2016 ONSC 8209
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
SEAN FORRESTER
R E A S O N S F O R J U D G M E N T
BEFORE THE HONOURABLE JUSTICE G.M. MULLIGAN
on September 29, 2016 at BARRIE, Ontario
APPEARANCES:
K. Jokinen
Counsel for the Federal Crown
Sean Forrester
In Person
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
WITNESSES
WITNESS:
Examination In-Chief
Cross- Examination
Re- Examination
EXHIBITS
EXHIBIT NUMBER
ENTERED ON PAGE
REASONS FOR JUDGMENT Page 1
Transcript Ordered: ....................March 5, 2018
Transcript Completed: ..................April 6, 2018
Ordering Party Notified: ...............April 6, 2018
THURSDAY, SEPTEMBER 29, 2016
THE COURT: Good afternoon.
MS. JOKINEN: Good afternoon, Your Honour.
THE COURT: Good afternoon. Good afternoon, Mr. Forrester.
SEAN FORRESTER: Afternoon, Your Honour.
THE COURT: I've been involved in a jury trial up in Bracebridge and I wasn't sure if I'd be able to make it today, but that matter concluded, so I was able to get here and thank you for allowing this slight delay today. I'm now going to read my verdict with respect to this matter. Yes, have a seat, sir. And it will take me a few minutes to read this, Mr. Forrester, so if you want to have a glass of water handy, that would be fine.
R E A S O N S F O R J U D G M E N T
MULLIGAN, J.: (Orally)
This matter proceeded as a judge-alone trial on a six-count indictment. Those counts related to two charges stemming from incidents occurring August 30th, 2013, September 30th, 2013 and October 30th, 2013. Counts one, three, and five allege that Sean Forrester trafficked in Fentanyl on the three dates in question. Counts two, four and six allege that Mr. Forrester knowingly used a forged electronic prescription on the same dates.
Mr. Forrester chose to represent himself with
respect to this matter. At the close of the Crown's case, he elected to call evidence. Prior to the trial beginning, the court issued rulings on applications brought by Mr. Forrester. At the conclusion of those rulings, Mr. Forrester re-elected to be tried by judge-alone. At the beginning of the applications, the court provided Mr. Forrester with detailed written instructions to assist him as a self-represented person through the anticipated applications, jury selection and trial. Those instructions were made a lettered exhibit prior to the trial.
The charges which Mr. Forrester faces stemming from an extensive police investigation named Operation Northbound relating to the procurement of fake Fentanyl prescriptions, the filling of those prescriptions at several pharmacies, and the eventual sale of Fentanyl patches as a street drug. One such false prescription was issued in the name of one “Sean Forrester.”
Background
In order to understand the charges against Mr. Forrester, it is necessary to describe the scheme that was developed and implemented by the principals in this operation.
The operation came to light because North Bay Police Services obtained search warrants for individuals in North Bay. Those individuals were found to have in their possession prescriptions for Fentanyl, issued by Dr. Alan Sacksen in Barrie. The matter was referred to Barrie Police Services, who conducted their own investigation. They attended at the doctor's office and the doctor's own audit of his records indicated that approximately 19 false prescriptions were issued from his office. None of those individuals to whom prescriptions were issued were actual patients of Dr. Sacksen. The apparent ring leaders of this scheme were Raymond Godreau and Grenville Sinclair. Mr. Godreau has been convicted for his role in this scheme and awaits sentencing. Mr. Sinclair pleaded guilty and was sentenced to nine years in custody, reduced by the Court of Appeal to eight years in R. v. Sinclair, 2016 ONCA 683. He gave evidence for the Crown at this trial. Crucial to this whole scheme was the fraudulent activity of Julie Baks. Ms. Baks found employment as a receptionist for Dr. Sacksen. As such, she had access to his computer records and was able to issue electronic prescriptions for any medications prescribed by the doctor.
Mr. Sinclair and Ms. Baks were involved in a relationship at the time of the scheme. Mr. Sinclair's role was to obtain health card and other pertinent personal information from his associate, Mr. Godreau. Generally, Mr. Godreau would obtain health card numbers, dates of birth, addresses, postal codes and phone numbers from associates or acquaintances, and provide this information on a piece of paper to Mr. Sinclair.
Mr. Sinclair would then attend Dr. Sacksen's office and provide this piece of paper, often hidden in a coffee cup, to Ms. Baks. Ms. Baks would then, using the doctor's computer, create a patient profile by inputting the health card number and other personal information. She would issue an electronic prescription with Dr. Sacksen's electronic signature and then immediately delete this new patient profile from the doctor's computer system. On the same day, she would provide this electronic prescription to Mr. Sinclair, who would then provide the false information to the individual named on the prescription. That person would then attend the pharmacy to have the prescription filled.
Barrie Police Services were able to determine that about a dozen different pharmacies in the Barrie area were used for this purpose. Mr. Sinclair would then receive the prescription once filled, pay the named individual and pass the Fentanyl patches on to Mr. Godreau, who would then make them available for sale on the street in North Bay. Each prescription was for the maximum dosage that a doctor could prescribe: 45 100 microgram patches to be dispensed as at 15 patches per month over a three-month period. That meant that the individual would initially get 15 patches and could again 30 days later for a further 15 patches with the final 15 patches being dispensed 30 days beyond that date.
Mr. Sinclair, Mr. Godreau and Ms. Baks thought they had created a fool-proof system, but that was not the case. Dr. Sacksen had a video camera located in his reception area. Ms. Baks was fired when he detected that she was stealing petty cash from the office. Her last date of work was August 30th, 2013. Video footage from that day showed Mr. Sinclair visiting Ms. Baks at work. On August 30th, 2013, she issued a prescription to one “Sean Forrester” and gave it to Mr. Sinclair. Sean Forrester was never a patient of Dr. Sacksen. Ms. Baks had never met Sean Forrester, but simply acted on the information provided to her by Mr. Sinclair.
Ms. Baks gave evidence in this trial about her involvement in the scheme. She was charged, pled guilty and was given a substantial penitentiary term. Mr. Sinclair also pleaded guilty and is currently serving a nine-year penitentiary term. Both testified for the Crown in this trial. Mr. Godreau was found guilty after trial and is currently awaiting sentencing. Other individuals involved in this scheme have been dealt with or are before the court. I pause to note that I was not the trial or sentencing judge for Godreau, Baks or Sinclair.
However, this trial's focus is on whether or not Sean Forrester is guilty of the charges before the court. The key issue is identity. Did Mr. Forrester attend at Shopper's Drug Mart on Young Street in Barrie on the dates in question to fill these prescriptions, or did someone falsely present himself as “Sean Forrester?” Mr. Forrester does not take issue with the inner workings of the scheme put in place by Sinclair, Godreau, and Baks. He simply denies his involvement in possessing or filling a fraudulent prescription issued in his name.
The Crown is required to prove every essential element of each count beyond a reasonable doubt. That onus never shifts. It is a fundamental principle of our criminal justice system that Mr. Forrester is not required to prove his innocence. Before beginning the trial, I reviewed the essential elements of these offences with Mr. Forrester. Counts one, three, and five relate to the possession of a substance for the purpose of trafficking, contrary to section 5(2) of the Controlled Drug and Substances Act, S.C. 1996, c.19 [CDSA]. To prove the essential elements of these counts, the Crown is required to prove each of the following elements beyond a reasonable doubt with respect to each count:
(i) that Mr. Forrester was in possession of a substance;
(ii) that the substance was Fentanyl;
(iii) that Mr. Forrester knew that the substance was Fentanyl; and
(iv) that Mr. Forrester had possession of Fentanyl for the purpose of trafficking it.
