Docket: 1836 Her Majesty the Queen Respondent - v. -, 2011 SKCA 8

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 8 Date: 20110112 Between: Docket: 1836 Her Majesty the Queen Respondent - and - Kerry David Walcer Appellant Between: Docket: 1841 Her Majesty the Queen, as represented by the Office of the Director of Public Prosecutions Appellant - and -

Kerry David Walcer Respondent Coram: Jackson, Ottenbreit & Caldwell JJ.A. Counsel: Katharine Grier for the Crown Peter Abrametz for Kerry David Walcer Appeal: From: 2010 SKQB 133 Heard: January 12, 2011 Disposition: 1836 – Dismissed (orally) 1841 – Allowed (orally) Written Reasons: January 20, 2011 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Caldwell

Jackson J.A. I. Introduction [ 1 ] In this appeal, both the Crown and the accused, Kerry Walcer, appeal a decision of the Queen’s Bench pursuant to s. 784(1) of the Criminal Code . The decision under review: (

i) quashes a committal under s. 548(1) of the Criminal Code , on one count of trafficking and possession for trafficking; and (ii) sustains a committal, on a remaining count of conspiracy to traffic. Mr. Walcer alleges that there is no evidence capable of supporting a conviction on any of the counts, and thus appeals from the decision regarding the conspiracy charge. The Crown appeals the decision to quash the counts of trafficking and possession on the basis that there is some evidence of guilt on all counts.

This Court is asked to navigate the line between some evidence that is reasonably capable of supporting inferences of guilt and what the defence asserts is a Crown theory, amounting to speculation, and no evidence of guilt. [ 2 ] The Crown’s case is based entirely on circumstantial evidence. The appeal centres on whether the inferences, which the Crown suggests can be drawn from the evidence, are reasonable.

In the result, I find that the Queen’s Bench judge did not err, regarding the conspiracy charge, but that he did err in finding that the inferences suggested by the Crown, in relation to the balance of the charges, are not reasonable and amount to no evidence capable of supporting a conviction. Thus, I allow the Crown’s appeal and dismiss Mr. Walcer’s appeal. II. Overview of the Evidence [ 3 ] Kerry Walcer is charged with these specific offences: (

i) conspiring to traffic in cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 and s. 465(1) (

c) of the Criminal Code ; (ii) trafficking in cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act ; and (iii) possessing cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . The Crown alleges that the offences took place between June 1 and June 16, 2007. [ 4 ] The conspiracy charge alleges that Mr.

Walcer did “unlawfully conspire together with Donald James Fiddler, Rhonda Lee Vermette, Bertrand Dallas Beaulieu and Jason Roland Ingram, the one with the other or others of them, and with person or persons unknown, or unnamed, to commit the indictable offence of trafficking in a controlled substance, to wit: cocaine.” Before outlining a chronology of the events, I will explain who the alleged conspirators are. [ 5 ] Jamie Fiddler and Rhonda Vermette were common law spouses. They ran a restaurant business at Christopher Lake, Saskatchewan, which is north of Prince Albert, and ran a drug business on the side.

Jamie Fiddler was considered to be the leader of the events giving rise to the charges.

[ 6 ] As to the other named individuals, according to the evidence before the Court, Mr. Beaulieu bought and sold drugs from, and under the direction of, Mr. Fiddler. While Mr. Ingram is named in the information, he did not testify at the preliminary inquiry and his name was not raised in anyone’s testimony. One Ferris Newell, who is not named in the information, did testify as to his role in the events described in the information. He is Jamie Fiddler’s first cousin. He bought drugs for his own use, and for the purposes of trafficking, from Mr. Fiddler. [ 7 ] Ms. Vermette and Messrs.

Newell and Beaulieu testified at the preliminary inquiry, but they did so under subpoena. By the time of the preliminary inquiry, Ms. Vermette and Mr. Newell had pled guilty to certain offences arising out of the events before the Court. Mr. Beaulieu had been charged, but his matters had not been dealt with. He sought the protection of the Canada Evidence Act , R.S.C. 1985, c. C-5. [ 8 ] Mr. Walcer is a friend of Mr. Fiddler, who lives in Kamloops, British Columbia. Ms. Vermette testified to the effect that “Mr.

