CITATION: R. v. Bermudez, 2017 ONSC 7370
BARRIE COURT FILE NO.: CR-16-146
DATE: 20171211
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CARLOS BERMUDEZ
Defendant
Karen E. Jokinen, for the Crown
Christopher O’Connor, for the Defendant
HEARD: September 25-28, 2017
REASONS FOR DECISION
DE SA J.:
Overview
[1] The accused is charged with three counts of trafficking in fentanyl contrary to section 5(1) of the Controlled Drugs and Substances Act. The accused is also charged with three counts of tendering a forged prescription contrary to section 368(1)(a) of the Criminal Code. The trial proceeded before me between September 25, 2017 and September 28, 2017.
[2] At the outset of the trial, the accused brought a third party suspect application. I granted the application with reasons to follow.
[3] After hearing the evidence on the trial proper, I reserved my decision and remanded it to today’s date for a decision. This is my decision.
Project Northbound
[4] The accused is alleged to be part of a scheme where conspirators obtained fentanyl patches from various pharmacies throughout Barrie using fraudulent prescriptions. These illegally obtained patches were transported to North Bay for distribution where the patches could be sold on the streets for substantially higher prices.
[5] The investigation was dubbed Project Northbound. Project Northbound commenced with the investigation of two targets in North Bay, Ryan Fatum and Lisa Marie Cormier. Fatum and Cormier were known traffickers of fentanyl in the North Bay area. On the basis of informant information, North Bay police believed that Fatum and Cormier had been obtaining their supply of fentanyl from a male in Barrie named Raymond Goudreau. The Barrie Police Service were asked to assist in the surveillance of Goudreau with a view to confirming Goudreau’s connection with Fatum. On December 18, 2013, Barrie Police made observations of Fatum and Cormier meeting with Goudreau in Barrie. After the meeting, Fatum and Cormier made their way back towards North Bay where they were stopped and investigated by police. Police located 9 fentanyl patches in the vehicle.
Discovery of “False” Patients
[6] On the basis of the seizure of the fentanyl patches, police obtained a warrant to search Fatum’s house in North Bay. During the execution of the warrant, police discovered a number of prescriptions for fentanyl in the names of both Ryan Fatum and Lisa Marie Cormier. The prescriptions were issued by a Barrie doctor named Dr. Sacksen. Police contacted Dr. Sacksen’s office in Barrie and confirmed that neither Fatum nor Cormier were actual patients of Dr. Sacksen. Given that the prescriptions were clearly fraudulent, this information was relayed to the Barrie Police Service with a view to investigating the issue of the fraudulent prescriptions.
[7] Officer Ford of the Barrie Police was tasked with investigating the fraudulent prescriptions and started making inquiries with Dr. Sacksen’s office directly. Through the examination of various records retained on Dr. Sacksen’s patient database, Officer Ford determined that 19 “false” patient accounts had been created and subsequently deleted after the issuance of fentanyl prescriptions. These “false” patients were never actual patients of Dr. Sacksen. The investigation confirmed that the prescriptions issued to these patients were all fraudulent, and prepared by a former employee of Dr. Sacksen named Julie Baks. Julie Baks had recently been fired for an unrelated theft of petty cash.
Summary of Evidence of Julie Baks
[8] Julie Baks worked as a medical secretary for Dr. Sacksen from January 2012 to September 2, 2013. After being confronted by the police regarding her involvement with the fraudulent prescriptions, Baks readily acknowledged her involvement and voluntarily gave a statement.
[9] Baks explained that she had been in a romantic relationship with a male named Granville Sinclair. Sinclair introduced her to Raymond Goudreau. Both Sinclair and Goudreau offered Baks money to participate in a scheme to create fraudulent prescriptions. Goudreau would provide Baks with personal information for the “false” patients either by text, or through Sinclair, which included the patient’s name, date of birth, address information, health card number and phone number. Baks never met any of the “false” patients.
[10] After receiving the information, Baks would create a patient profile in Dr. Sacksen’s computer, and thereafter create a fraudulent prescription for the patient. In each of the cases, a total of 45 - 100 mcg patches of fentanyl were prescribed in the fraudulent prescription. In order to avoid detection, each prescription would only allow 15 patches to be released every 30 days over a period of 90 days. This was consistent with what Baks knew to be the standard practice. Accordingly, the prescription filler (false patient) would have to have the prescription filled three different times over a three month period to obtain the 45 patches.
