COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Fairbarn, 2020 ONCA 784
DATE: 20201211
DOCKET: C64968
Doherty, Roberts and Harvison Young JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Tracy Fairbarn
Appellant
Cate Martell, for the appellant
David Quayat, for the respondent
Heard: November 26, 2020 by video conference
On appeal from the convictions returned on November 1, 2017 by a jury presided over by Justice P. Sutherland of the Superior Court of Justice, and from the sentences imposed on January 26, 2018, reported at 2018 ONSC 343.
By the Court:
overview
[1] The appellant was charged with four counts in a multi-count indictment:
• two counts of uttering a forged prescription for Fentanyl;
• one count of possession of Fentanyl for the purpose of trafficking; and
• one count of possession of stolen property.
[2] The appellant was convicted on the two uttering charges, and the possession of stolen property, but acquitted on the charge of possession of Fentanyl for the purpose of trafficking. The trial judge imposed a total sentence of 18 months. The appellant appeals conviction and sentence.
[3] For the reasons that follow, we would:
• Dismiss the conviction appeals on the uttering forged documents charges;
• Allow the appeal on the charge of possession of property obtained by theft and order a new trial; and
• Allow the sentence appeal on the uttering forged documents charges and vary the sentence to a conditional sentence of 12 months.
the evidence at trial
[4] This prosecution came out of a lengthy investigation focused on Adam Vickerson and Gavin Lambie. The Crown alleged Vickerson and Lambie operated a scheme in which they arranged for persons, often addicts, to use forged prescriptions to acquire Fentanyl patches. Vickerson created the forged prescriptions. Lambie recruited individuals who attempted to fill the forged prescriptions for Fentanyl patches at various pharmacies. The appellant was one of those individuals.
[5] Lambie was initially charged with Vickerson, but pled guilty a few months before the trial and became the main Crown witness. By the time the case got before the jury, Vickerson and the appellant were the only remaining accused. Of the 20 counts that went to the jury, Vickerson was charged with 19. The appellant was charged with four.
[6] In the course of the trial, the Crown led evidence of 25 transactions in which different people, under the direction of Vickerson and Lambie, obtained or attempted to obtain Fentanyl patches using false prescriptions at pharmacies. The appellant had nothing to do with any of these transactions. The Crown also led evidence of two incidents in which the Crown alleged the appellant was involved in obtaining or attempting to obtain Fentanyl using forged prescriptions.
[7] According to Lambie, the appellant, used a forged prescription in the name of “Tracy Hunter” to obtain 15 Fentanyl patches from a pharmacy on September 26, 2013. The appellant’s friend, Stephanie Goodfellow, testified the appellant sometimes used the name “Tracy Hunter”.
[8] Lambie testified the appellant went into the pharmacy and came out with 15 Fentanyl patches, gave Lambie 10, and kept the other 5.
[9] The doctor whose name appeared on the prescription testified he did not write the prescription and “Tracy Hunter” was not a patient of his.
[10] The jury convicted the appellant on the charge of uttering the forged prescription. They were satisfied the appellant presented a forged prescription in the name of “Tracy Hunter” to the pharmacist. The jury acquitted the appellant on the related charge of possession of Fentanyl patches for the purposes of trafficking. This verdict indicates the jury was not satisfied beyond a reasonable doubt the appellant was actually able to fill the forged prescription and deliver the Fentanyl patches to Lambie. The jury’s acquittal finds support in the absence of any documentation in the pharmacy’s records pertaining to the dispensing of Fentanyl patches to “Tracy Hunter” on September 26, 2013. In the normal course of the pharmacy’s business, that documentation should have been in the records if Fentanyl patches were actually sold to “Tracy Hunter”.
[11] The second incident involving the appellant occurred on September 30, 2013. According to Stephanie Goodfellow, the appellant asked her to take a prescription for Fentanyl to the pharmacy and have it filled for the appellant. The appellant asked Ms. Goodfellow to use a forged prescription in Ms. Goodfellow’s name to obtain the drugs for the appellant’s terminally ill father. The appellant made up a story explaining why she could not legitimately obtain the prescription herself.
[12] Ms. Goodfellow agreed to help her friend out. She attempted to fill the prescription, but when the pharmacist questioned the legitimacy of the prescription, Ms. Goodfellow panicked and left without obtaining the drugs.
[13] The doctor whose name appeared on the prescription testified Stephanie Goodfellow had never been a patient of his and he had not written a prescription.