The second group of charges, namely counts two, four and six, relate to possessing a forged document, in this case, a medical prescription, contrary to section 368(1)(d) of the Criminal Code, R.S.C., 1985, c. C-46 [Criminal Code]. To prove this, to prove this charge, Crown must prove the following elements beyond a reasonable doubt:
(i) that Mr. Forrester was in possession of the medical prescription;
(ii) that the medical prescription was forged;
(iii) that Mr. Forrester knew or believed that the medical prescription was forged; and
(iv) that Mr. Forrester possessed it with the intent to commit an offence listed under section 368(1)(a), (b), or (c) of the Criminal Code.
Section 368(1)(a),(b) and (c) of the Criminal Code provides as follows:
Use, trafficking or possession of forged document
Section 368(1):
Everyone commits an offence who, knowing or believing that a document is forged,
(a) uses or deals with or acts on it as
if it were genuine;
(b) causes or attempts to cause any person
to use, deal with or act on it as if
it were genuine;
(c) transfers, sells, or offers to sell it
or make it available to any person,
knowing that or being reckless as to
whether an offence will be committed
under paragraphs (a) or (b).
Legal Principles
A word about the legal principles applicable in this case. There are a number of legal principles that apply to a trial such as this, where credibility is very much in issue. Some Crown witnesses because of their previous criminal record could be considered unsavoury witnesses. The frailties of identification evidence must also be considered. The rule in Browne v. Dunn, 1893 CanLII 65 (FOREP), [1893] 6 R. 67 HL (Eng) is instructive when the cross-examination or lack of cross-examination of a Crown witness, in this case, Mr. Sinclair, is considered in the light of subsequent defence evidence from Mr. Forrester.
As stated previously, the Crown bears the onus of proving guilt beyond a reasonable doubt with respect to each count, and that onus never shifts. Mr. Forrester has no obligation to prove his innocence. When jurors are triers of fact, judges also often explain the principles of reasonable doubt as set out by The Honourable Mr. Justice David Watt in Watt's Manual of Criminal Jury Instructions (Toronto: Carswell, 2015) at page 86:
A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or the lack of evidence...Proof of probable or likely guilty is not proof of guilt beyond a reasonable doubt.
And he continues:
However, it is nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high.
Although credibility is an issue, a trial such as this is not a credibility contest requiring the trier of fact to decide who to believe. To do so would shift the burden to the accused person to prove their innocence when a complainant testifies. In R. v. W.(D.), 1991 CanLII 93 (SCC), at page 757 the Supreme Court of Canada provided an approach to the issue of reasonable doubt when an accused person gives evidence:
In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole.
In R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paragraph 6 Justice Abella of the Supreme Court of Canada repeated the “W.(D.) warning” as follows:
This court has consistently warned that verdicts of guilt should not be based on “whether [triers of fact] believed the defence evidence or the Crown's evidence,” (W.(D), at paragraph 757.) Rather, the paramount question remains whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused (R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345 (S.C.C.), at page 361). The following steps in W.(D.) are intended to ensure that the trier of fact remains focused on the principle of reasonable doubt:
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 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 that evidence of the guilt of the accused. [p. 758]
In a case such as this, where the accused gives evidence that directly contradicts other witnesses, it is important to review the principles of credibility and reliability. The difference between the two terms was explained in R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at paragraph 41. Justice Watt of the Court of Appeal stated:
Credibility and reliability are different. Credibility has to do with the witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately
i. observe;
ii. recall; and
iii. recount
events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.
More recently, Justice Watt stated in R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466 at paragraph 66:
Assessment of credibility is a difficult and delicate subject, often defying precise and complete verbalization. At bottom, belief of one witness and disbelief of the other, in general or on a specific issue, is an alloy of factors, not a purely intellectual exercise.
In considering the evidence in this case, I remind myself of the difference between logical inferences flowing from the facts in evidence as opposed to mere speculation. Justice Watt defines “inference” in Watt's Manual of Criminal Evidence, (Toronto: Carswell, 2015) at p.113 as:
A deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion that may, not must be drawn in the circumstances.
In R. v. Morrissey, 1995 CanLII 3498 (ON CA), at p. 25, Court of Appeal Justice Doherty provided the following guidance:
A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones that can reasonably and logically be drawn from a fact or a group of facts established by the evidence. An inference which does not flow logically and reasonably from the established facts cannot be made and is condemned as conjecture and speculation. As Chipman, J.A. put it in R. v. White, (1994), 1994 NSCA 77, 89 C.C.C. (3d) 336 at 351 (Nfld. C.A.):
These cases establish that there is a distinction between conjecture and speculation on the one hand and rational conclusions from the whole of the evidence on the other. The failure to observe the distinction involves an error of law.
The Vetrovec Warning
I want to speak about the Vetrovec warning. It
may be that in some cases witnesses are of such unsavoury character that juries must be warned about the use and reliability of their evidence. The principle is also often called a Vetrovec warning based on Supreme Court of Canada's decision in Vetrovec v. The Queen, 1982 CanLII 20 (S.C.C.). As the court stated at page 823:
If, in his [that is the trial judge's] judgment, credit of the witness is such that the jury should be cautioned, then he may instruct accordingly. If, on the other hand, he believes the witness to be trustworthy, then, regardless of whether the witness is technically an 'accomplice,' no warning is necessary.
Cases following Vetrovec often suggest that such a warning to juries may be necessary if some of the following circumstances apply:
• the witness has a lengthy criminal
record;
• the witness has a motive to lie;
• the witness has provided different
accounts on different occasions;
• the witness has lied under oath in the
past;
• the witness is a jailhouse informant;
• the witness has entered into an
agreement with the Crown or received
monetary compensation as a witness.
In R. v. Kehler, 2004 SCC 11, 2004 1 SCC 11, [2004] 1 S.C.R. 328, Supreme Court of Canada Justice Fish acknowledged the importance of trial judge's self-instructing on the principles in judge-alone trials. He further stated at paragraph 22:
However, even then, having considered the totality of the evidence, the trier of fact is entitled to believe the evidence of the disreputable witness - even on disputed facts that are not otherwise confirmed - if the trier is satisfied that the witness, despite his or her frailties or shortcomings, is truthful.
The Supreme Court of Canada dealt with this issue again in R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104. As Justice Fish set out in paragraph 37 with respect to Vetrovec warnings:
That proposed framework, which I adopt and amplify here, is composed of four main foundational elements:
(i) Drawing the attention of the jury to
the testimonial evidence requiring
special scrutiny;
(ii) explaining why this evidence is
subject to special scrutiny;
(iii) cautioning the jury that it is
dangerous to convict on unconfirmed
evidence of this sort, though the
jury is entitled to do so if
satisfied that the evidence is
true; and
(iv) that the jury in determining the
veracity of the suspect evidence
should look for evidence from
another source tending to show that
the untrustworthy witness is telling
the truth as to the guilt of the
accused.
The Rule in Browne v. Dunn
I want to say a word about the rule in Browne v. Dunn. The rule in Browne v. Dunn is often expressed as a rule of trial fairness. I explained this rule to Mr. Forrester in a memorandum provided to him prior to the trial. That memorandum stated at paragraph 65:
If you have evidence, such as a witness or documents that contradicts the testimony of a witness, for example, a Crown witness, you must confront the witness with that evidence when you cross-examine the witness. If you do not so, you may not be permitted to introduce the contradictory evidence. In other words, witnesses must be given an opportunity to explain any evidence that you intend to rely upon to contradict them. This is often referred to as the rule in Browne v. Dunn.
