COURT FILE NO.: CR-17-338
DATE: April 20, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
-and-
Tim McCann, Counsel for Her Majesty the Queen
ALBERT TREMBLAY AMANDA RUDDY
Defendants
Cedric Nahum, Counsel for Defendant, Albert Tremblay Mellington Godoy, Counsel for Defendant, Amanda Ruddy
HEARD: March 18, 19, 20, 21, 22, 25, 2019 May 24, 2019 July 8, 2019 September 5, 6, 2019 February 24, 2020 September 18, 2020 February 3, 2021
REASONS FOR DECISION
JAMES, J.
Introduction
[1] The Defendants are charged by indictment with three counts of possession of property not exceeding a value of $5000 obtained by the commission in Canada of an indictable offence, two counts of using or uttering a forged document, two counts of possession of fentanyl and two counts of possession of oxycodone.
[2] Originally, there were 15 counts on the indictment. Pursuant to a directed verdict application by the defence, findings of not guilty on counts 1, 2, 5, 9, 11 and 14 were made at the close of the Crown’s case, leaving 9 counts remaining.
[3] The Defendants did not call any evidence.
[4] For the reasons that follow, I find Albert Tremblay guilty on counts 4, 6, 7, and 8, not guilty on count 3 and Amanda Ruddy guilty on counts 10, 12 and 13 and not guilty on counts 3 and 15.
Brian Baxter’s Medical Practice
[5] Brian Baxter (“Dr. Baxter”) is a family physician in Pembroke, Ontario. He is 68 years old. In 2016 he had a large practice servicing somewhere between 6000 to 8000 patients. He had a staff of four, mostly long-term employees. Office hours were 7:30 a.m. to 4:30 p.m., Monday to Thursday. On Fridays the office closed at 11:30 a.m. He also made house calls and delivered babies outside of normal office hours.
[6] Albert Tremblay and his partner, Amanda Ruddy, were friends and patients of Dr. Baxter. Mr. Tremblay had been a patient of Dr. Baxter since about 2001. Ms. Ruddy had been a patient since about 2008.
[7] Dr. Baxter is the godfather of their daughter.
[8] Mr. Tremblay worked for Dr. Baxter doing odd jobs such as painting and yard work for several years.
[9] Both Ms. Ruddy and Mr. Tremblay have significant health issues. Ms. Ruddy was involved in two car accidents and suffers from a variety of ailments including chronic pain and lingering effects from a head injury. Mr. Tremblay has a problem with one of his knees and mechanical back pain due to a history of physically demanding jobs.
[10] Dr. Baxter began prescribing opioids for both Defendants in about 2008.
[11] In about 2012, they began providing cleaning services at Dr. Baxter’s office twice a week. They did their work outside of office hours – usually evenings and weekends. They had a key for the office and once inside the office, nothing was locked.
[12] By 2016, the Defendants had similar prescriptions consisting of 15-100mcg fentanyl patches and 15-50 mcg fentanyl patches plus between approximately 180 and 240 oxycodone or similar tablets for breakthrough pain for each patient each month. While patches are sometimes prescribed for a 72-hour duration, the Defendants’ prescription provided for new patches every 48 hours.
[13] A used fentanyl patch contains residual fentanyl that can be abused. Generally, it is necessary for a patient to return his or her used patches to the pharmacy when picking up a new supply. Also, requiring used patches to be returned prevents patches from being cut into pieces and sold on the black market. Sometimes Dr. Baxter’s prescriptions had a note to the pharmacist that the Defendants had returned the used patches to him.
[14] Dr. Baxter and the Defendants sometimes resorted to an informal system of renewing prescriptions. The Defendants could send him a text requesting a renewal. Sometimes he would leave a handwritten prescription for them to pick up at his house between the doors. I had the impression, however, that by 2016 the use of paper prescriptions in Dr. Baxter’s office for prescribing narcotics had given way to the use of faxes directly to the pharmacy, to eliminate the possibility that a patient may try to alter the prescription. This was confirmed by Kathleen Deschambault, a secretary who had been with Dr. Baxter for about 20 years, who testified that by 2016, 98% or 99% of all opioid prescriptions were transmitted by fax. She said they tried not to give original prescriptions to anybody.
[15] A prescription could be partially completed by a member of staff and left for Dr. Baxter to sign when he had time or returned to the office, for example, when a pharmacy or patient called in a renewal request.
[16] The practice in Dr. Baxter’s office was to fax a prescription for narcotics to the pharmacy, stamp the prescription with a “faxed” stamp and file the original prescription alphabetically in storage boxes. As a first step, these boxes were kept on top of file cabinets near where the support staff worked. After a month or so, when the box was full, the box was re-located to a locked storage area.
