would be getting that much or more?

I asked him how much he would get or have picked up in the past he told me that the last time he picked up he paid “fifteen thousand” dollars. He said he got “5 ounces” last time. He told me that buddy from BC charges him “3 thousand” an ounce. I explained that I need to get a better deal and asked how we could work it so I can help him get a better deal too. I asked him if we would get a better deal if we went out there or even half way to meet him. He said that he thinks that we may be able to get a better price. But it has been the same price before.

He told me that he would try to call both the guys to see if he would be able to get a good price. I said that I would prefer to get the pink stuff and would

drive out to get it if I had to. He said that he talked to the guy from BC last week and he told him that he was coming out on Saturday and would be here on Sunday. He said it’s Wednesday and he still hasn’t heard from him yet. I said that he should be more consistent but we could go there but it is really far. Harvey said that he went out there and it took almost 24 hours to drive. He said that he would call both guys and see what he could do. [ 55 ] On January 14 th the CFSEU surveillance team got information that the accused was on his way to Saskatoon.

They located the accused at the Husky service station at 4:40 p.m. that day. At times he was sitting in his vehicle and then he would get out and pace around for awhile. It appeared that he was waiting to meet someone. He eventually drove away in a blue 2003 Chevrolet Silverado pickup, Alberta license plate RUU 651 and went to the Ramada Hotel and then on to Martensville. In Martensville, the accused met with someone in the Adobe Inn parking lot. He then went back to the Husky service station in Saskatoon, then to a nearby Shell service station and finally on to the Flying J service station.

He met someone at 7:24 p.m. on an access road parallel to Idylwyld Drive just off 71 st Street. The surveillance team was unable to determine who he met with. [ 56 ] The next day CFSEU officers surveilled the accused and a female from the Ramada Hotel in Saskatoon to a number of locations. One of the places the accused stopped was a Walmart store. He and the female went into the store. Another location the accused went to was Henry Peters farm off the Dalmeny grid. He was observed arriving at 6:54 p.m. and leaving the farm at 7:19 p.m. [ 57 ] On January 19 th Ms.

Holmes sent the undercover officer a text telling her that she was thinking of introducing the officer to her BC buddy that day because he was in town. The undercover officer however was not in a position to be able to meet that date. [ 58 ] On January 20 th the undercover officer contacted Henry Peters about purchasing some crystal meth from him. He did not have any but told her that BC buddy was coming today. On January 21 st , Mr. Peters called the undercover officer and asked her to come out to his farm. She went out and met Peters and purchased an ounce of crystal meth from him for $3000.00.

They had the following conversation: I asked him about his meeting with BC buddy. He told me that he just left before he called me this morning. He said that he talked to him about a deal and the best that he could do is $3,000 for an ounce unless we travel out there and then we can get an ounce for $2500. I told Harvey that the price was better but wanted to talk to him (BC buddy) in person. He said that there is no way in hell that he was going to meet someone new. I told him that it would be in his best interest because we could get that much more business for him.

I asked how much he got from BC buddy this time and he said “6". I told Henry that if he was to get 6 ounces and I was to get 6 ounces then he should meet me so we can set this up for the future . . . He told me that he won’t meet me and he pushed him but wasn’t able to get him to do it. He said that he doesn’t meet anyone new. [ 59 ] Surveillance confirmed that the accused was in Saskatoon on January 21 st . The phone tolls also show a number of calls in January from Henry Peters to the accused: January 8, 2010: 6:40 p.m. January 8, 2010: 10:56 p.m. January 14, 2010: 6:19 p.m. January 14, 2010: 6:19 p.m.

January 15, 2010: 3:39 p.m. January 15, 2010: 3:41 p.m. January 15, 2010: 5:01 p.m. January 15, 2010: 6:19 p.m. January 21, 2010: 12:28 p.m. January 25, 2010: 1:59 p.m. as well as a number of calls from the accused to Henry Peters:

January 14, 2010: 6:06 p.m. January 15, 2010: 4:25 p.m. January 16, 2010: 2:33 p.m. January 21, 2010: 12:07 a.m. January 21, 2010: 10:49 a.m. January 21, 2010: 12:13 p.m. January 22, 2010: 9:09 a.m. January 22, 2010: 1:17p.m. January 25, 2010: 5:24 a.m. January 25, 2010: 8:04 a.m. January 25, 2010: 12:02 p.m. January 25, 2010: 1:41 p.m. [ 60 ] The undercover officer was aware by this time that Alyssa Holmes had a number of suppliers of crystal meth including Clayton McLeod, Henry Peters, her guy from California, her BC buddy, a trucker from Regina and the person in the trailer park west of Saskatoon.

In January Ms. Holmes spoke to the undercover officer about getting crystal meth from a fellow in Saskatoon named “JD”. Holmes advised the officer that he had just got out of jail but that she had purchased from him for three years and his stuff was good. On January 14 th , Alyssa Holmes arranged for the officer to purchase 15.3 grams of crystal meth from JD for $1,740.00. He gave the officer his cell number and told her to call him if she wanted to purchase more. She took him up on his offer and contacted him. On January 21 st , the undercover officer met with JD and purchased one ounce of meth for $1,760.00.