I repeated that instruction again at paragraph 109 of the memorandum provided to Mr. Forrester.
Identification Evidence
This is not a case involving in-dock identification of Mr. Forrester. As I will explain later in review of the evidence, the pharmacist and pharmacist's assistant called by the Crown gave evidence as to their practices, procedures and identification inquiries when filling Fentanyl prescriptions. Neither had any specific recollection of dealing with the accused, Sean Forrester. The Crown witness, Ms. Baks, had no knowledge of Mr. Forrester whatsoever. Mr. Sinclair did know Mr. Forrester and had a long-standing relationship with him. I will review his evidence and the importance of his testimony in the reasons that follow.
Crown Witness Julie Baks
Ms. Baks worked as a medical secretary for Dr. Sacksen until she was fired for theft from his office. Her last day of work was August 30th, 2013. She had access to Dr. Sacksen's computer to create entries for non-existing patients approximately 19 times, beginning in March of 2013. After creating a patient profile, she would within moments, issue an electronic prescription for Fentanyl. She would then delete the patient profile from the doctor's computer system. The patient profile was created based on information secreted to her by Mr. Sinclair. This information, often written on a piece of paper and delivered to her in a coffee cup, contained a health card number, date of birth, name, address, postal code and phone number for the patient. She did not see an actual health card for any of these patients. It is not disputed that none of these patients were actual patients of Dr. Sacksen. At this time, she was in a relationship with Mr. Sinclair. As the video footage entered as an exhibit showed, Mr. Sinclair would visit her at work and bring her coffee. She would give him the prescription either directly or leaving it in her car for him to pick up. She had no personal knowledge of any of the patients for which she created a fictitious profile. She pleaded guilty and received a penitentiary sentence.
Her participation was crucial in two respects. First, she issued the electronic prescription needed to access the drugs. Second, she was able to verify the prescription in the event that the pharmacy called the doctor's office to verify any aspects of the prescription. She learned after the first few times that pharmacists would not accept the electronic prescription unless the doctor's initials were also on the prescription. So, she began to fraudulently place the doctor's initials on these electronic prescriptions.
There were occasions when pharmacies would call the doctor's office to verify information. There is no evidence before the court that the pharmacy in question in this case made a call to Dr. Sacksen's office on August 30th, 2013, the date that she issued the prescription to one "Sean Forrester." As previously noted, she did not know Sean Forrester and had no connection with him.
Exhibit 1, identified by Ms. Baks, was a summary from Dr. Sacksen's records as to the fraudulent prescriptions which she created. These prescriptions commenced on March the 5th, 2013 and ended with a prescription for "Sean Forrester" on August 30th, 2013. Approximately, 19 such prescriptions were issued by her during this period.
The Narcotics Monitoring System (NMS)
A word about the Narcotics Monitoring System. During this trial, evidence was called with respect to the Narcotics Monitoring System, which was established by Ontario's Ministry of Health and Long-Term Care (MoHLTC) in 2012. A search of those records obtained by way of a production order obtained by Detective Constable Ford was filed as an exhibit. The exhibit was accompanied by the affidavit of M.A. Taleb, a data coordinator with the Ministry. Mr. Taleb's affidavit states at paragraph four:
The NMS was established under the Narcotics Safety and Awareness Act, 2010 (NSAA). The NSAA and Ontario Regulation 381/11 made under the NSAA requires every dispenser of a front monitored drug to keep a record of the following information:
(a) The information required under
section 10 of the NSAA (i.e., the
information that must be recorded by
a prescriber of a monitored drug on
a prescription for a monitored
drug, which includes the name of the
person for whom the monitored drug is
prescribed; the name of the monitored
drug prescribed; directions for use
of the monitored drug; the name and
address of the prescriber; and the
identifying number that is provided
by the person for whom the monitored
drug is prescribed and the type of
identifying number it is.)
(b) The date of birth and gender of the
person for whom the monitored drug is dispensed.
(c) The drug identification number of the
monitored drug dispensed.
(d) The quantity of the monitored drug
dispensed.
(e) The length of therapy and number of
days of the monitored drug.
(f) The date in which the monitored drug
is dispensed.
(g) The prescription number.
The affidavit further indicates that the pharmacy is required to disclose this information to the Ministry for monitoring purposes. Those records attached to the affidavit disclose a medical profile for Sean Forrester, indicating his date of birth and health card number. The records indicate that the Shopper's Pharmacy filled a prescription from Dr. Sacksen for one Sean Forrester on August 30th, 2013, September 30th, 2013 and October 30th, 2013. On each occasion the patient was provided with 15 Fentanyl patches, representing a 30-day supply. The product supplied was Ratio-Fentanyl, 100 mcg/hr/transpatch. The connection between the pharmacy and the NMS was explained in the evidence of the pharmacist and the pharmacist's assistant. The Ministry records do not show any reference to a lost or stolen health card being reported to it.
The Pharmacist – Evidence of George Moussa
The evidence of George Moussa, the pharmacist. Mr. Moussa is a pharmacist who was trained and licensed in Egypt. He obtained a license in Ontario in 2012. On August 30th, 2013, he was the pharmacist on duty at the Shopper's Pharmacy. He gave evidence as to the practice and procedures within the pharmacy department, including the role of the pharmacist in contacting with patients, supervising pharmacy assistants and filling prescriptions.
In the course of his testimony, Mr. Moussa identified Exhibits 6, 7, and 8, the paperwork from Shopper's records as to the prescriptions for Sean Forrester received on August 30th, and further refilling of the prescription at 30-day intervals, in this case, on September 30th, 2013 and October 30th, 2013.
Each exhibit contained three pages, identified as sub-exhibits (a), (b), and (c). These documents were generated as a result of one Sean Forrester attending at the pharmacy with a prescription from Dr. Sacksen. The prescription itself was entered as part of Exhibit 3, and identified by Ms. Baks as the fraudulent prescription which she created for one Sean Forrester. As noted, that prescription contained Dr. Sacksen's electronic signature, together with his fraudulent initials, which she affixed to the prescription before giving it to Mr. Sinclair.
Sub-exhibit (a) to Exhibits 6, 7 and 8 are the pharmacy's hardcopy of their work product based on the intake of the prescription. That document contains both printed material from the Shopper's system, as well as handwritten notes, markings and signatures thereon.
Sub-exhibit (b) to Exhibits 6, 7, and 8 are the internal receipt copies from Shopper's with respect to the filling of the prescriptions on each day. Those records show that on each occasion the prescription was paid for in cash. The purchase price on each visit was $219.78.
Sub-exhibit (c) affixed to Exhibits 6, 7 and 8 was a Shopper's Drug Mart Health Watch Form. This is a profile created for each and every patient seeking a prescription. It contains pertinent information, including the dates the prescription was filled, the name and quantity of the prescription, as well as the name of the pharmacist’s assistant who processed the prescription through the various stages within the pharmacy.
Both Mr. Moussa, the pharmacist, and Lindsay Bateman, the pharmacist's assistant, explained their roles within the pharmacy by way of reference to these records.
