Her Majesty the Queen - v. -, 2016 SKPC 159

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 159 Date: December 5, 2016 Information: 90117396 Location: Meadow Lake _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jazmin Weiers Appearing: Derrell Brown For the Crown Jonathan Bodvarson For the Accused Trial Decision M. Martinez , J Introduction [ 1 ] The accused, Jazmin Weiers, is charged with the indictable offences of cocaine trafficking contrary to s. 5(1) of the Controlled Drugs and Substances Act , SC 1996, c. 19 [ CDSA ], and of uttering text message threats to cause bodily harm contrary to s. 264.1(1) (

a) of the Criminal Code , RSC 1985, c. C-46. These offences are alleged to have occurred on or about October 17, 2015. [ 2 ] There are some unique aspects to this case.

[3] First, no one saw Mr. Weiers selling any cocaine to anyone. [4] Second, there is no direct evidence about the nature of the substance the accused allegedly was trafficking. [5] Third, all of the evidence relevant to the trafficking offence came from the testimony of two people who, by their ownadmission, were the accused’s accomplices in the drug trafficking business. [6] Finally, the subject of the accused’s text messages did not testify at trial. Cocaine Trafficking The Evidence and the Issues [7] The accused’s two self-confessed accomplices are Mykela Penner and Kam Gobert.

They are in a common-law relationship.Mr. Weiers was their next door neighbour. He had a key to their home because he used their laundry facilities. For this reason, he wasfree to come and go whenever he pleased. [8] The essence of Ms. Penner and Mr. Gobert’s story is that Mr. Weiers stored significant quantities of cocaine at their home. [9] Ms. Penner, testified that, as she had never used cocaine in any form, she only believed that what the accused kept at herresidence was cocaine and crack cocaine.

According to her testimony, the accused called the substances “boys” and “girls”, and sheunderstood these terms to be street lingo for cocaine and crack cocaine. She went on to say that Mr. Weiers began bringing the cocaine toher home about one month before the date of the offence. She said that he weighed and packaged it at her kitchen table, and then storedthe packages in her home. [10] Ms. Penner’s boyfriend, Kam Gobert, is more familiar with cocaine than she professed to be. He has used cocaine in the past,and his brother, Kolt, was a regular drug user. Mr.

Gobert testified that, on a few occasions during the month before the offence date, theaccused brought him one to three ounce quantities of rock and crack cocaine. He said that Mr. Weiers taught him how to break up theraw cocaine, how to weigh it, and how to package it. According to Mr. Gobert, it was he, not the accused, who weighed and packagedthe cocaine. [11] He testified that each ounce of raw product yielded between 48 and 52 small packages of cocaine weighing between .5 and .55grams each. He testified that the accused wanted him and Ms.

Penner to hold the packaged cocaine until the accused distributed it to hissellers. [12] Both Ms. Penner and Mr. Gobert testified that there wasn’t any cocaine in their house on the date of the offences with whichthe accused is charged. Nor was there any cocaine there later when the police came to their home to interview them. However, Mr.Gobert said that he gave a police officer the box in which he stored the cocaine and the plates on which he weighed it for packaging. [13] Notably, none of the four RCMP officers who testified at trial said anything about seizing or receiving anything from Mr.Gobert, Ms.

Penner, or Mr. Weiers. [14] The Supreme Court of Canada warns judges to be cautious about accepting the uncorroborated evidence of an accusedperson’s accomplices; see Vetrovec v The Queen, [1982] 1 SCR 811, (SCC). In this particular case, depending upon theanswers to two preliminary questions, I may not need to consider the credibility and reliability of Mr. Gobert and Ms. Penner’stestimony. The two preliminary questions are:

1) Can the offence of trafficking be made out where the act is merely giving someone an illegal drug to hold onto it for you, and 2) Can I convict the accused of cocaine trafficking if the only evidence that the substance was cocaine is that he said so? Can the offence of trafficking be made out where the act is merely giving someone an illegal drug to hold onto it? [15] Cocaine is one of the substances listed in

