A Yorkton provincial court judge reserved his decision June 6 following the continuation of a cocaine trafficking trial. At trial February 27, Judge Pat Koskie granted the adjournment to the Crown on a technical argument regarding the introduction of phone records to rebut the testimony of defence witnesses.
During the day-long February hearing, two undercover RCMP operatives—who cannot be named pursuant to a publication ban—testified that Jeremy Machushek, a local construction worker, had offered to help them buy drugs and acted as a go-between in a cocaine deal on January 12, 2013.
The officers alleged that after negotiating the purchase with Machushek at a local bar, they had driven him home, where he invited them in so he could make a phone call to a dealer. He made the call, they said, and arranged a meeting on Seventh Avenue to buy two grams of cocaine. They testified Machushek had insisted on handling both the cocaine and money, although there was some inconsistency in their separate recollections as to who handled what and when, which defence attorney Richard Leland focused on during cross-examination.
Leland also aggressively pursued a line of questioning regarding the alcohol consumption of the two officers. At the continuation June 6, the defence attorney characterized their answers as evasive and suggested the only person who was not intoxicated the evening of the drug buy was Machushek’s friend, who testified on his behalf in February.
The officer’s testimony agreed, however, that after making an initial purchase of two grams, the three of them decided they were one gram short. Machushek, they alleged, made a second phone call from the truck and they swung back around to pick up another gram from the same dealer.
Taking the stand in his own defence, Machushek rebutted the officers’ version of events saying it was they who approached him about getting coke and that he repeatedly told them he could not help them. He did, however, accept a ride home, and agreed to let them come in the house at their insistence, he said.
In his home, he testified, he had made one phone call, not to a dealer, but to his friend, the second defence witness, who he had been with at the bar.
She would later corroborate that story on the witness stand.
Continuing, Machushek said the officers continued to ask him about getting cocaine to which he again replied he couldn’t help, but told them he had heard through the grapevine about an area downtown where drugs were readily available and that they should go check it out for themselves.
Eventually, he testified, he let himself be badgered into showing the officers the location, where they made a purchase. Machushek insisted he never handled any money or drugs and that he didn’t even know what the officers had purchased. He also insisted he had not made a second phone call saying he didn’t even have his phone with him in the truck.
Prosecutor Shane Wagner pounced on the testimony about the phone calls during cross-examination seeking to introduce phone records to rebut Machushek’s and the second witness’ testimony.
Leland objected questioning whether it was appropriate for the Crown to introduce evidence it had not seen fit to include in its case against his client.
Wagner argued the Crown is entitled under the Evidence Act to bring rebuttal evidence when something they did not expect arises from the defence case.
Leland said whether the issue rose out of rebuttal or not, the defence should have been given notice of the Crown’s intent to use the phone records.
Judge Patrick Koskie agreed with the Crown that the issue arose properly out of rebuttal, but that he wanted time to review the rules, for the defence to be properly notified and for the Crown to obtain a properly authenticated version of the phone records.
When the trial resumed last week, Wagner re-introduced the phone records arguing that no phone calls to the second defence witness appeared, but several calls to another number did. He said this undermined the credibility of both Machushek and the other defence witness.
During closing arguments, the prosecutor referred to Section 21 of the Criminal Code that states: Every one is a party to an offence who… does or omits to do anything for the purpose of aiding any person to commit it; or… abets any person in committing it.”
Wagner said even if the judge chose to believe the defence evidence, Machushek acted as a middleman between the dealer and the buyers and was thus guilty of trafficking.
He used an analogy of a hypothetical murder charge in which the accused calls the hit man, arranges a meeting and drives the victim to scene of the crime suggesting if that were the scenario facing the Court there would be no question the defendant would be a party to the murder.
Leland had an analogy of his own at the ready saying that under Section 21 it matters, in fact, is vital, who a third party is abetting, the dealer or the buyer. He said that if someone were to call up Canadian Tire on behalf of a friend to find out if an item is in stock and then drive the friend to the store to make the purchase, the third party is clearly helping the buyer, not the seller.
The defence also called into question why, if, as the officers testified, Machushek had handled the cocaine, the Crown did not produce any evidence, such as fingerprints. Another officer, who had acted as evidence handler in the undercover operation, had testified in February that police had not attempted to lift fingerprints from the baggies the drugs came in. Leland said it was unlikely Machushek could have made the purchase because he was sitting in the back seat of a truck without access to a door or window. The attorney suggested the police had made their case fit the case law and called their evidence “convenient.”
Leland also pointed out that the Crown had not introduced any evidence for two counts of possession of the proceeds of crime. Koskie had questioned Wagner on that point, as well. The prosecutor explained that having allegedly handled the money used in the deal he had been in possession of the proceeds. The judge said he held a different view from the Crown on that.
Finally, Leland dismissed the phone records as having no probative value as they matched neither the defence’s nor the Crown’s evidence.
Koskie reserved his decision saying he wanted to have time to review the trial transcripts. He set August 15 for his decision.