Mr. Moussa was taken to Exhibit 3, the prescription issued to "Sean Forrester," August 30th, 2013. He explained the procedure that is followed by the pharmacist or the assistant in the process of receiving a prescription and eventually filling the prescription and returning it to the patient. On Exhibit 3, he identified the health card number and then an address and phone number would be obtained from the patient. The electronic prescription can only be issued if the doctor's password is used and it is electronically signed by the doctor.
The prescription was for one patch every other day for three months, a fairly common prescription for Fentanyl. There were no red flags raised. Fentanyl triggers an inquiry through the NMS, by the Ministry of Health and Long-Term Care. A message would be flagged if the patient had filled the prescription elsewhere or was coming in earlier than prescribed, thus preventing double-doctoring. If there is an incorrect entry of a person's name or a health card, an error message would follow. This system is used just for narcotics. The pharmacist identified a hardcopy and identified his signature. If the patient had questions, the patient would be counselled by the pharmacist. The Health Watch page showed the information about the entry, the submission to NMS, the pre-printing, the printing, the filling, the outbox and the completeness. The system would generate a label with a barcode, a hardcopy and a receipt for the patient. The Fentanyl prescription would be for 15 patches, five patches per box of Ratio brand Fentanyl. The drugstore could use other brands as well. Ratio is a common, in-stock brand. The prescription strength was 100 mcg. Patches are available in lesser strength as well, but the 100 mcg was what was prescribed. The pharmacist would also scan a bar code on the Fentanyl box. The receipt indicated that $250 was tendered in cash for the prescription bill of $219.78, and this occurred at approximately 3:12 p.m. on August 30th, 2013.
Mr. Moussa was then taken to the second set of exhibits, 7(a), (b), and (c), which was the refill on September 30th. His signature is identifiable on the form. The same process was used. The receipt time was 5:19 p.m.
Exhibit 8 was the third visit dated October 30th, 2013. This was a refill by a different pharmacist, but according to this witness, the same paperwork and procedure was followed on this occasion and $220 cash was tendered to pay the bill. No credit or debit card was used for any of these transactions. There was no indication that any drug plan was used for any of these sales. The receipt was timed at 9:49 a.m.
The pharmacist indicated that it is required by
law to ask for photo identification, such as a health card, passport, or driver's license.
If a red and white health card is used (the older style card with no photograph) they would call the doctor's office to verify the prescription, asking the office to verify the person. Identification would also be asked for when the person picks it up.
This witness has no specific recall of dealing with the accused, Sean Forrester, on any of these dates.
Cross-examination by Mr. Forrester
Mr. Moussa was asked about the common practice of taking photo identification. He said that the red and white health card was not enough. They need a photo. If there was no photo identification, just a red and white card, they would call the doctor to verify it.
He said that if they called the doctor, that would be acceptable.
They would only call the doctor's office if something was wrong. Not every prescription is checked by a call to the doctor. He confirmed that the pharmacy keeps no physical record of photo identification on file.
The Pharmacy Assistant – Evidence of Lindsay Bateman
Ms. Bateman is a pharmacy assistant. She has
worked for Shopper's Drug Mart for 21 years, in the last six years as a pharmacy assistant at the Shopper's store in Barrie. She reviewed Exhibit 3 and explained her normal procedure when she receives a prescription form. She would be looking for the doctor's signature, the patient's name, the medication, the date of birth, the Doctor's College of Physicians and Surgeons of Ontario number and the patient's address. If anything was unusual, she would contact the doctor, but in this case, the materials seemed normal to her.
She identified Exhibit 6(a) as the store's hardcopy; their work product. It is based on what she enters into the computer system.
The typical procedure would go as follows:
(i) the prescription would be provided by the
patient, who enters the front door and
comes to the pharmacy, to the drop-off
counter;
(ii) she would receive the prescription and
meet the patient. She would ask the
patient if they had been there before to
see if there is a record on file. If
yes, she would pull up the record; if no,
she would create a profile.
(iii) A profile would be created in this
case because nothing was on file for
one Sean Forrester, so she would ask for
name, date of birth, address, health
card number, if there were any allergies,
if there is any insurance and the phone
number for the patient;
(iv) she would confirm the information shown
on the doctor's prescription by speaking
to the patient, for example, correcting
the address if it was wrong. In this
case, she confirmed her handwriting on
Exhibit 6(a) with the words, “had before
and no questions,” indicating that the
patient had had this drug before and had
no questions for the pharmacist;
(v) she would then ask to see the health
card to make sure it is correct, even if
there was a health card number on the
prescription. She would ask the patient
if he/she would like this picked up, and
on Exhibit 6(a), she noted “ready August
30th, 2:26 p.m.,” which would be the
pharmacy's ready time. She noted that
her first entry was one hour previous.
(vi) if the patient is waiting, the patient
may be given a pager to be notified when
the prescription is ready;
(vii) she would proceed with the work and put
it in a basket. It would go into a red
basket if it was priority to be filled
right away; a blue basket if it was to be
picked up the next day; and a white
basket if it was for delivery; and
(viii) after placing it in the red basket, she
would get the product and check the Drug
Identification Number, obtain the
product, in this case Fentanyl 100 mcg,
note the expiry date, label the product,
and send it to the pharmacist for
checking. In this case, she knows the
pharmacist was George Moussa because his
initials are shown on the form as GM
typed in.
She was taken through the Shopper's Health Watch Form, Exhibit 6(c), and noted the following:
(i) the entry was 1426 hours. It was
submitted at 1426 hours. It was pre-
printed at 1426 hours and printed at
1427, the hardcopy. Filling in progress
was noted at 1427, and this would be
getting it ready and scanning, as well
as her own badge identifying her as the
person filling this. Then, when she was
ready, it would go to the outbox at 1455
hours. Completion would be at 1513
hours, when it was sold to the customer
at the register. This would be at the
point of sale:
(ii) she identified Exhibit 6(b) as the store
copy of the receipt and she noted the
price was $219.78 paid in cash;
(iii) she said she personally served one Sean
Forrester because her handwriting was on
the form. She noted he had no questions
and he did not need any counselling;
(iv) the paperwork indicates that no agent
was used to pick this up for a person on
behalf of Mr. Forrester because the
typical yellow form and NMS additional
check was not done;
(v) she was asked about identification. She
would ask for government identification,
preferably with a photo, such as a
driver's license, veteran's card,
passport, or health card; and
(vi) if the customer presented a non-photo
health card, she would confirm it to
ensure she was giving the right
medication to the patient.
In 2013, some customers still used their red and
white card, but it was unusual.
Based on the information that she has inputted, she was satisfied about “Sean Forrester.”
She spoke about the renewal on September 30th, 2013, the hardcopy and the refill. This would be based on the person coming in or phoning in. The pick-up time on this one was noted for 5:00 p.m. She would not need a new prescription, it was already on file. The patient simply had to ask for their refill. The form showed that the request was at 1558 hours, was filled at 1605 hours and picked up at 1723 hours. The receipt was cash. She filled this as well.
For the October 30th, 2013 renewal, she explained that the store opens at 9:00 a.m. for customers, but the assistants start working earlier, in her case at 7:30 a.m. The pharmacist is required to be there by 9:00 a.m. The pick-up time was 9:50 on complete. The cash register showed that it was entered at 9:49 a.m.
She was taken to the renewal on October 30th, 2013. This was not done by her, but the paperwork shows the usual procedure at the pharmacy.
She was asked if she requested photo identification. She said yes and explained that she always confirms by matching the face to the name.