Schedule I of the CDSA. The word “traffic”, as it is defined in the CDSA, means “tosell, administer, give, transfer, transport, send or deliver” a substance included in Schedules I to IV of the CDSA; see CDSA, s. 2(1). [16] In R v Pearson, (SCC), [1992] 3 SCR 665 at 697-8; (SCC), the Supreme Court of Canadaconfirmed that the definition of trafficking is as broad as it seems, and that simply sharing an illegal drug with another person qualifies asdrug trafficking: “The

schedule to the Narcotic Control Act, which lists the substances defined as "narcotics", includes both hard and soft drugs. Furthermore, "trafficking" is a very broad concept. Under s. 2 of the Narcotic Control Act, "traffic" means "to manufacture, sell, give,administer, transport, send, deliver or distribute" a narcotic, or to offer to do any of those items. The offence of trafficking can even becommitted by giving a narcotic to a friend for safekeeping: see R. v. Lauze (1980), (QC CA), 17 C.R. (3d) 90 (Que.C.A.). Thus s. 515(6)(

d) applies not only to hardened drug traffickers, but also to "small fry" drug dealers and even to the "generoussmoker" who shares a single joint of marijuana at a party.” [emphasis added] [17] Based on the broad definition of what it means to traffic in a drug, I find that the offence of trafficking in cocaine is made outwhen someone gives cocaine to another person to hold on to it for them.

Can I convict the accused of cocaine trafficking when the only evidence that the substance was cocaine is that he said so? [18] There was no direct or scientific evidence at trial about the nature of the substance the accused had his accomplices hold forhim. The sum total of the Crown’s evidence about the nature of the substance is that the accused told his accomplices it was cocaine. [19] In R v Khalif, 2014 SKQB 165 [Khalif], Mr.

Justice Scherman thoroughly canvassed the relevant authorities and concludedthat, absent scientific proof of the nature of the substance being trafficked, an offender may be convicted of trafficking in a particulardrug on the basis of circumstantial evidence; see Khalif at paras. 46-50. However, I cannot convict the accused unless the inferences Ican draw from the Crown’s evidence are inconsistent with any rational conclusion other than that the substance he gave to Ms. Pennerand Mr.

Gobert was cocaine; see Khalif at paras. 49 and 50: “Since the Crown relies on circumstantial evidence, I am also guided by the principle that the inferences drawn from the establishedfacts must be inconsistent with any other rational conclusion. In R. v. McIver, (ON SC), [1965] 1 C.C.C. 210 (Ont.H.C.J.) at 214, aff’d (SCC), [1966] S.C.R. 254, McRuer C.J.H.C. said: ... The rule makes it clear that the case is to be decided on the facts, that is, the facts proved in evidence, and the conclusions alternativeto the guilt of the accused must be rational conclusions based on inferences drawn from proven facts.

No conclusion can be a rationalconclusion that is not founded on evidence. Such a conclusion would be a speculative, imaginative conclusion, not a rational one. Justice David Watt in Watt’s Manual of Criminal Evidence, 2009 (Toronto: Carswell, 2009) at para. 9.01 said: Where evidence is circumstantial, it is critical to distinguish between inference and speculation. Inference is a deduction of fact that maylogically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings.

There can be noinference without objective facts from which to infer the facts that a party seeks to establish. If there are no positive proven facts fromwhich an inference may be drawn, there can be no inference, only impermissible speculation and conjecture.”

[20] Justice Scherman convicted the accused in Khalif on the following facts elicited from the sole Crown witness’s testimony: • she bought crack cocaine from the accused, • she also received crack cocaine from him in exchange for allowing him to stay at her residence, and • she ingested the cocaine and the effect it had on her was what she expected from using crack cocaine. [21] Unlike the Crown’s witness in Khalif, neither Ms. Penner nor Mr. Gobert used any of the substances Mr. Weiers left withthem. For this reason, the only fact their evidence establishes is that he told them that the substance was cocaine.

This fact leads to threeequally rational inferences, that: • the accused was being truthful and the substance was cocaine, • the accused lied to Ms. Penner and Mr. Gobert, or • the accused didn’t know whether the substance was cocaine, he simply thought that it was. [22] Because there are three logical inferences which I can draw from the Crown’s circumstantial evidence, I cannot concludebeyond a reasonable doubt that the substance Ms. Penner and Mr. Gobert held for the accused was, in fact, cocaine. [23] The Crown chose to charge Mr.