[17] In 2016, Dr. Baxter was under investigation by the College of Physicians and Surgeons as a result of concerns with deficiencies in his prescribing and record-keeping practices (that were substantiated) and allegations of professional misconduct (that were determined to be unfounded).
[18] When the situation involving the Defendants came to the attention of the police in August 2016, a medical inspector had already been to Dr. Baxter’s office and had accessed his medical records relating to the Defendants.
[19] On October 4, 2017 the Inquiries, Complaints and Reports Committee required Dr. Baxter to appear before the panel to be cautioned with respect to boundaries in the doctor-patient relationship. He was also required to complete the Medical Record-keeping Course and the Safer Opioid Prescribing Course, as well as other specified continuing education and remediation programs. One of the remedial measures required after Dr. Baxter’s practice was audited was that prescriptions for narcotics were to be kept in the patient’s file and not in the storage boxes.
The Procedure for dispensing Narcotics
[20] When the faxed copy of a prescription arrived at the pharmacy, the details were inputted into a computer by any one of a number of employees working in the dispensary area. A multi-part document that included labels and a customer receipt was printed. After the prescription was filled, it was checked and initialed by the pharmacist. The receipt was put in a bag along with the medication.
[21] The pharmacy maintained a patient file that included the name and address of the patient, his or her date of birth and health card number and the identity of their insurance provider.
[22] In the case of narcotics, a person picking up the prescription was required to show a government-issued identification. For well-known patients, the pharmacist sometimes referred to government-issued identification that was on file. A patient could call ahead and arrange for another person to pick up the prescription upon producing proof of identity. Usually the pharmacy copy of the prescription had a notation by staff recording the identity of the person picking up the prescription.
[23] Pharmacists have a reporting obligation when dispensing narcotics whereby they are required to send information about the prescription to the Narcotics Monitoring System, maintained by the provincial government pursuant to the Narcotics Safety and Awareness Act, 2010, S.O. 2010, c.22.
The Events of August 16, 2016
[24] On August 16, 2016, Sehu Gandhi was working as a staff pharmacist at the Rexall PharmaPlus in the Pembroke Mall.
[25] Ms. Ruddy attended at the pharmacy to pick up the remainder of a prescription that had originally been dispensed on August 13, 2016. The prescription was for 240 Endocet tablets and 30 patches of fentanyl consisting of 15 patches of 50 mcg and 15 patches of 100 mcg patches.
[26] The pharmacy had not been able to fill the entire prescription for fentanyl patches due to an inventory shortage so Ms. Ruddy had returned to the pharmacy to pick up the balance of ten patches. There were five patches in a box. Typically, each box was sealed.
[27] After obtaining the unfilled portion of her prescription, Ms. Ruddy returned to the pharmacy later that day and advised Mr. Gandhi that she had received only six of the required ten patches. Further examination revealed that two patches were stuck together so the revised number of missing patches was three.
[28] The pharmacist noted certain information in Ms. Ruddy’s file that prompted him to call Dr. Baxter’s office. According to Dr. Baxter, Mr. Gandhi spoke with a secretary who in turn spoke with Dr. Baxter. Mr. Gandhi said he spoke directly with Dr. Baxter. In either case, Dr. Baxter did not recall having dispensed any prescriptions to Ms. Ruddy for between three to six months and requested that the pharmacist send a copy of the prescription to him to review. He or a staff member advised the pharmacist that he hadn’t written the prescription in question.
[29] As a result of Dr. Baxter’s response, Mr. Gandhi contacted the police and Health Canada.
The Police Investigation
[30] Detective Constable David Schilling was assigned as the investigating police officer following the call to the police by Mr. Gandhi. On August 31, 2016, he attended at Dr. Baxter’s office and took a statement from Dr. Baxter. Then he met with Ms. Deschambault. She provided him with copies of prescriptions in Ms. Ruddy’s name, dated June 8 and June 15, 2016, that had been faxed to Dr. Baxter’s office from the dispensary. The mishandling of these documents resulted in a Charter ruling excluding them as evidence.
[31] D/C Shilling also obtained the records of the dispensing pharmacies for the prescriptions in question. In most cases, the pharmacy copies had additional information recorded on them including notations respecting the identity of the person picking up the prescription.