JD was later identified by CFSEU officers as Jason Draude. [ 61 ] On January 27 th the undercover officer met with Henry Peters and had a conversation about his BC supplier. The officer summarized the conversation as follows: I asked if he knew when we would be going west. He told me “two weeks”. I asked him how much he had left and he said “3” maybe “4”, “not quite four”. I asked if he would be getting the same as last time? He said yah, probably but he has been so busy that he still has lots. I told him that I have enough coin to get the same as him, like 6, and asked if his buddy could do that much.

I asked if he would bring 12 or more and he said yah. He said that he can do whatever, I asked how much he paid for them last time and told him I would take his stuff now but then he doesn’t make any money from me. He said yah you owe me. I told him that maybe it would be better if buddy bring the stuff here with the Olympics and all the cops in BC. He agreed and said that his buddy from BC is still here. He said well he talked to him this morning and he is either here now or will be leaving soon. I asked when he would be back and Harvey told me that he is planning to be back for the weekend.

He said the transmission went on his vehicle and he had to get it fixed. I asked if he would be able to bring that back with him and Harvey said yah. [ 62 ] Saskatchewan CFSEU asked their BC counterparts to surveil the accused in Chilliwack. They sent a picture of the accused to BC CFSEU and advised they expected him to be driving a blue 2003 GMC Sierra truck with Alberta license plate RUU 651. On January 28, 2010, Detective Brad Stephen, a police officer working with the British Columbia CFSEU observed this vehicle parked at the rear of Chilliwack Transmission.

At 11:51 a.m., the accused came out of the transmission shop, got into the truck and drove away. At 12:00 p.m. the accused pulled up to another automotive repair shop in Chilliwack called Troyan Specialities. The accused went into the business and came out a short time later with a male. The two of them got down on the ground and were inspecting some of the mechanical parts on the undercarriage of the truck on the passenger side. At 12:35 p.m. the accused got back into his truck and drove away.

[ 63 ] On January 29 th Henry Peters called the undercover officer. According to her, Peters told her that he talked to his friend and he had what she asked for and should be in Saskatoon by Monday or Tuesday. Again, phone tolls confirm that Peters called the accused on January 29 th . [ 64 ] On February 1 st the undercover officer called Mr. Peters and asked if his BC buddy was on his way. According to the officer, Peters told her that he had not talked to him but that BC buddy’s number was on his phone. He would call as soon as BC buddy called him.

Later in the day, the officer called Peters and he confirmed that the stuff was on its way and that it should get here by tomorrow afternoon or later. Phone tolls confirm these calls between Peters and the accused. [ 65 ] On February 3 rd Constable Dustin Miller, an RCMP member in British Columbia was dispatched to a motor vehicle accident in the southbound lane of Highway 5 near Hope. He arrived at the scene of the accident at 10:30 p.m. and found a fellow sitting in a heavily damaged 2003 blue GMC pickup truck, Alberta license RUU 651. The vehicle had struck a culvert and had considerable front end damage.

There were no passengers in the truck and no other vehicles involved in the accident. [ 66 ] The fellow in the truck acknowledged being the driver of the vehicle but had no driver’s license. He gave his name as Lindsay Siemens, date of birth 02-10-1963, with a residence of 101 - 45686 Yale Road, Chilliwack, British Columbia. He said his driver’s license number was 5764440. Although he was complaining of a sore chest and was limping slightly he declined to go with the ambulance. Instead, a tow truck was called and he left with the tow truck driver. [ 67 ] The BC buddy did not show up as planned in Saskatoon.

On February 2 nd the undercover officer called Henry Peters and asked if they were meeting with the BC buddy today. She was advised that he had not left yet. On February 3 rd they spoke but Peters still had not heard anything. On February 6 th she called Mr. Peters and he told her that BC buddy would be in Saskatoon by the weekend. He advised that he had spoken to his BC buddy that morning and that he had been in an accident and was in the hospital but was still planning on coming to Saskatoon once he was released.

Phone tolls confirm that at 8:05 a.m. that morning the accused called Peters. [ 68 ] For the rest of the month of February, the undercover officer waited for word that the BC buddy was in Saskatoon but none was forthcoming. She spoke with Henry Peters often but despite his assurances that BC buddy would be showing up she was never aware that he came to Saskatoon. [ 69 ] On March 1 st CFSEU had information that the accused may be coming to Saskatoon. They began tracking him based on his cell phone usage. Their surveillance team fanned out across Saskatoon looking for the accused or any vehicle associated with him.

Some of the CFSEU officers were surveilling Henry Peters. At 8:40 a.m., they saw Mr. Peters in his Cadillac with a female, later identified as Denise Bowring. They followed them to the Esso gas station on north Idylwyld Drive. The officers observed the accused drive into the Esso station in a black Avalanche, BC license BG 9827, towing a large trailer. The officers moved in and arrested the accused, Henry Peters and Ms.

