Court Information

Ontario Court of Justice

Date: 2017-05-23

Court File No.: Peterborough 15-1996

Between:

Her Majesty the Queen

— and —

Laurie Mood

Before: Justice S. W. Konyer

Heard on: April 11, 19, and May 18, 2017

Reasons for Judgment released on: May 23, 2017

Counsel

Ms. A. Kok — counsel for the Crown

Mr. T. Burgis — counsel for the defendant Laurie Mood

Judgment

KONYER J.:

[1] Laurie Mood was tried before me on a charge of stealing oxycocet tablets, the property of Maplewood Retirement Residence, on August 10, 2015, contrary to s. 334(b) of the Criminal Code. The parties agree that the value of the 30 tablets allegedly stolen is less than $5,000. The Crown's case against Ms. Mood is circumstantial. The Crown argues that the evidence in its totality demonstrates that the tablets in question were deliberately stolen, and that Ms. Mood, an employee of Maplewood at the time, had the exclusive opportunity to commit the theft. The defence concedes that the circumstantial evidence proves that the tablets were stolen by someone, but disputes that it was Ms. Mood, who testified in her own defence and denied committing the theft. Therefore, the only issue I need to decide is whether the Crown has proven beyond reasonable doubt that Ms. Mood is the person who stole the tablets.

[2] Like any accused person, Ms. Mood is presumed to be innocent of the charge. This only changes if the Crown proves her guilt beyond a reasonable doubt. Proof beyond a reasonable doubt does not mean proof to an absolute certainty, which is an impossible standard, but it does mean more than proof of probable or likely guilt. If the evidence only satisfies me that Ms. Mood is probably or likely guilty, I must find her not guilty as the Crown would have failed to prove her guilt beyond reasonable doubt. A reasonable doubt is not a frivolous doubt; rather, it is a doubt that is derived from the evidence or lack of evidence. At the end of the day, the question I must ask myself is whether I am sure that Ms. Mood committed this theft. If I am sure, I must find her guilty; otherwise I must find her not guilty.

[3] In this case, Ms. Mood has testified in her own defence that she did not steal the tablets. Clearly, if I believe her testimony I must find her not guilty. Even if I do not believe Ms. Mood's testimony, if it leaves me with a reasonable doubt when assessed in the context of all of the evidence I heard at trial, then I must find her not guilty. Further, even if I am not left with a reasonable doubt by Ms. Mood's testimony, I must still go on to consider whether the Crown has proven the case against her beyond reasonable doubt on the basis of the evidence that I do accept.

[4] Since the Crown's case against Ms. Mood is circumstantial, I must decide what facts have been proven and determine what inferences are reasonably available from the proven facts. I can only convict her if I am satisfied that her guilt is the only reasonable inference that can be drawn from the evidence as a whole. If an inference other than that Ms. Mood is the person who stole the tablets is reasonably available from the evidence as a whole, then I must find Ms. Mood not guilty.

Facts

[5] The facts of this case are straightforward. Ms. Mood worked as an Unregulated Care Provider (UCP) at Maplewood Retirement Residence. There, UCPs were responsible for dispensing medications, including narcotics, to the roughly 60 residents. Maplewood had policies and procedures in place designed to ensure that only the UCP on duty had access to narcotics prescribed to the residents. The policies ensured that new narcotic prescriptions were logged in on arrival, that they were counted three times daily by incoming and outgoing UCPs at shift changes, and that no one other than the UCP on duty had physical access to the locked box containing the narcotics. In fact, only one key to this box existed, and it was passed from one UCP to the next when shifts changed at 7:00 a.m., 3:00 p.m. and 11:00 p.m. daily.

[6] The 30 oxycocet pills which are the subject of the charge were prescribed to a resident named Geraldine Wheeler and delivered to Maplewood on July 27, 2015. These pills were prescribed in addition to a previous narcotic prescription for Ms. Wheeler, which at the time was partially used up. Ms. Wheeler was hospitalized the day after the new prescription arrived, and before any of these pills were dispensed. She remained in hospital until August 10. On that date she returned to Maplewood, but her medications were changed. In the interim, both of her narcotic prescriptions continued to be counted three times daily, and these counts were recorded on the narcotic count sheet kept for this purpose. Maplewood maintained a separate count sheet for each prescribed narcotic.

