COURT OF APPEAL FOR ONTARIO

CITATION: R. v. King, 2013 ONCA 417

DATE: 20130620

DOCKET: C54081 and C55948

Before: Rosenberg, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tracy King

Appellant

Counsel:

Tracy King, acting in person on the conviction appeal

Vincenzo Rondinelli, as duty counsel on the conviction appeal

Yoni S. Rahamin, for the appellant on the sentence appeal

Andrew Wiese, for the respondent

Heard: January 14, 2013

On appeal from the conviction entered on May 19, 2011, by Justice R.M. Thompson of the Superior Court of Justice, sitting with a jury, and the sentence imposed on June 23, 2011, with reasons reported at 2011 ONSC 3957.

Epstein J.A.:

[1] The appellant appeals her conviction, following a trial by judge and jury, of six counts of uttering a forged document and six counts of trafficking in a controlled substance. She also seeks leave to appeal and, if leave is granted, appeals the sentence imposed of 42 months.

A. BACKGROUND

[2] The basis of the charges can be briefly summarized as follows.

[3] The appellant, while employed by a doctor as a nurse/receptionist, created false prescriptions for oxycodone. She did this at the request of her brother, Jason Witte. With the forged prescription in hand, Mr. Witte or one of his accomplices, would go to various pharmacies and falsely held themselves out to be the person named in the prescription. In this fashion a substantial number (estimated to be approximately 500) of oxycodone pills were illegally obtained.

[4] Mr. Witte was subsequently arrested and pleaded guilty to possession for the purposes of trafficking (and some unrelated offences). At the appellant’s trial, he gave evidence on the Crown’s behalf. He implicated the appellant in the scheme, testifying that the appellant would fax false oxycodone prescriptions to pharmacies, and then he or an associate would go to the pharmacy to pick up the pills. Mr. Witte explained that he gave the appellant cash to compensate her for her participation in the enterprise.

[5] The prosecution relied on additional evidence, including the testimony of the police officers who arrested the appellant and reviewed pharmacy security footage; the testimony of one of the appellant’s colleagues, Bernice Ewart; the testimony of the appellant’s employer, Dr. Robert Marsden; statements the appellant gave to the police at the time of her arrest; and a prescription for oxycodone the police found in the appellant’s purse.

[6] The appellant neither testified nor called evidence in her defence.

[7] In the conviction appeal, through duty counsel the appellant advances two arguments. First, the appellant’s statements to the police constituted exculpatory evidence requiring the trial judge to instruct the jury on the principles in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. The appellant argues that the trial judge’s failure to do so constitutes reversible error. Second, duty counsel submits that since the appellant did not “cause” the oxycodone to be dispensed, she cannot be held liable under the common law doctrine of innocent agent. Consequently, the trafficking verdicts are unreasonable.

[8] In her sentence appeal, the appellant submits that the trial judge erred by imposing a sentence that was excessive, particularly given her lack of previous involvement in the criminal justice system and other personal circumstances. She further contends that the trial judge erred by failing to apply the parity principle. The appellant’s position is that a fit sentence falls within the reformatory range and a conditional sentence ought to have been imposed.

[9] I would dismiss the conviction appeal. First, I am satisfied that the charge, read as a whole, gave the jury the tools it needed concerning the appropriate burden and standard of proof. Second, I am not persuaded by the appellant’s unreasonable verdict argument. In my view, the evidence established an “uninterrupted causal nexus” between the appellant and the pharmacists who dispensed the oxycodone pills. Consequently, the jury was permitted to rely on the doctrine of innocent agent to convict the appellant, as a principal.

[10] With respect to the sentence appeal, in my opinion, particularly in the light of the serious breach of trust, the sentence of 42 months is well within the range. The trial judge did not err in failing to impose a conditional sentence - it was not open to him to do so. I come to this conclusion notwithstanding Mr. Witte’s global sentence of 36 months. I see nothing disparate between the two sentences, having regard to the differing aggravating and mitigating factors.

B. ANALYSIS

(1) The Conviction Appeal

(a) Did the trial judge commit a reversible error in failing to include W.(D.) instructions?