Bowring. [ 70 ] In the black Avalanche being driven by the accused, officers seized a blue Samsung cell phone with number (604) 376-3534, a Blackberry Pearl Flip phone with number (604) 754-8071, a black box containing .4 grams of crystal meth, a black ROOTS case containing 13.6 grams of crystal meth, a Kodak digital camera, an Infinity digital scale, two Garmin GPS devices, various Mastercard and Visa gift cards and $880.00 cash. [ 71 ] Upon searching Henry Peters Cadillac the officers seized a black box containing drug paraphanalia and five baggies containing 4.0 grams, 1.3 grams, 2.0 grams, 1.3 grams and 2.2 grams of crystal meth respectively, a black shaving kit containing 160.4 grams of crystal meth and another black bag containing drug paraphanalia.

In the center console they found a piece of paper with “Lidsay Siemens, B #9272, Acc# 6286868” written on it. [ 72 ] Later in the day on March 1 st CFSEU officers arrested Alyssa Holmes and Clayton Soare at their residence at 436 Berini Drive in Saskatoon. Police located a cell phone in Ms. Holmes possession with the number (306) 292-4869. In Clayton Soare’s wallet, police located a piece of paper with the following writing: “Branch 9272, 6286868 Acct#”.

[ 73 ] Sherry Hynes, an employee of TD Canada Trust Bank confirmed that account number 6286868 at branch number 9272 is an account in the name of Lindsay Siemens. [ 74 ] Following his arrest on March 1, Henry Peters gave a videotaped statement to police advising that he had purchased the methamphetamine that was found in his possession from the accused, Lindsay Siemens, earlier that morning. At trial, Mr. Peters recanted much of his videotaped statement, most notably that he purchased or received crystal meth from the accused. [ 75 ] Alyssa Holmes was also called by the Crown as a witness in this case.

She acknowledged meeting the undercover officer in RCMP cells and thereafter speaking to her on a number of occasions, but was vague about much of what occurred between them after this initial meeting. She did not remember all of the conversations she had with the undercover officer or the text messages that went back and forth between them. She did not recall having any conversations with the undercover officer about where she was getting her crystal meth from, she did not recall texting the undercover officer about her suppliers and she said she never spoke to the officer about a BC guy or a BC buddy.

She did not recall having any conversations with the undercover officer about any drug dealers except Clayton McLeod, Henry Peters and Jason Draude. [ 76 ] She agreed that she went to Drumheller, Alberta on November 16 th , 2009 with her boyfriend, Clayton Soare, but the purpose of the trip was to meet with a friend of Clayton McLeod and Henry Peters and to drop off some money. She met this fellow outside a bar. She got into his vehicle, gave him a package wrapped in tape, got out and then went back to Saskatoon.

She denied getting anything in return and said that she could neither describe the person she met nor recognize him. When she and Clayton Soare returned to Saskatoon, the undercover officer came over to their home and purchased an ounce of crystal meth. A few days later she deposited $1,200.00 into a bank account that had been saved on her cell phone because she owed McLeod or Peters some money and they told her this is how she could pay them off. [ 77 ] About the December 2 nd , 2009 trip to Alberta, she said she was tagging along with her boyfriend and Henry Peters to meet one of Peters friends.

They stopped in Oyen and ate with the accused. They talked about farming, working and small towns and maybe drugs. After they were done eating they returned to Saskatoon. When they got back she and Clayton Soare went to the Railway gas station, they could have sold crystal meth to the undercover officer and another fellow and she may have been involved. [ 78 ] Constable Erin Coates, with the consent of the Defence, was qualified as an expert in the areas of trafficking, distribution, usage, value and effects of methamphetamine.

She testified that methamphetamine is a synthetic drug made from a number of different chemicals. In her experience meth is not produced in Saskatchewan and as a result, is not exported from here. It typically is brought to Saskatchewan from Edmonton, Calgary or Vancouver. It is not as easy to find a meth supplier as it is a supplier of other drugs. Often a personal relationship or form of trust develops between a buyer and seller.

Once a buyer finds a supplier that they have developed this relationship with they will continue to use them and may travel to make their purchases. [ 79 ] In her opinion, the 13.6 grams of crystal meth found in the accused’s vehicle at the time he was arrested was for re-sale. This amount was a significant amount of meth that would not be consistent with someone who was just a user. The accused had two cell phones, a significant quantity of cash and a scale. More importantly, he had no user paraphernalia in his possession.

While a user may have some of these items, taken as a whole, they point to the person being a seller not a user. ISSUES

a) Is the hearsay evidence of the undercover officer admissible under the co-conspirators exception to the hearsay rule?

b) Is the hearsay evidence of the undercover officer admissible under the principled approach?

c) Does the evidence prove beyond a reasonable doubt that the accused was trafficking in methamphetamine?

d) Does the evidence prove beyond a reasonable doubt that the accused was in possession of methamphetamine for the purpose oftrafficking?

e) Does the evidence prove beyond a reasonable doubt that the accused conspired with Alyssa Holmes, Clayton Soare, Clayton McLeodand Henry Peters to traffick in methamphetamine?

f) Does the evidence prove beyond a reasonable doubt that the accused breached a term of any of his recognizances? ANALYSIS

a) Is the hearsay evidence of the undercover officer admissible under the co-conspirators exception to the hearsay rule? [80] A considerable amount of the evidence in this case concerned the almost daily interaction the undercover officer had withAlyssa Holmes and Henry Peters and less so with Clayton Soare and Clayton McLeod. Some of this interaction was confirmed byCFSEU surveillance, the text messages found on the cell phones seized from the different targets when they were arrested, phone tollsand the drugs turned over by the undercover officer to her CFSEU handlers.

