Court of Appeal for Ontario

Date: April 3, 2019 Docket: C63047

Strathy C.J.O., Rouleau and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Sean Forrester Appellant

Counsel:

• Stacey Alexander Taraniuk, for the appellant
• Brian G. Puddington, for the respondent

Heard: March 4, 2019

On appeal from the conviction entered by Justice Gregory M. Mulligan of the Superior Court of Justice on September 29, 2016, with reasons reported at 2016 ONSC 8209.

By the Court:

[1] Overview

The appellant was convicted on three counts of trafficking in fentanyl, contrary to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and three counts of knowingly using a forged document, contrary to s. 368(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. He appeals his convictions, asserting principally that the trial judge failed to assist him in his defence and misapprehended aspects of the evidence. For the reasons that follow, we allow the appeal from the conviction for trafficking on October 30, 2013 and dismiss the remainder of the appeal. In oral argument, the appellant placed greater weight on some of the submissions made in his factum, rather than others. We will only address the principal submissions.

Background

[2] The Scheme

The charges related to the appellant's alleged participation in a scheme to obtain and use forged prescriptions for fentanyl patches. The prescriptions were filled at several pharmacies in Barrie, Ontario. One such prescription was issued in the name of the appellant, "Sean Forrester".

[3] The Architects

The architects of the scheme were Grenville Sinclair, who was a friend of the appellant, and Raymond Godreau. They were assisted by Julie Baks, a medical assistant in a doctor's office in Barrie, with whom Sinclair had a romantic relationship. The doctor himself was not involved in the scheme.

[4] The Modus Operandi

The scheme involved Godreau recruiting "patients", who provided him with their health card numbers and other personal information, such as birth dates, addresses, and phone numbers. He typically passed this information to Sinclair who, in turn, gave it to Baks. Sometimes Godreau passed the information directly to Baks. Baks created a patient "profile" on the doctor's computer system, issued an electronic prescription for fentanyl in the name of the phoney patient, and forged the doctor's initials on the prescription. Having done so, she erased the patient profile. Baks then gave the forged electronic prescription to Sinclair.

[5] Distribution

Sinclair, in turn, gave the forged prescription to Godreau, who gave the prescription to the "patient" named on it, who then had it filled at a pharmacy and delivered the drugs to Godreau in exchange for cash. Godreau made the patches available for illicit sale on the street. Each prescription was for the maximum dosage a doctor could prescribe – three batches of 15 patches over a three-month period.

[6] Scale of the Scheme

Approximately 19 fraudulent prescriptions were issued under this scheme. Baks, Sinclair, and Godreau were eventually arrested, tried, and convicted for their involvement. Sinclair was sentenced to a nine-year penitentiary term.

[7] The Appellant's Prescription

Baks was fired by the doctor for stealing petty cash from the office, an allegation unrelated to the false prescription scheme. On her last day of work on August 30, 2013, she issued a prescription in the name of Sinclair's friend, the appellant Sean Forrester.

[8] Filling the Prescription

The prescription was filled at a Shoppers Drug Mart in Barrie on August 30, September 30, and October 30, 2013.

[9] The Central Issue at Trial

The key issue at trial was identity – namely, whether the appellant himself had attended at the pharmacy to have the prescription filled, or whether someone falsely presented himself as "Sean Forrester" in order to do so. Sinclair, who by the time of trial had pleaded guilty to his involvement in the scheme, testified that he had recruited the appellant to participate in the scheme, obtained his health card information, gave it to Baks, obtained the prescription and drove the appellant to the pharmacy on August 30, 2013 to have the first instalment of the prescription filled. Baks testified that she had prepared the prescription in the appellant's name at Sinclair's request. The pharmacist and his assistant testified as to their general protocols for filling prescriptions and identifying patients. Neither had any specific recollection of dealing with the appellant, but their records indicated that an individual representing himself to be "Sean Forrester" attended at the pharmacy with the prescription.

[10] Sinclair's Evidence

Sinclair gave two statements to the police. He admitted to lying in the first, but claimed that the second was truthful. Sinclair testified at trial that on August 30, 2013, he asked the appellant if the appellant would like to participate in the scheme, and the appellant said yes. Sinclair obtained the appellant's health card information and personal information directly from him. They drove that same day to the doctor's office, Sinclair got the prescription from Baks, and they drove to the pharmacy. The appellant had the prescription filled, paying for it with cash provided by Sinclair, and then Sinclair paid the appellant approximately $500 to $700 in cash in exchange for the drugs. Sinclair testified that he did not recall paying the appellant when the prescription was filled a second time on September 30, 2013. He also did not recall receiving the third batch on October 30, 2013.