Walcer came quite often” to their home at Christopher Lake. [ 9 ] The chronology of pertinent events begins on June 14, 2007. On that day, Ms. Vermette flew from Saskatoon to Kamloops, British Columbia, with Mr. Walcer’s wife, who was her good friend and who was suffering from cancer—this latter piece of evidence was adduced by Mr. Walcer to demonstrate another reason for the ties between Ms. Vermette and his family. Ms. Vermette testified that the original purpose of her trip was to drop $40,000 at a specific location, and then to return home. At some point, those instructions changed. Mr.

Fiddler instructed her not only to drop the funds, but also to pick up a quantity of drugs. [ 10 ] Mr. Walcer first appears in the scenario when he met his wife and Ms. Vermette at the Kamloops airport, and drove them to the Walcer home in the same city. Then, on June 15, 2007, Mr. Walcer drove Ms. Vermette to a bank in Kamloops. [ 11 ] Ms. Vermette testified that the reason she went to the bank was to exchange $40,000 in American funds into Canadian funds. Ms. Vermette entered the bank and remained there for approximately three hours during which time Mr.

Walcer waited for her, paced outside and, at one time, followed her into the bank briefly. Mr. Walcer then drove, with Ms. Vermette, to a casino. He stopped the car near the entrance to the casino, entered briefly, and then exited and parked the car at the back of the building. He and Ms. Vermette then went into the casino. Ms. Vermette entered a washroom, deposited $40,000 Canadian in a cubicle and retrieved some three ounces of cocaine —said to be worth approximately $3,600. Ms. Vermette and Mr. Walcer remained in the casino for awhile. Ms. Vermette testified that she had no discussions with Mr.

Walcer regarding the money or the drugs and that he was simply her driver—“like a taxi.” She paid him several hundred dollars for having performed this function. [ 12 ] Later that same day, Ms. Vermette caught a bus to Saskatoon. There is evidence that she was supposed to fly home, but missed her flight. Upon arriving in Saskatoon, she retrieved her car from the airport and drove herself to her mother-in-law’s home in Prince Albert, where Mr. Fiddler was staying that night. The journey from Kelowna—her point of departure—to Prince Albert took about 28 hours. Ms.

Vermette arrived at her mother-in-law’s home around 10:00 p.m. on June 16, 2007. She and Mr. Fiddler were arrested in connection with the matters before the Court that same night. The only drugs found on her, or on the premises, were three ounces of cocaine. [ 13 ] While Ms. Vermette was wending her way home to Saskatchewan, the police had Mr. Fiddler under surveillance. At about 2:30 p.m. on June 16, 2007, the police observed Mr. Fiddler, Mr. Walcer and Mr. Newell in a parking lot, outside a Prince Albert restaurant.

The three individuals were beside some vehicles including a distinctive vehicle, a red Chevy Tahoe bearing Saskatchewan plates. Mr. Fiddler and Mr. Walcer got into the Chevy Tahoe. With Mr. Walcer driving, they headed in a northerly direction. The police lost contact with the vehicle. [ 14 ] Mr. Beaulieu testified that at some point—date unknown—Mr. Fiddler and Mr. Walcer came to his place at Paddockwood, north of Prince Albert. Mr. Fiddler gave Mr. Beaulieu a container, about the size of a Kleenex box, which Mr. Beaulieu surmised contained cocaine. While handing it over, Mr.

Fiddler extracted a packet of what Mr. Beaulieu thought was cocaine from the Kleenex sized box. Mr. Walcer was not present at the handover, as the transaction took place in a closed shed-like structure within an open shop in Mr. Beaulieu’s yard. Mr. Walcer was at the front of the shop during the event. Mr. Beaulieu testified that he had no discussions with Mr. Walcer regarding the drugs. At the time, Mr. Fiddler owed Mr. Beaulieu some $40,000 for house and restaurant renovations. About one week later, according to Mr. Beaulieu, he returned the container to Mr. Fiddler and Ms. Vermette, and at the same time Mr.

