Her Majesty the Queen v. Michel Albert, 2022 NBKB 195

R. v. Albert - 2022 NBKB 195 CCR-4-2021 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF CAMPBELLTON BETWEEN: Her Majesty the Queen -and- Michel Albert SUBJECT: Purchase ≠ Trafficking (Drugs) BEFORE: The Honourable Mr. Justice Larry Landry AT: Campbellton, New Brunswick DATES OF HEARING: September 29 and October 3, 2022 FILING OF FINAL WRITTEN SUBMISSIONS: October 12, 2022 DATE OF DECISION (oral): October 17, 2022 APPEARANCES: Johanne Thériault, for the Crown Céline Haché, for the accused DECISION [TRANSLATION]

Landry, J. (Orally): [1] Did Michel Albert traffic in methamphetamine on April 15, 2020, in Dalhousie, New Brunswick? [2] Mr. Albert argues that he did not, because if the prosecution evidence is accepted, he would have purchased drugs, whichis not trafficking. [3] On that day, the RCMP was tailing Cindy Gray, who was suspected of being involved in trafficking in narcotics.Ms. Gray was driving a vehicle that stopped at Greco’s Restaurant in Dalhousie, and a vehicle driven by Michel Albert also stoppedthere.

Both vehicles then left the parking lot and drove into the parking lot of another nearby restaurant, the Osprey 4 Saisons. [4] The RCMP then decided to intervene, anticipating that a drug transaction would take place. At least five officers werepresent. When they arrived at the scene, they arrested the two individuals. Mr. Albert was sitting in the passenger seat of Ms. Gray’svehicle while she was behind the wheel. The officers seized a sum of $750 found at Ms.

Gray’s feet and a bag containing1,009 methamphetamine tablets located on the console between the two front seats. [5] The evidence adduced by the Crown seems to suggest that Ms. Gray sold the methamphetamine to the accused. In fact,this was the opinion expressed by Sergeant Jacques Théberge, the expert witness called by the prosecution. No other involvement byMr. Albert is alleged. Mr. Albert did not testify nor adduce any other evidence. [6] The burden of proof obviously rests on the prosecution. Here, if I accept the prosecution evidence and find thatMr.

Albert did in fact purchase the methamphetamine, that would not constitute trafficking. Subsection 2(1) of the Controlled Drugs and Substances Act1 defines traffic as including selling, administering, giving, transferring, transporting, sending, or delivering the substance,but not purchasing it. [7] In R. v. Greyeyes,2 the Supreme Court of Canada confirmed that purchasing did not constitute trafficking. Other chargesare available in such cases. For example, once the transaction is completed, the purchaser may then be guilty of possession or possessionfor the purpose of trafficking.

That is not the case here and Mr. Albert was not in fact charged with these kinds of offences. [8] I therefore fail to see how the evidence received at trial could lead to a conviction. Incidentally, the evidence adduced wasitself flawed. For example, a fingerprint on one of the $20 notes found at Ms. Gray’s feet allegedly belonged to Mr. Albert.

However, nocomparison prints were introduced into evidence to confirm this. ____________________________________ 1 S.C. 1996, c. 19. 2 (SCC), [1997] 2 S.C.R. 825. [9] As for the evidence of the expert Théberge, I accepted his report3 for the sole purpose of assessing the credibility andreliability of the oral evidence. However, the report shows that he relied on information or documents that are not part of the evidence,including a statement by Cindy Gray in which she allegedly admitted having trafficked 1,000 pills to Michel Albert.

Sergeant Théberge’sopinions are therefore much less persuasive. [10] That said, I am not convinced that expert evidence is required to find that methamphetamine was probably trafficked inthe vehicle driven by Cindy Gray on the evening of April 15, 2020, and that Michel Albert was probably the purchaser. That may wellnot be sufficient to come to the same conclusion beyond a reasonable doubt. [11] However, having already found that Michel Albert’s purchase of the methamphetamine tablets would not be trafficking, Imust find him not guilty of the trafficking charge against him.

____________________________________ 3 Exhibit C-15.