R. v. Frayne, 2011 ONCJ 557

COURT FILE No.: Elliot Lake, File #11-238-90 Citation: R. v. Frayne , 2011 ONCJ 557 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Dan FRAYNE Before Justice R. Villeneuve Heard on September 29, 2011, in Blind River, ON Reasons for Judgment released on October 24, 2011 Roland Aube ............................................................................... for the Crown, Federal Prosecutor Ken Walker .......................................................................................... for the accused Dan Frayne R.

VILLENEUVE, J.: [ 1 ] Dan Frayne is charged with two counts of trafficking in oxycodone along with two counts of possession of property obtained by crime namely $750.00 in cash on two separate occasions, and two counts of breach of an undertaking given to an officer in charge for having failed to abstain from the possession of non prescription drugs. [ 2 ] At the outset, the evidence which I will briefly set out here shortly does not support a conviction for the offences of having breached the undertaking given to an officer in charge. At no time did Mr. Frayne possess the narcotics, the subject of this trial.

Secondly, oxycodone are prescription drugs and while there was no evidence that these drugs were prescribed to Mr. Frayne, he cannot, in my view, be convicted of having possessed non prescription drugs. [ 3 ] Furthermore, the evidence would not support the possession of property obtained by crime on May 24, 2011. There is no evidence that Mr. Frayne possessed or ever took control of the $750.00 paid to the seller Brian Sims, by the undercover officer for the purchase of ten tablets of oxycodone. Accordingly, there shall be a finding of not guilty on this count. [ 4 ] The facts are relatively simple.

The Crown called one witness. Constable Pauli is an Ontario Provincial Police Detective Constable who, in May of 2011 was engaged as an undercover operator in an undercover project known as “Project Knox”. [ 5 ] He described in evidence that on May 13, 2011 he attended the residence of Dan Frayne in the Spanish area in an attempt to purchase oxycodone tablets. Mr. Frayne was targeted as a result of a buy earlier in the month of February. [ 6 ] The officer arrived at Mr. Frayne’s residence by motor vehicle. Mr. Frayne came out onto his deck and a conversation ensued.

The officer advised that he was looking to purchase oxy’s or fentanyl patches. The accused, Mr. Frayne, replied that he could get 80 mg. oxycodone tablets and asked the officer how many he wanted. The initial reply was five at an agreed price of $400.00. The officer testified, and this was not seriously challenged in cross-examination or denied by the accused when he testified, that the accused talked about an earlier police raid on his residence and as a result of such, he no longer kept any drugs at his residence.

The accused told the officer that he had a business partner. [ 7 ] Shortly thereafter the parties discussed a larger quantity, namely 10 oxycodone tablets and a reduction in price to $75.00 per tablet was agreed upon between the officer and the accused. [ 8 ] The officer was told by the accused to meet with him at the Kwik-Way in Spanish, Ontario. The officer drove to the Kwik-Way at which time the accused drove up in his van with another individual now known to have been Brian Sims. [ 9 ] The accused motioned the police officer over to his van and introduced Mr. Sims to the officer. Mr.

Sims had a clear baggie with what turned out to be 80 mg. oxycodone tablets. The officer gave Mr. Sims $750.00 in cash. Brian Sims subsequently counted the money and gave it to the accused to be counted. [ 10 ] The officer’s evidence was that after this buy was completed the accused offered future deals and requested that the officer call him directly at his phone number 705-862-4492. [ 11 ] On May 24, 2011 the office re-attended the accused’s residence but he was not home. The officer reached him by telephone and indicated that he was looking for the same deal.

The accused replied that he was out of town but that he would get back to

the officer. The officer testified that at 5:50 p.m. the accused called him and said “we’re good”. Arrangements were made to meet onceagain at the Kwik-Way. The accused arrived with Mr. Sims. Mr. Frayne indicated to the officer that Mr. Sims would do the deal in theofficer’s truck after which the officer and Mr. Sims went to his truck and the ten 80 mg. oxycodone tablets were exchanged once againfor $750.00 in cash. The officer had to assist Mr. Sims in counting the money as he appeared to be having difficulty doing so. Mr.

Simsthereafter got into the accused’s van and they drove off. [12] In cross-examination, further details of that initial conversation between the officer and the accused at the accused’s residence on May 13th were explored. The officer in referring to his notes admitted that very few, if any, details of that conversationwere included in his notes. He did agree with the suggestion that he and the accused had had a discussion about the officer’sbackground.