However, the undercover officer was not wearing any sortof listening device, there were no wiretaps and none of these meetings or discussions were recorded or overheard by anyone else. Instead, at the end of each day the undercover officer would prepare notes about the contact she had with the targets, be it text messages,phone calls or face to face meetings, to the best of her recollection. A lot of her interaction was via text messages. She copied the textsverbatim from her phone. This information lead to the accused being identified as a target.

It also led to further investigation andsurveillance that culminated in the arrest of the accused and the other targets and the charges before the Court. [81] Some of the evidence from the undercover officer was direct evidence. However, most of her testimony involved hearsayincluding statements attributed by her to Alyssa Holmes, Clayton Soare, Henry Peters or Clayton McLeod which the Crown wantedadduced for the truth of their contents. The Crown argued that this hearsay evidence was admissible under the co-conspirators’exception to the hearsay rule.

The crux of this exception was succinctly set out by Chief Justice McLachlan in R v. Mapara, 2005 SCC23 , [2005] 1 S.C.R. 358 (S.C.C.) at paragraph 8: The co-conspirators’ exception to the hearsay rule may be stated as follows: Statements made by a person engaged in an unlawfulconspiracy are receivable as admissions as against all those acting in concert if the declarations were made while the conspiracy wasongoing and were made towards the accomplishment of the common object. (J. Sopinka, S.N. Lederman and A.W.

Bryant, The Law of Evidence in Canada (2nd ed. 1999), at page 303) . . . [82] The leading case on the co-conspirators’ rule is R. v. Carter (1982), (SCC), 67 C.C.C. (2d) 568 (S.C.C.). Inthat case, McIntyre, J speaking for the majority had this to say about the application of the rule at page 575: The trial judge must bear in mind that in order to convict an accused upon a charge of conspiracy, the jury, or other trier of fact, must besatisfied beyond a reasonable doubt that the conspiracy alleged in the indictment existed, and that the accused was a member of it.

Indeciding the issue of membership for the purpose of determining guilt or innocence on the charge contained in the indictment, thehearsay exception may be brought into effect, but only where there is some evidence of the accused’s membership in the conspiracydirectly admissible against him without reliance upon the hearsay exception raising the probability of his membership . . . . In chargingthe jury on this question, the trial judge should instruct them to consider whether on all the evidence they are satisfied beyond areasonable doubt that the conspiracy charged in the indictment existed.

If they are not satisfied, then the accused charged withparticipation in the conspiracy must be acquitted. If, however, they conclude that a conspiracy as alleged did exist, they must thenreview the evidence and decide whether, on the basis of the evidence directly receivable against the accused, a probability is raised thathe was a member of the conspiracy. If this conclusion is reached, then they become entitled to apply the hearsay exception and considerevidence of the acts and declarations performed and made by the co-conspirators in furtherance of the objects of the conspiracy as

evidence against the accused on the issue of his guilt . . . [83] Turning then to the first branch of the test, the question is whether the Crown has proven beyond a reasonable doubt theconspiracy charged. To answer this question, one must understand the meaning of conspiracy. The essence of a criminal conspiracy isan agreement between two or more persons to act in concert in the pursuit of a common goal. It is the agreement that is the gist of theoffence.

See R. v Paradis (1933), (SCC), 61 C.C.C. 184 (S.C.C.) at page 186; R. v Cotroni; R. v Papalia (1979), (SCC), 45 C.C.C. (2d) 1 (S.C.C.) at pages 17 - 18. [84] A person may join a conspiracy after it has commenced. It is not necessary for a co-conspirator to know all of the co-conspirators. Nor does a co-conspirator have to know the full scope of the conspiracy to be implicated as a party; it is sufficient if he hasa general knowledge of the conspiracy. Finally, an agreement to do a single act in furtherance of a general conspiracy is sufficient toattract liability.

See R. v McNamara (No. 1) (1981), (ON CA), 56 C.C.C. (2d) 193 (Ont. C.A.) affirmed (SCC), [1985] 1 S.C.R. 662 (S.C.C.). [85] While the commission of an offence must be a common purpose of the conspirators, not all of the conspirators need intend topersonally commit the offence which they have all agreed is to be committed. It is sufficient that the common intention is that one of theconspirators commit the offence provided that all the conspirators agree that that is how the common purpose is to be achieved.

SeeMcNamara (No.1), supra. [86] The actus reus of the crime of conspiracy lies in the formation of an agreement, tacit or express, between two or moreindividuals to act together in pursuit of a mutual criminal objective. Co-conspirators share a common goal borne out of a meeting of theminds whereby each agrees to act together with the other to achieve a common goal. A conspiracy is not established merely by proof ofknowledge of the existence of a scheme to commit a crime or by the doing of acts in futherance of that scheme.