[14] Lambie testified he knew the appellant found someone willing to fill a forged prescription. She had provided Ms. Goodfellow’s health card number to Lambie. Vickerson prepared the forged prescription in Ms. Goodfellow’s name. Lambie knew the prescription was not filled because Ms. Goodfellow had become frightened and left the pharmacy.
[15] The jury convicted the appellant of uttering a forged prescription in the name of Ms. Goodfellow.
[16] Count 3 charged the appellant alone with possession of property obtained by crime. This offence had no connection to the forged prescription scheme giving rise to the other 19 counts in the indictment.
[17] When the police arrested the appellant at her home, they found a box of documents in a closet in her bedroom. The documents belonged to her employer, Dr. Liquornik, and included referral letters from other physicians and patient test results. Some patients were identified by name. The documents were no longer part of Dr. Liquornik’s active patient files and would, in the normal course, have been shredded.
[18] Dr. Liquornik explained the documents were supposed to be shredded in the office. Although no one had permission to remove the documents from his office, Dr. Liquornik was aware that, on occasion, his employees took documents for shredding to the hospital where the documents could be destroyed much more quickly using the equipment there. Dr. Liquornik was not asked whether he was aware of any employees who took these documents to their home. He was also not asked whether it was any part of the appellant’s duties to shred documents at the office.
[19] The appellant did not testify. On the evidence, she was clearly in possession of the documents found in her closet. The Crown alleged she had stolen them from her employer. The Crown did not suggest a motive and did not contend the documents had any connection to the forged prescription scheme.
[20] The appellant’s trial counsel argued the appellant may have taken the documents from her employer’s office under the mistaken belief she was permitted to take those documents to the hospital to shred them. Counsel further argued the appellant may have taken the documents to her home, intending to take them on to the hospital. Counsel submitted, if the jury accepted this explanation or had a doubt about it, the Crown had not proved the appellant acted “fraudulently” and “without colour of right” and she could not be convicted of theft: Criminal Code, s. 322.
THE CONVICTION APPEAL
A. the alleged improper examination in-chief of the witness, lambie
[21] Lambie had pled guilty before the appellant’s trial commenced. He had not been sentenced, although the Crown and Lambie’s counsel had agreed to a joint submission of six years with a very substantial deduction for pretrial custody and time spent on bail. Lambie signed a 20-page statutory declaration purporting to outline his involvement in the scheme and indicating he was prepared to testify for the Crown.
[22] Early in Lambie’s examination in-chief, Crown counsel asked him whether he had received any benefit for testifying. Lambie said no. Crown counsel then reviewed the jail sentence Lambie would receive. Next, Crown counsel asked Lambie why he was testifying. Lambie indicated he was trying to change his life and do things the right way. He was now attending Narcotics Anonymous. The Crown asked whether there were any “triggers” to his decision to change his lifestyle. Lambie responded one of his best friends had died of a drug overdose. Crown counsel asked what drug had been involved and Lambie replied “Fentanyl”.
[23] Counsel for the appellant moved for a mistrial. He argued Crown counsel’s questioning was misleading and violated the rule prohibiting questions during examination in-chief designed exclusively to buttress the credibility of the witness.
[24] The trial judge dismissed the motion for a mistrial: R. v. Vickerson et al., 2017 ONSC 6168. On appeal, counsel renews the arguments rejected at trial.
[25] It is not necessary to explore the limits of the rule against oath-helping. In the circumstances of this case, there was absolutely no doubt Lambie would be cross-examined about his motives for pleading guilty and testifying, especially any benefit he may have received from the Crown in exchange for his testimony. In fact, Lambie was cross-examined at length about his “deal” with the Crown.
[26] If Crown counsel had not canvassed Lambie’s motives for pleading guilty and testifying during examination in-chief, Lambie’s cross-examination would inevitably have opened the door to the same questions by the Crown in reply. Given the centrality of Lambie’s motives for testifying to the defence, and the inevitability of that cross-examination, it is difficult to see how the appellant was prejudiced by the questions being put to Lambie in-chief, rather than in reply.
[27] As a matter of practice, Crown counsel should have outlined for the court his proposed line of questioning before he asked Lambie about his motives for testifying. Had he done so, the defence would have had an opportunity to put its position forward and the trial judge could have made a ruling setting the boundaries for the Crown’s line of questioning. In different circumstances, some of the questions asked by Crown counsel may have been improper and undermined the fairness of the trial.