[7] The unopened package of 30 oxycocet pills was discovered missing on August 11, 2015 by Sherry Fido, the UCP who worked a regular day shift starting at 7:00 a.m. The second, partially used narcotic prescription for Ms. Wheeler, which had also been sitting dormant while she was in hospital, was present and accounted for. Ms. Fido, who worked the day shift regularly, remembered counting and recording the unopened package since it had been received, including at the end of her last shift at 3:00 p.m. the day before. Suspicious about the missing pills, Ms. Fido asked the outgoing UCP, Glenda Peddle, what had happened to the 30 oxycocet pills. This was at 7:00 a.m. on August 11. Ms. Peddle claimed to have no knowledge of these pills. When she checked the binder used to hold the narcotic count sheets, Ms. Fido discovered that the sheet for the 30 pill oxycocet prescription belonging to Ms. Wheeler was also missing.

[8] Although there were policies in place for the removal and destruction of discontinued medications, records were kept of prescriptions removed for destruction, and no such record existed for the pills in question. It could take days for discontinued medication to be removed for destruction, as this task was carried out by nurses who only worked part-time. The fact that Ms. Wheeler's other discontinued medication had not been removed also confirms that the missing pills had not been removed for the purpose of destruction. In fact, when Ms. Fido reported the matter to her supervisor, further investigation revealed that the packing slip for the delivery of this prescription on July 27, 2015, which are kept in accordance with policy, was missing also. In short, the pills themselves, as well as any documentary proof of their existence, had vanished.

[9] Since Ms. Fido remembered that there were 30 oxycocet pills in Ms. Wheeler's name at the end of her last shift on August 10 ending at 3:00 p.m., and since those pills and all records of their existence had vanished by August 11 at 7:00 a.m. when she started her next shift, focus naturally centered on the UCPs who worked the intervening two shifts, since they had custody of the only key for the locked narcotic box as well as knowledge of and access to the records maintained to track these pills. Ms. Mood worked the 3:00 p.m. to 11:00 p.m. shift on August 10, immediately after Ms. Fido remembered last counting these pills, and was followed by Glenda Peddle, who worked the night shift from 11:00 p.m. until 7:00 a.m. on August 11, when Ms. Fido came back on duty.

[10] During Ms. Fido's shift on August 10, she received information by fax that Ms. Wheeler was being discharged from hospital that day, and that her medications had been changed. As Ms. Wheeler had not yet returned from hospital by the end of her shift, she informed Ms. Mood of Ms. Wheeler's impending arrival and of the change to her medications. Ms. Fido recalled counting the 30 oxycocet pills from the earlier prescription at both the start and end of this shift.

[11] When Ms. Fido discovered the missing pills on August 11 at the start of her shift, she said she asked Ms. Peddle, the outgoing UCP, if she knew anything about the whereabouts of the pills and narcotic count sheet. Ms. Peddle, who had not worked a shift for several days, claimed she was not aware of this prescription. Ms. Fido did not take any further action until the end of her shift on August 11, when she reported her suspicions that someone had taken the pills and log sheet to her supervisor. They investigated, and discovered that the packing slip for the delivery of these same pills on July 27 was also missing.

[12] Ms. Fido then checked bins where bags of paper that had been shredded on site were stored for removal. She discovered a clear plastic bag containing shredded paper in a distinctive blue colour, which is the colour used for the narcotic count sheets. The remnants of this paper were recovered, pieced together by staff, and filed as an exhibit in this trial. Although incomplete, this document is clearly the narcotic count sheet for the 30 pill oxycocet prescription issued to Ms. Wheeler on July 27. In the same clear plastic shredder bag, remnants of the packing slip for the delivery of this prescription were also discovered.

Analysis

[13] Collectively, the evidence I have summarized leads to the logical inference that the pills were taken and the records removed and shredded by someone with knowledge of and access to all of these materials during the 16 hour period between Ms. Fido's shifts – August 10 at 3:00 p.m. and August 11 at 7:00 a.m. I reject as unreasonable the suggestion that some other employee bearing a grudge against Ms. Mood could have committed the theft in order to frame Ms. Mood. A person with this motivation would not have removed evidence that the crime had been committed, as this would defeat their entire purpose. The fact that the records for the missing pills were removed and shredded also effectively eliminates the possibility that the pills were taken by another resident or visitor to Maplewood. The evidence convinces me that the theft and attempted cover-up could only have been carried out by one of the two UCPs working between Ms. Fido's shifts – Laurie Mood or Glenda Peddle.

