Docket: CACR2367 Joshua Clinton Stricker Appellant - v. -, 2014 SKCA 129

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 129 Date: 2014-12-05 Between: Docket: CACR2367 Joshua Clinton Stricker Appellant - and - Her Majesty the Queen Respondent Coram: Richards C.J.S., Jackson and Whitmore JJ.A. Counsel: Sharon Fox for the Appellant Wade McBride for the Respondent Appeal: From: Provincial Court Heard: May 23, 2014 Disposition: Appeal allowed; new trial ordered Written Reasons: December 5, 2014 By: The Honourable Mr. Justice Whitmore

In Concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice Jackson Whitmore J.A. [ 1 ] Joshua Stricker was convicted after trial in the Provincial Court of possession of methamphetamine (meth) for the purpose of trafficking. He appeals from that decision on the grounds, inter alia , that the trial judge erred by failing to make the necessary findings of fact as to the mental element required for the offence of possession for the purpose of trafficking.

I find myself in substantial agreement with the submissions of the appellant on this point such that, for the reasons that follow, I would allow the appeal and order a new trial. Since a new trial is in order, I will only briefly review the evidence. [ 2 ] Mr. Stricker was arrested in these circumstances. The police received a report that a vehicle bearing two different licence plates was travelling in the North Battleford area. They found such a vehicle parked at a North Battleford gas station with Charlene Gessler in the front passenger seat. [ 3 ] When Mr.

Stricker returned to the vehicle, the police searched it and found a bag containing 25.3 grams of meth under the front passenger seat. In Ms. Gessler’s purse were a small digital scale, two glass pipes, several syringes, 80 small resealable bags, one cell phone and three SIM cards, some tools, and some notebooks listing names and dollar amounts. Mr. Stricker was arrested and charged with possessing meth for the purpose of trafficking. (It is unknown what charges Ms. Gessler faced, if any.) [ 4 ] Ms. Gessler testified for the Crown, but was a reluctant witness.

She initially testified that the meth was for her personal use and was approximately a one month supply. She also testified that Mr. Stricker used meth occasionally and he knew that she had it in her possession. [ 5 ] Crown counsel, in examination in chief, asked Ms. Gessler if they planned to stop in Saskatoon. Ms. Gessler replied, “[p]robably. I don’t remember what we were going to do to tell you the truth” (Transcript p. 77). [ 6 ] Crown counsel then advised the Court he wanted to cross-examine Ms. Gessler on an earlier inconsistency from a videotaped statement she had made to the police.

The trial judge adjourned the proceedings to allow Ms. Gessler an opportunity to watch the videotaped statement in his absence. [ 7 ] After the Court reconvened, Ms. Gessler responded to the continuation of the Crown’s examination as follows: Q MR. DANIELS: Ms. Gessler, now you’d mentioned that you had purchased meth with Josh in Saskatoon [ sic ]. A Mmhmm. Q Again, what was your plans with that meth? A I believe I said that I picked it up for mostly personal, but that we might get rid of some of it in Saskatoon. Q Okay. So is that your testimony now that your plan -- A Yes.

Q -- was to -- some of it was personal, but you were -- that you might -- A Most of it was personal, I believe I said. Q Okay. And again, so the understanding was you and Josh were going to use most of it, but -- A Mmhmm. But we might think about dropping off some of it, is what I said. Q Okay. And that’s -- and you agree that that’s a true statement? A That’s what I said, yes. Q No, but again, is that your testimony today? A Yes. Q Okay. THE COURT: Is that what you needed? MR. DANIELS: Yes. THE COURT: All right. Did you -- so I take it you don’t need to proceed further with the 9(2) application? Is that fair?

MR. DANIELS: No. No, nothing further. (Transcript pp. 80–81)

[ 8 ] In response to further questioning by Crown counsel, Ms. Gessler testified the notebook in her purse contained a list of debts she owed, she was addicted to meth, Mr. Stricker was only an occasional user, and she purchased such a large quantity because it was cheaper, a practice she had followed in the past. Ms. Gessler further testified that she is always high. [ 9 ] In cross-examination by defence counsel, she confirmed that meth is cheaper in Edmonton than in Saskatchewan and that she used approximately one gram per day. She then testified that she had no agreement with Mr.

Stricker as to whether they would sell the meth. The following exchange then took place: Q And you said to my friend in answer to his specific question about whether or not you would sell crystal meth, this particular crystal meth that was located in the truck on September the 6th, I understood your answer to be, no, you weren’t going to sell it. It was for your own personal use. Am I right about that? A Mmhmm. Q And that’s just, for the record, a yes, right? A Yes. Q It makes it easier for transcript purposes. Things like that. And you also said to my friend, we might get rid of some of it?