[11] The Appellant's Defence

The appellant testified in his defence. He maintained that he did not participate in the scheme, and claimed that Sinclair must have used his health card or health card information. He could not recall where he was on the various dates the prescriptions were filled. He claimed that his health card had been lost, or stolen, possibly by Sinclair.

Reasons of the Trial Judge

[12] Trial Judge's Approach

The trial judge identified the central issue as whether there was reasonable doubt that the appellant went to the pharmacy on August 30, September 30, and October 30, 2013 to have the prescription filled. He instructed himself on the principles in R. v. W.(D.), [1991] 1 S.C.R. 742, in applying the presumption of innocence and the burden of proof and those in Vetrovec v. The Queen, [1982] 1 S.C.R. 811, in relation to the assessment of Sinclair's evidence. He accepted Sinclair's evidence as truthful and supported by his long friendship with the appellant. Sinclair's evidence was also supported by the manner in which the scheme was carried out, and by the procedures followed by the pharmacy to confirm patient identity.

[13] Trial Judge's Findings

The trial judge rejected the appellant's evidence, finding that he had a motive of financial gain, given his economic circumstances, and an opportunity in light of the evidence that he was off work on each of the three days. Despite his claim that he had lost his health card, there was no notation on the Ministry of Health and Long-Term Care's records that his card had been reported lost or stolen and he never replaced the card. The trial judge accepted Sinclair's evidence and found that the evidence as a whole left him with no reasonable doubt. He convicted the appellant on all counts.

Analysis

(a) Failure to Assist Self-Represented Accused

[14] The Appellant's Claim

The appellant claims that the trial judge failed to ensure that he had an opportunity to bring forward his defence and claims that the trial judge either misinformed him or failed to inform him about important aspects of his defence.

[15] The Duty to Assist

A trial judge has a duty to assist a self-represented accused and to guide him or her throughout the trial so that his or her defence is brought out with its full force and effect: R. v. Richards, 2017 ONCA 424, 349 C.C.C. (3d) 284, at para. 110; R. v. Chemama, 2016 ONCA 579, 351 O.A.C. 381, at para. 13; R. v. Tran (2001), 55 O.R. (3d) 161 (C.A.), at pp. 170-72; and R. v. McGibbon (1988), 45 C.C.C. (3d) 334 (Ont. C.A.), at p. 347. The scope of the duty depends on the particular circumstances of the case and is circumscribed by what is reasonable: Richards, at para. 111; Chemama, at para. 14; and R. v. Taubler (1987), 20 O.A.C. 64 (C.A.), at para. 30.

[16] Competing Duties

A trial judge, of course, has other duties, one of which is to ensure that the trial is effective, efficient and fair to both sides: R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 47; and R. v. Snow (2004), 73 O.R. (3d) 40 (C.A.), at para. 24. This includes ensuring that the trial does not become mired in irrelevant evidence and that the rules of evidence are applied fairly to both parties.

[17] Standard of Review

Failure to assist a self-represented accused is not an independent ground of appeal, but raises the possibility of an unfair trial or miscarriage of justice that may attract appellate intervention under s. 686(1)(a)(iii) of the Criminal Code: see R. v. Dixon, 2018 BCCA 181, at para. 44; R. v. West, 2010 NSCA 16, 288 N.S.R. (2d) 293, at para. 72; and R. v. Assoun, 2006 NSCA 47, 244 N.S.R. (2d) 96, at para. 264, leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 233. Not every breach of a trial judge's obligation to a self-represented accused will render a trial unfair or result in a miscarriage of justice. The Court of Appeal of Manitoba noted in R. v. Olenick, 2010 MBCA 107, 262 Man. R. (2d) 15, at para. 8, that it is the cumulative effect of any errors that the court needs to consider:

The determination of whether the trial judge's assistance was inadequate and compromised the accused's ability to bring out his defence is arrived at by considering a number of factors. To begin with, the court takes into account the totality of the circumstances, including the sophistication of the accused, the seriousness of the offence and the nature of the defence. The entire trial record is reviewed, including, in this case, the many pre-trial conferences that occurred. It is the cumulative effect of the errors that is looked at in order to determine whether the self-represented accused's ability to properly defend his case resulted in a miscarriage of justice. [Emphasis added.]

[18] Application to This Case

The court must determine whether at the end of the day, the accused had a fair trial or whether, on the contrary, a miscarriage of justice has occurred. In this case, having reviewed the trial record and the appellant's arguments, we are satisfied that the trial was fair.