Weiers with trafficking in cocaine, rather than with trafficking in a substance which herepresented or held out to be cocaine — an alternative open to it under s. 5(1) of the CDSA: No person shall traffic in a substance included in

Schedule I, II, III or IV or in any substance represented or held out by that person to besuch a substance. [emphasis added] [24] The Crown did not ask me to amend the Information to accord with the evidence at trial which was that the accusedrepresented to Ms. Penner and Mr. Gobert that the substance they held for him was cocaine.

Even had the Crown done so, I would havebeen compelled to deny its request because such an amendment may have prejudiced the accused in his defence; see Canada (AG) vD(JJ), 2002 SKQB 270; see also R v Saunders, [1990] 1 SCR 1020 at p 1023, (SCC): “It is a fundamental principle of criminal law that the offence, as particularized in the charge, must be proved. In Morozuk v. The Queen, (SCC), [1986] 1 S.C.R. 31, at p. 37, this Court decided that once the Crown has particularized the narcotic in a charge,the accused cannot be convicted if a narcotic other than the one specified is proved.

The Crown chose to particularize the offence in thiscase as a conspiracy to import heroin. Having done so, it was obliged to prove the offence thus particularized. To permit the Crown toprove some other offence characterized by different particulars would be to undermine the purpose of providing particulars, which is topermit "the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence anda fair trial": R. v. Côté, (SCC), [1978] 1 S.C.R. 8, at p. 13.” [25] In the end, the Crown is stuck with how it charged Mr. Weiers.

For the reasons I discussed above, even if I accepted all of Ms.Penner and Mr. Gobert’s evidence the Crown cannot prove beyond a reasonable doubt that the substance Mr. Weiers trafficked wascocaine.

Uttering Threats by Text Message The Evidence [ 26 ] The accused is alleged to have threatened to cause bodily harm to Kam Gobert’s brother, Kolt, by sending threatening text messages to him. As Kolt Gobert did not testify at trial, all of the relevant evidence against Mr. Weiers comes from the testimony of Mykela Penner and Kam Gobert. [ 27 ] Both witnesses said that Kolt Gobert was staying with them for a short time before going to Saskatoon to see his children. Ms.

Penner testified that on October 17, 2015, Kolt Gobert showed her, and Kam, text messages on his cell phone which he said came from the accused. [ 28 ] She testified that at some point after Kolt showed her the text messages, she saw the accused outside her home and that he “raged over and took Kolt”. [ 29 ] Kam Gobert recalls events somewhat differently. He testified that he didn’t see the text messages until after Mr. Weiers came to his residence and told Kolt to come with him, saying: “You’re coming with me.

Come take your punches.” Kam Gobert did not say anything about the accused’s apparent mood nor did he suggest that the accused forced Kolt Gobert to go with him. [ 30 ] According to Mr. Gobert, his brother left his cell phone behind when he left with Mr. Weiers. This is when he looked at his brother’s phone and saw what he believed to be text messages, from the previous evening, threatening that his brother would suffer serious physical injury at the hands of the accused. [ 31 ] This text message conversation caused both Ms.

Penner and Kam Gobert to fear for Kolt Gobert’s safety, which is why they telephoned the RCMP. [ 32 ] As a result of their telephone call, a number of Meadow Lake RCMP officers began patrolling the city looking for the accused and Kolt Gobert. The RCMP eventually found them in the emergency ward of the Meadow Lake hospital. [ 33 ] According to the RCMP witnesses, Mr. Weiers was in a wheelchair. He was sporting a swollen foot. Kolt Gobert was with him. They seemed to be on friendly terms.

None of the RCMP officers noticed that Kolt Gobert had suffered any injuries. [ 34 ] The accused’s mother testified in her son’s defence. She said that both he and Kolt Gobert had come to her home earlier that evening. She said that Kolt Gobert was drunk, loud, and annoying — both Ms. Penner and Mr. Gobert testified that Kolt was sober when he left their place and that he was very drunk when he came home. The accused’s mother testified that she became concerned when she noticed that her son’s foot appeared to be injured.

