Docket: CACR1887 Her Majesty the Queen, as represented by the Office of the Director of Public Prosecutions Appellant - v. -, 2012 SKCA 8

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 8 Date: 20120201 Between: Docket: CACR1887 Her Majesty the Queen, as represented by the Office of the Director of Public Prosecutions Appellant - and - Roxanne Nicole Crain Respondent Coram: Lane, Richards and Ottenbreit JJ.A. Counsel: Wade E. McBride for the Crown Kim M. Armstrong for the Respondent

Appeal: From: Provincial Court Heard: September 20, 2011 Disposition: Appeal allowed Written Reasons: February 1, 2012 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Ottenbreit Richards J.A. I. Introduction [ 1 ] The respondent, Roxanne Crain, offered to sell cocaine to an off-duty police officer. She was arrested and a white powder was found in her possession. It was not cocaine. [ 2 ] Ms.

Crain was charged with “unlawfully traffic[king] in a controlled substance, to wit: cocaine.” [ 3 ] At trial, following the submission of the Crown’s evidence, Ms. Crain brought a motion to have the charge dismissed. She contended that, because there was no evidence showing the powder to have been cocaine, the Crown had failed to prove the offence charged. [ 4 ] The trial judge granted the motion and dismissed the charge against Ms. Crain. [ 5 ] The Crown appeals. The issue here is whether, given the wording of the indictment, the Crown was required to prove that Ms.

Crain was offering to sell a substance that was, in fact, cocaine. II. Background [ 6 ] The facts underlying this appeal are straightforward. [ 7 ] In November of 2009, Corporal Wayne Stevenson, a member of the RCMP, travelled to Prince Albert. He was off-duty. [ 8 ] Corporal Stevenson checked into his hotel, and then set off to walk to a restaurant. Ms. Crain approached him and asked if he knew anyone who was looking for some “coke.” Corporal Stevenson told Ms. Crain that he was interested.

She replied that she had coke and weed, and that the coke was “$100 for a half.” He understood this to mean $100 for one-half of a gram of cocaine. [ 9 ] Corporal Stevenson had noticed a marked police car engaged in a traffic stop by his hotel. He told Ms. Crain that he wanted to make a purchase, but that he needed to return to the hotel to collect his wallet. As he and Ms. Crain passed by the police car, Corporal Stevenson indicated to the officer in the car that he needed assistance and then arrested Ms. Crain for trafficking in cocaine. [ 10 ] Corporal Stevenson searched Ms.

Crain incidentally to her arrest and located six “spitballs,” small corners of sandwich bags that had been tied off. Each contained approximately one-half of a gram of a white powder.

[ 11 ] Following Ms. Crain’s transportation to the police station, Corporal Stevenson tested the contents of the seized spitballs. The test results were negative, indicating that the white powder was not cocaine. [ 12 ] Ms. Crain was charged as follows: on or about the 8th day of November, A.D. 2009 at or near Prince Albert, Saskatchewan did unlawfully traffic in a controlled substance, to wit: cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act . III.

The Controlled Drugs and Substances Act [ 13 ] Section 5(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (the “ CDSA ”) creates the offence of trafficking. Significantly, at least for the purposes of this appeal, it refers to trafficking in a substance “included in

Schedule I, II, III, or IV” or in a substance “represented or held out to be” such a substance. Section 5(1) is reproduced below: 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 that person to be such a substance. [ 14 ] Cocaine is listed in

Schedule I of the CDSA . [ 15 ] The concept of “trafficking” has multiple aspects which include “offering” to sell a substance such as cocaine. Section 2(1) of the CDSA says this: 2.

(1) In this Act, … “traffic” means, in respect of a substance included in any of Schedules I to IV, (

a) to sell, administer, give, transfer, transport, send or deliver 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] IV. The Decision in the Court Below [ 16 ] The first witness called by the Crown at the trial was Corporal Stevenson. He testified that the powder found in Ms. Crain’s possession had tested negative for cocaine. After the Crown’s evidence was in, defence counsel made a “no evidence” application. He argued that, in light of the wording of the indictment, the Crown was obliged to prove that the powder found in Ms. Crain’s possession was, in fact, cocaine.

