R. v. Greyeyes

Cory J. -- A purchaser of narcotics can be found guilty of possession of drugs or possession of drugs for the purposes of trafficking. As a result of this exposure to criminal prosecution for these offences it has been determined that a purchaser of drugs cannot be convicted of aiding or abetting a vendor of drugs. Courts have differed as to the culpability of one who assists the purchaser. In some cases it has been held that, since the purchaser could not be found guilty of aiding and abetting, someone assisting the purchaser must also be found not guilty. Other decisions appear to come to a different conclusion. The question which must be addressed on this appeal is whether a person who aids or abets a purchaser of drugs should be found guilty as a party to the illegal drug transaction.

Factual Background

In August of 1994, Constable Morgan, an undercover RCMP officer, bought five “joints” of marijuana from the appellant, Ernest Richard Greyeyes. The following day, Morgan asked the appellant if he knew where he could get some cocaine. The appellant stated that he knew a source, and if Morgan would drive him, he would attempt to get some. The appellant directed Morgan to an apartment building. Greyeyes went inside alone and returned to say that the people he was hoping to talk to were out but would be back later that evening.

Morgan and the appellant returned to the apartment building that evening and entered together. Greyeyes identified himself over the intercom and they both went up to the apartment door. Greyeyes again identified himself. A voice from inside asked what they wanted. The appellant said “cocaine”. The voice asked how much, and the appellant looked at Morgan, who indicated “one”. The appellant replied “one”. Morgan asked the appellant how much it would cost, and the appellant told him it would be $40. At this point the people in the apartment encountered difficulty opening the door and after a few minutes the person inside said to slide the money under the door, which the appellant did. Immediately a small pink flap containing two‑tenths of a gram of cocaine was passed back under the door. The appellant picked it up, handed it to Morgan and then started walking towards the exit. When they left the building, Morgan drove the appellant home and gave him $10 for helping him obtain the cocaine.

Relevant Statutory Provisions

Narcotic Control Act, R.S.C., 1985, c. N‑1:

2. In this Act,

. . .

“traffic” means

(a) to manufacture, sell, give, administer, transport, send, deliver or distribute, or

(b) to offer to do anything referred to in paragraph (a)

otherwise than under the authority of this Act or the regulations.

3. (1) Except as authorized by this Act or the regulations, no person shall have a narcotic in his possession.

. . .

4. (1) No person shall traffic in a narcotic or any substance represented or held out by the person to be a narcotic.

(2) No person shall have in his possession any narcotic for the purpose of trafficking.

. . .

8. (1) In any prosecution for a contravention of subsection 4(2), if the accused does not plead guilty, the trial shall proceed as if it were a prosecution for an offence under section 3.

(2) After the close of the case for the prosecution pursuant to subsection (1) and after the accused has had an opportunity to make full answer and defence, the court shall make a finding as to whether or not the accused contravened subsection 3(1) and, if the court finds that the accused did not contravene subsection 3(1), the accused shall be acquitted but, if the court finds that the accused contravened subsection 3(1), the accused shall be given an opportunity of establishing that he was not in possession of the narcotic for the purpose of trafficking and, thereafter, the prosecutor shall be given an opportunity of adducing evidence to establish the contrary.

Criminal Code , R.S.C., 1985, c. C‑46 :

21. (1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

Decisions Below

The appellant was charged with trafficking in marijuana and in cocaine and, as a result of these charges, with two counts of violating his probation.

Saskatchewan Court of Queen’s Bench

At trial, the appellant was convicted of the charge of trafficking in marijuana and for breaching his probation with respect to that offence, but acquitted of trafficking in cocaine and the breach of probation associated with that charge.

Laing J. first considered whether the appellant was guilty as a party to the offence of trafficking under s. 21(1) of the Code. He concluded that he was not, based on his finding that the appellant was solely an agent for the purchaser. It was his opinion that in order to aid or abet the sale of drugs, a person must be found to have assisted the person selling the drugs. He stated that “[i]t is not obvious on this evidence that the accused did anything to assist the seller in making a sale, beyond acting as a spokesperson for the purchaser. . . . What the accused did do in this circumstance was, as I see it, act as a spokesperson for the purchaser.”