[11] Once the prescription document was printed, Baks would delete the patient profile from the computer leaving no record of the false patient in the system. She would forge Dr. Sacksen’s name next to the electronic signature, as pharmacists required his actual signature for narcotics such as fentanyl. These prescriptions would then be provided to Sinclair who in turn would give them to Goudreau to provide to the “false” patient for pick-up.
[12] The prescription filler (false patient) would usually have to fill the prescription that day when Baks was still at work just in case the pharmacy called to verify the prescription. Over the course of the scheme, Baks did speak to a number of pharmacists that did call to confirm the validity of the prescription.
[13] Investigation revealed that the last prescription was issued on August 13, 2013.
Purchases made in the Name of Carlos Bermudez
[14] Crown counsel filed all of the prescriptions pertaining to the 19 “false” patients that were investigated as part of this project.
[15] Business records filed by the Crown demonstrate that a person using the name of Carlos Bermudez attended the pharmacy located at 380 Mapleview Drive West in Barrie and picked up fentanyl on three separate dates:
July 8, 2013
August 8, 2013
September 7, 2013
[16] Documents obtained by way of production order from both the pharmacy and the Narcotics Monitoring System (NMS) confirmed that a prescription was tendered in the name of Carlos Bermudez, and the drugs (15 patches of fentanyl) were dispensed on July 8, 2013, August 8, 2013, and September 7, 2013.
[17] The accused’s correct health card number was on the prescription. The address of 24 Savannah, including the correct postal code was listed on the prescription. In addition the phone number of 705-220-0389 was also on the prescription. This same information was entered into NMS.
[18] The Crown called evidence from the accused’s wife, Nicole Peters, confirming that 24 Savannah was a former address of Carlos Bermudez where he had been living with his wife up until May 2013. Nicole Peters also confirmed that the phone number of 705-220-0389 was a phone number for Carlos Bermudez. This was a business number used by Carlos in a landscaping/contracting business he shared with her father, George Peters. Nicole Peters testified that the phone with that number was a business phone and others associated with the company would also use that phone on occasion.
[19] The phone itself was registered in the name of Patricia Gawlick. Phone records indicate that the phone was activated on March 27, 2013 and deactivated on December 6, 2013.
[20] As part of his defence, the accused filed a letter from the Ministry of Government and Consumer Services relating to the status of his health card during the relevant period. The letter was admitted by the Crown for the truth of the contents referenced therein. The letter indicated that the accused had been issued a health card with an effective date of January 17, 2012. This heath card expired on July 21st, 2013. The accused did not renew his health card again until October, 2015.
Evidence of the Pharmacist, Ehab Sedarous
[21] The Crown called the pharmacist, Ehab Sedarous as a witness who was directly responsible for filling the prescription, and dispensing the fentanyl on both July 8, 2013 and August 8, 2013. Richard Shi, a different pharmacist, was responsible for filling the prescription and dispensing the fentanyl on September 7, 2013. Mr. Shi was not called as a witness in the proceeding.
[22] On the basis of his personal notations on the prescription, Mr. Sedarous was able to confirm that he called Dr. Sacksen’s office directly to confirm that the prescription was “valid” before filling it. By reviewing the prescription, he was also able to confirm that he would have dealt with the patient directly rather than an agent for the patient as there was no notation on the prescription indicating an agent had done the pick-up.
[23] Mr. Sedarous acknowledged that he had no specific recollection of dealing with the patient on any of the dates. However, he was able to provide evidence from his standard practice. He testified that according to his standard practice, he would have asked the patient for photo identification before filling the prescription given that he was dealing with the patient for the first time on July 8, 2013. While he would have required photo identification to be shown, Mr. Sedarous acknowledged that he would not have scrutinized the photograph as in his experience, people would often change their appearance over time. He also testified that he would not have taken the photo identification in his hand, but rather would have observed it from his side of the counter as the patient held it. He testified that he would accept an expired health card or any photo identification as valid identification.
[24] He would have provided some counselling to the patient on the use of the fentanyl. He also acknowledged these conversations with the patient, and the fact that the doctor’s office confirmed the prescription would give him confidence that he was dealing with the right patient.