[32] A search warrant was executed at a residence believed by the police to be the home of the Defendants at 1351 Westmeath Road on September 1, 2016. In my view, there is sufficient circumstantial evidence to support a finding that the Defendants resided at 1351 Westmeath Road. The factors I take into account include the following:
i. their names were on the mailbox;
ii. prescription documentation in both their names was found in the premises. On this point I note that Ms. Ruddy’s address was shown on some documentation as 178 Market Street, Pembroke. The evidence disclosed that the pharmacies do not update the address of a patient unless requested to do so. It appears to me that this was an old address for Ms. Ruddy. The address on Westmeath Road was shown as her address on a Rexall prescription receipt (Exhibit 10).
iii. When they were arrested, they were together in a vehicle near this address;
iv. In the basement there were several prescription receipts (as opposed to actual prescriptions) in Ms. Ruddy’s name, stapled to the frame of the bathroom door;
v. Similar receipts were found in the master bedroom;
[33] Copies of three prescriptions in favour of Albert Tremblay were found in a grocery bag in the ensuite bathroom adjacent to the master bedroom. The prescriptions were dated May 14, 2015, January 3, 2016 and January 26, 2016 (Exhibit 17). The index of items seized during the execution of the search warrant erroneously describes the January 26, 2016 prescription as being dated June 26, 2016. I find this to be a clerical error.
[34] The Crown’s case alleges that all the forged prescriptions bore dates in 2016 so the prescription dated May 14, 2015 is an outlier. These prescriptions are significant for two reasons. First, considering that prescriptions were generally faxed to the pharmacy, how did copies of these prescriptions come to be found in Mr. Tremblay’s home? Secondly, this group of prescriptions shows evidence of cutting and pasting, in this case, with the words “used returned to me” that appear in exactly the same place on the form and look identical. This phrase appears on other prescriptions as well, providing evidence of cutting and pasting on additional prescriptions.
[35] I find that these words relate to the practice of requiring used patches to be returned when picking up a new supply. The words “used returned to me” is an indication to the dispensary that the prescribing physician will be responsible for collecting or has collected the used patches. Ms. Deschambault testified that there were occasions when used patches were brought to the office which could result in the phrase appearing on a prescription, but it was uncommon. Ms. Deschambault did not recognize the writing as having been made by anyone in the office.
[36] In the armoire in the master bedroom, the police found cash exceeding $9,000 in a granola box.
[37] There were some shortcomings in the execution of the search warrant. For example, in addition to the clerical error I referred to a moment ago, the officer responsible for cataloguing items seized took photographs of items as they were being collected and catalogued. All the photographs were placed on a CD and no backup copies were kept. The CD was lost and became the subject of a lost evidence application by the defence.
[38] One item warrants special mention. As previously noted, the copies of prescriptions in the name of Ms. Ruddy dated June 8 and 15, 2016 that were collected by D/C Shilling from Ms. Deschambault at Dr. Baxter’s office were excluded as evidence pursuant to a Charter ruling. The evidence disclosed that there were typically at least two copies of each prescription- the original copy in Dr. Baxter’s office that was faxed to the pharmacy and the faxed copy that arrived at the pharmacy. A copy of the June 15, 2016 prescription was found in a bag in the ensuite bathroom during the search. Again, the question arises, why would there be a copy of this prescription be at her home? It should only be at one of two places, the office of the doctor who wrote the prescription or the pharmacy to which it was faxed to be dispensed.
[39] When the property bag containing the copy of the June 15, 2016 prescription found in the house was produced at trial, the property bag was not sealed and had been opened. Notwithstanding that the Crown proffered an explanation as to how and why the property bag was opened, proper procedure required that it be re-sealed after having been opened, which it was not. As a result, I attach no weight to the copy of the June 15, 2016 prescription found during the search because of the irregularity I have described.
The Impugned Prescriptions
i) Albert Tremblay
[40] Crown counsel tendered nine prescriptions written in 2016 for Albert Tremblay that Mr. McCann contends are forgeries. This group of prescriptions is notable because none of them has a faxed stamp on them, although they were all faxed from Dr. Baxter’s office. Recall Ms. Deschambault’s evidence that their practice was to stamp the prescriptions after they were faxed to the dispensary. For comparative purposes, Exhibit 24 is an example of the faxed stamp used in the office.
[41] All nine of the prescriptions have fax transmission times indicating that they were sent from Dr. Baxter’s office outside his normal office hours. As defence counsel pointed out, the internal clock in a fax machine is susceptible to inaccuracy due to power failures and other causes. However, there is a consistency to the fax times that I find to be probative circumstantial evidence that the prescriptions were sent either after the office closed for the day or on weekends.
[42] Three prescriptions, dated February 25, 2016 (Exhibit 4(B)(1)), April 13, 2016 (Exhibit 4(B)(2)) and May 24, 2016 (Exhibit 4(B)(4)) respectively, have the words “used returned to me” that first appears on the prescription dated May 14, 2015 (Exhibit 12). What is distinctive about the use of this phrase on these prescriptions is that in all cases the formation of the letters and the spacing between the words is identical. Also, perhaps more importantly, the phrase appears in exactly the same spot on the preprinted prescription form. I find this to be conclusive evidence of the process known as cutting and pasting.
