COURT FILE NO.: CR-17-338

DATE: April 25, 2022

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 Offender Tremblay

Mellington Godoy for the Offender Ruddy

Accused

DATE HEARD: December 9, 2021

REASONS FOR SENTENCE

James, J.

INTRODUCTION

1The trial in this case was scheduled to commence in May, 2018 but was postponed at the request of Ms. Ruddy until March, 2019 with a consent and a delay waiver from Mr. Tremblay. It was anticipated to take five days to complete.

2On March 25, day 6 of the trial, it was adjourned to May 24, 2019 for one day and then to July 8, 2019 for one day and then to September 5^th and 6^th at which point the Crown closed its case. The trial was adjourned to February 24 and 25, 2020 for completion of the evidence.

3A defence motion was heard on December 10, 2019.

4On February 24, 2020 the trial was adjourned at the request of Ms. Ruddy due to a fall which was confirmed with a doctor’s note. New dates were set for March 10, April 9 and 15 and a half day on May 22, 2020.

5On March 17, following the onset of the pandemic, the case was adjourned to June 3, 2020 and then to July 7, 2020 at which time dates for completion were set for September 9 and 18. On September 8 the case was spoken to and the date for September 9 was vacated.

6On September 18 the case was adjourned again to October 2 to be spoken to for the purpose of setting a date for closing argument, the defence having elected not to call evidence.

7On October 2, 2020 closing arguments were scheduled for February 3, 2021 and they proceeded on that date.

8On April 15, 2021 the decision was released and a Gladue report and presentence reports were ordered.

9On May 14, 2021 the case was spoken to for an update on when the reports would be ready.

10The case was spoken to again on July 29, 2021 and adjourned to December 9, 2021 for sentencing submissions and then adjourned to today for sentencing disposition.

Circumstances of the Offences

11Albert Tremblay and Amanda Ruddy were convicted of forging prescriptions, possession of narcotics knowingly obtained by the commission of an indictable offence and possession of fentanyl. Mr. Tremblay was also convicted of possession of oxycodone.

12The offenders worked as cleaners in the medical office of Dr. Brian Baxter, their friend and family doctor. They forged his signature on numerous opioid prescriptions and faxed them to local pharmacies to be filled. They then attended at the pharmacy to take delivery of large quantities of fentanyl patches and oxycodone tablets.

13As their family doctor, Dr. Baxter had been prescribing large quantities of opioids for pain relief for both offenders for years. The evidence showed that he had ceased prescribing for a period of time and this is when the forgeries were committed.

14When a search warrant was executed at their home, $9000.00 in cash was found in a granola box in their bedroom and a large variety of prescription receipts and documentation was found in different areas of the house.

Circumstances of the Offenders

15Albert Tremblay is about 40 years old. Amanda Ruddy is about 36 years old. They have been in a common law relationship since 2004. They have two children together, a daughter who is 12 and a son who is three. Their daughter has been living with Ms. Ruddy’s sister for several years.

16Both offenders suffer from long term chronic pain and other ailments. They both have been heavily medicated for years with opioids obtained through prescriptions from Dr. Baxter. Dr. Baxter testified that considering the duration and magnitude of their opioid consumption, both offenders became addicted to the medication he was prescribing. Not surprisingly, given the evidence at trial about Dr. Baxter’s prescribing practices, he was the subject of a misconduct hearing in the past and recently resigned in the face of a new set of allegations.

17Mr. Tremblay receives ODSP. He has a significant learning disability and is functionally illiterate without assistance from Ms. Ruddy. He suffers from several physical ailments including problems with his knees and back and has not been gainfully employed for years except for the odd jobs he performs for Dr. Baxter. He has a dated criminal record that includes four convictions for failure to comply with bail conditions and two convictions for breach of probation.

18Mr. Tremblay claims to have Metis heritage through his father. He has always lived in the Ottawa Valley region. He has three children from prior relationships.

19Ms. Ruddy has two children ages 12 and 3. Mr. Tremblay is their father. She was in a serious car accident in 2003 and Dr. Baxter became her doctor a few years later. She grew up in this area and has a secondary school education with some additional training as a hair stylist. She has not worked for several years except in relation to providing services to Dr. Baxter.