[11] In W.(D.), at pp. 757-758, Cory J. set out what is now the commonly-used jury instruction on reasonable doubt:

A trial judge might well instruct the jury on the question of credibility along these lines:

• First, if you believe the evidence of the accused, obviously you must acquit.

• Second, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.

• Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by the evidence of the guilty of the accused.

[12] Post-W.(D.), there was uncertainty as to whether the W.(D.) instruction was required beyond cases where the accused testifies and his or her evidence conflicts with that of prosecution witnesses.

[13] In R. v. B.D., 2011 ONCA 51, 271 O.A.C. 241, this court resolved the uncertainty. At para. 114, Blair J.A., for the court, concluded that the principles underlying W.(D.) have a “broader sweep”. Where credibility findings must be made on a ”vital issue” concerning which there is conflicting evidence favourable to the accused, whether raised by the Crown or defence, the trial judge must relate the concept of reasonable doubt to those credibility findings.

[14] In the appellant’s statements to the police, she made a series of exculpatory comments. She repeatedly told the police that she did not “do it” and that “it was not [her]”. The appellant submits that, based on B.D., a W.(D.) instruction was required.

[15] The Crown takes issue neither with this proposition nor with the appellant’s submission that a passage containing the familiar W.(D.) formula cannot be found in the charge.

[16] However, in circumstances such as this, where W.(D.) is necessary, the question is not whether the exact words suggested by Cory J. can be found. The question is whether the jury was properly equipped by having the appropriate burden and standard of proof explained to them. In this case I would answer that question in the affirmative.

[17] The charge was replete with passages instructing the jury that the Crown bore the burden of proving the appellant’s guilt beyond a reasonable doubt, that burden never changed and that the jury had to consider all of the evidence in deciding whether the Crown had met this burden. At p. 102, the trial judge specifically instructed the jury as follows:

If you decide that Tracy King made remarks that may help her in her defence, or if you cannot decide whether she made them, you will consider that statement, along with the rest of the evidence, in deciding whether you have a reasonable doubt about Tracy King’s guilt.

[18] In my view, the trial judge did not suggest that the jury’s task was to choose between two versions of events. In fact, given the nature of this case – the evidence and the issues for the jury’s determination – the jury was not required to make such a choice. The jury had the Crown’s evidence from which they could conclude that the appellant was involved in the distribution of oxycodone. They had no other version – only the appellant’s denial that she was involved.

[19] In these circumstances, I am satisfied that the charge, read as a whole, properly explained to the jury the appropriate burden and standard of proof. I would therefore not give effect to this ground of appeal.

(b) Was the trafficking verdict unreasonable?

[20] Duty counsel submits that the appellant’s conduct does not amount to trafficking since the actual distribution of the narcotics, an essential element of the offence of trafficking, depended on the independent actions of a pharmacist.

[21] This argument engages the common law doctrine of innocent agency. Under this doctrine, criminal liability may attach to a person who does not personally commit the elements of the offence where the person intentionally causes some or all of the elements of the offence to be committed by another person innocent of the offence. A finding of criminal liability through innocent agency is contingent on the degree of control the accused has over the various essential elements of the offence.

[22] The classic example of innocent agency is employing unwitting drug mule. In this example, the offender asks a dupe to transport a package into the country. Unbeknownst to the dupe, the package contains illegal narcotics. Once the dupe is caught, neither the dupe nor the offender would be guilty of importing narcotics under the standard rules for principal liability – the dupe lacks the mens rea (assuming no wilful blindness) while the offender has not personally committed the actus reus. Under the innocent agent doctrine, the offender is held liable because he “caused” the innocent agent to commit the actus reus.

[23] Duty counsel, relying on this court’s decision in R. v. Verma (1996), 1996 606 (ON CA), 31 O.R. (3d) 622, argues that the innocent agent doctrine does not apply on these facts. In Verma, the accused was a physician who was approached by an undercover officer posing as a patient. The officer requested and received a prescription for codeine. During the following two weeks the officer returned on two occasions and received prescriptions in exchange for $40 each time. The officer then requested prescriptions in the name of his ‘girlfriend’, Ingrid Floyd, who did not exist. Dr. Verma wrote three prescriptions in the name of ‘Ingrid Floyd’ in exchange for $40 per prescription. Dr. Verma was subsequently charged with trafficking in codeine relating to the ‘Ingrid Floyd’ prescriptions. The trial judge acquitted Dr. Verma on the basis that he had not committed the actus reus of trafficking.