[43] Referencing the May 24, 2016 prescription, the pharmacy copy of the documentation contains a note that the prescription was picked up by Albert Tremblay. This prescription was for 240 Endocet tablets, 15-50 mcg fentanyl patches and 15-100 mcg fentanyl patches.
[44] Referencing the June 21, 2016 prescription for the same products and quantities as set out in the preceding paragraph, the pharmacy documentation indicated that the entire order could not be filled initially. The signature on the pharmacy documentation indicates that the balance of the prescription was picked up by Albert Tremblay.
ii) Amanda Ruddy
[45] The prosecution has tendered ten prescriptions written in 2016 in the name of Amanda Ruddy that it contends are forgeries.
[46] None of them has a faxed stamp.
[47] All ten of the prescriptions have fax transmission times indicating that they were sent from Dr. Baxter’s office outside his normal office hours.
[48] The prescriptions for January 19, 2016 (Exhibit 4(A)(1)) and March 14, 2016 (Exhibit 4(A)(8)) are identical except for the date and the addition of the phrase “used returned to me” on the March 14th prescription.
[49] On the prescription for July 18, 2016 (Exhibit 4(A)(6)) the phrase “used returned to me”, is identical in its appearance and its placement on the prescription as the same phrase that appears on Albert Tremblay’s prescriptions of February 25, April 13 and May 24th. As in the case of Mr. Tremblay, I find this to be evidence of cutting and pasting.
[50] Referencing the pharmacy copies of the February 13, 2016 and the June 8, 2016 prescriptions, they appear to have been picked up by Ms. Ruddy. The February 13, 2016 prescription was for 190 Endocet tablets, 15-50 mcg fentanyl patches and 15-100 mcg fentanyl patches. The June 8, 2016 prescription was for 15-50 mcg fentanyl patches and 15-100 mcg fentanyl patches and was dispensed in two tranches- Ms. Ruddy was indicated to be the person picking up the first tranche and there is a signature purporting to be that of Mr. Tremblay with his health card number as the person picking up the balance of the prescription which consisted of 10‑100 mcg fentanyl patches.
[51] Referencing the August 13, 2016 prescription for 190 Endocet tablets, 15-50 mcg fentanyl patches and 15-100 mcg fentanyl patches, the evidence of Mr. Gandhi was that he dealt with Ms. Ruddy on the issue of whether the correct number of patches were provided. He had the person he was dealing with sign a statement about what had happened. This statement was purportedly signed by Amanda Ruddy. He provided an in-court identification of Ms. Ruddy.
[52] Also, the August 13, 2016 prescription does not appear regular on its face. Dr. Baxter’s address is mis-aligned with other details that appear just above the address line on the preprinted portion of the form, which is suggestive of cutting and pasting.
Testimony of Brian Baxter
[53] During his examination in chief, Dr. Baxter was shown a copy of the prescription to Amanda Ruddy dated August 13, 2016. He said her name on the prescription didn’t look like his writing, but the body of the prescription did.
[54] He said that they (referring to Mr. Tremblay and Ms. Ruddy) hadn’t been getting prescriptions for several months, which he estimated to be between three to six months.
[55] He changed the lock on his office door the day after the call from the pharmacist.
[56] Mr. Tremblay and Ms. Ruddy continue to be his patients. He re-commenced prescribing for them when they were released on bail. Mr. Tremblay continues to perform odd jobs and yard work for Dr. Baxter.
[57] Referencing the prescription to Ms. Ruddy dated February 13, 2016, he said the writing on the prescription did not look like his writing or the writing of a member of his staff.
[58] Referencing the prescriptions to Ms. Ruddy dated March 29, 2016, April 7, 2016, May 17, 2016, July 18, 2016 and August 13, 2016, he said the writing for the name and the health card number didn’t look familiar but the writing in the body of the prescriptions looked like his writing. He said his signature on the August 13, 2016 prescription could be his signature.
[59] There was some writing on the Amanda Ruddy prescriptions that he thought belonged to Ms. Deschambault.
[60] Referencing the prescriptions to Mr. Tremblay dated February 25, 2016, April 13, 2016, April 26, 2016, June 21, 2016 and August 12, 2016, he said he thought the writing looked like his. On the July 6, 2016 prescription, he said he thought he recognized his writing and some writing by Ms. Deschambault.
[61] Dr. Baxter confirmed the procedure described by Ms. Deschambault for prescribing narcotics. He thought the practice of handing prescriptions to patients had given way to direct faxes to the pharmacy about a year and a half prior to March 2019 when he testified at the trial, whereas Ms. Deschambault testified that in 2016, 98% to 99% of prescriptions were faxed.
[62] He said when a prescription was faxed to a pharmacy, the original prescription got stamped with a “faxed” stamp and was placed in a file box.