Parameters of the Offences

20Section 368(1)(a) of the Criminal Code provides that the indictable offence of using a forged document has a maximum sentence of ten years and no minimum sentence.

21Section 354(1)(a) of the Criminal Code provides that the indictable offence of possession of property under $5,000 obtained by crime has a maximum sentence of two years and no minimum sentence.

22Section 4(3) of the Controlled Drugs and Substances Act provides that the indictable offence of possession of a Schedule I substance has a maximum sentence of seven years and no minimum sentence.

Position of the Parties

23Crown counsel says that regarding Mr. Tremblay, an appropriate disposition would be a custodial sentence of 9 to 12 months followed by probation for 12 months.

24Regarding Ms. Ruddy, the Crown requests a sentence of 9 months in custody followed by 12 months’ probation. While opposed to a conditional sentence, Crown counsel says that a conditional sentence may be appropriate to ensure that the parties’ youngest child remains in her care but the duration of a conditional sentence ought to be longer.

25On behalf of Mr. Tremblay, Mr. Nahum says a conditional discharge would be an appropriate disposition.

26On behalf of Ms. Ruddy, Mr. Godoy supports a conditional discharge and noted that a conditional sentence is also an available sentencing option.

Case Law

27I will now refer to a few of the numerous cases that counsel have referred to in support of their respective positions, starting with the cases provided by the Crown. A word of caution first. No two cases are exactly the same. Sentencing someone for the crime or crimes they have committed is a highly individualized exercise. The sentences imposed by judges in other cases can provide useful comparisons but ultimately, my task is to sentence this offender for this specific crime. Each case turns on its own particular circumstances. Also, as Mr. McCann noted, comparisons are difficult because many precedents also include trafficking or possession for the purpose of trafficking but that is not the case here.

28In R. v. King the offender was a nurse/receptionist in a medical office and created false prescriptions of oxycodone for her brother. She was convicted of forgery and trafficking in a controlled substance. There was a breach of trust element that was an aggravating factor. A sentence of 42 months imprisonment was upheld on appeal.

29In R. v. McArthur, 2016 ONCJ 244 the offender entered pleas of guilt to uttering a forged prescription, theft of the paper the prescription was written on, possession of hydromorphone for the purpose of trafficking and one count of fraud. He was sentenced to a global sentence of two years’ imprisonment and three years’ probation. Specifically, the forgery conviction resulted in a concurrent 6 month custodial sentence and probation.

30R. v. Kehoe, 2020 ONSC 6249 involved an offender who was found guilty of trafficking in fentanyl. The investigation revealed evidence of forgeries in relation to fentanyl patches. He was sentenced to 26 months for trafficking and 18 months concurrent regarding the forgeries.

31In R. v. Giannilos, 2016 ONSC 556 the offender altered a genuine prescription and pled guilty to two counts of possession of fentanyl and two counts of knowingly using a forged prescription. He pled guilty, had no criminal record and owned a business. He was sentenced to 9 months’ custody and 12 months’ probation.

32The defence cases focused on the availability of conditional discharges for possession of fenanyl. For example, R. v. Azhadi, 2013 ONSC 5033 involved a 41 year old offender who did not have a criminal record. He was convicted of possession of 72 methadone pills that he had smuggled into Canada from Iran. He had a Canadian prescription for methadone. He faced the loss of his employment. He was given a two year conditional discharge.

33R. v. Loder, 2019 ONCJ 536 involved a 32 year old first time offender who had become addicted to opioids due to serious back injuries sustained in a car accident. He was arrested with 2 grams of fentanyl and charged with simple possession. He pled guilty. He had enrolled in a methadone program and had been offered a position with the John Howard Society as a resource counsellor. After an extensive review of similar cases, the sentencing judge concluded that a two year conditional discharge was an appropriate disposition.

34R. v. Marchese, 2015 ONCJ 126 involved a 36 year old who was arrested for possession of four fentanyl patches. He was employed as an aircraft mechanic and faced the loss of his security clearance as well as his employment if he acquired criminal record. He had injured his hand as a result of his work and had undergone surgery to repair the damage. He was self-medicating with the patches. He enrolled in an opioid treatment program and pled guilty at the earliest opportunity. He was sentenced to a 12 month conditional discharge.