Neither knowledge ofnor participation in a criminal scheme can be equated with the actus reus of a conspiracy. See R. v Alexander (2005), (ON CA), 206 C.C.C. (3d) 233 (Ont. C.A.) at paragraphs 46 and 47. [87] Considering all of the Crown’s evidence, I am satisfied beyond a reasonable doubt that Alyssa Holmes, Clayton Soare,Clayton McLeod and Henry Peters were working together to traffick crystal meth in Saskatoon. They all knew each other and wereobserved in each others company and at each others homes on a number of occasions.

Alyssa Holmes and Clayton Soare lived togetheras boyfriend and girlfriend at 436 Berini Drive. At different times, the undercover officer purchased crystal meth from Alyssa Holmesafter she had gone to Henry Peters farm or Clayton McLeod’s residence at 435 Swan Lane; from Alyssa Holmes when Clayton Soarewas present or with his assistance; from Clayton Soare; from Henry Peters at his farm having been introduced to him by Alyssa Holmes;and at the Holmes/Soare residence from both Clayton McLeod and Henry Peters after Ms.

Holmes had made arrangements for them tocome over and meet the undercover officer and do a deal. [88] On November 16th, Ms. Holmes and Mr. Soare travelled to Rosedale, Alberta together for the purpose of purchasingmethamphetamine. Ms. Holmes had advised the undercover officer that this was the purpose of the trip and the evidence discloses noother reason why they went out there. Before they left Saskatoon, officers watched Mr. Soare withdraw a large amount of money fromthe bank and they saw Ms. Holmes get into a van associated with Mr. McLeod for a short period of time. Ms.

Holmes testified thatMcLeod and Peters had asked her to drop off some money to the fellow they were meeting in Alberta and she did this. The undercoverofficer met Ms. Holmes at her house upon her return to Saskatoon and purchased 28g of crystal meth. [89] On December 2, Ms. Holmes, Mr. Soare and Mr. Peters travelled together in Peters Cadillac to Oyen, Alberta to purchasedrugs. Again, Ms. Holmes had advised the undercover officer that this was the purpose of the trip. On the way back, Ms.

Holmes textedthe undercover officer a number of times about how the deal went and made arrangements to meet when they got back to Saskatoon todo a deal for the crystal meth she had just purchased. Later that evening, the undercover officer met Ms. Holmes and Mr. Soare at theRailway Gas Station and she purchased 14g of crystal meth. [90] In and around mid December, the undercover officer contacted Alyssa Holmes about purchasing some more crystal meth.

There was much discussion about getting drugs from the fellow on the eastside of Saskatoon (Clayton McLeod), the fellow on the farmnorthwest of Saskatoon (Henry Peters) or from her BC buddy. In the course of these conversations, Ms. Holmes disclosed to the officerthat the eastside fellow and the fellow from the farm were partners. However she said that the farm fellow was trying to cut his partnerout. She also admitted that she was trying to cut the buddy from the east side out too. There was no evidence this split ever came to passbut I am sure that it was only because Mr.

McLeod got arrested just prior to Christmas on some matters and was remanded to custody. It

is significant however that as a result of McLeod’s arrest, Henry Peters changed his home phone number because he was concerned. [91] On the evidence, it is clear that these four had a close association, were all selling crystal meth often in the presence of oneanother, and knew that if one was out of drugs that they could get meth from one of the others for resale and often did. Alyssa Holmesset up deals between the undercover officer and Clayton McLeod and Henry Peters. Clayton Soare drove Alyssa Holmes and theundercover officer around to residences where they were able to get meth for the officer.

Twice Alyssa Holmes paid the BC supplier onbehalf of McLeod and Peters. On the first occasion when they met their BC supplier, Holmes and Soare drove together to meet him andthe second time, Holmes, Soare and Peters drove together to meet him. There is no question in my mind that Ms. Holmes and Messers.Soare, Peters and McLeod had a tacit agreement to act together to sell methamphetamine in Saskatoon for the benefit of them all. [92] Step two of the Carter analysis involves whether the accused was a member of the conspiracy.

The test is whether on thebasis of the evidence directly receivable against the accused, a probability is raised that he was a member of the conspiracy. “Directlyreceivable against the accused” would mean the accused’s own conduct, utterances, and documents found in his possession. See: R. v.Baron (1976), (ON CA), 31 C.C.C. (2d) 525 (Ont. C.A.). However, the accused’s acts and declarations must beviewed in the context in which they occurred and against the picture provided by the acts of the alleged co-conspirators. See: R. v.Filault (1981) (ON CA), 63 C.C.C. (2d) 321 (Ont. C.A.), affirmed in R. v.

Kane (1984), 15 C.C.C. (3d) 352(N.S.C.C.). In this case, I am not persuaded that the accused was a member of the conspiracy for a number of reasons. The evidencedisclosed four drug transactions involving the accused: two with Alyssa Holmes and two with Henry Peters. There is no evidence thatthe accused ever sold to Clayton McLeod or Clayton Soare. At best, the evidence disclosed that Soare was present when Ms. Holmeswas making a purchase.