Beaulieu took some of its contents for his own use. Ms. Vermette placed the timing of the return of the cocaine within the days after she and Mr. Fiddler had been arrested the night of June 16, 2007. [ 15 ] Mr. Newell testified that on one occasion he had lunch with Mr. Fiddler and Mr. Walcer. During the afternoon, following this

lunch, or the next day, Mr. Newell went to Mr. Fiddler’s restaurant. In a structure, described variously as a cabin or a suite, at the backof the restaurant, Mr. Newell bought $10,000 worth of cocaine from Mr. Fiddler. When this transaction took place, Mr. Walcer wassomeplace in the cabin or suite. [16] The police testified that the red Chevy Tahoe driven by Mr. Walcer in Prince Albert on June 16, 2007 had been in front of theWalcer home in Kamloops on June 15, 2007, and it was in front of Mr. Fiddler’s mother’s home on the night of June 16, 2007, when Mr.Fiddler and Ms. Vermette were arrested. Mr.

Walcer was not in the home at the time. [17] Ms. Vermette testified that she would expect $40,000 would buy between one and one and a half kilograms of cocaine. III. Decision of the Provincial Court Judge pursuant to s. 548(1) A. Conspiracy Charge [18] Mr. Walcer elected to be tried by a Court composed of a judge and jury, necessitating a preliminary inquiry, at which the learnedjudge committed him to stand trial on all three counts (see: 2009 SKPC 110). Relying on R. v.

O’Brien, (SCC), [1954]S.C.R. 666, the learned Provincial Court judge correctly referred to the three essential elements that the Crown must prove beyond areasonable doubt to convict of conspiracy: (

i) an agreement between two or more people to commit a criminal offence; (ii) an intentionby two or more people to agree to commit the offence; and (iii) the intention to put this common design into effect. The judge thenreferred to United States of America v.

Shephard, (SCC), [1977] 2 S.C.R. 1067 as authority for the proposition that theobligation on a preliminary inquiry judge is to determine “whether or not there is any evidence upon which a reasonable jury properlyinstructed could return a verdict of guilty” (at p. 1080). [19] Applying the Shephard test to the elements of the conspiracy charge, the Provincial Court judge found that each of the individualactions of the various players was innocuous, but taken together they amounted to sufficient evidence to commit: [6] Taken in isolation the actions of the accused are innocuous.

Meeting his wife and her friend at the airport. Driving RhondaVermette to the bank. Being with James Fiddler at Beaulieu's place, etc., are, of themselves, not evidence of conspiracy. But, when takentogether this evidence, in my view, is indeed some evidence of all three elements of the offence, upon which a jury, properly instructed,could return a verdict of guilty. As Ms. Grier said, the accused kept popping up a little too often. B.

Trafficking and Possession Charges [20] During the course of the preliminary inquiry, the Crown justified a particular line of questions by putting forth the theory that akilogram or so of cocaine was indeed obtained by someone on June 15, 2007 in Kamloops, and that it was Mr. Walcer who obtained itand transported it back to Prince Albert (see: transcript, p. 41). According to this theory, Ms. Vermette’s role was that of a decoy put onthe bus to divert attention away from Mr. Walcer while he drove his red Chevy Tahoe back to Saskatchewan.

The Provincial Court judgereferred to this theory when considering the trafficking and possession charges. [21] With respect to these charges, he referred to the test for committal established by the Supreme Court of Canada in R. v. Arcuri,2001 SCC 54, [2001] 2 S.C.R. 828. In that decision (at para. 23), McLachlin C.J. stated that where the evidence is circumstantial, thepreliminary inquiry judge must: ... weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks thejury to draw. This weighing, however, is limited.

The judge does not ask whether she herself would conclude that the accused is guilty.Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonablysupport an inference of guilt. [Emphasis in original.] [22] Having referred to this test, the Provincial Court judge mentioned some possible problems with the Crown’s theory. Specifically,he noted that: (

i) Ms. Vermette testified that strange things happen in the world of drug trafficking, including receiving a much smallerquantity of drug than what had been contracted for; (ii) there could be two red Tahoe vehicles; (iii) the police did not search the redTahoe vehicle found in Prince Albert; and (iv) Messrs. Newell and Beaulieu were not sure when the transactions took place. He wassatisfied, however, that, weighing the evidence as required by Arcuri, it “is reasonably capable of supporting the inferences the Crownseeks” (at para. 11).