[25] Given delays in receiving the information from NMS, police did not speak with Mr. Sedarous until September of 2015. No photo line-ups were conducted by police with Mr. Sedarous when he was first interviewed about these circumstances in September 2015. No video surveillance could be retrieved relating to the pickups in this case. Video in the pharmacies was only available for review for 30 days from the date the video was taken.
Contact List for Raymond Goudreau and Evidence of Granville Sinclair
[26] At the time of Goudreau’s arrest, police seized two different phones from him. One phone was a Samsung, and the other was a Pantech. The Samsung phone contained primarily personal contacts like family and close friends. The Pantech phone contained more of Goudreau’s known drug contacts and even contained drug text communications.
[27] An extraction report for the Pantech phone was filed as Exhibit 7B in the proceeding. That report confirmed that the contact number of 705-220-0389 (Carlos’ work contact) was located in Goudreau’s Pantech phone with a contact name of “Carlns”. However, there was no indication of any contacts between the accused and Goudreau.
[28] In addition, there was a contact number for many of the other individuals involved in the scheme including Henry Bermudez with a number of 647-857-9125 and Yanci Loor with the number 647-656-1466. The contact name in the list for Henry was “Hen”, and the name for Yanci Loor was “Yanz”.
[29] Granville Sinclair was also called as a witness for the Crown. Sinclair testified that he had met Carlos Bermudez, Henry Bermudez, and Yanci Loor in the past at Goudreau’s house. However, his evidence made it clear that he was not very familiar with the brothers, and was not even able to recognize the accused from his picture in Exhibit 1.
Evidence Sought to be Relied Upon by the Defence in Support of Alternate Suspect Application
Henry Bermudez
[30] As noted above, Crown counsel filed all of the prescriptions pertaining to the 19 “false” patients that were investigated as part of this project. Henry Bermudez, the accused’s brother, was one of the individuals implicated in the scheme by the prescriptions.
[31] Business records from the pharmacy indicate that a person using the name of Henry Bermudez (the brother of the accused) attended the pharmacy located at 450 Bayfield St., Barrie, on three separate dates:
June 7, 2013
July 7, 2013
August 6, 2013
[32] In her testimony, Nicole Peters testified that Henry Bermudez looked a great deal like the accused. She also testified that Henry Bermudez had been known to borrow identification from his brothers in the past. In Nicole Peters’ experience, Carlos was very absent minded when it came to his own identification. Carlos would routinely lose or misplace pieces of his own identification.
[33] Officer Ford in his evidence acknowledged that they were unable to locate Henry Bermudez when they started effecting arrests in relation to this investigation and a warrant was taken out for his arrest. It is believed that Henry Bermudez has fled the jurisdiction.
[34] Officer Ford also acknowledged that he had downloaded various photographs retrieved from a Facebook page of a “Henry Bermudez”. The posts on the Facebook page of this male named “Henry Bermudez” indicate the male has left Toronto for South America. While the male clearly looks like the accused, Officer Ford could not verify whether or not the male from the Facebook page was the accused’s brother.
Yanci Loor
[35] Business records from the pharmacy also indicate that Yanci Loor attended the pharmacy located at 520-3390 Keele Street in Toronto, on three separate dates:
July 2, 2013
August 1, 2013
September 3, 2013
[36] Yanci Loor was a friend of both Henry Bermudez and the accused. Two pictures were shown to Officer Ford by defence in the course of his cross-examination, and Officer Ford confirmed the pictures to be pictures of Yanci Loor. The pictures of Loor with shorter hair bear some resemblance to the accused.
[37] Nicole Peters testified that Yanci Loor had been hanging around the accused and his brother, Henry Bermudez, in June 2013 while in Wasaga. She had to pick them up from the “drunk tank” on June 23, 2013 as they had been arrested together and were intoxicated.
Alternate Suspect Application
[38] The defence filed a notice of application indicating the accused’s intention to advance an alternate suspect defence. The notice indicated in general terms:
A strong evidentiary foundation will be led by the Applicant on a voir dire, that will suggest two other individuals had a substantial connection to the crime, a connection to the main perpetrators of this offence, a propensity to commit offences of this nature and the opportunity and ability to impersonate the Applicant using a fraudulently obtained identification document in the Applicant’s name. One of the alternate suspects has a warrant out for his arrest for these offences, looks uncannily similar to the Applicant, has fled Canada and is currently evading Canadian justice in the warmer pastures of South America.