This conversation confirmed the officer’s undercover story that he worked in the bush north of Elliot Lake and that he waspurchasing the oxycodone tablets for distribution to bush workers. The accused and the officer differ on one aspect of thatconversation. The officer maintained in his evidence that he had portrayed his purchase of these tablets and their distribution to bushworkers north of Elliot Lake as a business venture on his behalf. The accused maintained that the officer told him that the bush workerswere without their oxycodone tablets and that they were suffering withdrawal.

The accused testified as to his own addiction issues withoxycodone and maintained that he wished to help these workers deal with what he described as very difficult circumstances whensuffering from addiction withdrawal. That, according to Mr. Frayne, was his motive in assisting the officer with the purchase of theoxycodone tablets from Brian Sims. [13] The accused did not dispute in large part the officer’s evidence but maintained that he simply acted as a contact betweenthe officer and Brian Sims to ensure that the officer could make a purchase from Mr. Sims to assist the bush workers north of ElliotLake.

The officer denied ever having told Mr. Sims about the bush workers suffering withdrawal. He testified that to do so couldpotentially jeopardize his cover as an undercover agent. In other words, the simpler the background provided to any potential accused,the better. He testified that he would never be as specific in his undercover story as Mr. Frayne claimed he was. [14] The accused testified that he never handled the drugs and I have accepted that evidence hence my earlier comments. He agreed that he handled the money on May 13th for the sole purposes of counting it for Mr.

Sims who was having difficulty doing so. Hemaintained in his evidence that he never profited personally from the sale of these substances. [15] The Crown takes the position that Mr. Frayne did traffic in these narcotics and that he played an instrumental role in theirpurchase by the undercover officer from Brian Sims. The defence maintains that Mr. Frayne was a mere agent of the purchaser inassisting him to make the purchase of the oxycodone tablets from Mr. Sims.

Furthermore, his decision to become involved wasmotivated by purely humanitarian reasons, if I may describe it as that, in ensuring that the withdrawal suffering bush workers north ofElliot Lake, would be able to get these needed oxycodone tablets. [16] I have reviewed the case of R. v. Ahamad, (ON SC), [2003] O.J. No. 4246, a decision of Molloy J.,Ontario Superior Court of Justice, along with a decision of the Supreme Court of Canada in R. v. Greyeyes, (SCC),[1997] S.C.J. No. 72. [17] The case of R. v. Greyeyes is an interesting decision of the Supreme Court of Canada.

Madam Justice L’Heureux-Dubéwrote a decision for the majority while Justice Cory, penned the minority decision. It is interesting that Justice Cory’s decision was notof a dissenting nature but rather explored the liability of Mr. Greyeyes as a party under

Section 21 of the Criminal Code to the offence oftrafficking. Madam Justice L’Heureux-Dubé, while concluding ultimately as did Justice Cory that Mr. Greyeyes was guilty of theoffence of trafficking did not subscribe to Justice Cory’s conclusion of guilt pursuant to

Section 21 of the Criminal Code of Canada. [18] Justice Molloy in R. v. Ahamad conducted a helpful review of the law of trafficking. [19] Of interest to this court is the Supreme Court of Canada’s distinction in Greyeyes between the purchaser and the vendor ina drug transaction. The definition of trafficking in

Section 2 of the Controlled Drugs and Substances Act specifically excludes the act ofpurchasing from the definition of trafficking. Justice L’Heureux-Dubé, in R. v. Greyeyes in paragraph 11 held as follows: “It is clear that someone whose acts are designed to aid a purchaser, yet incidentally benefit the seller, has assisted muchmore in the purchase of the narcotic than in the sale.

As such, it is only fitting that this person shares the culpability and stigma of thepurchaser rather than that of the vendor.” Justice L’Heureux-Dubé likewise indicated at paragraph 8 of her decision: “In situations where the facts reveal no more than incidental assistance of the sale through rendering aid to the purchaser, it stands toreason that these persons should be treated as purchasers, and not as traffickers.