He then turned to the charge of trafficking in narcotics as a principal, which requires that an accused manufacture, sell, give, administer, transfer, send, deliver or distribute narcotics. Laing J. observed that the only possible way the appellant could be found guilty of trafficking in cocaine was if he were found to have delivered the drug. However, he concluded that the appellant did not have sufficient control over the drug to constitute possession in law, and if he did not have possession of the drug then he could not have delivered the drug.

Saskatchewan Court of Appeal (1996), 144 Sask. R. 241

The majority of the Court of Appeal convicted the appellant of trafficking in cocaine. Wakeling J.A. found the appellant guilty of trafficking as a principal and as a party, while Bayda C.J. concluded that he was guilty of trafficking only as a party. Vancise J.A. dissented, concluding that the appellant should be acquitted.

Analysis

Can someone either acting as an agent for a purchaser of narcotics or assisting a purchaser to buy narcotics be found to be a party to the offence of trafficking under s. 21(1) of the Code, by aiding or abetting in the sale of narcotics? In my view, the response to the question must be that such a person can indeed be found to be a party to the offence.

Aiding and Abetting

The terms “aiding” and “abetting” are often used together in the context of determining whether persons are parties to an offence. Although the meanings of these terms are similar, they are separate concepts: R. v. Meston (1975), 28 C.C.C. (2d) 497 (Ont. C.A.), at pp. 503‑4. To aid under s. 21(1)(b) means to assist or help the actor: Mewett & Manning on Criminal Law (3rd ed. 1994), at p. 272; E. G. Ewaschuk, Criminal Pleadings & Practice in Canada (2nd ed. 1987 (loose-leaf)), at p. 15‑7, para. 15:2020 (release May 1997). To abet within the meaning of s. 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed: Mewett & Manning on Criminal Law, supra, at p. 272; Criminal Pleadings & Practice in Canada, supra, at p. 15‑11, para. 15:3010 (release December 1996).

Liability of an Agent for the Purchaser

The appellant claims that he cannot be a party to the offence of trafficking since he was acting exclusively on behalf of the purchaser of the drugs and not the seller. He contends that since a purchaser of a narcotic cannot be convicted of aiding and abetting the seller’s offence of trafficking, then someone who extends assistance only to the purchaser should not be found to be a party either.

In Meston, supra, the Ontario Court of Appeal considered whether a purchaser of drugs aids or abets the seller. In that case the charge of trafficking arose from the sale of approximately three‑quarters of a pound of marijuana. Martin J.A. for the Court accepted that, on principle, the conduct of a purchaser who encourages the sale of a substance which he knows it is illegal for the vendor to sell falls within the ordinary meaning of the word “abets” used in s. 21(1)(c) of the Code. Thus, a purchaser should be a party to the offence of selling.

However, Martin J.A. then went on to consider this Court’s decision in Poitras v. The Queen, [1974] S.C.R. 649. The reasons in that case persuaded him that a purchaser should not, by reason of the purchase alone, be found to be a party to the offence of trafficking. Martin J.A. referred at p. 507 to the following passage from the dissenting reasons of Laskin J. (as he then was) at p. 655 of Poitras:

. . . since possession of a narcotic is an offence, and there is an onus on an accused who pleads not guilty to a charge under s. 4(2) to establish that his possession was not for the purpose of trafficking (see s. 8 of the Act), it would, in my opinion, be incongruous to turn a mere purchaser into a trafficker by using s. 21 of the Criminal Code to supply the want of definition.

He went on to conclude that it is implicit from the reasons of Dickson J. (as he then was) for the majority in Poitras that he too accepted the proposition that the purchaser of a narcotic does not by that act alone engage in trafficking. I agree with that conclusion.

The provisions of the Narcotic Control Act which deal with the possession of a narcotic support the contention that a purchaser is in a unique situation and should not be found to be a party to the offence of trafficking simply by reason of the purchase. The definition of trafficking in s. 2 of the Act includes the manufacture, sale, transportation, delivery and distribution, but not the purchase, of a narcotic. However, s. 3(1) of the Act makes it an offence to possess a narcotic. Further, although the reverse onus provision has been found to infringe s. 11(d) of the Charter (see R. v. Oakes, [1986] 1 S.C.R. 103), it is of historical interest as to the intent of Parliament in that s. 8(2) did go so far as to provide that an accused found to be in possession of a narcotic bears the onus of establishing that he did not have the drugs for the purpose of trafficking. Parliament has established a clear legislative scheme which addresses the culpability of those involved in the purchase of narcotics. As Martin J.A. concluded at p. 507 of Meston, supra:

If the purchaser who has encouraged the sale of a narcotic drug to himself cannot be convicted of trafficking, it must be because the Narcotic Control Act manifests a legislative intention that a mere purchaser does not incur liability in respect of the offence of trafficking committed by the seller.