She was asked about the NMS, which is mandatory for narcotics. The screen would flash an error if there was some problem flagged about the patient's health card number, and would be rejected and she would have to sort that out. She was not aware of any rejection in this case, based on the short timelines involved here. A red flag would mean that they would have to check with the patient and start the process over again.
For each prescription, she would scan her badge, that is her identification at Shopper's as part of the process.
Cross-examination by Mr. Forrester
She acknowledged that a health card is identification. She indicated she built a profile based on the information provided. She acknowledged that not everybody had a driver's license, but that the best would be photo identification. She would not necessarily ask for photo identification again if she had already opened a profile on a customer who returned 40 minutes later to pick up the medication ordered.
She did not recall having to call the doctor in this case to check or confirm anything.
Crown Witness Grenville Sinclair
Mr. Sinclair is 33 years of age and was sentenced to a nine-year prison term for his role in Operation Northbound. He pleaded guilty to various trafficking, forgery, and breach offences in May of 2015. His co-accused was Mr. Godreau; Mr. Sinclair testified at his trial. Mr. Godreau was convicted after a trial and awaits sentencing. Mr. Sinclair's sentence was reduced on appeal to eight years. R. v. Sinclair, 2016 ONCA 683.
Mr. Sinclair has known Mr. Forrester since 2005. They were acquaintances or friends and would see each other from time to time.
In cross-examination it would appear that Mr. Forrester was a bit of a mentor to him and may have assisted him in the past. They would see each other at the auto-body shop. Mr. Forrester had a number of car projects on the go there at different times.
Mr. Sinclair spoke about the scheme. He would provide information to Ms. Baks at the doctor's office so that fake prescriptions could be entered and issued by her. He would get the necessary information from Mr. Godreau, with one exception, Mr. Forrester. He knew Mr. Forrester personally and explaining this scheme to him. Mr. Sinclair was in a relationship with Ms. Baks. His procedure was to get the information on a scrap of paper and deliver it to her, generally at the doctor's office in a Tim Horton's cup. The personal information and health card number would be supplied by Mr. Godreau.
In the case of Mr. Forrester, he got the information directly from him: his health card number, date of birth, address, and postal code. He did not know his actual address, but he knew his phone number as 705-796-4617. He got the information from Mr. Forrester when they met at an auto-body shop in Barrie. They were both there on August 30th, 2013. There was no advance plan about this. He simply asked Mr. Forrester if he would do it, and he would pay him $500 to $700 each time. Mr. Forrester agreed, and Mr. Sinclair said, “I didn't pull his leg.” Mr. Sinclair said none of them did any drugs; the purpose was for profit.
The same day he took this to Ms. Baks. He got the health card number from Mr. Forrester's card. He recalled it was a red and white card, an older one. Mr. Forrester produced this from his wallet. This is the information he gave to Ms. Baks. He walked the information into her on August 30th, 2013. He waited for it, then he came out and gave it to Mr. Forrester. They drove together in Mr. Forrester's silver Mercedes Benz to Shopper's. He waited in the car while Mr. Forrester went into the drugstore. He was aware from discussions with Mr. Forrester that Mr. Forrester did not have an account at that drugstore and it was nearby. He waited in the car about 15 minutes and Mr. Forrester came out. He had given him $220 or $230 in cash to pay for the prescription, money he had gotten from Mr. Godreau. Mr. Forrester gave him the prescription. They went their separate ways and he passed on the Fentanyl to Mr. Godreau. His testimony was that he paid Mr. Forrester $500 to $700 in cash, which is money he had received from Mr. Godreau for the purpose.
Thirty days later, there was a refill at Shopper's. His recollection was that Mr. Forrester dropped the patches off to him at his house. He had not gone with him at this time to the drugstore. They may have chatted in between the 30-day period. He did not pay any money for the second refill which was issued September 30th, 2013. He said Mr. Godreau was not paying him and there were problems existing between himself and Mr. Godreau. He was not sure if Mr. Forrester was paid.
He may have given some money to Ms. Baks at one point. He did not go back to her at the doctor's office after August 30th. He was aware she got fired. The last prescription he provided her was for Mr. Forrester.
The next refill, which would have been possible was October 30th, 2013. He did not recall receiving it or that it was brought to him.
In examination in-chief, Mr. Sinclair was asked about his knowledge about Mr. Forrester's loss of identification. The following is an exchange between Ms. Jokinen, Crown counsel, and Mr. Sinclair:
Question: Did you know whether or not Mr. Forrester had lost his identification, driver's license...
Answer: No.
Question: ...health card, wallet, et cetera, some time in 2012?
Answer: No.
Question: Did he ever talk to you about that?
Answer: No.
Mr. Sinclair was not asked any questions in cross-examination about whether he had in his possession Mr. Forrester's lost wallet, nor was he asked whether or not he impersonated Mr. Forrester by attending at the Shopper's Pharmacy on august 30th, 2013. Mr. Forrester's evidence about his lost wallet and Mr. Sinclair's discovery of the wallet, and an alleged conversation between them will be discussed more fully when I review Mr. Forrester's evidence.
Mr. Sinclair admitted that his original statement to the police when he was arrested in 2014 was not true. He was trying to downplay his involvement to cover for people and protect himself.
But he gave a second statement when he was in Joyceville Institution after he had pleaded guilty and been sentenced. He said that this statement was truthful. The officer came to see him and he volunteered the information. He had pleaded guilty and wanted to clear his conscience. He wanted to admit what he did. He did not receive any promises or inducements or threats from Officer Ford.
He was asked if he was threatened. He said yes, he received from threats from Mr. Godreau and his associates when he was in Central North Corrections Center and Joyceville Institution. He was threatened that he would be assaulted.
There were no actual assaults.
He was asked about his appearance. He said he was 6'2, taller than Mr. Forrester, different build, and they did not look the same.
He was taken to the video, Exhibit 4, the doctor's office video. He recognized himself there on August 15th, 2013, meeting with Ms. Baks, and again on August 30th, 2013, meeting with Ms. Baks at 2:17 p.m. Something was handed to him. He thought it might be a pamphlet.
He knew the importance of filling the prescription right away because it was important that Ms. Baks be in the office in case the pharmacist called to verify the prescription's authenticity. This was part of the overall scheme. This was the one and only prescription that he presented to her based on an actual person that he knew, that is his friend, Sean Forrester.
Cross-examination by Mr. Forrester
Mr. Forrester established his relationship with Mr. Sinclair that had existed for years prior, including meetings at the auto-body shop, and some guidance and role model aspects of their relationship. Mr. Forrester may have helped him with a job. They went on a trip together years earlier, travelling in connection with Mr. Forrester's business.
He was asked about the silver Mercedes-Benz. Mr. Sinclair was very positive that Mr. Forrester was driving a silver Mercedes-Benz on August 30th, 2013. He was shown a bill of sale showing that Mr. Forrester purchased the Mercedes-Benz October the 11th, 2013. Mr. Sinclair could not remember whether he told Officer Ford about the promise to pay $500 to $700 to Mr. Forrester for each prescription. He did recall talking about giving $220 to $230 to Mr. Forrester so he could actually purchase the prescription in the pharmacy.
Mr. Sinclair testified that he did not read his
own disclosure package. He left that to his lawyer to deal with. He did not read any disclosure from any other parties. He thought that the prescription issued September the 30th, 2013 was dropped off at his house. He denied that he was giving his testimony to assist the Crown or obtain any form of early release. He said he had to work to earn his release, to show that he was a changed person. He had high hopes, he was taking programs and changing the person that he was. He did not admit to accusing a person; he was simply telling the truth when asked by Officer Ford.