I suspect that this was not the first time that Holmes and Peters had purchased from the accused as the evidenceindicated that they were familiar with him but as to how many times they had purchased from him previously, the evidence does not tellme. However, these transactions do not appear to occur regularly and do not involve a set amount of crystal meth. Both Holmes andPeters have other suppliers including “California guy”, Jason Draude, a trucker from Regina, a person at a trailer park outside of Saskatoon, as well as each other.

In the January 13th conversation that Peters had with the undercover officer there is an indication hehas even another supplier although there is no indication who this fellow is or where he is from. The accused appears to be but oneperson they know they can call when they want some good crystal meth. [93] It is also clear from the evidence that the accused supplies others besides Holmes and Peters. He does not limit himself to justsupplying people in the conspiracy.

The accused is surveilled in both Saskatoon and in British Columbia and while the police observewhat appear to be legitimate day to day business or personal activities, they do observe some meetings with people in circumstancesindicative of drug transactions. [94] There is no evidence that any of the four in the conspiracy arranged a deal between the accused and anyone else, that theaccused had any contact with any of their customers or that they made the accused aware of the undercover officer.

They made theofficer aware that “B.C. buddy” was one of their suppliers but they never introduced her to the accused, nor is there any factualunderpinning to conclude that they were trying to arrange a drug transaction directly between the accused and the officer or that they haddiscussed the undercover officer with the accused. [95] There is no evidence of an agreement, either express or implied, between the accused and any of the four people in theconspiracy to traffic in methamphetamine. The accused had no control over what any of them did with the crystal meth or who they soldit to.

There was no indication that the accused shared in the drug profits of any of the four. [96] The evidence does establish that Holmes, Soare, Peters and McLeod were engaged in a business venture to sell crystal meth inSaskatoon. In my view, what little evidence there is about the activities of the accused, lead me to the conclusion that he was nothingmore than one of a number of sellers these four used to maintain their respective stocks of crystal meth.

He may have been theirpreferred source because of the quality of crystal meth that he sold but there is nothing in the evidence that leads me to conclude anymore than that. When they wanted to purchase meth from the accused, the phone tolls indicate that they contacted him. He did notsupply them with a set amount on a set schedule. He came out to Saskatoon and at other times they went to meet him in Alberta. Thiswas not due to a

schedule but due to cost. The farther the accused had to go, the more expensive the price. But there were many timeswhen they bought from other people too. The accused was not their exclusive supplier. [97] In R. v. Sokoloski, (SCC), [1977] 2 S.C.R. 523, the Supreme Court of Canada, at first glance, appeared to dealwith this issue of whether a buyer/seller relationship is a conspiracy. In this case, the trial judge had acquitted the accused of conspiracyto traffic in a controlled drug. The Court of Appeal overturned the acquittal and convicted Sokoloski of the conspiracy.

On furtherappeal, the Supreme Court upheld the Court of Appeal decision in a 5/4 split. However, a closer examination of the facts in the casereveal that it is not a buyer/seller case. In the case, an individual by the name of Davis agreed with the Appellant, Sokoloski, at

Sokoloski’s request, to obtain for Sokoloski, and to transport and deliver to him a substantial quantity of a prohibited drug. The amountof the drug to be delivered was clearly for resale as opposed to personal consumption. Sokoloski agreed to pay Davis for these services. This is not a buyer/seller case, but rather a case where Sokoloski and Davis had an agreement to obtain and traffic in a prohibited drug. Davis was to obtain the drugs and transport them and Sokoloski would resell them. [98] This was the view of Cameron, J. of the Saskatchewan Court of Appeal in R. v. Kelly, (SK CA), [1984] S.J.No. 446.

In that case, Kelly was charged with conspiracy to traffic in marijuana with an individual by the name of Scheuer. Scheuerwas observed picking up a suitcase with between 9 and 10 pounds of marijuana in it at the Regina Airport. He was apprehended by thepolice immediately thereafter. When searched, the police found a paper in his pocket indicating he was going to sell the accused some ofhis marijuana. A police officer contacted the accused as per the note in Scheuer’s pocket and made arrangements to consummate thedeal. Kelly showed up, paid the officer for the marijuana and admitted that he was going to resell it.

At trial, he was convicted ofconspiring with Scheuer to traffic in marijuana. [99] On appeal to the Court of Appeal, it was argued by the appellant that he was not acting with Scheuer in pursuit of a commonintention, but rather was engaged in his own pursuit separate from that of Scheuer. In other words, this was nothing more than a buyer(Kelly)/seller (Scheuer) relationship. In accepting his argument and overturning the conviction, Mr. Justice Cameron commented onSokoloski as follows: [16] In my respectful view the minority did not take a different view of the law, but reasoned from a different premise.

It based itsopinion on a considerably narrower and more immediate "agreement"--the contract for the sale and purchase--than did the majority. As Iread the reasons for judgment of Martland, J. the conviction rested on the fact Davis and Sokoloski had decided on somethingconsiderably more ample than a sale by one and a purchase by the other: Davis was to go to Toronto, buy the drug, bring it back toHamilton, and for a price, deliver it to Sokoloski, who as Davis knew, intended to resell it.