[63] On cross-examination, Dr. Baxter’s evidence was as in part as follows: [^1]
“ Q. And I’m going to suggest to you here that the only thing that makes sense is that you would (have) provided them with these prescriptions, right? Because if you consider the facts at the time, right, that you were their doctor, right? Do you agree with that?
A. Yes, yes. Of course.
Q. You had been prescribing them these medications for a long period of time already.
A. Correct.
Q. You had no reason to stop prescribing them these medications.
A. True.
Q. You were still seeing them on a regular basis.
A. Yes.
Q. There would be absolutely no reason for them not to ask you for the prescriptions, right?
A. True.
Q. And there is no reason that you wouldn’t (have) provided them.
A. No, no.
Q. So, the only logically (sic) conclusion we can come up with is that these prescriptions come from you.
A. Yes.”
Applicable Legal Principles
[64] Crown counsel has the burden of proving the guilt of the defendants beyond a reasonable doubt. This never changes. If I was to conclude that they were likely guilty, they would be entitled to be found not guilty because Crown counsel would have failed to prove their guilt beyond a reasonable doubt. Likely or probable guilt does not meet the required standard of proof.
[65] The Defendants also have the benefit of the presumption of innocence and this presumption remains with them throughout the trial unless and until Crown counsel proves their guilt beyond a reasonable doubt.
[66] Each count of the indictment must be proved independently of every other count. Each count has specific elements that make up the offence, each of which must be proved beyond a reasonable doubt in order to find a particular defendant guilty of the offence charged.
[67] Each defendant is entitled to have his or her guilt or innocence determined independently of the other defendant.
[68] Inferences arising from circumstantial evidence can support proof of guilt beyond a reasonable doubt, but only if the guilt of a defendant is the only reasonable inference that can be drawn from the circumstantial evidence.
Discussion and Analysis
[69] I will address count 4 first- that Albert Tremblay used (uttered) a forged prescription. The elements of this offence are i) that the specified prescriptions were forged; ii) that Mr. Tremblay knew or believed that the specified prescriptions were forged; iii) that he dealt with the prescriptions; and, iv) that he represented the prescriptions as genuine.
[70] The first element- Were the prescriptions forged? My answer to that question is yes. I find that the prescriptions alleged by the Crown to be forged were in fact forged for the following reasons:
a. Both Defendants were long-term users of narcotics;
b. They worked as cleaners for, and had after-hours access to, Dr. Baxter’s office, fax machine and prescription documentation including legitimate prescriptions that could be copied;
c. No original copies of the faxed prescriptions were on file at Dr. Baxter’s office;
d. The fax transmission data on the pharmacy copies of the impugned prescriptions indicate that they were faxed outside of Dr. Baxter’s normal office hours;
e. None of the faxed prescriptions was stamped with a “faxed” stamp, which was established office procedure for legitimate prescriptions;
f. Several prescriptions disclosed evidence of cutting and pasting;
g. There were forged prescriptions in the names of both Albert Tremblay and Amanda Ruddy, and there is evidence that they both picked up the medication from the pharmacy;
h. Dr. Baxter’s initial reaction was that he hadn’t provided the Defendants with prescriptions for between three to six months; and,
i. After speaking with the pharmacist and viewing a copy of the August 13th prescription sent from the pharmacy, he changed the lock to his office because the Defendants had a key.
[71] Dr Baxter’s agreement during cross-examination that he may have written the prescriptions in question was disingenuous. Regarding the August 13, 2016 prescription to Amanda Ruddy that triggered the inquiries, he would have been aware if he had written a prescription for her three days before the pharmacist called his office. His immediate reaction was candid and truthful. I reject the suggestion that he may have written all the prescriptions in question for the following reasons:
a. He remained on good terms with the Defendants and continued to prescribe narcotics for them. He was not impartial and was invested in the outcome because of his multi-faceted connections with both Defendants.
b. I do not accept the defence suggestion that he disclaimed the August 13, 2016 prescription because of a concern that his record-keeping was deficient at a time when he was being investigated by his regulatory body. If anything, it is as or more likely that his initial disclaimer of authorship was truthful rather than false precisely because he was under investigation. Years later, when the investigation was over and he was called to testify at his friends’ trial, he wanted to do what he could to help the Defendants out of the predicament that followed the events of August 16, 2016.
c. The changing of the office lock was corroborative of his belief that the Defendants had been using his office to facilitate the forgeries and this undermines his credibility.
[72] Next, did Albert Tremblay know or believe the specified prescriptions were forged? Yes, because I find that both he and Amanda Ruddy were the makers of the forged documents.