Case authorities were filed and the trial judge reserved his decision. [ 17 ] Ultimately, in reasons presented orally, the judge decided to dismiss the charge against Ms. Crain. He began by saying that the issue before him was “…whether, having alleged that [Ms. Crain] trafficked in cocaine, the Crown must prove it was cocaine, which of course they have not done.” [ 18 ] The trial judge then proceeded to comment on a number of cases which had been referred to him. He seems to have concluded two things. The first was that Ms.

Crain could not be convicted of trafficking in cocaine if the powder in her possession was not cocaine. In this regard, he said this: Nonetheless, at the end of the day, R. v. N.C. does not--or correction, does hold that a defendant cannot be convicted of trafficking in cocaine when it turns out it was not cocaine and the defendant knew it wasn’t cocaine, though she represented it to be cocaine.

[19] In addition, the trial judge appears to have thought that the indictment itself was improperly worded because it did not indicate thesubstance in question was one held out to be cocaine.

On this point, he indicated as follows: In sum, the alleged trafficking, without specifying you mean not selling, but offering to sell, and without specifying that the drug isn’tcocaine, but is one represented to be cocaine, results in my view, in confusion and is liable to lead to unnecessary litigation and litigationin which defendants relying on the words used, will take the stand and then argue, as they did in Saunders, that they can’t be convictedbecause of what the Crown has chosen to allege. [20] However, in the end, the trial judge’s bottom-line reason for dismissing the charge against Ms.

Crain was expressed as acombination of the idea that the Crown had not proven the offence charged and the notion that the charge itself was defective. Heconcluded his analysis in this way: In my view, in the end in this case, in the absence of an application to amend the charge to reveal what the Crown really means, namelythat the defendant offered to sell a substance represented to be cocaine, which was not cocaine, a jury who--which was properlyinstructed could not return a verdict of guilty, because the charge does not reasonably inform the defendant of what is alleged againsthim. V.

Analysis [21] Given the nature of the trial judge’s reasons, I should perhaps offer a word of clarification to the effect that, in her oral submissionsto this Court, counsel for Ms. Crain confirmed that she does not contest the adequacy of the indictment and does not claim, for example,that it lacks required particulars. In other words, there is no suggestion here that the way in which the charge was framed somehow failedto inform Ms. Crain of the transaction said to involve the alleged criminal activity or otherwise undermined her ability to mount a fulland effective defence.

Rather, counsel says the issue before the Court is whether, in light of the wording of the indictment, the Crownwas obliged to prove that the substance in Ms. Crain’s possession was, in fact, cocaine. [22] In order to address this question, it is necessary to start by considering the nature of trafficking by offer. Specifically, it is importantto note that, in order to secure a conviction for trafficking by offer, the Crown need not prove that the accused had the intention or themeans to follow through with the offer.

For example, this Court has said that “in proving the offence of trafficking based upon provingan offer to sell, it is not necessary to prove both the intent to make the offer to sell and the intent to carry out that offer.” See: R. v.Mamchur, (SK CA), [1978] 4 W.W.R. 481 (Sask. C.A.) at p. 483; R. v. Jones (1988), (SK CA),74 Sask. R. 4 (C.A.) at para. 10. [23] This same view was adopted by the Supreme Court of Canada in R. v. Campbell, (SCC), [1999] 1 S.C.R. 565. That case involved the legality of reverse “sting” operations.

In the course of its analysis, the Court described trafficking by offer in thisway: 25 The conclusion that the RCMP acted in a manner facially prohibited by the Act is inescapable. Their motive in doing so does notmatter because, while motive may be relevant for some purposes, it is intent, not motive, that is an element of a full mens rea offence:see Lewis v. The Queen, (SCC), [1979] 2 S.C.R. 821, at p. 831. The actus reus of the offence of trafficking is themaking of an offer, and when accompanied by intent to do so, the necessary mens rea is made out: see R. v. Mancuso (1989), (QC CA), 51 C.C.C. (3d) 380 (Que.