[28] Crown counsel’s question, which elicited evidence that Lambie’s friend had died of a Fentanyl overdose, was unnecessary and potentially prejudicial. The Crown could have made Lambie’s reasons for testifying clear without identifying Fentanyl as the drug that had caused his friend’s death.
[29] Fortunately, the trial judge neutralized the potential prejudice when he told the jury:
The fact that there are people in our society that are addicted to Fentanyl and have died by overdose of Fentanyl are facts that are irrelevant to your determination of whether the Crown has proved beyond a reasonable doubt the offences charges against … Tracy Fairbarn.
[30] Counsel for the appellant also argues, apart from any improper oath-helping, Crown counsel’s questions of Lambie created a misleading picture which could not be cured on cross-examination. Counsel contends, that by eliciting Lambie’s evidence he received no benefit for his testimony, Crown counsel improperly put evidence before the jury he knew to be inaccurate.
[31] Counsel further submits the language used by the Crown in questioning Lambie about the sentence he was to receive misled the jury about the real length of the sentence Lambie would serve. Lastly, counsel argues the Crown erroneously told the jury Lambie had been sentenced when in fact he had not been sentenced before he testified.
[32] We would not give effect to these arguments. Lambie’s evidence that he received no benefit for testifying was difficult to believe. The incredulity of the answer does not, however, mean the Crown asked a misleading question. Crown counsel could not dictate Lambie’s answer. If Lambie did not consider the sentence he received a benefit, his answer was a truthful one, regardless of how incredible that answer may have seemed to the jury. Lambie’s evidence he received no benefit, arguably inured to the benefit of the defence. Certainly, it provided a reason for the jury to conclude Lambie was lying in his evidence. At a minimum, the answer opened the door to fruitful cross-examination.
[33] The Crown’s description of the sentence to be imposed on Lambie was arguably incomplete in that it did not identify the actual amount of time Lambie would spend in jail. The defence cross-examination, however, corrected any possible misapprehension the jury may have been under.
[34] Crown counsel did mistakenly indicate on more than one occasion Lambie had been sentenced before he testified. When Crown counsel’s error was pointed out, the trial judge allowed Crown counsel to tell the jury he had been mistaken, and Lambie had, in fact, not been sentenced when he testified. This correction avoided any potential prejudice.
[35] In summary, the Crown’s questions did not mislead the jury. The defence was able to fully cross-examine to clarify any inaccuracies or uncertainties. The cross-examination effectively revealed the apparent untruthfulness of some of Lambie’s answers. By the end of his testimony, the jury was well equipped to consider Lambie’s credibility.
B. the conviction on the charge of possession of stolen property
[36] The appellant submits the conviction for possession of stolen property is unreasonable. She also contends the jury instruction was inadequate.
[37] We would not give effect to the first argument. The appellant’s defence on this charge required the jury have a reasonable doubt on two things. First, the jury had to have a doubt whether the appellant mistakenly believed she was authorized to remove the documents from her employer’s office. Second, the jury had to have a doubt whether she intended to take the documents found in her bedroom closet to the hospital for shredding. If the jury did not have a reasonable doubt on both factual questions, the appellant’s defence on this charge would fail.
[38] A defence based on a mistaken belief is difficult to make out when the accused does not testify. There was no evidence the appellant was aware people were taking documents from her employer’s office for shredding, and no evidence shredding documents was any part of the appellant’s duties. While her employer’s testimony provided an evidentiary basis for the defence advanced, the evidence in support of the defence was far from compelling. It cannot be said any reasonable jury, properly instructed, would have been left with a doubt about the appellant’s guilt. The verdict was not unreasonable.
[39] We do, however, accept the appellant’s second argument. The jury instructions on this count were inadequate.
[40] The trial judge had a difficult task. He had to instruct the jury on 20 different charges. To assist the jury, he organized the counts by reference to offences that shared common elements, and he gave the jury written schedules summarizing the evidence on each of the specific counts.
[41] Following the format outlined above, the trial judge instructed the jury on a theft charge involving Vickerson only, immediately before he instructed the jury on the charge alleging the appellant was in possession of stolen medical records. The theft charge against Vickerson alleged he stole a prescription pad from a doctor’s office. His liability on that count turned entirely on whether he had taken the pad. If Vickerson took the prescription pad, he was guilty of theft. There was no other defence available.
[42] When instructing the jury on the theft charge against Vickerson, the trial judge described all of the elements of the offence of theft, including the requirement that the taking be “fraudulent” and “without colour of right”. Neither of those elements of the offence were in issue on the theft charge against Vickerson.
