COURT FILE NO.: CR-17-338 DATE: July 6, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Tim McCann for the Director of Public Prosecutions
- and -
ALBERT TREMBLAY AMANDA RUDDY Cedric Nahum, for the Accused Tremblay Mellington Godoy for the Accused Ruddy
Accused
DATE HEARD: March 10, 2019
RULING ON REQUEST FOR DIRECTED VERDICTS
James, J.
[1] Albert Tremblay and Amanda Ruddy have applied for directed verdicts of not guilty on counts 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 13, 14 and 15. They are jointly charged on counts 1, 2, and 3. Albert Tremblay alone is charged on counts 4, 6, 7, and 8. Amanda Ruddy alone is charged on counts 12, 13 and 15. They contend that the prosecution has failed to make out a prima facie case on these counts and therefore they should be acquitted without having to decide whether to call evidence or not.
[2] The allegations against the applicants arise out of their relationship as patients and friends with Dr. Brian Baxter, who was their family physician. In addition, they provided after hours cleaning services at his office.
[3] Both applicants suffer from chronic pain and were prescribed opioid medication by Dr. Baxter as part of their pain management regime. Dr. Baxter acknowledged that considering the duration and quantity of their opioid consumption, both applicants were addicted to opioids at the material time.
[4] The allegations against the applicants center on whether they abused their access to Dr. Baxter’s office by forging prescriptions in his name and faxing them to two local pharmacies to be filled.
[5] An application for a directed verdict will be successful unless there is evidence on every essential element of the offence (R. v. Charemski, [1998] 1 S.C.R. 679 at para. 22). The trial judge’s assessment of the evidence will vary, however, depending on whether the Crown’s evidence is direct or circumstantial. Where there is direct evidence on each essential element, no weighing of the evidence will be required by the trial judge. However, where the Crown’s case involves circumstantial evidence, the trial judge must engage in a limited weighing of the evidence to determine whether the evidence can reasonably support an inference of guilt (R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 at para. 22 and 32).
Counts 1 and 2
[6] These counts involve allegations that the applicants were in possession of two Stihl chainsaws that they knew had been stolen. There is no evidence on the knowledge element of the offence. Inferences that may be available based on the doctrine of recent possession do not apply because the thefts had taken place one and three years previously and therefor were not “recent”. There shall be directed verdicts of not guilty on these counts.
Count 3
[7] This count relates to a large quantity of cash that was found during the police search of the home that the Crown alleges was the residence of the applicants. The issue is whether the applicants were in possession of property (cash) knowing that the property was obtained by the commission of an offence. The Crown contends that the money was generated by the sale of opioids by the applicants.
[8] I note that the amount of currency alleged to have been located in the house during the search was $9,420 but the indictment refers to Canadian currency not exceeding $5,000.
[9] How the applicants came into possession of this amount of money and why it was kept in an armoire in a bedroom are suspicious circumstances. Conversely, there is no evidence of drug trafficking. In my view this rather sparse circumstantial evidence, when considered in the context of all the evidence, is capable of supporting inferences that the money was obtained by illegal activity and the applicants knew this to be the case. There should not be a directed verdict of not guilty on this count.
Counts 5, 9, 11 and 14
[10] These counts allege that the applicants committed fraud by presenting forged prescriptions to the pharmacies that dispensed the medication. There is no evidence that the pharmacies suffered economic deprivation or sustained a loss. The pharmacies were paid for the prescriptions. The presence of economic deprivation is an essential element of the offence of fraud. There shall be directed verdicts of not guilty in relation to these counts.
Counts 6 and 12
[11] These counts allege that Albert Tremblay (count 6) and Amanda Ruddy (count 12) possessed property, namely narcotics, to a value of less than $5,000 knowing that the property was obtained by the commission in Canada of an indictable offence.
[12] The applicants contend that the term “narcotic” is ambiguous, is not a substance listed in the Controlled Drugs and Substances Act and that there are no certificates of analysis establishing the identity of the substances that the applicants obtained with the forged prescriptions.
[13] These counts follow logically from the Crown allegations that the applicants fabricated false prescriptions to illegally-obtain pharmaceutical opioids. The applicants have not applied for directed verdicts of not guilty in relation to the allegations that they forged prescriptions.
