COURT FILE NO.: 18-93

DATE: 20191022

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Tammy McCargar

Defendant

A.White , counsel for the Crown

Y.Tahmassebipour, counsel for the Defendant

HEARD: October 7, 8, 9, 10, 2019

reasons for judgment

lacelle, j.

[1] Larry Barkley has a prescription for fentanyl to help him ease the pain of an injury to his back and neck. The accused in this case is alleged to have robbed him of that prescription medication.

[2] The issue in this case is whether a robbery occurred. The defence agrees that the accused obtained fentanyl from the complainant. However, the defence argues that because this was done as part of a pre-arranged exchange, it was not a robbery.

Overview of the evidence

The complainant’s evidence

[3] Mr. Barkley was 67 years old and lived alone in a house in a rural community when these events are alleged to have occurred. He had stopped working many years prior because of an injury he sustained in his workplace. He suffered crushed vertebrae in his back and neck. At the time of the alleged offence he was using fentanyl which had been prescribed for him to control the pain he continued to experience as a result of that injury.

[4] Mr. Barkley recalled that he had spent the day of the alleged robbery (the 14^th of March, 2017) at his house with his grandkids. A snow storm developed late in the day so he took his grandkids home. He returned to his house at about 6-6:30 pm and went to bed shortly thereafter.

[5] Mr. Barkley testified that he was awakened by the sound of banging. He went downstairs to investigate, thinking it might be related to the storm. When he got downstairs, he heard glass breaking. He saw a shovel come through the window of the wooden entrance door which opens into his kitchen. He saw two people on the other side of this door, which was locked. The two people were in the enclosed porch which was at the entry he used to enter the house.

[6] Based on their shapes and voices, as well as the fact that each had long hair, the complainant thought they were both women. He assessed one of them as being older than the other based on her voice. The person he thought was older was huskier and taller than the younger individual, who he described as slim with longer hair. He did not know either person.

[7] The women told him they wanted $2000 from him. He replied that he couldn’t give him that because he was on a pension. Then they said they knew he was taking fentanyl and they wanted his patches. They told him there was a gun pointed at his head through the window. The women also told him not to call the police. They said they’d be back. They referred to his son Jason and suggested they might hurt him or something like that.

[8] Mr. Barkley recalled that the older woman did most of the talking. She was the person who told him there was a gun pointing at his head from a window. This comment was made before the women told him they wanted his fentanyl. He said she sounded pretty convincing when she said it and he was convinced there was a gun. He did not know which window she was referring to. There were a number of windows in his kitchen and because it was dark out he couldn’t see if someone was outside the window. He was scared. He went to get the fentanyl.

[9] Mr. Barkley had some patches in the kitchen “from the summer”. He explained that sometimes in summer, when it was hot out, he didn’t feel the need to take all the medication he was prescribed. Sometimes he would skip a dose. He saved those patches and kept them in his kitchen. On the night of the alleged robbery, Mr. Barkley says he gave the women the patches he had in his kitchen. He wasn’t sure how many there were but thought there might be up to 15-25. He recalled that he gave them to the heavier set lady. She put her hand through the broken window of the door into the kitchen and he put the patches in her hand.

[10] After he gave them the patches, Mr. Barkley said that the women seemed to be satisfied with that. He waited a few seconds and then peeked out of his house. He saw the women get into a vehicle at the end of his driveway. It was still storming out and he could not make out what type of vehicle it was.

[11] Mr. Barkley never saw a gun.

[12] After the people had left his property, Mr. Barkley discovered various items he believed to be associated with the perpetrators. The first was a tall Pepsi can that was in the snow on the walkway to the porch door. He testified that he took a pair of pinchers, picked it up, and put it in his garage. He used the pinchers, or pliers as he later referred to them, because he knew this item was not his – he did not drink pop and neither did his grandkids. He concluded that the Pepsi can had been freshly set in that spot since it was still sticking up out of the snow. He discovered it after he peeked out and saw the perpetrators leaving in the vehicle at the end of his driveway. He picked up the Pepsi can then. The can had not been there when he left with his grandkids or when he returned after dropping them off at home.

[13] About a couple of days later, after some snow had melted, Mr. Barkley found 3 cigarette butts on his property. One was located near the Pepsi can, one was under a window of his house, and another was further from the house near the driveway. While Mr. Barkley smoked, he testified that he would never leave butts around his property. He determined that the butts were not his and put them all in a baggie which he then placed in his garage. He said he used a pair of pliers to pick up the cigarette butts and place them in the baggie.

[14] Mr. Barkley went to the police two days later. He said he did not go or call earlier because he was worried that the perpetrators might have his son. He had not been able to reach his son when he called him because his son had been at his girlfriend’s. He ultimately spoke with his son the day after these alleged events. After speaking with his son and learning that he was ok, he attended at the local police detachment.

[15] The complainant denied the suggestion put to him in cross-examination that he had been selling fentanyl to people in his community. He denied that he knew that people would be coming to the house to get fentanyl from him. He responded that they came asking for $2, 000. He adamantly denied the suggestion that he had invited these people into his house and then made a pass at the younger one (a suggestion which ultimately did not correlate with the accused’s account or any other evidence before the court). He