I have no difficulty in accepting the existenceof a conspiracy to traffic in a scheme of that breadth in view of the fact "traffic" is defined (in both the Food and Drug Act, R.S.C. 1970c. F-27 and the Narcotic Control Act) to include not only selling, but transporting or delivering the substance in issue. [100] His reasoning for overturning Kelly’s conviction was as follows: [17] But that is not to say that a sale and purchase to be completed in the future, even if the buyer intends, to the knowledge of theseller, to resell, can, without more, found a conviction for conspiracy to traffic.

And I think the later comments of the Supreme Court inR. v. Sheppe, (SCC), [1980] 2 S.C.R. 22, make this clear. There Laskin, C.J.C., in reasons for judgment concurred in byMartland, J. said this: The present case does not raise the kind of issue which concerned this Court in Sokoloski v. R., (SCC), [1977] 2 S.C.R.523, 33 C.C.C. (2d) 496, 74 D.L.R. (3d) 126, 13 N.R. 191.

Although on one view of the facts in that case it might appear that aconspiracy could arise from a mere exchange of promises, a contract of sale and purchase of a drug, I read the majority judgment asresting on a prior agreement, although in the implementation thereof a transaction of sale and purchase was carried out. Here there can beno doubt of the prior agreement, the scheme which the appellant and Beeman concocted and then proceeded to carry out. [18] I found useful an

article by Professor Peter MacKinnon of the Faculty of Law, University of Saskatchewan, entitled "The Contractas Conspiracy: A Critique of Regina v. Sokoloski, (published in the Ottawa Law Review [1978] Vol. 10 p. 448). He suggests the casepresents "three alternative possibilities":

(1) A buyer and seller of a controlled drug can be convicted of conspiracy to traffic on the exchange of promises--one to buy and theother to sell.

(2) A buyer and seller can be convicted of conspiracy to traffic where the buyer intends to resell and the seller knows that thebuyer so intends.

(3) A conspiracy to traffic will lie against buyer and seller only where the buyer is a party to the seller's distribution scheme or theseller is a party to the buyer's distribution scheme.

He then goes on to say: ... that proposition (3) represents the only case when the buyer and seller have decided to jointly pursue the object of a commonintention, and accordingly is a statement of what the law should be. The buyer's intention is to buy and the seller's intention is to sell. Their contract is a transition of their intentions to promises; itdoes not create an agreement to pursue a common object. This reasoning suggests the objection to propositions (1) and (2) above. In the first situation, there is only an exchange ofpromises.

In the second, the promises are exchanged and the seller knows that the buyer intends to resell. By itself, this knowledge isinsufficient to change the nature of the transaction from an exchange of promises into an agreement to pursue a common object. Adifferent case is that suggested by proposition (3) above. A buyer and seller may have agreed to traffic in a drug, but their agreementmust be distinguished from their contract, though the latter may be evidence of the former. . . . .

By definition, a buyer's knowledge of the seller's purpose or illegal activity antecedent to the sale is not sufficient to constitute thatagreement. Nor is the seller's knowledge of the buyer's purpose or illegal activity subsequent to the purchase. [19] Professor MacKinnon also suggests that depending on the view one takes of the reasons for judgment in Sokoloski, there may beno conflict in law between the minority and majority positions. I agree, and I think the foregoing extracts from his

article accuratelyexpress the law, particularly in light of the comments of the Supreme Court in R. v. Sheppe to which I referred. [20] It remains then to apply the law to the case at hand. While the trial Judge did not identify the agreement which he found to haveexisted between Kelly and Scheuer, and upon which he based the conviction, the case was argued by the Crown on the footing theagreement could only have been that Scheuer, knowing Kelly would resell it, agreed to sell him two pounds of marijuana for $750.00 apound which Kelly undertook to buy, at that price, with delivery to follow later.

In my respectful opinion such an agreement cannotfound a conspiracy to traffic. In offering to sell the drug to Kelly, Scheuer was trafficking, but in agreeing to buy it, Kelly was not doingso. His undertaking to purchase was not per se illegal; nor did the two of them decide to do anything else in breach of the NarcoticControl Act. In short the two men were not acting in concert in pursuit of a common goal, namely trafficking in a narcotic contrary to theNarcotic Control Act. It follows that the appeal must be allowed and the conviction quashed. [101] I find Mr.

Justice Cameron’s reasoning persuasive in the present case. The accused did not act in concert with any of Holmes,Soare, McLeod or Peters, in pursuit of a common goal. He sold crystal meth to Holmes and Peters and that was it. He actedindependently of the others and was not a party to their distribution scheme.