He was taken to his arrest report regarding an occurrence with Holly, a previous partner in 2005, which may have involved charges of mischief and assault. Mr. Sinclair said he may have been intoxicated at that time.
Mr. Sinclair said he may have shown Ms. Baks an actual health card in one particular case.
The Testimony of Sean Forrester
Mr. Forrester indicated he was born in Jamaica in 1973 and came to Canada at age nine. He obtained his Canadian citizenship. He is married and has a child born in 2008. According to his driver's license filed, he is 5'10”.
By way of background, he worked at the Honda Canada plant, but when he was laid off, he took a law and security course, diploma course, at St. Clair College for 12 months and obtained his diploma. Thereafter, he was hired back by Honda, but he worked part-time as a security guard in various bars in Barrie.
He testified that in May of 2012, he spent a weekend with Mr. Sinclair and others. He said he lost his wallet, perhaps at a nightclub. When he discovered it was missing, he reported it. He went to the Ontario Ministry of Transportation to get a new driver's license, but he was advised that unless he reported the loss to the police, he could not get a replacement, so he reported the matter to the Barrie Police. When he was at Service Ontario, he questioned about getting a new health card, but he found it was a bit complicated and he did not pursue replacing his health card. He also reported the loss of the wallet to the Elora Police.
Exhibit 18 was the replacement driver's license package. In addition to replacing his driver's license he obtained a new Petro Points card. He did not have any credit cards, so nothing needed to be replaced. He did not need to get a boat operator card or a hunter license replaced. He did report his bank card lost to the CIBC.
He did not seek a Social Insurance number replacement because he had a copy of his number at home. He did not seek a new health card. He said he was lazy. He hoped he would find it. He thought he might have misplaced it. He did not go to the doctor or need it.
He gave evidence about his friendship with Mr. Sinclair, which started in 2005. He hung out with him, sometimes at Derek's Auto-body Shop. It was a social relationship. They might hang out to work on cars together. At one time, Mr. Forrester had a job as an installer. He travelled to Northern Ontario and hired Mr. Sinclair to help him. He stood up in court to assist Mr. Sinclair on another occasion. He treated Mr. Sinclair like a little brother.
Then, Mr. Forrester got a job at Honda. He would not see Mr. Sinclair sometimes for months at a time. He did not know until officers came to the door that he was a suspect in the investigation involving Mr. Sinclair. As to the alleged offences, he said, “I didn’t do the crime,” that he is a victim, and Mr. Sinclair did this to him.
In his testimony, Mr. Forrester spoke about a conversation he had with Mr. Sinclair, suggesting that Mr. Sinclair had his wallet. The following is that testimony:
THE Court: Mr. Forrester, before the break I gave you an opportunity to think about your testimony to see if there's anything else that you want to tell the court at this point before Ms. Jokinen asks you some questions.
Answer: Yes, Your Honour. Actually, through everything, I just almost forgot. Do I need to - the Bible?
The Court: No.
Answer: Through anything that happened in 2013, it was sometime either end of October or was after either - what's the day? Halloween Day or the day after. I got a message from Grenville telling me that he actually found something that belonged to me. He likes to be very encrypted when he speaks sometimes, especially when it goes through text.
And when I was proceeding to call him, he contacted me instead and he advised me that he had found my wallet while he was moving his boxes. At one point, he lived with his mom.
When I knew him in 2012, he lived with his mom and how that got into his apartment, well, I can speculate, 'cause I was in his house so around that time, I went to pick him up, went upstairs and stuff like that. He tells me that he found my wallet and that he would leave it at the - in a bag, this side of the door. And his girlfriend or fiancée would give it to me. When I went to his house the next day, I waited outside his house for what felt like 30 minutes through numerous times of trying to get in touch with him and he was not even responding.
And after that, and he didn’t come - he didn’t respond to me, I went to my friend, Derrick's shop and told Derrick that whoever had my, my wallet that he - when he sees him, he can get it from him because obviously he sees him more than I do because he always goes to the body shop. And at that time, Derick said, “Why does he have your wallet?” I said, “Well, apparently he found it.”
Mr. Forrester gave evidence about buying a car. Exhibit 20 showed that he bought a Mercedes Benz in October of 2013 and was licensed to him later that month. He did not own it August 30th, 2013.
As to the various dates in question of these offences, he cannot say where he was.
His evidence was that Mr. Sinclair said he found the wallet and would leave it in a bag beside the door, but he did not ask Mr. Sinclair about this conversation in cross-examination.
Cross-examination of Sean Forrester
In cross-examination, Mr. Forrester said he did not use his health card after he lost it. He went to his family doctor and explained he did not have a health card. On one visit, he did not have to pay anything. Another visit, he paid the doctor in cash. The doctor wrote him a note for temporary disability purposes.
He has never been to Shopper's in Barrie.
He was asked about the lost wallet report; asked why he reported it to the Elora police. He said he was there in that community earlier. He said he had already reported it to the Barrie Police. He was asked if he thought Mr. Sinclair stole it one year prior. He said he did not know. The reason for the report to Barrie police was that he needed the report for Service Ontario to get a new driver's license, and he went back to Service Ontario with the police report and got a sticker on an old, expired license to last till he got a new one. He did not remember the health card number but he knew the doctor would have it on file. He asked the doctor not to use it.
He denied the suggestion by the Crown that he later found the missing wallet. He attended Mr. Sinclair's preliminary hearing and gave evidence there. At that point, Mr. Sinclair's subsequent statement had not been given to the police. The preliminary hearing was February 20th, 2015, and Mr. Forrester's date of arrest was May 17th, 2014.
He said that there was a previous relationship of
trust with Mr. Sinclair. He testified that Mr. Sinclair broke that trust. He denied that Mr. Sinclair had nothing to lose by telling the truth in this trial, and he denied that Mr. Sinclair's sentence of nine years was a fair sentence. He was asked if he test-drove the car prior to purchase. He said he did not have it till October.
He was asked about alibi evidence about what he was doing on August 30th, 2013.
He was shown the Honda records, Exhibit 21, showing the dates and times of his shifts on or near August 30th, September 30th and October 30th, 2013. It was noted at the occurrence at Shopper's according to their records showed that at the times of these purchases Mr. Forrester was not at work. His shift had been completed or not yet commenced.
He was asked how Mr. Sinclair would know about his changing shifts at Honda.
He was asked about the car loan. He purchased the Mercedes-Benz with a 19 percent interest rate from the dealer. He was asked about the need for easy money, the $500 to $700 that Mr. Sinclair promised to pay him for each transaction.
In addition to his own evidence, Mr. Forrester called three witnesses to give general evidence as to his character and reputation in the community. They spoke well of him as a great person and a family man.
Mr. Forrester also called Kieran Bernard. His evidence was that he knew Mr. Sinclair, and Mr. Sinclair approached him at one time to ask about his red and white health card. Mr. Bernard refused to do so. I pause to note that once again, Mr. Forrester did not put any questions to Mr. Sinclair in cross-examination about this alleged discussion between Mr. Sinclair and Mr. Bernard.
Detective Constable Justin Ford
Officer Ford has been a Barrie police officer for 10 years and was the officer-in-charge of Operation Northbound. The operation began with a search warrant issued in North Bay when a search warrant in North Bay turned up prescriptions issued from a doctor's office in Barrie. The doctor's office in Barrie conducted its own audit and 19 patients were shown to be fake patients for which Fentanyl was issued. Officer Ford obtained a production order from the Ministry of Health and Long-Term Care for the Narcotic Monitoring System, which had been set up in 2012 to track the issuance of narcotics by pharmacies.