[73] The next element- did Albert Tremblay deal with the prescriptions? Yes- in two ways. Firstly, the forged prescriptions were faxed to the dispensary after hours from Dr. Baxter’s office with the intention that the prescription be filled. Secondly, there is reliable evidence identifying both Defendants as the persons who picked up the prescribed medication. The pharmacy staff had a legal obligation to ascertain the identity of the person picking up the prescription. Mr. Gandhi provided an in-court identification of Ms. Ruddy from the incident on August 16, 2016. This in-court identification was more reliable than many. The exchange between Mr. Gandhi and Ms. Ruddy was more than fleeting. He was in a good position to observe her as they interacted. It was an uncommon situation so he would have been attentive to who he was dealing with.
[74] Less precise was the identification provided by Andrew Rey-McIntyre, the pharmacist-owner of the Shoppers Drug Mart where some of the prescriptions were filled. He recognized the Defendants as customers in his pharmacy but was unable to confirm that either of them had picked up any of the prescriptions in question. He said that a narcotic can be picked up by the patient or the patient’s authorized agent. If a prescription is picked up by an agent, identification is required unless the person is known to the pharmacist.
[75] The pharmacy copies of the prescription documentation were determined to be admissible as business records under the provisions of the Evidence Act. This documentation usually, but not always, had a handwritten notation indicating the identity of the person picking up the prescription and included a health card number as proof of identity. Where the documentation indicates that a prescription was picked up by Albert Tremblay or Amanda Ruddy, I find this to be evidence of the identity of the person who actually took delivery of the medication described in the prescription. Amanda Ruddy is shown as the person who picked up prescriptions in 2016 on the following dates: January 19, February 13, March 29, April 17, July 18 and August 13/16. Albert Tremblay is shown as the person who picked up prescriptions on April 13, May 24, August 12 and the balance of the June 21st prescription.
[76] Amanda Ruddy is shown as the person who picked up some of Mr. Tremblay’s prescriptions. There is a lack of evidence indicating that the prescriptions were picked up by anyone other than the Defendants. Also, the Narcotics Monitoring System Report (Exhibit 1) shows that an Ontario Health Card was used to identify the person picking up the prescriptions. The suggestion that the prescriptions were picked up by someone else is mere speculation (see R. v. Loor, 2017 ONCA 696).
[77] Next, I will address count 6- that Albert Tremblay possessed property, namely narcotics, to a value of less than $5000 knowing that the property was obtained by the commission in Canada of an indictable offence. The elements of this offence are as follows: i) possession of property, ii) the property was obtained by crime, iii) Albert Tremblay knew that the property was obtained by crime, and iv) the proceeds or value did not exceed $5000. This count focuses on the medication that was obtained by the use of the forged prescriptions. The indictment refers to “narcotics”. There is ample evidence that the medications were a type of narcotic. This evidence came from the testimony of Dr. Baxter and the pharmacists.
[78] The first element-possession. I will restrict the discussion here to the instances where Albert Tremblay is indicated in the records as the person picking up the prescription, namely the prescriptions in his name dated April 13, 2016, May 24, 2016, August 12, 2016 and the second tranche of the June 21, 2016 prescription. The evidence establishes that Mr. Tremblay had possession of the narcotics prescribed by the forged prescription.
[79] The April 13, 2016 prescription was filled the next day. There is a handwritten notation on the pharmacy copy of the prescription that it was picked up by Albert Tremblay. Page 2 of Exhibit 4(B)(2) indicates that he used his health card as his identification, which is the same number as shown under his name on the prescription. This prescription was for fentanyl patches costing $175.09.
[80] On May 24, 2016, the pharmacy records indicate that Mr. Tremblay used his health card as his identification. This prescription was for fentanyl patches and Endocet tablets. The total cost of the prescription was $296.56.
[81] On August 12, 2016, the pharmacy records indicate that Mr. Tremblay used his health card as his identification. The prescription was for fentanyl patches and Endocet tablets. The total cost of the prescription was $301.99. Regarding the June 21, 2016 prescription, a signature in Mr. Tremblay’s name acknowledged receipt of two fentanyl patches and his health card number is shown to confirm his identification.
[82] The next element- was the property was obtained by crime? The answer to this question is yes. The property was obtained by use of forged prescriptions.
[83] The next element- did Mr. Tremblay know that the property was obtained by crime? Yes, because he forged the prescriptions then went to the pharmacy to pick up the medication made available to him by means of the forged prescription.
[84] The next element- did the property have a value not exceeding $5000? Yes, because the pharmacy documentation shows the cost of the medication as indicated above.
[85] I will now address count 7- that between the 3rd day of January 2016 to on or about the 13th day of August 2016 Albert Tremblay did unlawfully possess fentanyl. The elements of this offence are: i) that the substance in question was fentanyl; ii) that Mr. Tremblay knew the substance was fentanyl, and iii) he exercised some measure of control over the substance.