C.A.), at p. 390, leave to appeal refused, [1990] 2 S.C.R. viii. There is no need to proveboth the intent to make the offer to sell and the intent to carry out the offer: see R. v. Mamchur, (SK CA), [1978] 4W.W.R. 481 (Sask. C.A.). See also, e.g., R. v. Sherman (1977), (BC CA), 36 C.C.C. (2d) 207 (B.C.C.A.), at p. 208,upholding a conviction where there was evidence that the accused had offered to sell heroin to a person he knew was an undercoverpolice officer, with a view to "rip off" the officer and not complete the sale.

Sherman was later followed on this point in Mancuso, supra,at pp. 389-90, where the accused argued unsuccessfully that he did not intend actually to sell narcotics to a police informer, but reallywished to steal his money. [emphasis added] [24] More recently, the Ontario Court of Appeal, in R. v.

Murdock (2003), (ON CA), 176 C.C.C. (3d) 232, reviewedthe relevant authorities and held (at para. 14) that “the offence of trafficking by offer is made out if the accused: offers to traffic in anarcotic (the actus reus); and intends to make an offer that will be taken as a genuine offer by the recipient (the mens rea).” [25] It is not surprising, therefore, that the cases reveal a variety of situations where individuals who offered to sell or otherwise makeavailable a narcotic were convicted of trafficking even when they did not have the means or the intention to provide the drug in question.

See, for example: R. v. Petrie, [1947] O.W.N. 601 (C.A.) (offer to sell but no evidence that the drugs were available); R. v. Murdock,supra (offer to sell drugs to an undercover officer but offer then withdrawn); R. v. Sherman, (BC CA), [1977] 5W.W.R. 283 (B.C.C.A.), leave to appeal refused, [1977] 2 S.C.R. xi (offer to sell but with the real object being to “rip off” the purchaserand not go through with the sale); R. v. Reid (1996), 1996 NSCA 265 , 155 N.S.R. (2d) 368 (N.S.C.A.) (no demonstrated abilityto actually secure or provide the drugs); R. v.

Brown (1953), (BC CA), 9 W.W.R. (N.S.) 701 (B.C.C.A.) (offer to sell

drugs but accused not in possession of them). [26] It is not clear whether the trial judge was referred to all of these authorities but he clearly was aware of R. v. Murdock, supra. Hedismissed it on the basis that the case report did not reveal the wording of the charge. In my respectful view, this was a mistake. [27] The significance of R. v. Murdock and the other cases referred to above is that, because of the principle they establish, the offenceof trafficking was committed by Ms. Crain if (

a) she offered to sell Corporal Stevenson cocaine (the actus reus of trafficking by offer),and (

b) she intended that he take the offer to be genuine (the mens rea of trafficking by offer). If those two points can be proven, s. 5(1)of the CDSA was contravened and Ms. Crain is guilty as charged. It is not necessary for the Crown to go further and demonstrate thatthe powder in Ms. Crain’s possession at the time she spoke with Corporal Stevenson was, in fact, cocaine. That question is simply notrelevant to the adjudication of her criminal liability. [28] In her submissions, counsel for Ms. Crain relied heavily on R. v. N.C. (1991), (QC CA), 64 C.C.C. (3d) 45(Que. C.A.).

In that case, a 14-year-old girl was charged with trafficking in cocaine (“fait le trafic d’un stupéfiant: soit 1/4 de gramme decocaine”) after she gave her friend a packet of white powder and told her it was cocaine. The accused later admitted that the “cocaine”was a blend of ground aspirin and baby powder and that she had made up the story to test her friend’s reaction. [29] At trial, the girl was convicted of trafficking but, on appeal, the conviction was quashed and an acquittal entered instead. In comingto this result, the Court of Appeal for Quebec referred to the Supreme Court of Canada decision in R. v.

Saunders, (SCC), [1990] 1 S.C.R. 1020. There, the Supreme Court had considered a situation where the accused had been charged with conspiracyto import heroin, but where the evidence had shown a conspiracy to import cocaine. The trial judge charged the jury that a convictionwas in order if the accused had conspired to import a narcotic of any kind. In directing a new trial, the Supreme Court emphasized thatthe offence, as particularized in the charge, must be proved. In light of R. v.