[24] This court dismissed the Crown appeal. Finlayson J.A. held, at para. 34, that to be liable under the innocent agent doctrine, “actions of the innocent agent must be controlled by or directly attributable to the acts of the principal.” In Verma, the doctor merely provided the means by which the “patient” was able, at his own discretion, to obtain narcotics from a pharmacist of his choice. Most importantly, the doctor did not, by signing the prescription, “cause” the pharmacist to fill the order. In short, “the intervention of a non-innocent purchaser” disrupted Dr. Verma’s liability.

[25] The Crown, relying on R. v. Devgan (2007), 2007 50113 (ON SC), 226 C.C.C. (3d) 312 (Ont. S.C.), argues that Verma is distinguishable. Dr. Devgan participated in a scheme whereby he would write prescriptions for narcotics and fax them to a pharmacy to be filled. An accomplice would then pick up the pills, sell them, and split the proceeds with Dr. Devgan. One particular pharmacist filled many of the fraudulent prescriptions. At various times, the pharmacist confirmed the details with Dr. Devgan personally or someone in his office.

[26] The trial judge found that Dr. Devgan could be held liable on the innocent agent doctrine. At para. 35, he distinguished Verma on the basis that “the person who obtained the prescriptions was not working in league with Dr. Verma. Thus, the undercover officer decided which pharmacist he would take the prescriptions to without any input or involvement with Dr. Verma.” In contrast, in Devgan there was “an uninterrupted causal nexus between Dr. Devgan and the pharmacist” (at para. 36). In other words, Dr. Devgan (personally or through his accomplice) directed the pharmacist to fill the prescription, in contrast to Dr. Verma who never directed a pharmacist to do anything.

[27] In my view, this case is more in line with Devgan than with Verma. The appellant initiated the illegal enterprise by forging a prescription for oxycodone. She then directly faxed it to pharmacists who reasonably believed that a doctor had ordered the prescription. By filling the prescriptions, the pharmacists had unwittingly committed the actus reus of the offence of trafficking in oxycodone. The pharmacists’ actions were “directly attributable” to the appellant’s acts; there was an “uninterrupted causal nexus” between the appellant’s acts of forging the prescriptions and sending them to the pharmacists and the pharmacists’ acts of filling the prescriptions. In this manner the pharmacists were innocent conduits through which the appellant trafficked in oxycodone. The doctrine of innocent agent applies to bring the appellant’s conduct into the scope of the trafficking activity.

[28] I would therefore not give effect to this ground of appeal.

(c) Conclusion – conviction appeal

[29] For these reasons I would dismiss the appellant’s conviction appeal.

(2) The Sentence Appeal

(a) Sentencing Proceedings

[30] Before the trial judge, counsel for the appellant argued in favour of the imposition of a sentence within the reformatory range, to be served in the community. He relied heavily on the following facts:

• the appellant was a first-offender;

• she is a caring mother of three teenaged sons, one of whom faces significant challenges primarily arising from the effects of ADD; and

• she is highly motivated by education and career aspirations that may lead to a career in law.

[31] The Crown, sought a term of imprisonment in the range of four to five years. The Crown relied on the seriousness of the offences – forgery and trafficking in a large number of a highly addictive Schedule 1 substance and the significant breach of trust.

[32] At the outset of his reasons, the trial judge recognized that the appellant did not personally sell drugs. Rather, she used various pharmacists as innocent agents to facilitate the trafficking she engaged in with Mr. Witte and his accomplices.

[33] The trial judge emphasized the appellant’s “serious breach of trust in using her employer’s position to obtain an advantage for herself”, and observed that this conduct “caused considerable damage to the reputation of her own profession and to the personal integrity of her employer.” The trial judge noted that the appellant’s mother, also a nurse in Dr. Marsden’s office, lost her job as a result of this criminal conduct. Furthermore, the offences were committed for money rather than because of any medical problem as the appellant has no addiction problems. The trial judge also highlighted the insidious nature of oxycodone.