[86] The first element- was the substance fentanyl? Fentanyl is a substance listed in Schedule I of the Controlled Drugs and Substances Act (“CDSA”) and possession is prohibited except in accordance with the regulations under the Act. Typically, a Certificate of Analysis is obtained to verify the identity of the substance in question but in some situations, circumstantial evidence is sufficient to establish guilt beyond a reasonable doubt. This is such a case. Mr. Tremblay attended at the pharmacy to pick up fentanyl that was dispensed pursuant to a forged prescription on April 13, 2016, May 24, 2016, June 21, 2016 and August 12, 2016. The pharmacist had no knowledge that the prescription was forged. Obtaining a prescribed substance from a pharmacist pursuant to a prescription provides a very high level of assurance that the substance is what it is claimed to be. I am satisfied that there was fentanyl in the fentanyl patches that Mr. Tremblay obtained from the pharmacy.
[87] The next element- did Mr. Tremblay know that the substance was fentanyl? Yes, because obtaining pharmaceutical grade fentanyl was his purpose in forging the prescriptions.
[88] The final element- did Mr. Tremblay exercise control over the fentanyl? Yes, because there is evidence which establishes beyond a reasonable doubt that he was the person who attended the pharmacy on the indicated dates and received the fentanyl from the person working in the dispensary.
[89] I will now turn to count 8- that Mr. Tremblay possessed oxycodone. The elements of the offence are similar to the elements of the offence in count 7. I will exclude from consideration the prescriptions in Mr. Tremblay’s name that weren’t picked up by him. I will also exclude the April 13, 2016 prescription because this prescription is only for fentanyl patches. The prescriptions for May 24, 2016 and August 12, 2016 include 240 Endocet tablets in each prescription. Endocet is a brand name for oxycodone. Several prescriptions show both the brand name and the generic equivalent. According to Dr. Baxter, Endocet belongs to a group of opioids that are shorter-acting agents, and as such, are more suited to treating breakthrough pain than longer-acting medications. Like fentanyl, oxycodone is listed in Schedule I of the CDSA.
[90] The same analysis respecting knowledge and control applies here, as is set out in paragraphs 87 to 88 which I will not repeat.
[91] The remaining counts are directed at Amanda Ruddy starting with count 10- that Amanda Ruddy used (uttered) a forged prescription. The elements of the offence and the circumstances and evidence in relation to count 10 are the same as count 4 and will not be repeated in full. The evidence supports a finding of guilty on this count. See in particular paragraphs 70 to 76.
[92] I will now address count 12- that Amanda Ruddy had unlawful possession of property to wit: narcotics, of a value not exceeding five thousand dollars, knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment. The elements of this offence are the same as itemized in relation to Albert Tremblay in paragraph 77.
[93] The first element- possession. I will restrict the discussion here to the instances where Amanda Ruddy is indicated in the records as the person who picked up the prescription, namely the prescriptions in her name dated January 19, 2016, February 13, 2016, March 29, 2016, April 17, 2016, July 18, 2016 and August 13, 2016.
[94] On the first page of the pharmacy copy of the January 19, 2016 prescription (Exhibit 4(A)(1)), there is a handwritten note that the prescription was picked up by Amanda Ruddy. The third page has another handwritten note that “Amanda ID on file”. This prescription was for fentanyl patches and Endocet tablets. It also shows the generic equivalent of the tablets as oxycodone HCL/acetaminophen. The total cost of this prescription was $296.59.
[95] On the first page of the pharmacy copy there is a notation on the February 13, 2016 prescription (Exhibit 4(A)(2)) that the prescription was picked up by Amanda Ruddy and a signature in her name appears on page two.
[96] The first page of the pharmacy copy of the March 29, 2016 prescription has a note that the prescription was picked up by “Amanda” and on page two is a note that “Amanda ID on file”. The total cost of this prescription was $202.19.
[97] The first page of the pharmacy copy of the April 17, 2016 prescription has a note that it was ‘picked up by Amanda Ruddy ID on file”. Page three also refers to her ID being on file. The total cost of this prescription $175.09.
[98] The first page of the pharmacy copy of the July 18, 2016 prescription has a note that it was picked up by Amanda and pages two and three shown that her ID was her health card, and the number is set out. The total cost of this prescription was $296.99.
[99] The first page of the August 13, 2016 prescription has a note that the prescription was picked up by a person having a certain ID number, which I don’t recognize from the evidence. Page two has a note about the balance of medication owing and has a signature in the name of Amanda Ruddy. Also, this is the prescription that resulted in the short count discussion between the pharmacist and Ms. Ruddy, who he identified in court. The total cost of this prescription was $301.99.
