Blue Line

Helping drug buyer is not aiding seller

April 4, 2016  By Mike Novakowski

673 words – MR

Helping drug buyer is not aiding seller

Incidentally assisting a drug buyer isn’t aiding and abetting the seller, which would make an individual guilty of trafficking as a party to the offence.

In <R. v. Machushek, 2016 SKCA 41> two undercover officers went to a bar to further an investigation into cocaine drug trafficking. They played pool and mingled with a group of people, including Machushek. After a few hours of drinking, the officers talked to Machushek about buying cocaine.

When the bar closed, Machushek took the officers to his home, where they used the bathroom and admired his woodworking projects. Machushek called a drug dealer and all three drove in the officers’ truck to a darkened street to meet the seller, who sold each person a gram of cocaine.

Machushek did not handle the officers’ money or the cocaine intended for them, nor did he receive any payment from the seller or officers. After the buy, the three went back to Machushek’s home. He asked the officers to come in and party but they declined.

Several months later Machushek was arrested and charged with two counts of trafficking and two counts of possessing proceeds of crime.

A Saskatchewan Provincial Court judge found Machushek did not commit any acts of trafficking in his own right, nor was he a party to the offence in that he aided (<s. 21(1)(b)> Criminal Code) or abetted (<s. 21(1)(c)>) the seller such that he would have been guilty of the seller’s act of trafficking. Rather, he held that Machushek was “facilitating a buy as a buyer” and that he and the two officers were “joint purchasers.”

Machushek was acquitted of the trafficking and proceeds charges because he did not receive any money as a result of the transaction, nor had he ever held any of the officers’ money.

The Crown challenged the acquittals in the Saskatchewan Court of Appeal, suggesting Machushek was guilty of trafficking because he aided and abetted the trafficker. In the Crown’s view, if the purchase would not have taken place without Machushek’s assistance, he should be found guilty of aiding and abetting the trafficking of cocaine.

Justice Jackson, however, felt this reasoning would set the bar too low in determining what constituted aiding or abetting a drug trafficking. She recognized that not every act assisting the purchase of drugs can lead to a finding of guilt for trafficking. Otherwise, a friend who drives someone across town to buy drugs would be guilty.

“With respect to the actus reus, where the facts reveal no more than incidental assistance of the sale through rendering aid to the purchaser, the… proper charge is not trafficking, regardless of intent,” said Jackson.

“With respect to the mens rea… the test is whether the assistance is rendered solely to the purchaser or, cast in different terms but arriving at the same result, whether the ‘acts are designed to aid the purchaser’.”

The court provided a summary to assist in determining whether a person committed a trafficking offence.

<[W]hen the charge is trafficking and the theory of the Crown is that the accused is guilty of trafficking either as a principal or as a party, the analytical framework to apply is as follows:

(a) Has the accused committed any acts of trafficking in his or her own right?

(b) If no, did any acts or omissions of the accused aid or abet the trafficker in the commission of the offence of trafficking?

(c) If yes, do the facts reveal something more than incidental assistance to the trafficker through rendering assistance to the purchaser?

(d) If yes, did the accused know that the trafficker intended to commit the offence of trafficking?

(e) If yes, did the accused intend to aid or abet the trafficker in the commission of the offence of trafficking?> [para. 72]

The trial judge did not err in finding Machushek’s intent was to aid himself and the police officers in buying cocaine, not to aid the seller. The Crown’s appeal was dismissed.

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