[39] At the outset of the trial, the Crown sought to have the alternate suspect application summarily dismissed as not providing adequate notice under the Rules. In the alternative, the Crown sought to have the accused provide a detailed affidavit outlining his proposed defence, and the exact evidence the accused sought to tender in support of that defence. The Crown took the position that these details were required by Rule 30.03(2) to provide sufficient detail about the nature of the evidence sought to be relied upon and how that evidence purports to satisfy the alternate suspect admissibility test before it was considered.
[40] The defence resisted the Crown’s request for a detailed affidavit on the basis that the accused had no obligation to disclose the details of its entire defence in advance. The defence took the position that to mandate details of this sort would violate the accused’s right to silence. According to the defence, all that was required was to advise the Crown and the court that the defence would be in play. In an addendum to the notice, the defence also stipulated that Henry Bermudez and Yanci Loor were the alternate suspects, and the evidence sought to be tendered would demonstrate that both of these individuals had a substantial connection to the scheme, a connection to other conspirators implicated in the offence and the propensity, motive and opportunity to commit the offence.
Notice on an Alternate Suspect Application
[41] While Rule 30.01 provides that applications to admit presumptively inadmissible evidence should be brought at the outset of trial, evidence of a third party suspect is not presumptively inadmissible evidence (R. v. Fenton, 2017 ONSC 4572, at para. 30). [^1]
[42] Contrary to the Crown’s submission, the timing and sufficiency of the notice for an alternate suspect defence is not subject to a fixed rule. While the defence itself requires an “air of reality” to be considered by the trier of fact, this does not mean that an application is always required to advance it.
[43] In many instances, an alternate suspect defence will not require an application at all. For example, where the accused calls a witness as part of his defence who takes responsibility for the crime, an application is not required. Similarly, the accused need not bring an application where the accused or another witness provides evidence of other individuals known to have been present at the scene of a crime who had the opportunity to commit the crime. In such instances, the evidence is clearly relevant and admissible and the defence need not request permission to tender the evidence. This was explained to some degree by the Ontario Court of Appeal in R. v. Murphy, 2012 ONCA 573 at paras. 25:
[W]here the defence proposes to call direct evidence from another person taking responsibility for the crimes charged, that proposed evidence itself constitutes a sufficient nexus or connection. Nothing more need be shown and no formal application is necessary. To impose an additional burden on the defence, as the trial judge did, would be at odds with the passages in Seaboyer and Clarke emphasising the very narrow restrictions on the defence’s right to call evidence. [Emphasis added]
[44] Similarly, the accused need not bring an application in other circumstances where there is a clear evidential foundation for the proposed defence. In short, if the case itself clearly gives rise to a third party suspect defence, the defence need not bring an application to advance it. In such instances, the “air of reality” to the defence will be evident.
[45] However, when the relevance/admissibility of the proffered evidence is unclear, the trial judge’s gatekeeper function will become engaged. For example, where the accused tries to tender evidence of extraneous events or unknown individuals as a basis to suggest someone else committed the offence, the relevance/admissibility of this evidence may not be apparent. To understand the relevance of the evidence, and assess its admissibility (whether the evidence has a proper evidentiary foundation), the trial judge may require further elaboration. This elaboration is what is contemplated by the contents of the application. It explains the foundation for the evidence which is proposed to be tendered. This was explained by the Supreme Court explained in Grant at para. 21:
In most cases, where the defence evidence relates to the facts underlying the offence charged, the logical relevance and the admissibility of the evidence will be obvious. However, where the evidence refers to a factual matrix beyond the offence charged, its relevance to a fact in issue or an available defence may be less clear. In such circumstances, the gate-keeping role of the trial judge may require her to determine whether the evidence is logically relevant and connected to a defence that has an air of reality. [Emphasis added]
[46] The application allows the Court to address the admissibility of the evidence in advance without a disruption of the trial. It permits the Court to consider the admissibility of the proposed evidence having regard to the defence’s theory of relevance.
[47] An application in advance also allows the trial judge to be adequately informed of the basis for questions asked of witnesses, it avoids unnecessary objections, and it ensures questions are not put to witnesses regarding evidence that is later found to be inadmissible. It also permits the Crown to address the proposed defence as part of its case in chief obviating the need for a broader right of reply and allows the defence to comply with the requirements in Browne v. Dunn (1893) 1893 CanLII 65 (FOREP), 6 R. 67, H.L.. Notice in advance essentially assists in the orderly conduct of the trial.