A similar observation is made in the helpful text Criminal Pleadings & Practice in Canada, supra, at p. 15‑9, para. 15:2090 (release May 1997):

It seems that a purchaser of drugs, although factually aiding or abetting the seller, does not legally aid or abet the seller, i.e., the trafficker of drugs, since the purchaser commits the separate offence (when purchasing the drugs) of simple possession of the drugs or possession of the drugs for the purpose of trafficking. [Emphasis in original.]

Certainly there can be no doubt that someone who purchases a narcotic must assist the vendor in completing the sale. Without a purchaser, there could be no sale of the narcotic. However, Parliament has chosen to address the culpability of purchasers in a different fashion. As soon as someone obtains possession of a narcotic, he or she may be charged with possession or possession for the purpose of trafficking. Yet it is clear that that person does not come within the definition of trafficking. Nor can he or she be found guilty of aiding or abetting the offence of trafficking on the basis of the purchase alone. Parliament has created other offences under which a purchaser may be charged as a result of the purchase.

It must be emphasized that there is no legislative intention similar to that which exists for purchasers to be found for those who assist or act as agents for a purchaser. Drug trafficking by its very nature is a business which involves and is dependent upon many “middle men”. If the same exception which applies to purchasers were extended to agents for the purchaser, then the agents could escape culpability entirely. They should not. Quite simply there is no reason to extend the exception for purchasers to those who assist or encourage purchasers in an illegal sale. The activities of an agent for a purchaser or one who assists a purchaser to buy narcotics certainly come within the definition of “aiding” or “abetting” under s. 21(1) of the Code. By bringing together the source of supply and the prospective purchaser, these persons obviously assist in the sale of narcotics. Acting as a spokesperson for a purchaser has the effect of assisting both the purchaser and the vendor to complete the transaction. It follows that an agent for a purchaser or one who assists the purchaser to buy the drugs can properly be found guilty as a party to the offence of trafficking under s. 21(1) of the Code.

This position is supported by the decision of Poitras, supra. In that case an undercover RCMP agent approached Poitras and asked for two grams of hashish. Poitras said he was on his way to a nearby house to get some, and accepted money from the undercover agent. Approximately 20 minutes later an acquaintance, who had introduced the undercover officer to Poitras and who was present at the time they made the deal, delivered the hashish to the undercover officer at a local bar. Poitras was charged with trafficking in hashish or aiding in the trafficking of hashish. The trial judge found the accused not guilty, because the facts were equally consistent with Poitras’ having acted solely on behalf of the officer who had bought the hashish and with Poitras’ having participated in trafficking. Therefore, he was left with a reasonable doubt as to guilt.

Dickson J. writing for the majority found that the trial judge had erred in his reasoning. He observed that although Poitras may have been acting on behalf of the officer, that did not preclude him from being guilty of trafficking or aiding in the offence of trafficking. He made the following observation at p. 653:

It was argued on behalf of the appellant that the words “to buy” do not appear in the definition of “trafficking” under the Narcotic Control Act; therefore a mere purchaser does not traffic and an agent for the purchaser comes under the same protective umbrella. I do not agree. One cannot apply the civil law of “agency” in this context. “Agency” does not serve to make non‑criminal an act which would otherwise be attended by criminal consequences. Even if the appellant could be said to be the “agent” of Constable Arsenault for the purposes of civil responsibility, his acts may, none the less, amount to trafficking in narcotics or aiding in such trafficking.

Thus the majority was prepared to accept that someone who acts on behalf of a purchaser can be found to have assisted in the trafficking of narcotics.

In summary, someone who acts on behalf of a purchaser of narcotics can be found to be a party to the offence of trafficking under s. 21(1) of the Code. This is so because such a person assists in the commission of the offence by bringing the purchaser to the seller. Without that intervention or assistance, the sale would never occur. There is nothing in the provisions of the Narcotic Control Act, in any applicable principles of criminal law, or in reasons of policy which indicates that any special status should be granted to those assisting purchasers of drugs so as to exempt them from the clear provisions of s. 21 of the Code.