He did not specifically mention which inferences, but given his detailed reference to the Crown’s theory, it can bepresumed that the judge was referring to the inferences necessary to give effect to that theory, which is that Mr. Walcer brought a largeamount of cocaine into Saskatchewan. IV. Decision of the Court of Queen’s Bench

A. Conspiracy Charge [23] Invoking the historical jurisdiction of the Court of Queen’s Bench, Mr. Walcer applied for a writ of certiorari quashing hiscommittal on all counts, on the basis that there was no evidence justifying it. In written reasons, the learned Queen’s Bench judge foundthat the evidence could give rise to the inferences suggested by the Crown with respect to this charge (see: 2010 SKQB 133, 355 Sask.R. 85).

Like the Provincial Court judge, however, he did not specify which inferences he accepted: [12] On the conspiracy charge, the evidence against the accused relates to his close contact and involvement with Vermette andFiddler as they were conducting transactions involved in the drug operation. The learned judge stated that the actions of the accused werenot by themselves evidence of conspiracy, but when taken all together, showed some evidence of all three elements of the offence. Thiswould only be possible, of course, if all the inferences were drawn in favour of the Crown, but that is the case.

There may be otherreasonable inferences that could be drawn from his attendance on these occasions, however, that he was part of a conspiracy with Mr.Fiddler to traffic in cocaine is one available to the Crown. The application as it relates to the conspiracy charge is dismissed. B. Trafficking and Possession Charges [24] On the trafficking and possession charges, the Queen’s Bench judge was not so convinced. He found that the “Crown's theory isnot based upon evidence but speculation” (at para. 14). In his view, there was no evidence that Mr.

Walcer had actually possessed orcontrolled the drugs, or that such an inference could be drawn from the evidence: [14] ... None of the evidence submitted by Mr. Fiddler's confederates or the police ever puts the accused in a situation where heactually possessed or controlled the drugs or from which an inference can be drawn that he possessed or controlled the drugs, as stated inR. v. Ghazzi, ( (ON CA), [2006] O.J. No. 4052 (C.A.) (QL)), there must be some evidence regarding the constituentelements of the offence, none has been provided. This is not a situation where the weighing of evidence has to be undertaken.

I cannotfind any evidence on the issues of possession and trafficking of cocaine that have been presented that would allow an inference to bedrawn in favour of the Crown. As such, the application to quash the committal as it relates to the charge of possession of cocaine for thepurpose of trafficking and trafficking in cocaine is granted. [25] Mr. Walcer appeals from the decision in the Court of Queen’s Bench, sustaining his committal on the conspiracy charge, and theCrown appeals from the decision, setting aside the committal in relation to trafficking and possession. V.

Analysis [26] The Supreme Court of Canada recently referred to the standard of review and the test to be applied when an appellate court hearsan appeal from the Queen’s Bench, reviewing a committal under s. 784(1) of the Criminal Code. McLachlin C.J. speaking for the Courtin R. v. Russell, 2001 SCC 53 at para. 48, [2001] 2 S.C.R. 804, stated “a preliminary inquiry judge's determination of sufficiency isentitled to the greatest deference; only if there is no evidence on an element of the offence … can a reviewing court vacate thecommittal.” These are long-standing rules.

Their expression and application can be found in numerous authorities, predating andsucceeding, Russell (see: R. v. Skogman, (SCC), [1984] 2 S.C.R. 93; R. v. Lee (1990), (ON SC), 61C.C.C. (3d) 283 (Ont. Ct. (Gen. Div.)); and Arcuri, supra. Recent authorities from this jurisdiction demonstrating the application of thetest of “no evidence” include: R. v. Caron (1990), (SK CA), 83 Sask. R. 142 at paras. 4 and 7, and R. v.