[48] The content of the notice, however, is not directed at forcing the accused to disclose the specifics of his/her defence. Rather, it is merely directed at assisting with determining the admissibility of the proposed evidence. As long as the notice provides a sufficient basis to understand the general nature of the evidence and its relevance, the requirements of notice will be served. This was explained recently by Schreck J. in R. v. Fenton, 2017 ONSC 4572 at paras. 27 and 28:
With respect, the Crown has misconceived the rationale for requiring an application to determine the admissibility of third party suspect evidence. As the authorities make clear, the purpose of the requirement is to ensure that only logically probative evidence whose prejudicial effect does not substantially outweigh its prejudicial effect is admitted. Its purpose is not to give the Crown advance notice of the defence case. While this may be for the Crown a fortuitous by-product of such applications, it is not the reason they are required.
[49] Moreover, a failure to give notice should never preclude the defence from relying on relevant and admissible evidence. To preclude the accused from calling such evidence may impair the accused’s constitutional right to make full answer and defence. At its highest, a failure to give sufficient notice may warrant an adjournment or give the Crown a broader right of reply. However, it will not be a proper basis to prevent the defence from relying on relevant and admissible evidence. As McLachlin J. explained R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at pp. 611-12:
Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted. It follows from this that the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law.
These principles and procedures are familiar to all who practise in our criminal courts. They are common sense rules based on basic notions of fairness, and as such properly lie at the heart of our trial process. In short, they form part of the principles of fundamental justice enshrined in s. 7 of the Charter. They may be circumscribed in some cases by other rules of evidence, but as will be discussed in more detail below, the circumstances where truly relevant and reliable evidence is excluded are few, particularly where the evidence goes to the defence. In most cases, the exclusion of relevant evidence can be justified on the ground that the potential prejudice to the trial process of admitting the evidence clearly outweighs its value.
[50] In this case, I found the parameters for the evidence sought to be admitted had been more than adequately set out in the notice of application and the addendum. The defence was merely seeking to rely on evidence that was already part of the Crown’s proposed narrative. The Crown was well aware of the position of the defence in advance of trial. Indeed, most of the evidence sought to be relied on by the defence was going to be tendered by the Crown as part of its case. A sufficient basis for its relevance had been clearly set out.
Admissibility of the Evidence
[51] As noted above, the gatekeeper function served by a trial judge on an alternate suspect application is directed at ensuring the defence does not tender “irrelevant” evidence or otherwise distract the trier of fact from the issues that are germane to the trial. The application ensures that the focus of the trial is not lost on irrelevant evidence, speculation, conjecture, or baseless allegations against an unrelated third party. As explained in R. v. Grant, [2015] 1 S.C.R. 475, 2015 SCC 9 at para. 4:
…The integrity of the administration of justice requires that the proceedings stay focused on the indicted crime and not devolve into trials within a trial about matters that may not be sufficiently connected to the case. Such tangents risk causing delays, confusion and distractions that undermine the trial’s truth-seeking function. This risk is especially heightened where the defence seeks to introduce other alleged suspects or crimes into the trial.
[52] As the Court of Appeal recognized in R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 23 C.C.C. (2d) 160 (C.A.), affd 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824, the sufficient connection test is nothing more than an elaboration of the logical relevance analysis applied in the particular context of allegations that another individual committed the crime (pp. 828-29). Without a sufficient connection or nexus between the third party and the crime, the evidence of a third party suspect is simply not logically relevant. Abella J. affirmed this point in R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, 2005 SCC, where she wrote at paras. 47 and 48:
The requirement that there be a sufficient connection between the third party and the crime is essential. Without this link, the third party evidence is neither relevant nor probative. The evidence may be inferential, but the inferences must be reasonable, based on the evidence, and not amount to speculation.
The defence must show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence: R. v. Fontaine, [2004] 1 S.C.R. 702, 2004 SCC 27, at para. 70. If there is an insufficient connection, the defence of third party involvement will lack the requisite air of reality: R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29. [Emphasis added]
[53] In framing the relevance of the evidence, the accused is merely required to demonstrate the proposed defence has an air of reality. The defence theory must be a reasonable possibility. The defence must amount to something more than a mere distraction from the relevant issues. In other words, the evidence sought to be tendered and the defence advanced must be able to “legitimately” raise a reasonable doubt.