[100] The next element- was the property obtained by crime? Yes, because the property, that is, the narcotics, was obtained by the use of forged prescriptions.
[101] The next element- did Amanda Ruddy know that the property was obtained by crime? Yes, because she forged the prescriptions, along with Albert Tremblay, then went to the pharmacy to pick up the medication made available to her by means of the forged prescriptions.
[102] The next element- did the property have a value not exceeding $5000? Yes, because the pharmacy documentation shows the cost of the medication as indicated above.
[103] I will now address count 13- that between the 14th day of March 2016 to on or about the 13th day of August 2016 Amanda Ruddy unlawfully did possess fentanyl.
[104] The first element- was the substance fentanyl? Fentanyl is a substance listed in Schedule I of the Controlled Drugs and Substances Act and possession is prohibited except in accordance with the regulations under the Act. Typically, a Certificate of Analysis is obtained to verify the identity of the substance in question but in a proper case, circumstantial evidence is sufficient to establish guilt beyond a reasonable doubt. This is such a case. Ms. Ruddy attended at the pharmacy to pick up fentanyl that was dispensed pursuant to forged prescriptions on March 29, 2016, April 17, 2016, July 18, 2016 and August 13 and 16, 2016. The pharmacist had no knowledge that the prescription was forged. Obtaining a prescribed substance from a pharmacist pursuant to a prescription provides a very high level of assurance that the substance is what it is claimed to be. I have no doubt that there was fentanyl in the fentanyl patches that Ms. Ruddy obtained from the pharmacy.
[105] The next element- did Ms. Ruddy know that the substance was fentanyl? Yes, because obtaining pharmaceutical grade fentanyl was her purpose in forging the prescriptions.
[106] The final element- did Ms. Ruddy exercise control over the fentanyl? Yes, because there is evidence which establishes beyond a reasonable doubt that she was the person who attended the pharmacy on the indicated dates and received the fentanyl from the person working in the dispensary.
[107] Next, I will address count 15- that on or about September 1, 2016 Amanda Ruddy unlawfully possessed a substance in Schedule I of the CDSA to wit: oxycodone. The elements of this offence have been previously set out. Ms. Ruddy admits that the substance was oxycodone. She does not admit that she had possession and control.
[108] The date of September 1, 2016 is significant. The oxycodone in question was found in the house at 1351 Westmeath Road. It was in two prescription bottles bearing the dates of May 17, 2016 and June 15, 2016. The prescription bottles were found in the armoire in the master bedroom. I have determined the prescription in Ms. Ruddy’s name, dated May 17, 2016, was forged but the pharmacy notes for the May 17, 2016 prescription do not record who picked up the prescription.
[109] As previously indicated, the copy of the June 15, 2016 prescription given to D/C Shilling at Dr. Baxter’s office was mishandled and excluded as evidence, as was the copy of the June 15, 2016 prescription found in a bag in the ensuite bathroom because the exhibit bag was not sealed. There is another copy of the same prescription which has not been excluded and that is the copy in the pharmacy records. However, due to the problems associated with the June 15th prescription, I am not prepared to rely on the June 15th transaction as evidence against Ms. Ruddy on this count. I find that in the absence of evidence that Ms. Ruddy picked up the May 17th prescription, there is a reasonable doubt as to who was actually in possession of this medication contained in the pill bottle with the May 17, 2016 date. It was found in a place that Mr. Tremblay had as much access to as Ms. Ruddy. I find Ms. Ruddy not guilty on count 15.
[110] And finally, I will address count 3- that Albert Tremblay and Amanda Ruddy unlawfully had in their possession property to wit: Canadian currency of a value not exceeding $5000, knowing the property was obtained by the commission in Canada of an offence punishable by indictment.
[111] This count relates to the cash amounting to over $9000 found in the Defendants’ bedroom when the search warrant was executed. There is no evidence to support a finding that this money was obtained by the commission of a crime aside from the fact that it is an unusually large amount of money to keep at home stored in a granola box. There was no evidence of trafficking. I am not prepared to make an inference on the available evidentiary record that establishes the guilt of the Defendants and therefore, there will be a finding of not guilty on this count.
[112] In summary, I am satisfied that the guilt of the Defendants has been proven beyond a reasonable doubt on counts 4, 6, 7, 8, 10, 12 and 13 of the indictment and not proven beyond a reasonable doubt on counts 3 and 15.
Mr. Justice Martin James
COURT FILE NO.: CR-17-338
DATE: April 20, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
ALBERT TREMBLAY and AMANDA RUDDY
REASONS FOR DECISION
Mr. Justice Martin James
Date Released: April 20, 2021
[^1] Transcript of Evidence of Brian Baxter, March 22, 2019, p.112, lines 22 to p.113, line 13.