A Yorkton man will not face a cocaine trafficking charge following a judge's ruling last week in Yorkton court.
Brady Baumgartner had been charged with trafficking for his role in facilitating an alleged drug transaction on November 23, 2012. The Crown argued that Baumgartner was a party to trafficking for aiding and abetting the seller in the transaction.
A preliminary hearing was scheduled to determine if there was enough evidence to support the trafficking charge. On January 17, Judge Ross Green ruled there was insufficient evidence.
"In my view the totality of the evidence at the preliminary inquiry-to use the words of Madam Justice L'Hereux-Dubé in [R. v.] Greyeyes-reveal(s) no more than incidental assistance of the sale through rendering aid to the purchaser," Green wrote.
Evidence from the preliminary hearing cannot be published because of a publication ban ordered by the judge. Names of some of the witnesses are also protected because they are under 18 years old.
Had the judge found in favour of the Crown's position, Baumgartner would have faced a mandatory minimum penalty of two years in prison following changes to the Controlled Drugs and Substances Act passed by Parliament in November.
Although Baumgartner dodged that bullet, he is not out of the woods, yet.
"I am, however-and without suggesting that the Crown has a strong case on this charge-satisfied, again referring to the words of Madam Justice L'Hereux-Dubé in Greyeyes, that the proper charge in these circumstances would be aiding and abetting the charge of possession of cocaine" Green wrote. "Therefore, I order the accused to stand trial on the charge that on November 23, 2012, at Yorkton, he was party to the indictable offence of possession of cocaine, contrary to s. 4(1) of the Controlled Drugs and Substances Act.
A trial date was not set. The defence originally elected trial by judge and jury at Court of Queen's bench, but Richard Yahlonitsky, Baumgartner's attorney, said they will likely elect trial by judge alone at Yorkton Provincial court on the possession count.
A conference between the Crown and defence is scheduled for February 19.