[54] This requirement for admissibility must be broadly construed. As noted above, a court must not be too ready to prevent an accused from tendering potentially relevant evidence. R. v. Seaboyer, supra. Even hearsay or other evidence not ordinarily admissible for the Crown may be admitted if the evidence has probative value: See also R. v. Feeney, 2014 ONSC 7268 at para. 57; see also R. v. Kimberley, 2001 CanLII 24120 (ON CA), [2001] O.J. No. 3603 (C.A.) at paras. 80-81. In R. v. Kanathasamy, [2006] O.J. No. 2198, at para. 22, Cumming J. noted that courts should be reluctant to exclude evidence on which an accused hopes to rely in his defence:
Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted.
[55] In R. v. Clarke, 1998 CanLII 14604 (ON CA), 18 C.R. (5th) 219 (Ont. C.A.), at para. 33, Rosenberg J.A. elaborated on the court’s narrow power to exclude relevant defence evidence:
The power to exclude relevant defence evidence, however, is narrower and constrained by the fundamental tenet that an innocent person not be convicted, a tenet which now has constitutional protection. As she said at p. 608, “The right of the innocent not to be convicted is dependent on the right to present full answer and defence. This, in turn, depends on being able to call evidence necessary to establish a defence and to challenge the evidence called by the prosecution.” McLachlin J. held, at pp. 611-12, that defence evidence may be excluded where the prejudice substantially outweighs the value of the evidence. In the result, “the circumstances where truly relevant and reliable evidence is excluded are few, particularly where the evidence goes to the defence” (at p. 611). Exclusion of defence evidence can be justified only where the “potential prejudice to the trial process of admitting the evidence clearly outweighs its value" (at pp. 611-12). [Emphasis added]
[56] In a judge alone trial, the risk of prejudice[^2] is not a substantial concern. Unless the evidence is clearly irrelevant, the judge should grant the defence substantial latitude in tendering potentially relevant evidence. The ultimate significance of the evidence can always be assessed at the end of trial having regard to the evidence as a whole. The question for the trial judge then becomes one of weight rather than admissibility. As the Ontario Court of Appeal explained in R. v. Edgar, 2010 ONCA 529 at paras. 66 and 70, “trial efficiency is an important factor generally but rarely, if ever, will it justify the exclusion of relevant, probative evidence that could lead the trier of fact to acquit.”
[57] In this case, the Crown tendered most of the evidence relating to the alternate suspects in its case in chief as part of the underlying narrative. Accordingly, the only issue is whether the evidence has any probative value on the ultimate issue.
[58] Having heard the evidence, I find that the alternate suspects proposed here clearly have a sufficient connection to the offence for the evidence relating to them to be considered. The evidence is relevant to the issues at trial and is properly considered in determining whether or not the Crown has discharged its burden. In short, the evidence is not clearly irrelevant.
Analysis: Have the Offences Been Made Out Beyond a Reasonable Doubt
[59] In this case, the only real issue is identification. The evidence clearly makes out that a person using a fraudulent prescription attended the pharmacy located at 380 Mapleview Drive West in Barrie and picked up fentanyl on three separate dates:
July 8, 2013
August 8, 2013
September 7, 2013
[60] The evidence also confirms that the prescription was tendered in the name of Carlos Bermudez, and the person attending held himself out to be Carlos Bermudez.
[61] The only question is whether or not the evidence establishes beyond a reasonable doubt that the person attending on those three occasions to pick up the drugs was in fact the accused.
[62] The Crown relies primarily on the following facts to establish that the accused attended to pick up the fentanyl:
The accused’s correct health card number was on the prescription;
The address of the accused of 24 Savannah, including the correct postal code was listed on the prescription;
The accused’s business phone number of 705-220-0389 was listed on the prescription;
The pharmacist would have checked photograph identification and confirmed that the person picking up the drugs was Carlos Bermudez. Accordingly, the person picking up the drugs would have had identification in the name of the accused;
The accused is listed as a contact in Raymond Goudreau’s drug phone. The accused’s business phone number was listed beside “Carlns” which appears to be an obvious typo for “Carlos”; and
Given the involvement of Julie Baks, the scheme was essentially fool proof, and there would be no reason that the accused need have been concerned about using his own information.