Did you say that to my friend? A Actually, I think I believe I -- THE COURT: Yes, she -- I assure you that that’s what she said. THE WITNESS: Said, yeah, or on the statement. MR. MACKINNON: Sure, sure. MR. DANIELS: She said she might sell some of it, is what -- THE WITNESS: Yeah, I said get rid of it, is what -- Q MR. MACKINNON: I think you said get rid of it. A Yeah. Q I don’t think you used the word sell. A I said, got -- said get rid of it. (Transcript pp. 89–90) [ 10 ] The defence conceded in final argument that the Crown had proven the offence of simple possession against Mr.

Stricker, but argued the Crown had not proven Mr. Stricker knew of Ms. Gessler’s plans to sell some of the meth. At most, the defence argued, the evidence of trafficking was found inside Ms. Gessler’s purse and there was no evidence Mr. Stricker knew the contents of her purse. [ 11 ] The trial judge, in finding Mr. Stricker guilty of possession of meth for the purpose of trafficking said the following: I also have to look at the fact of her words, that they might get rid of some of it in Saskatoon. The fact is, I’m convinced, beyond a reasonable doubt, that Ms.

Gessler intended to traffic some of the methamphetamine that was in the joint possession of Ms. Gessler and Mr. Stricker. There is no direct evidence that Mr. Stricker knew of the contents of Ms. Gessler’s purse. I can -- I’m not prepared to -- I mean relationships between partners pertaining to the female partner’s purse, vary greatly . In some instances, the other will have full access to that purse, and in some instances, no access to that purse. I don’t [know] what it was in this case, but I cannot presume, and I think I have to take it that there’s no reason why, there’s no evidence that [Ms.] Gessler or Mr.

Stricker had any access to that -- Ms. Gessler’s purse . This I see as true, but that, with respect, is not an end to the matter. I still have to look at the full circumstances. This is a five-year common-law relationship with mutual methamphetamine use and joint possession of that drug. They had been jointly purchasing drugs at a wholesale level for about two years. In order for Ms.

Gessler to, in fact, traffic that drug -- and I am satisfied that she did do that -- that she was -- did traffic drugs -- she would have to remove from her purse items such as those small bags, the tools, the scale, and use them outside of her purse. These people live together and the drug that she would be accessing for that purpose, or drug was a stash of drugs jointly purchased and jointly paid for.

To market it, she would have to use her -- the practice is certainly to use cell phones, and she would be using her cell phone, and that is something that isn’t done inside her purse, but is done in the open air where presumably the -- where the accused would obviously have access, obviously have noticed she was doing it. Is it reasonably possible that in this situation, Mr. Stricker would not be aware that Ms. Gessler was trafficking some of the drugs that they jointly possessed? In my view, it simply is not reasonably possible. I am convinced, beyond a reasonable doubt, that Mr.

Stricker knew that at least some of the drugs found in the Blazer were very likely going to be trafficked. He was possessing those drugs knowing that they were going to be trafficked, and he -- or that they were very likely to be trafficked, and he was actively engaged in transporting them in these circumstances . Now transporting those drugs, in that situation, constitutes trafficking in and of itself. If you’re moving -- if you’re transporting drugs that are like -- that you know are likely to be resold, that is trafficking. (Emphasis added, Transcript pp. 157–158)

[12] Crown counsel urged this Court to construe the reasons as meaning that Mr. Stricker was found guilty as a principal. I agree withthat reading of them. [13] During closing submissions, the trial judge correctly stated what the Crown would have to prove in order for Mr. Stricker to beconvicted as a principal: THE COURT: Yeah. He -- he -- in -- in my view, if he buys -- if -- if he has possession of it, regardless -- MR. DANIELS: Mmhmm. THE COURT: -- of how it was acquired, and he knows that some of it is going to go trafficking, he’s guilty of possession for thepurposes of trafficking. MR.

DANIELS: Exactly. (Transcript p. 146) [14] However, when he came to make his decision, the trial judge did not go that far. As noted above, he said this: I am convinced, beyond a reasonable doubt, that Mr. Stricker knew that at least some of the drugs found in the Blazer were very likelygoing to be trafficked. He was possessing those drugs knowing that they were going to be trafficked, and he -- or that they were verylikely to be trafficked, and he was actively engaged in transporting them in these circumstances. Now transporting those drugs, in thatsituation, constitutes trafficking in and of itself.