She said that she drove him to the hospital and that Kolt Gobert accompanied them because he did not have a ride home. [ 35 ] And so it seems that, if the accused had threatened Kolt Gobert the day before, they were back on friendly terms by the time they arrived at Mr. Weiers’ mother’s house.

While this may have been the case, the following questions remain: 1) Did the Crown prove beyond a reasonable doubt that the accused sent the relevant text messages to Kolt Gobert, 2) When looked at objectively, in the context of the entire text message conversation, would a reasonable person view some of the words uttered by Mr. Weiers as constituting a threat of serious bodily harm, and 3) Did Mr. Weiers intend that Kolt Gobert take his words seriously or be intimidated by them?

Analysis [36] Although there was some argument at trial about whether the Crown had proven beyond a reasonable doubt that the textmessages came from the accused, I am satisfied that they did. [37] Ms. Penner said that Kolt Gobert told her that Mr. Weiers sent the text messages to him. She and Kam Gobert both testifiedthat they knew the accused’s cell phone number and that it was the telephone number from which the text messages had come.

Inaddition, Kam Gobert knew that the screen name, or handle, of the person who sent the text messages, was a handle used by or for Mr.Weiers. [38] The only rational inference I can draw from this circumstantial evidence is that the accused authored the text messages. [39] The answer to the question whether any of the words in the accused’s text messages constitute threats of bodily harm requiresan objective analysis of those words in the context of the entire conversation between the accused and Kolt Gobert.

If I find that any ofthe words constitute a threat of bodily harm, I must infer the accused’s intentions from the entire text message conversation and thecircumstances in which that conversation took place; see R v McRae, [2013] 3 SCR 931, 2013 SCC 68 per Cromwell and Karaktsanis JJ.: Objective proof of the prohibited act [10] The prohibited act of the offence is “the uttering of threats of death or serious bodily harm” (Clemente, at p. 763). The threats canbe uttered, conveyed, or in any way caused to be received by any person.

The question of whether words constitute a threat is a questionof law to be decided on an objective standard. Justice Cory put it this way in McCraw: The structure and wording of s. 264.1(1)(

a) indicate that the nature of the threat must be looked at objectively; that is, as it would be bythe ordinary reasonable person. . . . The question to be resolved may be put in the following way. Looked at objectively, in the context of all the words written or spoken andhaving regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to areasonable person? [pp. 82-83] [11] The starting point of the analysis should always be the plain and ordinary meaning of the words uttered.

Where the words clearlyconstitute a threat and there is no reason to believe that they had a secondary or less obvious meaning, the analysis is complete.However, in some cases, the context reveals that words that would on their face appear threatening may not constitute threats within themeaning of s. 264.1(1)(a) (see, e.g., O’Brien, at paras. 10-12). In other cases, contextual factors might have the effect of elevating to thelevel of threats words that would, on their face, appear relatively innocent (see, e.g., R. v.

MacDonald (2002), (ONCA), 166 O.A.C. 121, where the words uttered were “You’re next”). [13] Thus, the legal question of whether the accused uttered a threat of death or bodily harm turns solely on the meaning that areasonable person would attach to the words viewed in the circumstances in which they were uttered or conveyed. The Crown need notprove that the intended recipient of the threat was made aware of it, or if aware of it, that he or she was intimidated by it or took itseriously (Clemente, at p. 763; O’Brien, at para. 13; R. v.

LeBlanc, (SCC), [1989] 1 S.C.R. 1583 (confirming the trialjudge’s instruction that it was not necessary that “the person threatened be ever aware that the threat was made”: (1988), (NB CA), 90 N.B.R. (2d) 63 (C.A.), at para. 13)). Further, the words do not have to be directed towards a specific person; a threatagainst an ascertained group of people is sufficient (R. v. Rémy (1993), (QC CA), 82 C.C.C. (3d) 176 (Que. C.A.), atp. 185, leave to appeal refused, [1993] 4 S.C.R. vii (threat against “police officers” generally); R. v.