[34] The trial judge identified various mitigating factors. The appellant, a first offender, had “a rough go at life”, enduring physical abuse during childhood and at the hands of the fathers of her children. The trial judge was aware that a period of incarceration would have a significant impact on the appellant’s ability to care for her children. She is the single mother of three teenaged sons who have difficulties: one of her sons struggles considerably with the effects of ADD. The trial judge also noted the appellant’s intelligence and her motivation to complete university and attend law school.

[35] Acknowledging the importance of the principles of denunciation and general deterrence, and having regard to the totality principle, the trial judge sentenced the appellant to 42 months for each count, to be served concurrently, yielding a sentence of three and a half years.

(b) Fresh Evidence

[36] With the Crown’s consent, the appellant filed fresh evidence. The appellant provided an affidavit updating the progress she has made since she was sentenced, in furthering her education. The fresh evidence also provided additional detail about the appellant’s sons. A psychologist gave more information about the one son who continues to struggle with various psychological issues. Another affidavit speaks to the fact that the appellant is unable to identify anyone who will look after her children were she to be incarcerated.

(c) Analysis

(i) Principles Relevant to Appellate Review of Sentences

[37] Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, this court should only intervene if the sentence is demonstrably unfit: see R. v. C.A.M., 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 90; R. v. L. M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 14.

[38] In R. v. Ramage, 2010 ONCA 488, 265 O.A.C. 158, at para. 70, Doherty J.A. noted that appellate deference to the sentencing judge’s decision makes sense for many reasons, including the advantage he or she has in being able to assess the severity of the crimes in the context of the particular community – in this case the small community of Owen Sound. In the words of Doherty J.A., the trial judge, is “much better placed to determine the sentence needed to adequately protect the community than is [this court] sitting at a distant place often years [in this case 4 years] removed from the relevant events”.

[39] The trial judge’s discretion should not be interfered with lightly.

(ii) Was the sentence excessive?

[40] The appellant’s overarching submission is that the trial judge erred in failing to consider a conditional sentence. She argues that the paramount principles influencing the determination of a fit sentence in this case are specific deterrence and rehabilitation. With these objectives in mind, and particularly given she is a first-offender, the appellant argues that the trial judge should have considered all other dispositions before imposing a custodial sentence.

[41] The problem with this submission is that it is only appropriate to consider a conditional sentence if the trial judge properly rejects probationary measures and a penitentiary term as the appropriate sentence: see R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 58. By deciding on a sentence outside the reformatory range, a conditional sentence was not available.

[42] This observation begs the question of whether the 42-month sentence was manifestly unfit, the issue upon which counsel for the appellant focused in oral argument and to which I now turn.

[43] The answer involves an examination of the circumstances of the offence and the offender, and the application of the provisions of s. 718 of the Criminal Code as illuminated by the jurisprudence.

[44] In my view, in the circumstances of this case, it cannot be said that the sentence of 42 months, or any sentence outside of the reformatory range, is manifestly unfit.

[45] The offence of trafficking in oxycodone is serious – this one particularly so. It was carefully crafted. It involved several people – those who knowingly participated in the criminal enterprise and others who were unwittingly involved. The offences were committed on a number of occasions over a period of three months. For financial gain, the appellant took advantage of the doctor for whom she and her mother worked, and facilitated the distribution of a large quantify of highly addictive dangerous drugs into a small community.

[46] The appellant points to a number of cases involving trafficking of oxycodone where the offender received a lower sentence, and in some cases, a conditional sentence. These cases are distinguishable in two main respects.

[47] First, the appellant was convicted not only of trafficking in oxycodone, but also of six counts of uttering forged documents. Forgery is a very serious crime by itself. In R. v. Scott, 2007 ONCA 231, this court upheld a sentence of 12 months’ imprisonment for a husband who forged his wife’s signature 26 times, leading to a loss of approximately $114,994.07. In upholding the sentence, this court stressed, at para. 2, “the breach of trust here and the planning and deliberation that went into the scheme, denunciation and general deterrence were paramount[,] and that a conditional sentence would not satisfy those principles.” Those words apply with equal force to this case.