The proper charge in these circumstances would beaiding or abetting the possession of a narcotic, and not trafficking.” [20] Justice L’Heureux-Dubé made reference to the principle recognized in R. v. Eccleston (1975), (BCCA), 24 C.C.C. (2d) 564, B.C. Court of Appeal, that extending “the definition of trafficking so as to encompass conduct that right-minded person would say is not trafficking is damaging and to be avoided.” One must examine the involvement of the accused in theseparticular transactions to determine whether or not in this particular case, Mr.

Frayne did more than act as a purchaser in thesetransactions. [21] In the case of R. v. Ahamad the facts set out in that decision indicate that the undercover officer was in a wheelchair in adowntown street in Toronto. He was outside of a location where drugs were being sold. Mr. Ahamad was also outside that location andnoticed the undercover officer in his wheelchair. He asked him how he was doing at which point the officer indicated that he waslooking for some crack cocaine. Mr. Ahamad advised him that there were sellers of crack cocaine inside the premises and asked himhow much he needed.

Upon being advised of the amount Mr. Ahamad eventually entered the location with the undercover officer’s

money, made the purchase and turned the drugs over to the officer and then left. The court concluded in those circumstances given the limited involvement that Mr. Ahamad was merely an agent of the purchaser and he was subsequently acquitted. [ 22 ] It is important to note that the accused does not deny the bulk of the Crown’s evidence. He maintained in his evidence however that he was motivated by the need for the bush workers to obtain these oxycodone tablets given that they were suffering from withdrawal. He could identify with that having suffered through those same circumstances in the past.

The officer denied that he ever made reference to that. [ 23 ] I find in these circumstances on the evidence that I accept and which essentially was unchallenged by the accused that the accused played a far greater role in these transactions than acting as a mere agent for the purchaser. I say that for the following reasons. [ 24 ] Although the initial contact was initiated by the officer in driving to Mr. Frayne’s residence on May 13 th I accept that a conversation between him and the undercover officer ensued.

I need not conclude one way or another whether or not the conversation about the suffering bush workers ever occurred. The level of involvement and the extent of that involvement by the accused cannot be saved by his, as I described earlier, “humanitarian reasons.” [ 25 ] The accused confirmed to the officer that he could get him initially 5 oxycodone tablets. A price was discussed. When asked by the officer if Mr.

Frayne would consider a lower price for a larger quantity (10 tablets), a price of $75.00 per tablet was agreed upon as opposed to $80.00 previously negotiated. [ 26 ] The accused chose the meeting point where the transaction on May 13 th was to occur. The accused went and picked up Brian Sims and drove him to the meeting point. The accused assisted Mr. Sims in counting the money on May 13 th . At the conclusion of that transaction the accused discussed future buys and insisted that the officer contact him and not Mr. Sims directly.

He provided the officer with his telephone number. [ 27 ] On May 24 th the officer contacted the accused by telephone. The quantity to the purchase was agreed upon. The meeting point was set. The accused picked up Mr. Sims and drove him to the Kwik-Way. [ 28 ] On that particular occasion the drug transaction was completed in the officer’s motor vehicle in the absence of the accused. [ 29 ] As Madam Justice L’Heureux-Dubé set out in Greyeyes these facts demonstrate a concerted effort on the part of Mr. Frayne to effect the transfer of narcotics.

He located the seller, brought the seller to the site and introduced the parties. He negotiated the price and handled the money on one occasion. While there is no evidence that he ever received any money for his role in these transactions I can conclude on this evidence that without Mr. Frayne’s assistance, the undercover officer would not have come into contact with Mr. Sims, the ultimate seller. [ 30 ] These acts on both transactions on the part of Mr. Frayne are not the acts of a mere purchaser. [ 31 ] I have reviewed the principles as set out by Justice Cory in R. v.

Greyeyes and his analysis of the applicability of

Section 21 of the Criminal Code . I adopt his analysis on the applicability of that

section of the Criminal Code to the offence of trafficking. I would conclude, based on Justice Cory’s analysis, that Mr. Frayne was a party to these offences of trafficking on the part of Mr. Sims and that he aided and abetted the trafficking of these narcotics. [ 32 ] Accordingly, for the reasons set out above and in accordance with my earlier comments regarding some of the charges, I find the accused guilty of counts 1, 2, and 4 of the Information. I find him not guilty of counts 3, 5, and 6. Released: October 24, 2011 Signed: “Justice R. Villeneuve”