Mitigating and Aggravating Factors

35A mitigating factor is one which tends to reduce an otherwise appropriate sentence.

36The mitigating factors in relation to Mr. Tremblay are as follows:

a. He has a significant opioid addiction;

b. He has been on bail for over 5 years without incident; and

c. He says he has an Indigenous heritage.

37The mitigating factors in relation to Ms. Ruddy are as follows:

a. She has a significant opioid addiction;

b. She has been on bail for over 5 years with only one minor incident; and

c. She does not have a criminal record.

38An aggravating factor is one which tends to increase an otherwise appropriate sentence.

39Aggravating factors in relation to Mr. Tremblay are as follows:

a. He has a criminal record; and

b. There is a breach of trust aspect to how the forgeries were committed.

40There is one aggravating factor in relation to Ms. Ruddy and that is there was a breach of trust aspect to how the forgeries were committed.

Presentence Reports

41Albert Tremblay’s presentence report depicts a child who had difficulties in school and whose family life was tumultuous and marked by poverty. He left school at grade 10 although it is unlikely he was achieving at the grade 10 level academically.

42He receives ODSP due to learning disabilities, a serious leg injury and back problems. He hasn’t had a full time job since 2011.

43He had a long history of heavy opioid use through prescriptions supplied by Dr. Baxter.

44He denies any wrongdoing in relation to the offences for which he is being sentenced. He said that all the prescriptions in question were written by Dr. Baxter. He said that Dr. Baxter confessed to him that he had lied in court because if he told the truth about his prescribing practices, it would reflect negatively on him. This explanation does not account for the obvious evidence of cutting and pasting that appears on most of the prescriptions in question or the unusual scene at their home where prescription documents and receipts were found posted around the house. Also, the impugned prescriptions did not bear a fax stamp, a practice routinely followed by Dr. Baxter’s staff when sending prescriptions to pharmacies by fax.

45It appears to me that Mr. Tremblay has not acknowledged his blameworthy conduct which is an important element for successful rehabilitaton.

46He and Ms. Ruddy have been living in his sister’s home since being granted bail. His sister is also a surety. They are anxious to get their own place. Their longterm residency plans are unknown.

47Ms. Ruddy’s presentence report indicates that her parents live in the area as does her younger sister who has been caring for her 12 year old daughter.

48Like Mr. Tremblay, Ms. Ruddy say she is innocent of the offences for which she has been convicted and she attempted to deflect blame on her doctor and the pharmacists. Like Mr. Tremblay, she has not publicly faced up to her responsibility for having committed the forgeries or acknowledged her blameworthy conduct.

49She successfully completed secondary school and says she graduated with honours. In contrast to Mr. Tremblay, who has learning difficulties and literacy issues, Ms. Ruddy does not suffer from such deficits. As Mr. Tremblay’s mother said to the writer of the Gladue Report, “Albert is a follower.” The evidence weighs heavily in favour of the conclusion that Albert Tremblay doesn’t have the skills, knowledge or capability to have carried out the forgeries on his own. I conclude that Ms. Ruddy was the person primarily responsible for implementing the forgery plan.

50As mentioned previously, Ms. Ruddy does not have a criminal record. Apart from a minor problem early in the lengthy time she has been on bail, Ms. Ruddy complied with her bail conditions. According to the presentence report, she is a suitable candidate for a conditional sentence.

Principles of Sentencing

51I agree with and adopt the summary of applicable principles provided by Justice Schreck in R. v. Holland, 2020 ONSC 846 where he stated at para 15:

Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718(a) to (f), including denunciation, general and specific deterrence and rehabilitation. As the Ontario Court of Appeal recently stated in R. v. Morris, 2021 ONCA 680, at para. 58, “[t]he individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender.” While there will rarely be only one possible fit sentence, s. 718.1 of the Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

Gladue Considerations

52A Gladue Report was prepared for Mr. Tremblay by Anne Michel Sands of Aboriginal Legal Services in Toronto.

53Mr. Tremblay reported that his Indigenous heritage is through his father, Albert Mirault, who apparently identified as Algonquin Metis from the nearby Golden Lake area.

54It does not appear that the Tremblay family observed Indigenous cultural practices.

55His mother was Peggy Rutledge-Tremblay whose parents were of European heritage.