Franks, 2003SKCA 70 at paras. 18-19, [2004] 6 W.W.R. 290. [27] Arcuri, as the Provincial Court judge emphasized, makes it clear that the test for committal is the same whether the evidence isdirect or circumstantial (see: para. 22). The judge neither asks whether he or she would conclude that the accused is guilty nor drawsfactual inferences nor assesses credibility. The judge asks only “whether the evidence, if believed, could reasonably support an inferenceof guilt” (emphasis in original) (see: para. 23). As part of that process, the judge, faced with competing inferences, does not choosebetween them.

Any reasonable

interpretation or permissible inference from the evidence adduced at a preliminary inquiry, if properlyadmissible against the accused, must be resolved in the Crown’s favour (see: R. v. Deschamplain, 2004 SCC 76 at para. 15, [2004] 3S.C.R. 601, and R. v. Sazant, 2004 SCC 77 at para. 18, [2004] 3 S.C.R. 635). [28] Mr. Walcer argues that there is no evidence to support the committal on any of the charges, and that what the Crown suggests as apermissible inference, is mere conjecture or supposition, unsupported by any evidence. Mr. Walcer’s argument is based on: (

i) thetestimony of Ms. Vermette, Mr. Beaulieu and Mr. Newell to the effect that there were no dealings between each of them—with him—regarding the transportation or other trafficking of the cocaine; and (ii) the fact that there is no direct evidence that he possessed thecocaine at any time. From this, Mr. Walcer argues that there is no evidence of an agreement between him and a second party to traffic incocaine, and indeed no evidence that there were more drugs than the three ounces found on Ms.

Vermette on the night of June 16. [29] It is important to consider the nature of the conspiracy underpinning this charge. To reiterate, it was the Crown’s theory thatcocaine, valued at $40,000, was recovered at the casino in Kamloops, and brought back to Saskatchewan by either Mr. Walcer or Ms.Vermette. The Crown arrived at this theory because $40,000 was dropped in Kamloops, and large quantities of drugs were sold ordistributed to Mr. Beaulieu and Mr. Newell on June 16, 2007, or June 17, 2007, after Mr. Walcer returned to Prince Albert. If Ms.

Vermette is believed, she did not receive more than three ounces of cocaine—worth approximately $3,600. This, according to the Crown, leaves approximately one kilo of cocaine unaccounted for, and Mr. Walcer as the prime suspect. [ 30 ] Neither the Provincial Court judge nor the Queen’s Bench judge mentions this theory in relation to the conspiracy charge, and the latter found no evidence to support a committal on the trafficking and possession charges. Thus, it may be assumed that both judges were of the view that the conspiracy committal could rest on a thwarted or unfulfilled intention to traffic in cocaine.

In other words, there need not have been any further cocaine brought into Saskatchewan in order to ground the conspiracy charge. Mr. Walcer’s pervasive presence in Kamloops, his close relationship with Mr. Fiddler, his hurried return to Saskatchewan, and his activities with Mr. Fiddler are, taken together, some evidence of his participation in the conspiracy to traffic in cocaine that existed between Mr. Fiddler and Ms. Vermette— even if no further drugs were involved. [ 31 ] Mr.

Walcer’s counsel challenges this theory and states, in essence, that the conspiracy charge depends upon evidence to support the inference that there was in fact more cocaine and it was transported back to Saskatchewan. According to him, the fact that the Queen’s Bench judge quashed the committal on the trafficking and possession charges means that the conspiracy charge should have fallen as well. All three counts, according to Mr. Walcer’s counsel, depend upon evidence that: (

i) there was more than three ounces of cocaine; and (ii) his client transported it into Saskatchewan. [ 32 ] Dealing first with the conspiracy charge, there is no basis upon which this Court can intervene. Clearly, neither the Provincial Court nor the Queen’s Bench was bound to accept the Crown’s theory of guilt, i.e. , that there was more cocaine than three ounces, and it was Mr. Walcer who transported the cocaine to Saskatchewan. As a matter of law, one can conspire without completing the object of the conspiracy.

