COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vickerson, 2020 ONCA 434

DATE: 2020-07-02

DOCKET: C66462

Doherty, MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adam Vickerson

Appellant

Counsel:

Dirk Derstine and Geoff Haskell, for the appellant

David Quayat, for the respondent

Heard: in writing

On appeal from the convictions entered on November 1, 2017 and the sentence imposed on February 9, 2018 by Justice Phillip Sutherland of the Superior Court of Justice.

REASONS FOR DECISION

[1] The appellant was convicted by a jury of theft under $5,000, five counts of possession of fentanyl for the purpose of trafficking, conspiracy to traffic fentanyl, and ten counts of uttering a forged document. He was sentenced to 10 years incarceration.

[2] He appeals his convictions and sentence on several grounds relating to procedural fairness. He was self-represented and incarcerated throughout trial. He alleges that he was not sufficiently assisted by the trial judge and he did not receive access to the Crown’s digital disclosure because he had no computer access at the remand facility. In fact, he only received access to the digital materials entered as exhibits after the conclusion of evidence.

[3] The appellant submits that, in addition to the unfairness, the verdict is unreasonable, and acquittals should be entered on the five counts of possession for the purpose of trafficking and the conspiracy to traffic fentanyl. (He does not dispute possession of fentanyl).

[4] The Crown agrees that the appeal should be allowed due to the appellant’s lack of access to disclosure before and during trial. However, the Crown says that a new trial should be ordered.

[5] The appellant relies on R. v. Dillabough (1975), 1975 CanLII 1308 (ON CA), 28 C.C.C. (2d) 482 (Ont. C.A.), to support the submission that acquittals be entered.

[6] In Dillabough, the appellant was convicted of assault causing bodily harm on the man who was living with his estranged wife. He was given an intermittent sentence of 30 days. This court allowed the appeal because:

a. The trial judge had failed to consider a relevant statutory defence that was clearly available to the accused.

b. The trial judge made no credibility findings in a case where the Crown’s evidence and the defence evidence diverged significantly.

c. The trial judge received evidence from the appellant’s wife who was not competent to testify.

d. The trial judge did not find the essential facts which had to be determined by him before he could determine guilt or innocence.

[7] Instead of ordering a new trial, this court entered an acquittal saying, at page 483: “We also have in mind that the appellant has already served three weekends out of a 30-day intermittent term, being the sentence imposed by the Judge for this offence. Under these circumstances it would be inappropriate to direct a new trial.”

[8] We do not agree that, because appellant has served a portion of his sentence, he should be acquitted of the trafficking charges. The fact that an appellant has served a portion of the sentence is not a stand-alone basis to substitute an acquittal for a new trial: see Brouillard Also Known As Chatel v. The Queen, 1985 CanLII 56 (SCC), [1985] 1 S.C.R. 39, at para. 32.

[9] Nor do we accept that the verdict was unreasonable. There is evidence on which a properly instructed jury could convict the appellant. The police investigated the appellant and his associates pursuant to an investigation called ‘Project Tango and Cash’, which targeted distributors of fentanyl. In December 2013, police executed search warrants and arrested approximately 25 suspects in connection with the investigation. They seized a cellphone from which approximately 9,500 text messages were extracted, along with various photographs, some of which included pictures of the appellant. There was circumstantial evidence that the appellant had possession of the phone. The Crown alleges that the appellant had forged prescriptions, filled them at various pharmacies and trafficked.

[10] The conviction appeal is allowed, and a new trial is ordered on all counts. It is unnecessary to consider the sentence appeal under the circumstances.

“Doherty J.A.”

“J.C. MacPherson J.A.”

“M.L. Benotto J.A.”