If you’re moving -- if you’re transporting drugs that are like -- that you know are likely tobe resold, that is trafficking. (Emphasis added, Transcript p. 158) [15] As can be seen from the above excerpt, the trial judge found only that Mr. Stricker knew at least some of the drugs were “verylikely” going to be sold. [16] The mens rea for the offence of possession for the purpose of trafficking includes an intention to traffic. The trial judge necessarilyfound that Mr. Stricker was in possession of the meth; he did not find that Mr. Stricker intended to sell it.

The most that can bedetermined from the trial judge’s reasons is that Mr. Stricker knew it was “very likely” that some of the meth would be sold. Thus, thetest for the mens rea element of the offence is not met. [17] It was also argued that the trial judge may have found Mr. Stricker guilty as a party to the offence of possessing meth for thepurpose of trafficking. I do not read the trial judge’s decision as coming to that conclusion. If the trial judge had intended to find Mr.Stricker guilty as a party, he made no finding to that effect. [18] Thus, I conclude that the trial judge erred in law by convicting Mr.

Stricker of possession for the purpose of trafficking withoutmaking the necessary findings of fact as to the mental element required for the offence. [19] The Crown submits even if the trial judge did make the error that has been identified, the error can be cured pursuant to s. 686(1)(b)(iii) of the Criminal Code, RSC 1985, c C-46. [20] Pursuant to s. 686(1)(b)(iii) of the Criminal Code, a court may dismiss an appeal where “notwithstanding that the court is of theopinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinionthat no substantial wrong or miscarriage of justice has occurred.” The Supreme Court of Canada recently set out the test for theapplication of s. 686(1) of the Criminal Code in R v Sekhon, 2014 SCC 15, [2014] 1 SCR 272: [53] As this Court has repeatedly asserted, the curative proviso can only be applied where there is no “reasonable possibility that theverdict would have been different had the error … not been made” (R. v.

Bevan, (SCC), [1993] 2 S.C.R. 599, at p. 617,aff’d in R. v. Khan, 2001 SCC 86 , [2001] 3 S.C.R. 823, at para. 28).

Flowing from this principle, this Court affirmed in Khanthat there are two situations where the use of s. 686(1)(b)(iii) is appropriate: (1) where the error is harmless or trivial; or (2) where theevidence is so overwhelming that, notwithstanding that the error is not minor, the trier of fact would inevitably convict (paras. 29–31). (Emphasis added) [21] The test is therefore whether the error was trivial or whether, in spite of the presence of the error, a trial judge would inevitablyhave convicted the accused. In this appeal, the trial judge convicted Mr.

Stricker of trafficking (as a principal), notwithstanding that hehad found as a fact that Mr. Stricker only knew some of the meth would “very likely” be sold. This was not a trivial error and, obviously,it cannot be said that Mr. Stricker would have been convicted in any event. [22] Looking solely at the question of whether Mr. Stricker was guilty as a principal of the offence of possession for the purpose oftrafficking, it would be appropriate to enter an acquittal on that charge. The trial judge found as a fact that Mr. Stricker only knewMs. Gessler was “very likely” going to sell some of the meth.

This should have led to an acquittal. As Mr. Stricker acknowledges andaccepts, a conviction for simple possession is what should have followed from the trial judge’s factual findings. [23] However, this matter has another aspect. During argument at trial, the prosecutor advanced the idea of Mr. Stricker being foundguilty because he had aided or abetted Ms. Gessler in her possession of meth for the purpose of trafficking. The trial judge took thatsubmission in a different direction and, in the end, did not consider it as a possible basis of liability.

Nor did he make any factual findingsin relation to it. [24] As a result, this Court is in no position to consider whether a conviction could or should be entered against Mr. Stricker on thebasis that he aided or abetted Ms. Gessler. It follows that it is necessary to order a new trial.

[25] In light of my conclusion, it is not necessary to deal with Mr. Stricker’s contention that the trial judge did not comply with theprocedures established in R v Milgaard (1971), (SK CA), 2 CCC (2d) 206 (Sask CA) when he permitted Crowncounsel to cross-examine the Crown’s own witness. [26] I would therefore allow the appeal, set aside the conviction, and order a new trial. DATED at the City of Regina, in the Province of Saskatchewan, this 5th day of December, 2014. “Whitmore J.A.” Whitmore J.A.I concur. “Richards C.J.S.” Richards C.J.S.I concur. “Whitmore J.A.”forJackson J.A.