[19] The Appellant's Sophistication and Trial Preparation

The appellant's arguments must be considered in the context of the trial as a whole. The record discloses that the appellant is intelligent and articulate and had a good understanding of trial procedure and of the issues that had to be addressed. There were three days devoted to preliminary matters, six days of evidence and one day of closing submissions. At the outset of the trial, six days before the appellant was arraigned, the trial judge provided him with a detailed 22-page memorandum concerning trial procedures, important principles of criminal law, the essential elements of the offences with which he was charged, his right to examine witnesses and to call evidence, and certain rules of evidence, among other things. The trial judge read the memorandum into the record. The memorandum noted that if the appellant had questions during the course of the trial, he could raise them at any time. Significantly, in light of the arguments made by the appellant in this court, the memorandum highlighted in two places the need to challenge the evidence of a Crown witness whose evidence the appellant intended to contradict – i.e., the rule in Browne v. Dunn (1893), 6 R. 67 (H.L. (Eng.)).

[20] Trial Judge's Ongoing Assistance

The record shows that the trial judge's assistance continued throughout the trial, including giving the appellant appropriate opportunities to prepare for the examination of witnesses and for his own evidence. The record indicates that the appellant was actively involved in his trial, cross-examining and examining witnesses, raising evidentiary issues, and making focused and informed submissions in the course of the trial and in his closing argument.

[21] Key Issues Identified

Finally, the record demonstrates that the appellant was aware that the key issues at trial were the veracity of Sinclair's claim that the appellant participated in the offences, and whether Sinclair or some person other than the appellant had the prescription filled at the pharmacy. Central to the resolution of these issues was the appellant's whereabouts on the days of the offences and how Sinclair obtained the appellant's health card information.

[22] The Appellant's Principal Arguments

In this context, the appellant makes three principal arguments: (i) the trial judge refused to permit him to "refresh" his memory concerning his whereabouts on the dates referred to in the indictment; (ii) the trial judge misinformed him about his ability to adduce "alibi" evidence; and (iii) the trial judge invoked the rule in Browne v. Dunn, and drew an adverse inference from the appellant's failure to confront Sinclair, a Crown witness, with contradictory evidence during cross-examination.

(i) Refreshing Memory

[23] The Appellant's Claim

The appellant claims that the trial judge failed to correct his misapprehension that he was not entitled to refer to his text messages to determine his whereabouts on August 30, September 30 and October 30, 2013 when he was alleged to have had the fentanyl prescription filled at the pharmacy.

[24] Court's Finding

We do not accept this submission. Based on the pre-trial conference, the information supplied to him by the trial judge, and the manner in which the evidence was developed at trial, the appellant understood that his opportunity to commit the offences was an important evidentiary issue. The Crown had led evidence to show that he was not at work on the dates in question and had the opportunity to commit the offences. He knew that he was entitled to call evidence to establish that he was in some other place at the time of the alleged offences. The appellant was not deprived of an opportunity to present evidence of his whereabouts at the time of the offences. He has not established that his defence would have been assisted by reference to his text messages, which he could obviously have reviewed in preparing to give his evidence.

(ii) Alibi

[25] The Appellant's Claim

The appellant says that the trial judge's explanation of "alibi" evidence was misleading and may have caused him to refrain from crucial lines of cross-examination, because he mistakenly believed that he was required to give prior notice of an alibi to the Crown. Specifically, the trial judge stated "an alibi is basically indicating that you could not do it because you … were not there, or someone else did it or something like that. It is showing that you were incapable of committing the offence because of whatever circumstances."

[26] Additional Instruction

In addition to this instruction, the trial judge gave the appellant a standard form of jury instruction on the meaning of an alibi.

[27] Court's Finding

We do not accept the appellant's submission. There is no indication that he was unaware of his entitlement to show that he could not have committed the offences because he was in some other location at the material times. Nor is there any indication that he somehow curtailed his cross-examination of Sinclair. He had, in fact, given notice of a potential alibi from a woman who he claimed was with him at the time of the alleged offence on August 30, 2013. The police interviewed her and took her statement – a statement that did not particularly assist the appellant. The appellant was aware that he could call the woman as a witness and there was some discussion that he might do so, but it never happened.

[28] Conclusion on Alibi

The appellant conducted the trial and made submissions to demonstrate that Sinclair was responsible for the offences and he was not. The trial judge's description of the meaning of "alibi" did not affect the appellant's right to a fair trial.

