R. v. Kienapple, 2012 QCCA 166

Unofficial English Translation Grenier c. R. 2012 QCCA 166COURT OF APPEAL CANADAPROVINCE OF QUEBECREGISTRY OF QUEBEC No.: 200-10-002536-105(200-01-143247-108) DATE: January 27, 2012 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. LOUIS ROCHETTE, J.A. BENOÎT MORIN, J.A. DANIEL GRENIERAPPELLANT - accusedv. HER MAJESTY THE QUEENRESPONDENT – prosecutrix JUDGMENT [1] The appellant appeals from a guilty verdict rendered on June 15, 2010, by the Court of Quebec, District of Quebec (theHonourable Judge Chantale Pelletier), which found him guilty of the following charge: [translation] 1.

On or about January 2, 2010, at Donnacona, District of Quebec, did traffic in a substance included in Schedules II and VII orrepresented or held out to be such a substance (Cannabis), thereby committing the indictable offence set out in subsections 5(1)(4) of theControlled Drugs and Substances Act. [2] In accordance with R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729, the judge also ordered a stay of proceedingson the second charge: [translation] 2.

On or about January 2, 2010, at Donnacona, District of Quebec, did have in his possession Cannabis (marijuana) for the purposeof trafficking, thereby committing the indictable offence set out in subsections 5(2)(4) of the Controlled Drugs and Substances Act. [3] Subsection 5(1) of the Controlled Drugs and Substances Act (R.S.C., 1996, c. 19) reads as follows: 5(1) No person shall traffic in a substance included in

Schedule I, II, III or IV or in any substance represented or held out by thatperson to be such a substance. [4] Traffic is defined as follows in subsection 2(1): “traffic” means, in respect of a substance included in any of Schedules I to IV, (

a) to sell, administer, give, transfer, transport, send ordeliver the substance, (

b) to sell an authorization to obtain the substance, or (

c) to offer to do anything mentioned in paragraph (

a) or(b),otherwise than under the authority of the regulations. (Emphasis added.) [5] Here is a brief

summary of the facts giving rise to the guilty verdict rendered against the appellant. [6] On January 1, 2010, the appellant was an inmate at the Donnacona penitentiary. Around 2:20 p.m., a telephone conversationbetween the appellant and his girlfriend, Guylaine Blais, was intercepted. [7] An excerpt of that conversation was reproduced by the trial judge:

[translation] Blais: I'm not with it this morning. Grenier: Yeah, I can see that. Three, do you understand when I say three? Blais: Yes, yes. Grenier: All right. Plus three? Blais: Yes. Grenier: Then, plus three. Blais: Yup. Grenier: Okay, that makes nine total. Blais: Yes. Grenier: So, you understand? Do you get it? Blais: Yup. Grenier: All right. [8] The day after that conversation, on January 2, Guylaine Blais went to the penitentiary to visit the appellant.

She reserved threevisiting time slots to see him: the morning and afternoon of January 2 and the morning of January 3. [9] When she went to the penitentiary, a sniffer dog's behaviour indicated that she might have drugs on her. Jocelyn Bisson, thedog handler at the Donnacona penitentiary, then informed Lucie Blais, the information officer for the penitentiary. [10] When questioned, Guylaine Blais stated that she was supposed to bring "plugs"[1] into the penitentiary but that she had nothingon her and that the drugs had been left in her car.

After an authorized search of her vehicle, Jocelyn Bisson and Lucie Blais discovered 6"plugs" in Guylaine Blais's handbag. The drugs weighed 8.8 grams. [11] At the appellant's trial, Guylaine Blais changed her version of the facts. She stated that the drugs were for her personalconsumption and that the code used during her conversation with the appellant referred to money that he had deposited in GuylaineBlais’ sister's account. [12] It is noteworthy that the judge’s verdict was based on her consideration of the appellant as an accomplice.

Even though she didnot state so specifically, there is reason to believe that she based this conclusion in paragraph 21(1)(

c) and

section 22 of the CriminalCode. [13] Subsection 21(1) and

section 22 read as follows: 21.

(1) Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it. ... 22.

(1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, theperson who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which wascounselled.

(2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequenceof the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of thecounselling.

(3) For the purposes of this Act, “counsel” includes procure, solicit or incite. [14] The appellant basically relied on R. v. Greyeyes, (SCC), [1997] 2 S.C.R. 825, to maintain that the trial judgeerred in law by finding him guilty of drug trafficking when at most, his role was limited to an attempt to purchase. [15] The appellant cites the comments of L'Heureux-Dubé J. in paragraphs 6 to 8 of that judgement; 6. It should not be forgotten that the offence of trafficking is taken extremely seriously by both the courts and the public and aconviction brings along with it a great deal of social stigma.

It goes without saying that someone branded as a “trafficker” is held inextremely low regard by the public. Additionally, sentencing for these offences tends to be quite high. I am reluctant to sanction anapproach which encourages convictions in cases where the assistance rendered is solely to the purchaser.