[43] On the charge the appellant was in possession of stolen property, unlike the theft charge against Vickerson, the taking of the documents was not in issue. Again, unlike the theft charge against Vickerson, the appellant’s state of mind was central to whether she had committed theft and was in possession of stolen property.
[44] In his instructions on the charge of possession of stolen property, the trial judge said nothing about the elements of the offence of theft, presumably because he had just reviewed those elements when instructing on the theft charge against Vickerson. The trial judge did not tell the jury that to convict it must conclude the appellant’s taking of the documents was done “fraudulently” and “without colour of right”.
[45] The failure to instruct the jury on the meaning of the words “fraudulently” and “without colour of right”, and to relate those concepts to the evidence and the positions of the parties, was non-direction amounting to misdirection. It was particularly important the jury be told that an honest belief by the appellant she was authorized to take the documents from the doctor’s office and have possession of the documents at her home was a defence, even if the belief was mistaken. The jury could not properly determine the appellant’s guilt on this charge without those instructions. The conviction cannot stand.
C. the instructions to the jury
[46] The appellant takes issue with two aspects of the jury instruction. First, she alleges various errors in relation to the Vetrovec instruction as it applied to Lambie. Second, the appellant submits the trial judge failed to adequately instruct the jury that each count in the multi-count indictment must be considered separately. The appellant argues the trial judge should have told the jury that evidence relating to the counts involving Vickerson only was inadmissible against the appellant and that the evidence on each of the two uttering forged document charges against the appellant had to be considered separately. The Crown had not argued that evidence on one count was admissible on the other count.
[47] The trial judge gave a Vetrovec instruction in respect of several Crown witnesses who played various roles in the forged prescription scheme. We do not accept the reference to the other witnesses as Vetrovec witnesses necessarily watered down the instruction as it applied to Lambie. We do accept, however, Lambie should have been singled out for a more focused Vetrovec warning. On the evidence, there was very strong reason to believe Lambie had received a more lenient sentence in exchange for testifying in support of the Crown’s case. He was a quintessential Vetrovec witness for that very reason. The trial judge should have highlighted this concern when explaining the dangers associated with relying on Lambie’s evidence.
[48] The trial judge also should have distinguished between the appellant and Vickerson when outlining to the jury evidence that was capable of confirming Lambie’s evidence. In a trial involving more than one accused, evidence can be confirmatory of an accomplice’s evidence as against a specific accused, only if the potential confirmatory evidence is admissible against that accused: see R. v. Perciballi (2001), 2001 CanLII 13394 (ON CA), 154 C.C.C. (3d) 481 (Ont. C.A.), aff, 2002 SCC 51, [2002] 2 S.C.R. 761. For example, evidence from a person involved in one of the forged prescription transactions that did not involve the appellant, and which tended to confirm Lambie’s evidence in respect of that transaction, could not confirm Lambie’s evidence as it related to the two transactions said to involve the appellant.
[49] The shortcomings in the Vetrovec instruction were not fatal. The jury’s verdicts indicate it understood the danger in relying on Lambie’s evidence alone. The jury acquitted the appellant on the charge of possession of Fentanyl for the purposes of trafficking. That charge depended entirely on Lambie’s evidence the appellant delivered the Fentanyl patches to her. The jury convicted on the related charge of uttering a forged document. There was confirmatory evidence on that charge from Ms. Goodfellow. The jury also convicted on the uttering charge involving the appellant’s attempt to have Ms. Goodfellow fill a forged prescription. Lambie did give evidence about the transaction involving Ms. Goodfellow. His evidence, however, played a secondary role. Ms. Goodfellow’s evidence, which was not seriously challenged in many respects, was the key evidence on this count. The verdicts tell us the jury got the message about the dangers inherent in relying on Lambie’s evidence alone.
[50] The appellant’s argument the trial judge failed to adequately protect against the misuse by the jury of evidence relevant only to the charges against Vickerson has merit. In the end, however, we think the charge adequately addressed that concern.
[51] The trial judge repeatedly told the jury to consider the count separately. The format of his charge effectively separated the charges. The trial judge also identified the evidence relevant to each charge and provided the jury with a separate schedule for each count summarizing the relevant evidence. The trial judge did not, as he could have in a case like this in which most of the evidence was admissible against only one of the two accused, expressly tell the jury that none of the evidence, except the evidence on the two counts on which the appellant was charged, was relevant to the appellant’s guilt.