Thus, there is no basis for this Court to say that the Queen’s Bench judge erred in finding no error in the Provincial Court judge’s decision to commit on the conspiracy charge. Of course, if the Crown’s theory of the case is found to be reasonable, this is another basis upon which the committal on conspiracy is sustainable. [ 33 ] The trafficking and possession charges stand on a different footing, but here we are of the view that the Queen’s Bench judge did err.

While he found there was no evidence capable of supporting an inference of guilt, we reach a contrary conclusion. [ 34 ] The Provincial Court judge concluded that it could be reasonably inferred that Mr. Walcer transported drugs into Saskatchewan based on this evidence: 1. $40,000 is far too much money to spend for three ounces of cocaine; 2. Mr. Walcer, who had been Ms. Vermette’s driver in Kamloops, drove from Prince Albert to Kamloops at the same time as she took the bus; 3. a large amount of cocaine was given to Mr. Beaulieu for storage and a large amount was purchased by Mr.

Newell on June 16, 2007 or June 17, 2007 and Mr. Walcer was in the near vicinity on both occasions. [ 35 ] From a review of the transcript, there is evidence supporting each of these points. Ms. Vermette testified as to the first matter. Ms. Vermette’s testimony, and the police observations of Mr. Walcer, support the second. As to the third, it is true that Mr. Beaulieu and Mr. Newell could not remember if their interactions with Mr. Fiddler occurred on either June 16, 2007 or June 17, 2007, but Ms.

Vermette and the police officers provided evidence from which a jury could reasonably infer that the transactions took place on one of those days. Mr. Newell testified that he had lunch with Mr. Walcer on one occasion only, and that he bought the drugs from Mr. Fiddler on that day or the day after. The police observed Messrs. Fiddler, Newell and Walcer leaving a restaurant on June 16, 2007, and Mr. Fiddler was arrested late that night.

The question is whether this evidence gives rise to reasonable inferences supporting guilt, which means that there is no basis for an appellate body to intervene, or whether it gives rise to speculation, amounting to no evidence, and a loss of jurisdiction on the part of the Provincial Court judge. [ 36 ] In order to sustain the committal on the trafficking and possession charges, there are two key inferences that must be found to be reasonable, and the second inference flows, in part, from the first. The first is that there was more cocaine at the casino in Kamloops than the three ounces that Ms.

Vermette said she picked up. That would seem to be a reasonable inference, given the amount of money she left in exchange. It is also supported by the fact that within 48 hours Mr. Fiddler is handling significant amounts of cocaine. The second key inference is that it was Mr. Walcer, who transported the cocaine to Saskatchewan. Again, this is supported by: (

i) his presence at key points in Kamloops; (ii) his independent actions in Kamloops, i.e. , remaining at the bank and the casino, and indeed, entering the casino first; (iii) his quick trip to Saskatchewan following his attendance at the casino; (iv) his presence in the parking lot in Prince Albert with Mr. Fiddler and Mr. Newell during the afternoon of June 16; and (

v) his nearby presence when the transactions with Mr. Newell and Mr. Beaulieu took place. In my respectful view, these two key inferences are reasonable, and taken together elevate the Crown’s overall theory of the case beyond mere speculation.

[ 37 ] As the Crown concedes, there could be other possible explanations for Mr. Walcer’s activities, but when the Court applies Sazant , supra at para. 18 , any reasonable

interpretation or permissible inference from the evidence must be resolved in favour of the Crown. It is true that the evidence, in the eyes of some, might approach speculation and conjecture, but as the references to Shephard , Skogman and Arcuri make clear, that is not the standard of review to be applied. As soon as the reviewing court finds some evidence from which reasonable inferences can be drawn, the appellate task is at an end.

Thus, the Queen’s Bench judge erred in finding that there was no evidence supporting the conclusions of the Provincial Court judge and quashing the committal on the trafficking and possession charges. There is some evidence to support the Provincial Court judge’s decision to commit, and his decision in that regard must be restored. VI. Conclusion [ 38 ] The appeal from the committal on the conspiracy charge is dismissed, and the appeal on the trafficking and conspiracy charges is allowed and the committal in relation to those two charges is restored.