As such, I am not satisfied on a balance of probabilities thatthe accused was a member of the conspiracy between Holmes, Soare, McLeod and Peters. [102] Since I have found that the accused was not part of the conspiracy, the statements made by Holmes, Peters, Soare and/orMcLeod to the undercover officer and tendered for the truth of their contents in the accused’s trial are not admissible under the co-conspirators exception to the hearsay rule.

b) Is the hearsay evidence of the undercover officer admissible under the principled approach? [103] Even if hearsay does not fall within a traditional exception, it may still be admissible under the principled approach. See: R. v.Mapara, supra; R. v. Khelawon, 2006 SCC 57 , [2006] 2 S.C.R. 787 (S.C.C.).

[104] The principled approach arose out of two concerns. First, that the orthodox rule that prior inconsistent statements areadmissible only to impeach the credibility of a witness and not as evidence of the truth of their contents was too rigidly applied andresulted in the unwarranted loss of much valuable evidence. Second, that the exceptions to the hearsay rule were also being too rigidlyapplied and were leading to needless exclusion of evidence in some cases and unwarranted admission in others. See: R. v.

Khelawon,supra, at para. 42. [105] A new principled approach based on necessity and reliability was first endorsed by the Supreme Court in R. v. Khan, (SCC), [1990] 2 S.C.R. 531. The new approach allowed greater flexibility in dealing with this type of evidence as it did notcreate categorical exceptions to the hearsay rule based on fixed criteria. Instead, Judges were to approach each case on a case-by-casebasis identifying the relevant concerns and the factors to be considered in determining admissibility on the basis of necessity andreliability. See: R. v.

Khelawon, supra, at paras. 42 and 45. [106] There are numerous cases from our Supreme Court since Khan dealing with different hearsay situations and whether theparticular hearsay dangers raised in each case can or cannot be overcome. See: R. v. B.(K.G.), (SCC), [1993] 1 S.C.R.740 (S.C.C.); R. v. U. (F.J.), (SCC), [1995] 3 S.C.R. 764 (S.C.C.); R. v. Hawkins, (SCC), [1996] 3S.C.R. 1043 (S.C.C.); See: R. v. Khelawon, supra; R. v. Devine, 2008 SCC 36 , [2008] 2 S.C.R. 283 (S.C.C.); R. v. Blackman,2008 SCC 37 , [2008] 2 S.C.R. 298 (S.C.C.).

All of these cases direct a Judge to determine on a voir dire whether necessity andreliability have been met. If they have been met, then the statement(

s) are considered at the conclusion of the trial in the context of all ofthe evidence in the case. If they have not been met, then that ends the matter and the hearsay is inadmissible for the truth of its contents. [107] In this case, I did not enter into a voir dire during the trial to determine whether the hearsay statements made by the undercoverofficer were necessary and reliable. Neither Crown nor Defence addressed their minds to this issue as they focussed on whether thehearsay fell within the co-conspirator’s exception to the hearsay rule.

It was after closing argument that I raised this issue of theprincipled approach with counsel and gave them each the opportunity to address me on it. [108] Despite the fact that I did not enter into a formal voir dire, I am still prepared to deal with the issue. When addressing me,Defence Counsel did not suggest that his client was prejudiced by the fact that I did not enter into a voir dire or that it would beinappropriate for me to now deal with this issue.

He did not suggest that had he been aware of this issue he would have asked otherquestions of the witnesses or called evidence on the issues of reliability and necessity himself. He did not ask to recall any of thewitnesses or advise me that he wished to call evidence on this point. He agreed that the hearsay evidence was reliable, but took theposition that it was not necessary as the declarants were called by the Crown as witnesses in the case. But the very fact that thedeclarants were called in this case is one reason why I feel quite comfortable dealing with the issue even though we did not have a voirdire.

As Madam Justice Charron said in See: R. v. Khelawon, supra, at paragraph 76: The most important contextual factor in B. (K.G.) is the availability of the declarant. Unlike the situation in Khan or Smith, the trier offact is in a much better position to assess the reliability of the evidence because the declarant is available to be cross-examined on his orher prior inconsistent statement.

The admissibility inquiry into threshold reliability, therefore, is not so focused on the question whetherthere is reason to believe the statement is true, as it is on the question whether the trier of fact will be in a position to rationally evaluatethe evidence... [109] Given the Defence position, I conclude that he had no other questions to ask or evidence to call on the issues of necessity andreliability. Furthermore, Defence Counsel’s ability to extensively cross-examine the undercover officer, Ms. Holmes and Mr. Petersgives me comfort that no stone was left unturned. I refer again to R. v.

Khelawon, supra, at paragraph 48 where Charron, J. says: As indicated earlier, our adversary system is based on the assumption that sources of untrustworthiness or inaccuracy can best be broughtto light under the test of cross-examination. It is mainly because of the inability to put hearsay evidence to that test, that it ispresumptively inadmissible. However, the constitutional right guaranteed under s. 7 of the Charter is not the right to confront or cross-examine adverse witnesses in itself.

The adversarial trial process, which includes cross-examination, is but the means to achieve the end.Trial fairness, as a principle of fundamental justice, is the end that must be achieved. Trial fairness embraces more than the rights of theaccused. While it undoubtedly includes the right to make full answer and defence, the fairness of the trial must also be assessed in thelight of broader societal concerns: see R. v. Mills, (SCC), [1999] 3 S.C.R. 6

[…]