(iii) The Rule in Browne v. Dunn

[29] The Appellant's Claim

The appellant submits that the trial judge breached his obligation to assist him and erred in law in applying the rule in Browne v. Dunn by drawing an adverse inference as a result of his failure to cross-examine Sinclair concerning the "discovery" of the missing wallet.

[30] The Missing Wallet Evidence

The issue arose in the following manner. The appellant testified in-chief that in May 2013 he lost his wallet while out with Sinclair and others. His wallet had contained his non-photo bearing red and white health card, and other identification. He reported the wallet missing to police in Barrie and Elora. He testified that when replacing his driver's licence, he told a clerk at Service Ontario that he also lost his health card, but did not take the necessary steps to replace his health card. He did not report the missing health card to the Ministry of Health and Long-Term Care, and it was not flagged as lost or stolen in the Ministry's records. The Ministry's records adduced at trial indicated that the card had not been used during the period in question.

[31] Late-Breaking Evidence

After he had completed his evidence, the trial judge ordered a recess to give the appellant an opportunity to decide whether there was anything else he wished to say. After the break, the appellant testified, for the first time, that at some time Sinclair had telephoned him to say that he (Sinclair) had found the missing wallet, but failed to return it to the appellant. This late-breaking evidence was clearly designed to show that the appellant could not have committed the offences and that Sinclair did.

[32] Trial Judge's Response

The trial judge immediately reminded the appellant of his instructions about the rule in Browne v. Dunn and pointed out that he had not asked Sinclair about the missing wallet. The appellant acknowledged that he had not, but pointed out, correctly, that the Crown had put the question to Sinclair. The discussion then turned to the potential confirmatory evidence of another witness, whom the appellant ultimately did not call.

[33] The Appellant's Argument

The appellant says that the trial judge should have informed him that although he was entitled to draw an adverse inference from the failure to cross-examine Sinclair on the point, it was discretionary and there were other alternatives, including permitting Sinclair to be re-called so the question could be put to him.

[34] The Rule in Browne v. Dunn

The rule in Browne v. Dunn is a rule of trial fairness. It requires a party cross-examining a witness to give notice to a witness whose credibility the cross-examiner intends to later impeach: R. v. Dexter, 2013 ONCA 744, 313 O.A.C. 226, at paras. 4, 17-22. The effect to be given to a breach of the rule is in the discretion of the trial judge, having regard to all the circumstances. It may include permitting counsel to recall the witness whose evidence has been impeached without notice. It may also include taking into account the failure to cross-examine when assessing the credibility of the party who failed to cross-examine: R. v. Paris (2000), 150 C.C.C. (3d) 162 (Ont. C.A.), at para. 22.

[35] Trial Judge's Application

In his reasons for judgment, the trial judge made preliminary references to several legal principles, noting that "[t]he rule in Browne v. Dunn … is instructive when the cross-examination or lack of cross-examination of a Crown witness, in this case, Mr. Sinclair, is considered in the light of subsequent defence evidence from Mr. Forrester." He referred to the rule again in his reasons, noting that the appellant did not ask Sinclair any questions about whether he impersonated the appellant or had possession of the appellant's wallet. Still later, the trial judge noted that in his own evidence, the appellant claimed that Sinclair had told him that he (Sinclair) had found the appellant's wallet, but that the appellant had never put this evidence to Sinclair during cross-examination. The trial judge took into account the appellant's failure to cross-examine Sinclair as one of a number of reasons for his acceptance of Sinclair's testimony and his rejection of the appellant's, and why he was not left in reasonable doubt by the balance of the evidence.

[36] Court's Finding

We find no error in the exercise of the trial judge's discretion in drawing an adverse inference from the appellant's failure to cross-examine Sinclair on the issue of the allegedly missing wallet. The appellant's defence rested on his theory that Sinclair had had the prescription filled and had used his health card without his permission. The trial judge clearly brought home to the appellant the importance of challenging a witness on evidence he proposed to impeach. Most of the appellant's cross-examination of Sinclair was peripheral to the theory of the defence. He was given a full and fair opportunity to put that theory to Sinclair but never did so. Instead, he attempted to impeach Sinclair's credibility in other ways. The trial judge was not required to instruct the appellant on how to conduct his cross-examination of Sinclair. We dismiss this ground of appeal.

(b) Misapprehension of Evidence

[37] Overview

The appellant claims that the trial judge's misapprehension of certain features of the evidence undermined his conclusions and permits appellate intervention. We will address only the principal alleged misapprehensions identified in oral argument.