[52] Once again, however, the verdicts provide cogent evidence the jury did address each count separately. The jury’s acquittal of the appellant on the charge of possession of Fentanyl for the purposes of trafficking indicates the jury was not swept along by improper propensity reasoning, based on all the evidence they had heard about the forged prescription scheme being operated by Vickerson and Lambie. The acquittal on that charge is a strong indicator the jury limited its consideration of the evidence to the evidence pertaining only to that transaction.
the sentence appeal
[53] The trial judge imposed concurrent 12-month sentences on the two uttering charges. He imposed a consecutive sentence of 6 months on the charge of possession of stolen property. As we would order a new trial on the charge of possession of stolen property, the fitness of the sentence imposed on that charge is no longer germane.
[54] The appellant submits the trial judge erred in sentencing the appellant on the basis she had “obtained” Fentanyl. Counsel submits the jury’s verdicts make it clear the appellant did not obtain any Fentanyl on either of the two occasions on which she used forged prescriptions in an effort to obtain Fentanyl. Crown counsel on appeal agrees the trial judge erred in indicating the appellant had “obtained” Fentanyl.
[55] The trial judge’s misdescription of the appellant’s conduct is significant. However, even though the appellant did not obtain any Fentanyl, the uttering offences remain serious. She attempted to illegally acquire a significant amount of a deadly drug, much of which was no doubt headed for the criminal marketplace. On a correct understanding of the facts, we are satisfied a sentence totalling 12 months for the two charges was not inappropriate.
[56] That brings us to the question of whether the sentence should be varied to a conditional sentence. In refusing a conditional sentence, the trial judge repeated his error by describing the appellant’s offences as involving the obtaining of Fentanyl. The only authority he referred to, R. v. Giannilos, [2016] O.J. No. 7004 (SCJ), involved an accused who had obtained a number of Fentanyl patches. The trial judge’s misapprehension of the evidence played a significant role in his decision that a conditional sentence was inappropriate.
[57] The trial judge fully set out the many mitigating factors applicable to the appellant and I need not repeat them here (R. v. Fairbarn et al., at para. 36). In addition to those factors, some three years have now passed since the appellant was sentenced. She has been on bail and there is no suggestion she has not complied fully with the terms of her bail. The court must also take into account the present circumstances. The pandemic certainly renders incarceration more difficult and potentially more dangerous than it was before March 2020.
[58] In our view, the circumstances now warrant the imposition of a conditional sentence of 12 months. We are confirmed in our view by Crown counsel’s acknowledgement during oral argument that a conditional sentence of one year would, in the particular circumstances of this case, be an appropriate sentence at this time.
[59] We would vary the sentence imposed to one of 12 months, concurrent on each count of uttering. The parties agree the sentence should also be varied to remove the victim fine surcharge: see R. v. Boudreault, 2018 SCC 58.
conclusion
[60] As indicated at the outset, we dismiss the conviction appeals on the two uttering charges, and vary the sentences on those charges to concurrent conditional sentences of one year. The conditional sentence shall contain the following terms:
• the appellant must not possess or consume any unlawful drugs or substances (as defined in the Controlled Drugs and Substances Act), except with a valid prescription in her name;
• notify the officer in charge (or designate) of her address in writing within 48 hours of any change in her address; and
• remain in her residence at all times except:
while travelling directly to and from and while attending at her place of work;
while travelling directly to and from and while attending unit 316, 43 The Queensway North, Keswick, Ontario;
while travelling directly to and from and while attending medical appointments for herself, her children, or her parents; and
each Thursday and Saturday, between the hours of 2:00 p.m. and 4:00 p.m., in order to acquire the necessities of life for herself, her children or her parents.
[61] We remove the victim fine surcharge.
[62] We order a new trial on the charge of possession of stolen property.
[63] It is clearly up to the Crown to decide whether to proceed with a new trial on the single count of possession of stolen property. We make two observations that may assist the Crown in the exercise of its discretion. First, had this court dismissed the appeal from the possession of stolen property charge, we would still have imposed a conditional sentence. Second, if any jail term is appropriate on the possession of stolen property charge, a sentence of about 30 days would be an appropriate sentence. We note the appellant has served 6 weeks.
[64] Counsel may address the question of bail pending trial with Justice Doherty by conference call or in writing.
Released: “DD” “DEC 11 2020”
“Doherty J.A.”
“L.B. Roberts J.A.”
“A. Harvison Young J.A.”