[14] I also reject the argument that the theft and cover-up could have been committed by another employee during a period when the cart used to dispense medications from room to room, as well as the narcotic box, was left unlocked. There is no evidence that Ms. Peddle dispensed medications in this manner between 11:00 p.m. and 7:00 a.m., which is presumably when the elderly residents would be sleeping for the most part. Ms. Mood did dispense medications during her shift, and testified that she would often leave the medication cart and narcotic box unlocked to save time during this process. She also said this was common practice, a claim disputed by the three UCPs and supervisor who testified for the Crown. At the end of the day, I do not have to resolve this conflict in the evidence, for even if another employee was able to gain access to the pills themselves, it was the responsibility of the UCPs alone to record the pill count and to maintain records by saving the packing slips when new medications were delivered. There is no evidence that other employees like PSWs or the part-time contract employees referred to in the evidence would have had knowledge of or access to these records, which were stored separately in locked offices. The only reasonable inference I can draw is that this theft was committed by a UCP, with knowledge of the record-keeping procedures and the means to remove these records.

[15] Ms. Peddle testified as a witness for the Crown. She confirmed her initials on the narcotic count sheet for the second, partially used narcotic medication for Ms. Wheeler at the start and end of her shift on August 10-11. She said that when she was relieved at 7:00 a.m., that Ms. Fido asked her about a second prescription for Ms. Wheeler. At that time, Ms. Peddle had not worked as a UCP for several days. She said that there was no second prescription for Ms. Wheeler when she took over from Ms. Mood at 11:00 p.m. on August 10.

[16] The narcotic count sheet for the unused prescription of 30 oxycocet pills, which was recovered from the shredder bag, is, unfortunately, incomplete. Although I can determine that it is the record for the missing pills, and I can discern the date, count, and staff initials for many days, the entries that should be present for August 10 are incomplete. I can make out three date entries for August 9, which would correspond to the three shifts that day, but on the following rows there are no date entries for August 10. There do, however, appear to be entries in the count column which match up to the rows that ought to correspond with August 10. There also appear to be entries in the "checked by" column that correspond to entries that ought to be present for August 10, including a handwritten "L", which Ms. Mood confirmed is her initial. This appears in the "Checked By – Outgoing" column corresponding to Row # 43, which ought to have been the row filled out when she turned over UCP duties to Ms. Peddle on August 10, 2015 at 11:00 p.m. The column under the date heading, however, appears to be blank, while the count column and the "Checked By – Incoming" column are missing.

[17] The narcotic count sheet is a record made in the ordinary course of business to accurately record the quantity of medication in each prescription. Ms. Fido testified that the missing pills were present and accounted for at least twice on August 10, 2015 – at the start of her shift at 7:00 a.m. and the end of her shift at 3:00 p.m. – yet there are no corresponding date entries for August 10. The Crown's theory is that Ms. Fido committed this theft and removed the count sheet before the end of her shift at 11:00 p.m. on August 10, yet her initial appears on the count sheet in a row corresponding to an entry for the end of her shift. Although it is impossible to reach any firm conclusions due to the damaged and incomplete condition of the narcotic count sheet for this prescription, the information it does contain could support an inference that either the pills were not present at all on August 10, which is why no date entries appear, or that they were present at the end of Ms. Mood's shift at 11:00 p.m. that day, which is why her initial appears in the corresponding row.

[18] I tend to believe the testimony of Ms. Peddle that she did not take the pills. I prefer her testimony to that of Ms. Mood, who was at times evasive in her responses and whose version of events on key points has shifted between answers given to her employer at the time of their investigation and her testimony at trial. I do not believe Ms. Mood's denial that she took the pills.

[19] The evidence persuades me that the theft was committed by either Ms. Mood or Ms. Peddle. If I had to guess, I would choose Ms. Mood as the likely culprit. She had the opportunity to commit what would have been the perfect crime. She knew that Ms. Wheeler was returning from hospital with changes to her medication so that the old oxycocet prescription, which had never been used, was now superfluous. She had the knowledge and ability to remove all records of this prescription, and she had the opportunity.

[20] A criminal trial, however, is not a guessing game. The law requires me to find any accused person not guilty if I am only satisfied of their probable or likely guilt. Ms. Mood is not the only person who had the necessary knowledge and opportunity to commit this offence. If the narcotic count sheet had shown that the last count of the missing pills occurred at 3:00 p.m. on August 10, that would have been powerful evidence that the pills went missing during Ms. Mood's shift. However, the remnants of this sheet, depending on how one interprets the incomplete information contained on it, arguably shows that either no entries at all were made on August 10 (which would suggest the theft occurred on August 9), or that a count was done at the end of Ms. Mood's shift on August 10 (which would suggest that the pills were still present at the end of her shift). At the end of the day, I cannot reject Ms. Mood's denial when I consider her testimony in the context of all of the evidence. I cannot be sure that she committed this theft, and she is found not guilty.

Released: May 23, 2017

Signed: Justice S. W. Konyer