COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fitzsimmons, 2016 ONCA 107

DATE: 20160205

DOCKET: C57970

Watt, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Amy Fitzsimmons

Appellant

James E. Dean, for the appellant

Ruth McGuirl, for the respondent

Heard: January 25, 2016

On appeal from the conviction entered on June 21, 2013 and the sentence imposed on August 14, 2013 by Justice W.G. Rabley of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant was convicted of possession of Oxycodone for the purpose of trafficking and was sentenced to two years’ imprisonment. She appeals conviction and seeks leave to appeal sentence.

[2] The facts surrounding the conviction are as follows. The appellant was serving an intermittent sentence at the Elgin Middlesex Detention Centre (E.M.D.C.), which commenced on February 18, 2012. On six occasions, she was caught bringing prescription drugs into the jail. On each occasion she was and had been given misconducts by the staff.

[3] On February 28, 2012, the appellant brought 213 OxyNeo and 7 Cesamet pills into the E.M.D.C. The first 94 OxyNeo pills were found in two cylinder containers, which were hidden in the collar of the appellant’s coat. The remaining 119 OxyNeos and 7 Cesamet pills were located in the appellant’s underwear following a strip search.

[4] At trial there was no issue that the appellant possessed a controlled substance. The only question for determination was whether the Crown proved beyond a reasonable doubt that she possessed the Oxycodone for the purpose of trafficking.

[5] The appellant submits that the trial judge erred in finding that she had the requisite intent. In particular, she argues that the verdict was speculative and unreasonable, that the trial judge failed to properly apply the principles in R. v. W. (D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, and that he reversed the burden of proof.

[6] We would not give effect to these arguments.

[7] It was open to the trial judge to reject the appellant’s evidence based upon the conflicting testimony she gave on her bail hearing. There was also other evidence, including the quantity of pills and the way they were packaged, which supported a conviction. In these circumstances, the verdict was not unreasonable.

[8] We find no error in the W. (D.) analysis. The trial judge specifically considered the principles of W. (D.) and applied the three-step test. He rejected the appellant’s evidence, did not have a reasonable doubt as a result of it, and concluded based on the relevant evidence at trial that the Crown had proved its case beyond a reasonable doubt.

[9] There was also no reversal of the burden of proof. The trial judge simply found that the there was no credible evidence to support the defence’s theory that the pills were for the appellant’s personal use.

[10] With respect to the sentence appeal, trial judge committed no error in principle. The sentence is not demonstrably unfit. The trial judge considered the correct principles and the circumstances of the offence and the offender. The sentence falls within the appropriate range.

[11] The conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

“David Watt J.A.”

“P. Lauwers J.A.”

“C.W. Hourigan J.A.”