[48] Second, the cases cited by the appellant do not involve the significant aggravating factor of breach of trust, an enumerated aggravating factor under s. 718.2(a)(iii) of the Criminal Code: see R. v. Pierce (1997), 1997 3020 (ON CA), 32 O.R. (3d) 321, at para. 48.

[49] In my view, the case that is most helpful in determining a fit sentence for the appellant is R. v. Domke, 2006 ABPC 252, 400 A.R. 112. In that case, the accused was a youthful first offender who worked as a prison guard. Inmates intimidated him into trafficking approximately 600 pills of prescription drugs in the prison. Domke was charged with four counts of possession for the purposes of trafficking. Allen Prov. Ct. J. stressed the accused’s breach of trust in imposing a harsher penalty and sentenced the accused to 5 years of imprisonment. This sentence was imposed despite a confession upon arrest, a guilty plea, and the hardship a former prison guard would face in prison.

[50] The facts of this case, considered in the light of the relevant sentencing principals and the jurisprudence involving crimes of trafficking in oxycodone, uttering forged documents and breaches of trust, support the exercise of the trial judge’s discretion in sentencing the appellant to 42 months imprisonment.

[51] The fresh evidence speaks forcefully to the appellant’s many challenges and her many strengths. While this evidence, particularly the evidence relating to her children’s needs, is relevant to the determination of a fit sentence, it adds little to the evidence available to the trial judge that he clearly considered. As a result , the fresh evidence does not affect my view of the trial judge’s exercise of discretion.

(iii) Did the trial judge err in failing to apply the parity principle?

[52] The parity principle is codified in s. 718.2(b) of the Criminal Code. The principle requires that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances: see Clayton Ruby, Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008), at para. 2.21.

[53] The appellant submits that the trial judge violated the parity principle by giving her a sentence (42 months) that was higher than the sentence Mr. Witte received (36 months). I disagree.

[54] Mr. Witte’s 36-month sentence has to be regarded in the light of the fact that this global sentence was imposed upon conviction following guilty pleas of charges set out in two indictments. He pled guilty to assault arising out of a domestic situation and possession of marijuana. On the information relating to the charges connected to the appellant’s charges, Mr. Witte pleaded guilty to four counts of possession of oxycodone for the purposes of trafficking. I observe that possession for the purposes of trafficking is a less serious offence that those for which the appellant was convicted – trafficking in a controlled substance.

[55] The trial judge was aware of the facts surrounding Mr. Witte’s conviction and sentencing. He was mindful of the similarities and of the differences between the offenders and the offences.

[56] While both were part of the same scheme designed to illegally obtain oxycodone for the purposes of trafficking and both were treated as first offenders, there were differences. Mr. Witte, unlike the appellant, took responsibility for his conduct. He confessed soon after arrest and co-operated with the police. He pleaded guilty. Also, Mr. Witte’s participation was influenced by his addiction to oxycodone.

[57] By contrast, the appellant was in it for the money. As the trial judge emphasized, the appellant illegally used her employer’s position as a doctor for personal financial gain. In doing so, she committed a serious breach of trust, the significance of which was discussed above.

[58] This comparison demonstrates that there were factors relevant to the determination of Mr. Witte’s sentence that supported leniency. These factors did not apply to the appellant. Similarly, there were aggravating factors in the appellant’s circumstances that did not apply to Mr. Witte.

[59] As a final comment I add that a fit sentence must be ascertained on an individual basis. It is therefore inappropriate to allow the parity principle, a principle that, by definition, considers another sentence imposed on another offender, to dominate the determination of a fit sentence. Parity does not require equal sentences. It requires “only understandable sentences when examined together”: R. v. Issa (1992), 57 O.A.C. 253, at para. 9.

(d) Conclusion – sentence appeal

[60] In my view, even with the fresh evidence in mind and having regard to the parity principle, a penitentiary sentence of 42 months imprisonment is a fit sentence. As a result, it was not open to the trial judge to consider a conditional sentence.

[61] For these reasons I see no reason to interfere with the sentence.

C. DISPOSITION

[62] I would dismiss the conviction appeal. I would grant leave to appeal sentence but dismiss the sentence appeal.

Released:

“MR” “Gloria Epstein J.A.”

“JUN 20 2013” “I agree M. Rosenberg J.A.”

“I agree P. Lauwers J.A.”