He reviewed Exhibit 1, the documents completed at the doctor's office, including the process of adding a patient, issuing a prescription, and deleting a patient, which Ms. Baks thought would eliminate all records of this patient within the doctor's office.
Exhibit 3 was a production order from each pharmacy, the store records. Any notations on the paperwork were not made by Officer Ford; they were faxed to him. Exhibit 5 was an affidavit about each patient from the Narcotic Monitoring System. Exhibit 4 was the doctor's office video footage.
Officer Ford spoke about other people in the investigation and their progress as to guilty pleas, trials, dispositions, or withdrawal of charges.
Exhibit 13 was the Barrie Police Occurrence Report where Mr. Forrester reported that his wallet was lost on May 25th, 2012.
Exhibit 14 was a production order from the Ministry of Health and Long-Term Care regarding Mr. Forrester's health card. There was no evidence that any replacement card was ever issued, nor was this health card number used at any doctor or medical facilities according to the Ministry's records.
The officer indicated that the Fentanyl patches could be sold in Barrie for a hundred and fifty to a hundred and eighty dollars per patch and there are five patches per box. This was for patches of a hundred mcg. The price would be higher in North Bay, $400 to $500. The the officer spoke about the dangers of Fentanyl.
Mr. Forrester is obviously an intelligent individual. After working for Honda for a number of years, during an economic slow down, he enrolled at St. Clair College and obtained a diploma in law and security administration in 2010. He achieved a very high grade point average. To do so, he was required to travel each week from his home in Barrie to the College in Windsor for 12 months.
His mentor there was Anne Fisher. His evidence was that Ms. Fisher has now passed away, but he provided to the court as part of the St. Clair College package, a letter from Ms. Fisher, undated, addressed to “Your Honour.” That letter would ordinarily be categorized as hearsay, but there is an exception for evidence from a person now deceased. To a certain extent, some comments in that letter made point to Mr. Forrester's culpability. Ms. Fisher makes reference to his foolish decision and “that he did not benefit from the transactions that took place.” However, I place no weight on these comments in assessing Mr. Forrester's culpability. These comments have not been tested under oath and are not clearly specific to the charges that Mr. Forrester now faces.
Cross-examination by Mr. Forrester
A word about the cross-examination by Mr. Forrester of the officer. The officer indicated that there was no discussion of Mr. Sinclair about paying $500 to $700 per pharmacy visit to Mr. Forrester. The only money discussion was about the $230 or so that was paid by Mr. Sinclair to Mr. Forrester to purchase the drugs in the pharmacy.
The officer said he did not have any phone number information for Mr. Forrester that could be found on Mr. Sinclair's phone.
Analysis
Prior to the beginning of the trial, I reviewed the essential elements of these two groups of offences set out in these six counts against Mr. Forrester. It is clear that the central issue to be determined across all counts is whether or not there is reasonable doubt that Mr. Forrester attended at the Shopper's Pharmacy on August 30th, September 30th and October 30th, 2013, in order to have the pharmacy fill a prescription for Fentanyl.
If the Crown has not proven this essential element beyond a reasonable doubt, then that is the end of the matter. Mr. Forrester would be entitled to be found not guilty and the other elements of the offense are of no consequence.
I have already cautioned myself to consider the principles in R. v. W.(D.), and Vetrovec v. The Queen, especially with respect to the evidence of Mr. Sinclair and the Crown's need to prove Mr. Forrester's guilt with respect to all the elements of the offense beyond a reasonable doubt. I repeat that there is no obligation on Mr. Forrester to prove his innocence.
I accept the evidence of Ms. Baks that she issued a fraudulent prescription on August 30th, 2013, while she worked at Dr. Sacksen's office in the name of one Sean Forrester. I accept her evidence that she prepared the prescription based on the personal data provided to her by Mr. Sinclair. The video clearly shows that he met with her at Dr. Sacksen's reception desk on August 30th, 2013. But I remind myself that she does not know Sean Forrester, nor does her evidence prove that the accused himself went to Shopper's with that prescription.
Both the pharmacist, Mr. Moussa, and the pharmacist's assistant, Ms. Bateman, testified as to the practice and procedures in filling prescriptions. They check the prescription to verify the patient's name and health card number. When they input the data into the Shopper's Drug Mart system, an automatic search is done out of the province's NMS. No red flags were returned as a result of that submission. The health card submitted was the same number that Mr. Forrester had on this red and white health card, the card he reported lost or stolen a year prior. He was required to report the loss of his wallet in order to get a new driver's license. Although his evidence was that he told the clerk at Service Ontario about the loss of his health card, the fact that it was lost or stolen was not flagged on the Ministry of Health's records introduced as an exhibit. Those records indicated that the card had not been used during the period in question.
Ms. Bateman asked two questions of the patient to determine if they wanted to put the bill through insurance, and to determine if they had used this medication before, in the event that he wished to have a consultation with the pharmacist. Her handwritten notes were on the hardcopy of the Shopper's records.
Mr. Moussa also made notations on the hardcopy, checking off the various categories that he had questioned, and concluded with his signature and initials.
In my view, the procedures they followed to confirm identity support Mr. Sinclair's evidence. Mr. Sinclair had long-standing relationship with Mr. Forrester. He worked for him for a time; they saw each other at social occasions; and at a garage that they both frequented.
Mr. Sinclair's evidence is that he is 6'2 and is 33 years of age. According to the exhibits filed by Mr. Forrester, Mr. Forrester is five inches shorter and 10 years older. Mr. Sinclair's evidence was that he obtained the health card number and other personal information from Mr. Forrester and drove with Mr. Forrester to the pharmacy on August 30th, 2013. He testified he gave Mr. Forrester cash to pay for the prescription. He waited in the car while Mr. Forrester filled the prescription. He received the prescription of Fentanyl patches on this occasion and on the other two occasions, not for his own use, but to pass it on to Mr. Godreau for illicit drug sales.
Although Mr. Forrester testified that Mr. Sinclair phoned him about finding Mr. Forrester's wallet and returning it to him, he did not put that alleged conversation to Mr. Sinclair when he was cross-examined, nor did he cross-examine Mr. Sinclair about the allegation that Mr. Sinclair asked Mr. Bernard to borrow his health card. Mr. Sinclair's evidence in-chief was that there was no discussion between them about the lost health card and that went unchallenged.
Mr. Sinclair had been operating this scheme from March until August of 2013, having given Ms. Baks pieces of paper enabling her to create false prescriptions. In his final submissions, Mr. Forrester suggested that Mr. Sinclair used his health card without his knowledge. Mr. Sinclair denied ever discussing health card numbers with Mr. Forrester prior to August 30th, 2013. If he had the health card information, he could have used it much earlier in this scheme, during which he obtained over 19 false prescriptions over a period of months. Further, Mr. Sinclair would have had to present himself at the pharmacy hoping to pass himself as Mr. Forrester, although he was 10 years younger and five inches taller, not knowing where the health card number had been reported lost or stolen by Mr. Forrester. Mr. Sinclair pleaded guilty to a scheme involving many participants. There is no evidence that he personally attended at any pharmacy as part of the scheme. The modus operandi of the scheme was always the same. He provided necessary information to Ms. Baks, a prescription was issued, and he provided it to the named individual, so that that individual could present it at a pharmacy. Those individuals in the other cases were real people using their real identity in order to fill a fake prescription.