[14] Accepting for the purposes of this application that there is some evidence to support each of the essential elements of the forgery counts and that the applicants used these prescriptions to obtain fentanyl patches and oxycodone tablets, these counts do not fail because they refer to “narcotics”. The word “narcotics” is a widely-known and generally-recognized descriptor of a category of drugs that includes fentanyl and oxycodone. The term provides sufficient particulars to the applicants. In addition, certificates of analysis are not required to establish “some evidence” that the prescriptions consisted of fentanyl and oxycodone for the same reasons used in discussing counts 7, 8 and 13.
[15] Alternatively or in addition, judicial notice may be taken of the fact that fentanyl and oxycodone fall within the category of drugs generically known as narcotics.
Counts 7, 8 and 13
[16] These counts allege illegal possession of fentanyl and oxycodone by Albert Tremblay and illegal possession of fentanyl by Amanda Ruddy. Counts 7 and 8 are specific to Albert Tremblay for the period between January 3, 2016 and August 12, 2016. Count 13 is specific to Amanda Ruddy for the period between March 14, 2016 and August 13, 2016.
[17] The applicants contend that since there is no certificate of analysis or other expert evidence establishing that the substances in question were controlled drugs listed in the Controlled Drugs and Substances Act, directed verdicts of not guilty are required.
[18] The applicants overstate the necessity of a certificate of analysis. A substance can be identified by circumstantial evidence so long as the totality of the circumstantial evidence allows the trial judge to make a reasonable inference as to the identity of the substance to the exclusion of other possibilities (see McFarland, Frater and Michaelson, Drug Offences in Canada, 4th ed., Canada Law Book, 2018, p. 18-18). In the context of a request for a directed verdict, the task is to assess whether a reasonable jury, properly instructed, could return a verdict of guilty.
[19] In this case there is evidence that the applicants had both motive and opportunity to prepare illegitimate prescriptions for the substances in question. There is documentary evidence admitted under the business records provisions of the Evidence Act (Canada) which indicates the identity of the particular substance that was dispensed together with its strength (dosage) and quantity (number of tablets or patches). There is evidence as to who the prescriptions were issued to and the identity of the persons who picked them up.
[20] The fact that these substances were obtained from a pharmacy is a reliable indicator that the substances provided to the applicants were what they purported to be. Also, the regulations governing the filling of prescriptions for opioids require that a large quantity of collateral information be obtained and recorded, and this enhances reliability.
[21] I conclude that after engaging in a limited weighing of the circumstantial evidence, there is sufficient evidence to permit a properly instructed jury to find that the substances dispensed by the pharmacy were in fact fentanyl and oxycodone. These counts ought to be allowed to stand.
Count 15
[22] This count alleges that on or about September 1, 2016 Amanda Ruddy was in possession of oxycodone illegally. The date for this count is significant. It differentiates this count from the other drug possession counts because it does not relate to a date when there are matching records of the applicants attending at the pharmacy to take possession of opioids dispensed pursuant to what I will assume for the moment are bogus prescriptions. The mechanics of establishing possession are therefore different.
[23] Ms. Ruddy admitted that the tablets were oxycodone pills but challenges whether they were in her possession on or about September 1, 2016. The tablets were not found on her person. They were found during a search of the house at 1351 Westmeath Road. The prosecution does not have direct evidence that Ms. Ruddy lived at the residence on Westmeath Road. There is, however, circumstantial evidence connecting Amanda Ruddy to the tablets and this address. The prescription bottle containing the oxycodone had her name on it. There was a Rexall bag with another prescription bottle containing pills bearing a label in Amanda Ruddy’s name on a shelf in the master bedroom. A prescription in favour of Amanda Ruddy was pinned to a bathroom door frame in the basement. On September 25, 2016, four days after the search of the house, Amanda Ruddy was arrested in the company of Albert Tremblay shortly after having left 1351 Westmeath Road.
[24] While there was affidavit evidence adduced during a pretrial application that her driver’s licence referred to this address and that there was a vehicle in the yard registered to her name, my recollection is that this evidence was not brought forth during the trial.
[25] I have concluded that there is some evidence connecting Ms. Ruddy to both the tablets in question and the Westmeath Road residence in which they were found such that she could be found to be in constructive possession of the oxycodone tablets in the prescription bottle in her name found in the house. This count will be allowed to stand.
[26] To summarize, directed verdicts of not guilty shall apply to counts 1, 2, 5, 9, 11 and 14.
Mr. Justice Martin James