Application of the Principle to the Case at Bar

Let us apply that principle to the facts of this case. It must be determined whether the accused actually aided or abetted the sale of narcotics. There is no doubt in my mind that he did. The trial judge found as a fact that the appellant acted as a spokesperson for the purchaser. He was the one who brought the customer to the seller. He was the connection between the buyer and the seller. He escorted the buyer to the seller’s apartment, negotiated with the seller to purchase the drug, and accepted $10 from the buyer for facilitating the deal. The buyer had tried to purchase drugs from the very same apartment earlier in the week, but was denied access, apparently because he was unknown to the seller. It was only as a result of the appellant’s assistance that the prospective buyer was able to get into the apartment building. These facts are sufficient to establish that the appellant aided in the sale of narcotics within the meaning of s. 21(1)(b) of the Code and encouraged the sale within the meaning of s. 21(1)(c) of the Code.

Next it must be determined whether the appellant had the requisite mens rea or guilty mind to satisfy s. 21(b). That section provides that any person who does anything for the purpose of aiding a person to commit an offence is a party to the offence. The term “for the purpose of” was considered in R. v. Hibbert, [1995] 2 S.C.R. 973. Writing for a unanimous Court, Lamer C.J. acknowledged at p. 995 that the term “purpose” could be interpreted in two different ways:

One can speak of an actor doing something “on purpose” (as opposed to by accident) thereby equating purpose with “immediate intention”. The term is also used, however, to indicate the ultimate ends an actor seeks to achieve, which imports the idea of “desire” into the definition.

After reviewing the pertinent case law and academic commentary, Lamer C.J. concluded that the former definition must have been that intended by Parliament when it drafted s. 21(1)(b) of the Code. For the purposes of this section, he said, “purpose” should be equated with “intention” and not “desire”. In other words, in order to satisfy the purpose requirement under s. 21(1)(b), the Crown is required to prove only that the accused intended the consequences that flowed from his or her aid to the principal offender, and need not show that he or she desired or approved of the consequences.

Section 21(1)(c) simply provides that any person who abets any person in committing an offence is a party to that offence. In order to secure a conviction, the Crown must prove not only that the accused encouraged the principal with his or her words or acts, but also that the accused intended to do so: R. v. Curran (1977), 38 C.C.C. (2d) 151 (Alta. C.A.); R. v. Jones (1977), 65 Cr. App. R. 250 (C.A.). It is the establishment by the Crown of that intention which satisfies the mens rea or guilty mind requirement of s. 21(1)(c).

Did the appellant intend to assist or encourage the sale? There can be no doubt that the appellant knew he was assisting in the illegal sale of narcotics, and that he intended to do so. His words and actions demonstrate that he deliberately set out to bring together the parties to the transaction and acted as the conduit for delivering the drugs from the seller to the buyer. The appellant may have been motivated solely by a desire to help the buyer, but what he intended to do was to facilitate the sale of narcotics, and this is a culpable intention. Since the appellant actually encouraged and assisted in the illegal sale of narcotics, and since he had the intention of doing so, he was guilty of trafficking as a party pursuant to s. 21(1)(b) and (c) of the Code.

Jurisdiction of the Court of Appeal

The appellant argued that the Court of Appeal did not have the jurisdiction to overturn the trial judge’s finding that he did not assist in the commission of the offence of trafficking. I cannot accept that contention. It is true that on an appeal from an acquittal, the jurisdiction of an appellate court is limited to questions of law alone. The appellant argued that this question was one of fact or mixed fact and law. However, in R. v. Morin, [1992] 3 S.C.R. 286, at p. 294, it was held that the legal effect of undisputed facts is a question of law. Here, the facts are not in dispute. It is only the legal conclusion to be drawn from them which is at issue. This is a question of law, and the Court of Appeal was within its jurisdiction to interfere with the trial judge’s findings. Further, since all the facts necessary to ground a conviction were established at the trial, the Court of Appeal was correct in entering a conviction rather than ordering a new trial. It was only the trial judge’s error of law which prevented him from entering a conviction.

The Appellant’s Liability as a Principal

In light of my conclusion regarding the appellant’s liability as a party to the offence of trafficking, it is not necessary to consider whether the appellant was also guilty of trafficking as a principal.

Disposition

I would dismiss this appeal and uphold the conviction imposed by the Court of Appeal.