7. Moreover, I am of the view that in such a case, a charge of trafficking would actually be the incorrect legal result. As my colleaguepoints out at para. 29: . . . Martin J.A. [in R. v. Meston (1975), (ON CA), 28 C.C.C. (2d) 497 (Ont. C.A.)] then went on to consider thisCourt’s decision in Poitras v. The Queen, (SCC), [1974] S.C.R. 649. The reasons in that case persuaded him that apurchaser should not, by reason of the purchase alone, be found to be a party to the offence of trafficking. . . . I agree with thatconclusion.

Certainly there can be no doubt that someone who purchases a narcotic must assist the vendor in completing the sale. Without apurchaser, there could be no sale of the narcotic. However, Parliament has chosen to address the culpability of purchasers in a differentfashion. As soon as someone obtains possession of a narcotic, he or she may be charged with possession or possession for the purpose oftrafficking. Yet it is clear that that person does not come within the definition of trafficking. Nor can he or she be found guilty of aidingor abetting the offence of trafficking on the basis of the purchase alone.

Parliament has created other offences under which a purchasermay be charged as a result of the purchase. 8. In my view, this excerpt clearly demonstrates the important distinction between vendor and purchaser. I agree that despite his or hercrucial assistance in helping to complete the sale of narcotics, the purchaser cannot by this action alone be found guilty of the offence ofaiding or abetting the offence of trafficking. [Emphasis added by L'Heureux-Dubé J.] [16] It should be noted that in that judgment, as in Poitras v.

The Queen referred to therein, the evidence showed that the narcoticswere intended for delivery to a buyer for that buyer's consumption. [17] Consequently, the appellant concludes that Canadian law does not allow a mere buyer to be convicted of drug trafficking on theground that he was an accomplice to the actual trafficker. [18] The appellant is right to draw this conclusion from Greyeyes, all the more so since the definition of traffic in subsection 2(1) ofthe Controlled Drugs and Substances Act does not refer to the purchase of narcotics. [19] But the appellant was not convicted because he incited his girlfriend, Guylaine Blais, to purchase cannabis for him.

He wasconvicted because he incited her to carry cannabis into the Donnacona penitentiary. [20] In its reply during closing addresses, the Crown made interesting comments regarding the charge brought against the appellant: [translation] So, here, indeed, what Mr.

Grenier is being faulted for, it is based on complicity, certainly, it is for having encouraged and incited Ms.Blais to bring him you know, to deliver; she transported it, she had it in her possession but for the purpose of trafficking, for the purpose,obviously, of bringing it into the penitentiary. [21] Here, also, are the trial judge's comments on the matter: [translation] So, it is obvious that Ms.

Blais transported these drugs and that she was delivering these drugs at the request of the accused; so, ascounsel for the prosecution quite rightly pointed out, the evidence must be considered through the lens of complicity. [22] The judge relied on the evidence and found the appellant guilty. [23] During her testimony at trial, Guylaine Blais sought to render her January 1, 2010, telephone conversation with the appellantmeaningless. She first stated that she had bought the cannabis for her own personal consumption.

The trial judge did not, however,believe this part of her testimony, characterizing it as unlikely in light of the circumstances overall. [24] Guylaine Blais then declared that the code used by the appellant during their telephone conversation referred to an amount of$900 (3 x $300) that he had deposited in her sister's account. She added that the appellant used a code because he disliked talking aboutmoney over the telephone. [25] Again, the judge did not accept Blais's version of the facts.

Instead, she found that, based on circumstantial evidence, thenumbers used by the appellant referred to the smuggling of nine "plugs" into the penitentiary over three visits, that is three "plugs" pervisit. [26] The Court does not see any error in the judge's assessment of the evidence that would justify its intervention. [27] The appellant also maintains that since the cannabis delivery never took place, he could not be found guilty of the offence oftrafficking in narcotics.

This argument is without merit for the following reasons. [28] Evidence was adduced that Guylaine Blais transported cannabis at the appellant's request. [29] Admittedly, she only carried six "plugs", not the nine that had been requested by the appellant. This is immaterial in light ofsubsection 22(1) of the Criminal Code, which reads, in fine: “the person who counselled is a party to that offence, notwithstanding thatthe offence was committed in a way different from that which was counselled”. [30] Admittedly, the cannabis was not delivered to the appellant.

Yet, according the meaning ascribed to the term in subsection 2(1)of the Controlled Drugs and Substances Act, the mere act of transporting narcotics constitutes trafficking.

[ 31 ] Ultimately, the Crown proved that Guylaine Blais did something corresponding to trafficking in narcotics – transporting cannabis – at the instigation of the appellant. In light of this evidence, the trial judge was justified to render the verdict that she did. [ 32 ] At the hearing before this Court, counsel for the appellant maintained that the judge also committed an error by ordering a stay of proceedings rather than an acquittal with respect to the second charge. [ 33 ] There is no reason for the Court to rule on this matter since the appeal concerned only the first charge.

FOR THESE REASONS, THE COURT: [ 34 ] DISMISSES the appeal. FRANCE THIBAULT, J.A. LOUIS ROCHETTE, J.A. BENOÎT MORIN, J.A. Mtre Jessie Bérubé Beaudoin, Robert For the appellant Mtre René Verret Criminal and penal prosecutor For the respondent Date of hearing: January 18, 2012