I accept Mr. Sinclair's evidence as truthful on this point. Although I remind myself of the principles pursuant to Vetrovec v. The Queen that he has a criminal record stemming from Operation Northbound, many of the other cautionary issues are absent here. There is no evidence he is receiving compensation for his testimony or that he has entered into an immunity or plea agreement with the Crown. In fact, he has already been sentenced to a nine-year penitentiary term reduced to eight years on his appeal. Although he denied his involvement in the scheme initially to the police, he made a full and frank statement to Officer Ford after his plea and conviction. In addition to testifying here, he also testified at that trial of cohort, Mr. Godreau. As the Court of Appeal noted in its sentencing decision recently in R. v. Sinclair, at paragraph four, and I quote:
First, the trial judge noted that “rehabilitation is realistic” for the appellant [that would be Mr. Sinclair] and this is confirmed by the excellent progress made by the appellant at the Beaver Creek Institution, progress which we note, the Crown accepts.
The Crown submits that Mr. Forrester had an opportunity to commit these offences on the dates and times in question. Mr. Forrester worked various shifts with Honda. On each of the times and dates that the prescription was presented at the pharmacy, Mr. Forrester was off work.
The Crown submits that Mr. Forrester had a motive to participate in this crime, earning financial gain to alleviate financial pressure. Mr. Forrester indicated that when he lost his wallet, he had no credit cards. His credit was poor. His car ownership paper is filed as an exhibit showed that he entered into a loan with a dealer at 19 percent.
I am satisfied that the Crown has proven beyond a reasonable doubt that the accused before the court, Sean Forrester, attended at Shopper's Pharmacy on the dates and times in question to fill a fraudulent Fentanyl prescription issued from Dr. Sacksen's office. I have considered the evidence as a whole. I reject the evidence of Mr. Forrester as untruthful for the following reasons:
• He had a motive of financial gain. He could earn $500 to $700 each time. He acknowledged he had no credit cards when he lost his wallet and his credit was poor.
• He had opportunity. On each of the three days in question, Mr. Forrester was off work shift at Honda.
• Mr. Forrester had a longstanding relationship of trust with Mr. Sinclair.
• Mr. Forrester did not seek to replace his lost health card, although he diligently replaced the driver's license and bank identification card. Significantly, there was no notation on the Ministry of Health records that his health card had been reported lost or stolen.
When I consider the rest of the evidence as a whole, I am not left in reasonable doubt. The following points assist me in that conclusion:
• Both the pharmacist, Mr. Moussa, and the pharmacist's assistant, Ms. Bateman, testified as to the usual practice and procedure with respect to identification of patients presenting for prescriptions. They identified the hardcopy of Shopper's records and their notations thereon.
• I accept the evidence of Mr. Sinclair that he was truthful about obtaining the health card and other personal information directly from his friend, Mr. Forrester. They had a long-term relationship and Mr. Forrester had been a mentor to him. The modus operandi of Mr. Sinclair was the same here as used on many other occasions. He provided the health card number and other pertinent personal information to Ms. Baks and she issued a fake prescription and provided it to Mr. Sinclair. Both Ms. Baks and Mr. Sinclair pled guilty and received significant sentences with respect to their major role in Operation Northbound. Mr. Sinclair's evidence was that on each occasion, he would provide the fake prescription to Mr. Godreau, who delivered it to an actual person who would fill it at the pharmacy. Mr. Sinclair did not recruit these individuals with one exception, his friend, Mr. Forrester. In this case, he testified that Mr. Forrester provided him with the information for delivery to Ms. Baks on August 30th, 2013. He then gave the prescription to Mr. Forrester, so he could take it in for filling. He testified that he accompanied him to the pharmacy on August 30th, 2013.
• He was not asked in cross-examination about any conversation between him and Mr. Forrester about returning the lost wallet. In fact, Mr. Forrester's testimony on this point seemed to have come as an afterthought in his evidence in-chief.
• In accepting Mr. Sinclair's evidence as truthful, I remind myself that although Mr. Sinclair has a criminal record, there is no evidence that he has a motive to lie at this trial. To the contrary, lying could potentially do further charges against him for perjury. He has already pleaded guilty and obtained a significant penitentiary sentence. There is no evidence of any inducements or promises of leniency for this individual who has already been sentenced before the court.
• Although Mr. Sinclair's evidence was that on August 30th, 2013, Mr. Forrester was driving a silver Mercedes, I am unable to determine whether or not he was confused about this collateral fact. Clearly, Mr. Forrester did not obtain ownership of this vehicle until October of 2013. Whether or not he was driving it on August 30th, is an insignificant detail in my overall assessment of Mr. Sinclair's evidence.
Having made this determination with respect to this issue, I now turn briefly to the other elements of these offences.
Counts 1, 3 and 5
I am satisfied beyond a reasonable doubt that the Crown has proven each of these elements of these offences. I have already reviewed the evidence of Ms. Baks, that a fraudulent prescription was issued in the name of Sean Forrester, and that Sean Forrester was not an actual patient of Dr. Sacksen. I accept her evidence that she gave this fake prescription to Mr. Sinclair on August 30th, 2013, based on information he secreted to her. Though Mr. Forrester was not a patient of Dr. Sacksen, he attended the pharmacy and proffered a fraudulent prescription for Fentanyl. He showed identification to the pharmacy, answered questions posed to him and paid for the prescription in cash. He then delivered the prescription to Mr. Sinclair on the promise he would be paid $500 to $700 for a prescription paid for with money supplied by Mr. Sinclair. It is clear that the purpose was for trafficking. He did not need Fentanyl for his own use, nor did he have a legitimate doctor's prescription. I am satisfied that handing over this prescription and its renewals to Mr. Sinclair falls within the definition of trafficking under Section 2[1] of the CDSA.
Counts 2, 4 and 6
I am further satisfied that the Crown has proven beyond a reasonable doubt that Mr. Forrester is guilty of possessing a forged document, a medical prescription, contrary to Section 368(1)(d) of the Criminal Code. I am satisfied that Mr. Forrester was in possession of the medical prescription. It was given him by Mr. Sinclair on August 30th, 2013. It was given to Mr. Sinclair by Ms. Baks, using a fake patient profile created when she was working at Dr. Sacksen's office.
The medical prescription was forged. Mr. Forrester was not a legitimate patient of Dr. Sacksen. The forgery by Ms. Baks had been admitted and she has been found guilty with respect to this forgery.
Mr. Forrester knew he was not a patient of Dr. Sacksen, yet he took the prescription into Shopper's for filling knowing that the prescription was forged.
I am further satisfied that Mr. Forrester knowingly used this forged document contrary to Section 368(1)(a) of the Criminal Code which provides that: “Everyone commits an offence who knowingly or believing that a document is forged...uses, deals with or acts on it as if it were genuine.”
I, therefore, conclude that Sean Forrester is guilty on all six counts before the court.
... PROCEEDINGS ADJOURNED
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Brenda Ferland, certify that this document is a true and accurate transcription of the recording of R. v. S. Forrester in the Superior Court of Justice held at 75 Mulcaster Street, Barrie, Ontario taken from Recording(s) No. 3811-002-2060929-MCCATHYJ-10, which has been certified in Form 1 by Andrea Foerster-Davis.
April 6, 2018 ______________________________
(Date) (Signature of authorized person)
This certification does not apply to ( i.e. Rulings, Reasons for Judgment, Reasons for Sentence, Charge), which was/were judicially edited.