Upson, 2001 NSCA 89 ,194 N.S.R. (2d) 87, at para. 31 (threat against “members of the black race” generally)). The fault element: the accused’s intentions [19] The fault element here is subjective; what matters is what the accused actually intended. However, as is generally the case, thedecision about what the accused actually intended may depend on inferences drawn from all of the circumstances (see, e.g., McCraw, at

p. 82). Drawing these inferences is not a departure from the subjective standard of fault. In R. v. Hundal, (SCC), [1993]1 S.C.R. 867, Justice Cory cites the following words from Professor Stuart which explain this point: In trying to ascertain what was going on in the accused’s mind, as the subjective approach demands, the trier of fact may drawreasonable inferences from the accused’s actions or words at the time of his act or in the witness box. The accused may or may not bebelieved.

To conclude that, considering all the evidence, the Crown has proved beyond a reasonable doubt that the accused “must” havethought in the penalized way is no departure from the subjective substantive standard. Resort to an objective substantive standard wouldonly occur if the reasoning became that the accused “must have realized it if he had thought about it”. [Emphasis in original] [23] To sum up, the fault element of the offence is made out if the accused intended the words uttered or conveyed to intimidate or tobe taken seriously.

It is not necessary to prove an intent that the words be conveyed to the subject of the threat. A subjective standard offault applies. However, in order to determine what was in the accused’s mind, a court will often have to draw reasonable inferences fromthe words and the circumstances, including how the words were perceived by those hearing them. [40] An RCMP officer photographed the text message conversation as it appeared on Kolt Gobert’s cell phone. The Crown enteredcopies of the photographs in evidence at trial.

The relevant text message conversation between the accused and Kolt Gobert went asfollows: Weiers: Better ducking watj it buddy I’m coming to your place and taking everything u own I know where u live in big river U fcked my business up good almost me out your fucking dead buddy i have a pretty good idea when lol catch u Kolt: Dude I got fucking rolled up north man I fucked up huge i will get you your product back or cash just need time this fuckedme over as well Weiers: Nope I don’t have time u have till Sunday and I’m on my way with my crew Kolt: So you gonna murder me would that square us up Weiers: Gotta be fingers so be it Nah to easy Let u live fucked up will be better let urself off urself ur useless to te world just like how u were useless to me this ain’t no fucking game If u got rolled on why didn’t u call me to get some boys to come back u?

Bc ur fucking lying To fucking smart to be lied to Kolt: Come on man don’t be like that I was trying to do it on my own man Weiers: Whatever SUNDAY!!! Bye Kolt: Will an oz cover it bro I need to get out of this game man

Weiers: Yup bye Sunday Kolt: K [ 41 ] Despite the fact that the accused’s utterances are in text message language, the meaning of what he said to Kolt Gobert is clear. The gist of it is that Kolt Gobert would suffer retribution for damaging the accused’s business. [ 42 ] At the outset of his text messages, the accused tells Kolt Gobert “your dead buddy”. What I am sure he meant to say was “ you’re dead buddy”. A few lines later, after Kolt Gobert asks whether the accused intends to murder him, the obvious meaning of the accused’s response is that he preferred to damage Mr.

Gobert’s fingers so that he would live “fucked up”. Objectively, the meaning of this latter exchange is that the accused threatened to inflict serious bodily harm upon Mr. Gobert. [ 43 ] Having found that some of the accused’s utterances clearly constitute threats of bodily harm, or worse, the remaining question is whether he intended to be taken seriously or whether he intended to intimidate Mr. Gobert.

In the context of the entire text message conversation, I have no doubt that the accused expected Kolt Gobert to take him seriously and to be intimidated by his threats. [ 44 ] Further, it is evident that Kolt Gobert did take his threats seriously.

At the end of their text message conversation, in order to mollify the accused, Kolt Gobert offers him a deal which he appears to accept: Kolt: Will an oz cover it bro I need to get out of this game man Weiers: Yup bye Sunday Kolt: K Conclusions [ 45 ] For all of these reasons, I acquit the accused of cocaine trafficking, but find him guilty of knowingly uttering threats of bodily harm to Kolt Gobert by text message. __________________________ M. Martinez, J.