[63] According to the Crown, the fact that the accused’s actual phone number was on the prescription as a contact number virtually confirms that it was the accused who tendered the prescription. The risk that the pharmacist would call the number regarding the prescription strongly suggests that a third party would not use the accused’s actual number unless it was the accused. The risk would be too great.
[64] I agree that the evidence as it stands would strongly suggest that the accused attended the pharmacy and picked up the fentanyl on the three separate occasions. However, on the basis of the evidence tendered, I am not satisfied of this point beyond a reasonable doubt.
[65] Indeed, at its highest, we have information that someone using the identification of the accused attended at the pharmacy on the relevant dates and picked up the fentanyl. There is no video evidence which can confirm who this person was. The pharmacist has no recollection of his direct dealings with the patient, and his standard for checking identification can hardly be described as stringent. He even acknowledged that he would accept an “expired” health card as valid identification.
[66] There is also nothing to say that the information listed on the prescription would be difficult for someone else to obtain. The way the scheme operated, the information would be relayed to Julie Baks by Raymond Goudreau. Where Goudreau obtained that information is hardly evident. Clearly, the information could have been obtained from someone else who knew the accused. The accused’s address of 24 Savannah would be well known to anyone that knew him. And the accused’s phone number was openly listed on his business card. While there may have been a risk for a third party to include a valid phone number of the accused on the prescription, this risk may have not been evident to the person providing the information to Baks.
[67] The fact that the accused is listed in Goudreau’s contact list is relevant, but not that probative. There is no evidence that Groudreau actually spoke with the accused regarding the scheme, or that he spoke to the accused at all. The evidence of Sinclair that he observed the accused at Goudreau’s house on some prior occasion with Henry Bermudez hardly amounts to material evidence relating to Carlos’ involvement in the scheme. It merely suggests that the accused knew Goudreau.
[68] The evidence relating to Henry Bermudez, his close association with the accused (his brother) and his clear involvement scheme also gives rise to concerns.
[69] If one looks at the dates that the accused is alleged to have attended the pharmacy in Barrie to obtain fentanyl, these dates are very close in time to the dates when “Henry” was obtaining his fentanyl from a different pharmacy in Barrie. Only days apart. This suggests that Henry was in Barrie at the relevant time participating in the scheme.
[70] In normal circumstances, a patient would have to wait 30 days before obtaining additional fentanyl patches under a prescription. However, if Henry Bermudez were to use the accused’s identity, then he would be able to obtain additional fentanyl immediately. The motive for Henry to commit the offence in Carlos’ name is present.
[71] There was also nothing seized from the accused’s person that would confirm his involvement in the scheme.
[72] Whether or not Henry Bermudez was actually involved is not the issue for me to decide here. The onus is not on the accused to establish the existence of an alternate suspect. The presumption of innocence prevails until the Crown has displaced it by proving the accused committed the offences beyond a reasonable doubt.
[73] A reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence. As the Supreme Court explained in R. v. Villaroman, [2016] 1 SCR 1000, 2016 SCC 33 at para. 35:
The basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.
[74] Given the nature of the scheme, the clear association of the accused with other individuals involved in that scheme who would have had access to his personal information, and the absence of any direct evidence showing that the accused was actually involved, I am left in doubt. The Crown has not satisfied me beyond a reasonable doubt that the accused was aware, participated in, or was the actual person who attended at the pharmacy and obtained the fentanyl on the three dates listed in the indictment.
[75] Accordingly, I acquit the accused on all the charges.
Justice C.F. de Sa
Released: December 11, 2017
CITATION: R. v. Bermudez, 2017 ONSC 7370
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CARLOS BERMUDEZ
Defendant
REASONS FOR DECISION
Justice C.F. de Sa
Released: December 11, 2017
[^1]: Rule 30.01 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7 provides that a party who wishes to tender evidence that is presumptively inadmissible must serve an application asking for that relief 30 days before trial or the date set for pre-trial motions. The application must include a “precise, case-specific statement of the basis and grounds upon which the evidence is said to be admissible.
[^2]: Prejudice in this context would be delay more than distraction as the trial judge can focus on the relevant evidence in his assessment.