Twenty months after he was arrested in March 2013, Jeremy Machushek has been acquitted of cocaine trafficking and possession of the proceeds of crime charges.
At a hearing November 14 in Yorkton Provincial Court, Judge Patrick Koskie delivering the ruling, which he characterized as "the most difficult case I've decided since I've been here."
Machushek, a Yorkton construction worker, was one of 20 people caught up in a five-month, multi-agency undercover sting called Operation Fanalyst.
At his trial in February, two undercover RCMP officers testified they were playing pool at Pockets when Machushek offered to help them by drugs.
The officers alleged that after negotiating the purchase with Machushek at the 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 the money on the way to the buy and the cocaine on the way back.
In his own defence, Machushek testified it was the cops who approached him and badgered him until he agreed to show them where they could buy cocaine. He said the only call he made was to his friend whom he had been at the bar with earlier to let her know he got home safely.
"There are two completely different versions of the facts," Koskie stated as he began his oral decision. "Neither, quite frankly, are reconcilable with the undisputed phone records or physical evidence."
It was evident early on that the judge was headed to acquittal when he cited R. v. Greyeyes and the differences between that case and the one before the Yorkton Court.
Unlike Greyeyes, he said, Machushek had not negotiated the price, had not approached the officers, did not promote the deal, did not arrange to be paid prior to the buy and did not vouch for the buyer to the dealer.
Koskie also numerated inconsistencies in the officers' testimony. He said they did not account for how much money they started and ended with leading him to question the evidence given.
Secondly, he found testimony by one of the officers that the defendant had insisted on holding the money and the officer was worried Machushek might try to rip them off did not reconcile with the fact the accused was in the back seat of a pickup truck with no access to leave the vehicle or even open a window.
The judge then noted that both officers testified the buy occurred at Seventh and Darlington, but described the corner of Seventh and Smith.
Also, he said, one of the officers said Machushek insisted on holding all the drugs, which was a total of three grams, but also testified that the accused only held two grams.
Penultimately, Koskie compared testimony that Machushek had made two phone calls with phone records submitted by the Crown that showed he had made at least four to six calls in the timeframe in question.
Lastly the judge referred to testimony by both officers that Machushek had asked to be "pieced off" and they complied by giving him some cocaine out of one of the baggies. This, Koskie said did not jive with the physical evidence of two portions of coke that were identical in weight.
"The result is I have serious credibility issues with the Crown's version of events of the night in question," he said, noting that the Court must be mindful that the onus for proof beyond a reasonable doubt is on the prosecution and must not be shifted toward the defence.
That said, Koskie was also unimpressed with the defence.
"I would be remiss if I did not say that the defence's version of events on the night in question also provides this Court with significant doubts as to its veracity and credibility," he said.
Ultimately, though, he found in the defence's favour.
"Applying Greyeyes, in my mind, in this particular case, having regard to all the circumstances, the accused was facilitating a buy as a buyer," the judge said. "He actually was a buyer of cocaine on the night in question and not a seller and accordingly I find him not guilty of trafficking."
Koskie also dismissed the possession of proceeds charges saying he did not believe Machushek had received any money as a result of the transaction.
Following the verdict, federal prosecutor Shane Wagner asked the judge if there was now a lesser included charge of possession to deal with.
Koskie said he was prepared to listen to submissions, but told Wagner that he did not believe possession is a lesser included charge in trafficking citing Martin's Criminal Code, the textbook Drug Offences in Canada and numerous examples of case law.
The Crown attorney declined to argue it further, but commented it did not make sense.
The judge agreed saying he had seriously considered a guilty verdict on the lesser included anyway, but thought better of it given the literature and precedents.
Glenn Machushek, Jeremy's father, was happy with the decision, but remains angry saying "the damage is already done. Nothing can change that. He lost his career."