Saunders, Tyndale J.A. concluded as follows at pp. 52-53: On the whole, I am satisfied that the instinctive, common sense answer “No” to the question “Is a girl who traffics in aspirin andtalcum powder guilty of traffic in cocaine, merely because she falsely said it was cocaine?” is supported by the general principles ofcriminal law and by the relevant authorities discussed above. This case, it seems to me, involves more than just a technical discussion of a fine point of law: it also has an important practicalaspect.

To charge and convict N.C. of trafficking in cocaine is an extremely serious matter, and could involve a severe sentence; tocharge and convict her of traffic (sic) in a substance held out to be cocaine, but in fact aspirin and talcum, so held out for childishreasons, is a much less serious matter, and would surely attract a very light sentence, if any. [emphasis added] See also, to the same general effect: Canada (Attorney General) v. J.J.D., 2002 SKQB 270, [2003] 2 W.W.R. 497 and R. v.MacPherson, 2005 BCSC 381. [30] In my view, it is not necessary to decide whether this Court should or should not follow R. v.

N.C. Even if that case is correctlydecided, it addresses a set of circumstances different than the one in issue here and, as such, is distinguishable. Let me explain. [31] If an indictment alleges generally, as is the situation in this appeal, that the accused “trafficked in cocaine,” it is apparent from theterms of ss. 2(

a) and (

c) and 5 of the CDSA that the offence can be made out in either of two main ways. The first involves proof ofselling, administering, giving, transferring, sending or delivering. The second involves proof of offering to sell, administer, give,transfer, send or deliver. If the position of the Crown is that the accused sold, administered, gave, transferred, sent or delivered“cocaine,” then, taking the thinking in R. v. N.C. to be correct, the Crown must prove that the substance involved was, in fact, cocaine.Thus, for example, the girl in R. v.

N.C. itself could not be shown to have given “cocaine” to her friend when she actually gave heraspirin and baby powder. [32] However, a different line of analysis is engaged in those circumstances where an accused person is charged with “trafficking incocaine” but the position of the Crown is that the accused trafficked by offering to sell, administer, give, transfer, send or deliver thedrug. As explained above, proof of trafficking by offer does not depend on whether the Crown can establish that the accused was inpossession of cocaine or otherwise was in a position to follow through on the offer.

If the Crown can prove both that the accused said,“Do you want to buy cocaine?” and intended the offer to be taken as genuine, then the offence of trafficking in cocaine is made out.After all, a trafficker will never say “Do you want to buy this substance that I am holding out or representing to be drug X?” He or shewill say “Do you want to buy drug X?” [33] Accordingly, R. v. N.C. does not speak to the circumstances of this appeal. Assuming that case to have been correctly decided, the

fact remains that the business of proving trafficking by offer in a named drug does not depend on establishing the physical existence of that drug as would be the case when it comes to proving trafficking by selling, administering, giving, transferring, sending or delivering. In the case of trafficking by offer, the existence of the drug itself is simply not an element of the offence. What matters is what the accused said or represented, not what he or she actually had in his or her possession or was capable of following through on. [ 34 ] I return, therefore, to the position taken by Ms. Crain’s counsel.

This position, it will be recalled, is that Ms. Crain could not be convicted of trafficking in “a controlled substance, to wit: cocaine” unless the white powder in her possession at the time of her arrest was proven to be cocaine. As demonstrated by the authorities referred to above, this argument must fail. To repeat, in dealing with trafficking by offer, the Crown need only establish that Ms. Crain offered to sell cocaine (and the evidence led at the trial indicated that this is what she had done) and intended Corporal Stevenson to take her offer as being genuine. VI.

Conclusion [ 35 ] I respectfully conclude that the trial judge erred in dismissing the charge against Ms. Crain. I would allow the Crown’s appeal and order a new trial. DATED at the City of Regina, in the Province of Saskatchewan, this 1st day of February, A.D. 2012. “Richards J.A.” Richards J.A. I concur “Lane J.A.” Lane J.A. I concur “Ottenbreit J.A.” Ottenbreit J.A.