(i) The Health Card

[38] The Appellant's Claim

The appellant asserts that the trial judge failed to consider the appellant's "compelling narrative of the lost health card", which we outlined above, as raising a reasonable doubt about his guilt. In our view, the trial judge did not misapprehend the appellant's evidence; he simply did not accept it. He referred at length to the appellant's evidence concerning the loss of his wallet and the health card, as well as to the evidence that there was no notation on the Ministry of Health and Long-Term Care's records that the card had been reported lost or stolen.

[39] Credibility Assessment

As we have noted, the appellant never cross-examined Sinclair with respect to his assertion that Sinclair had possession of his health card. Indeed, he did not cross-examine Sinclair on most of his evidence concerning the appellant's involvement in the offences. This, together with the appellant's late-breaking story about Sinclair "finding" the wallet, explains why the trial judge did not find the appellant's narrative "compelling", and why he concluded that it did not raise a reasonable doubt.

(ii) The Modus Operandi of the Scheme

[40] The Appellant's Claim

The appellant says that the trial judge erred in finding that the execution of the scheme in the appellant's case was consistent with the execution of the scheme in other cases, and supported Sinclair's evidence that the appellant committed the offences. He argues that his case was different from the norm because, in all other cases, it was Godreau who recruited the phoney "patients", supplied them with the prescription and received the drugs from them. This was the only case in which Sinclair recruited the "patient" and received the drugs.

[41] Trial Judge's Analysis

The trial judge was alive to the fact that this was the only case in which Sinclair was the recruiter and in which he provided Baks with information concerning a friend. The trial judge mentioned this fact at several points in his reasons. What was consistent with the modus operandi of the overall scheme was that in every case, it involved the health card information of a real person, a prescription made out to that person using his or her personal information, and that same real person attending at the pharmacy and producing the necessary personal information to obtain the drugs. The participation of the real person was necessary in light of the more stringent procedures used at the pharmacy for the acquisition of "monitored" narcotic drugs like fentanyl.

[42] Court's Finding

The trial judge did not misapprehend the evidence. He understood that while this case was not an exact template of the procedure used in other cases, the differences were not material. What was important was that the scheme relied on the use of the health information of real individuals who could use their own photo identification cards ("IDs") to obtain the forged prescriptions and have them filled.

[43] Conclusion

For these reasons, we reject this ground of appeal.

(iii) Procedures at the Pharmacy

[44] The Appellant's Claim

The appellant says that in finding that he, rather than an imposter, attended at the pharmacy to have the prescription filled, the trial judge misunderstood the procedures used at the pharmacy for the identification of customers.

[45] Sinclair's Evidence

Sinclair's evidence was that on the first occasion, August 30, 2013, he himself drove the appellant to the pharmacy and the appellant personally acquired the drugs. The appellant's evidence was that he did not do so, and suggested that either Sinclair or someone else must have had the prescription filled.

[46] Physical Differences

The trial judge expressly accepted Sinclair's evidence on this issue. He noted, among other things, that Sinclair was six feet two inches tall and 33 years old. The appellant was five inches shorter, ten years older and had a different build. The inference was that Sinclair's own photo ID could not have been used to have the prescription filled in the appellant's name.

[47] Pharmacy Procedures

The pharmacist and his assistant could not speak to what actually occurred on August 30, 2013 or on the other two dates, but testified that their normal practice was to require photo ID. If the person having the prescription filled could not produce photo ID, they would normally call the doctor's office to confirm the prescription. In fact, Sinclair and Baks testified that a forged prescription was always filled immediately so that Baks was on hand in the doctor's office in case the pharmacist called to query it. In this case, there was no notation in the pharmacy records to indicate that photo ID had not been produced or that the doctor's office had been contacted.

[48] Court's Finding

The trial judge was entitled to infer from this evidence that photo ID had been used to have the prescription filled and that, consistent with the modus operandi of the scheme, the real person named on the prescription was able to have the prescription filled using his or her own photo ID. He was also entitled to find that, in this case, the real person was the appellant. The trial judge did not misapprehend the evidence.

Disposition

[49] Decision

We accept the appellant's submission that there was no evidence to support the appellant's conviction for trafficking on October 30, 2013 given Sinclair's evidence that he could not recall having received the third batch of fentanyl patches from the appellant. We accordingly allow the appeal with respect to the conviction on that count only, quash that conviction, and enter an acquittal in its stead. We dismiss the appeal on the other counts. The outcome of this appeal does not alter the appellant's sentence, including the three years' incarceration, concurrent on all counts.

Released: April 3, 2019

"G.R. Strathy C.J.O."

"Paul Rouleau J.A."

"B.W. Miller J.A."