56Mr. Tremblay was their only child, but his mother had two daughters from a previous relationship.

57School was difficult for Mr. Tremblay due to ADHD and possibly other learning challenges as well.

58Neither Mr. Tremblay nor his mother recall Mr. Tremblay suffering from racism at school.

59His mother acknowledged consuming alcohol regularly, including when she was pregnant with Mr. Tremblay but reported that “it was nothing big. It wasn’t out of control.” Mr. Tremblay reported that his parents were alcoholics. Ms. Sands speculated about the possibility of Mr. Tremblay suffering from Fetal Alcohol Spectrum Disorder but he has not been assessed for this condition.

60In about 1989 Albert Mirault was convicted and jailed for molesting one of his step-daughters. Thereafter Peggy reported moving around a lot and the family had significant economic challenges.

61Peggy married Fred Tremblay in 1992 and Albert changed his name from Mirault to Tremblay to put distance between himself and his biological father.

62The Gladue Report sets out Mr. Tremblay’s physical ailments in considerable detail as well as his difficulties at school which were significant.

63There is no indication in the report that any genealogical research was performed through the First Nations Census Records or the Metis Family Records Centre to trace his Indigenous heritage.

64Mr. Tremblay’s presentence report makes reference to his attendance at a three day program to get his Metis status which apparently needs to be renewed.

65Section 718.2(e) of the Criminal Code directs that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. We know that special care needs to be taken when sentencing Indigenous offenders due to the damaging effects of centuries of systemic discrimination and multi-generational trauma.

66Section 718.2(e) is a direction to sentencing judges to inquire into the socio-economic factors that have resulted in the imprisonment of a disproportionately high number of Indigenous persons and to endeavor to remedy the situation to the extent that it is possible to do so through the sentencing process.

67The decision of the Supreme Court of Canada in R. v. Gladue, 1999 CanLII 697 directs sentencing judges to consider:

a. The unique system and background factors which may have played a part in bringing the particular Aboriginal offender before the courts and;

b. The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.

68What the Gladue principles are not intended to do is to create a race-based discount or automatic reduction of sentence or a remission of a warranted period of incarceration, simply because the offender is aboriginal (Gladue, para. 88).

69While courts may take judicial notice of matters such as the history of colonialism, displacement and residential schools and how that history continues to translate into lower education, lower income, higher unemployment, high rates of substance abuse and suicide, these matters, on their own, do not justify a different sentence for Aboriginal peoples. Rather they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.

70The report does not address how his Indigenous heritage affected his life circumstances. Mr. Tremblay grew up in a family that does not appear to have observed Indigenous practices or culture. While Mr. Tremblay clearly encountered many difficult challenges growing up, there is no individualized information before the court of systemic or race-based specific discrimination.

71In making these comments I recognize that it is incorrect to require the offender to establish a causal link between background factors and the current offence before the court before being entitled to have these matters considered by the sentencing judge. It is sufficient for the sentencing judge to give attention to the unique background and system factors which may have played a part in bringing the particular offender before the courts. (Gladue, para. 69).

Is a Conditional Discharge a Fit and Appropriate Disposition?

72Section 730 permits the court to discharge an accused either absolutely or conditionally, subject to the terms of a probation order, if it considers it to be in the best interests of the accused and not contrary to the public interest. The effect of a discharge is that, subject to certain conditions, the offender shall be deemed not to have been convicted of the offence.

73Conditional discharges for the types of offences involved in this case are exceptional. Typically they involve first time offenders, which is the case for Ms. Ruddy, offenders who have pleaded guilty, who are strong candidates for rehabilitation considerations and offenders who face serious collateral consequences such as the loss of employment or changes to their immigration status.

74In my view a conditional discharge would not be in the best interests of either offender and would be contrary to the public interest. Their offences are serious and require appropriate denunciatory and deterrent considerations. They do not appear to have faced up to the reality of their addictions. They have not taken responsibility for their actions. I have no evidence of a meaningful plan to adjust to independent living free from substance abuse. A discharge, even with conditions, would likely result in a return to a high risk, drug addicted existence. They will benefit from the structure and support offered by more intensive supervision to aid them in transitioning to a long term pain management program and a generally heathier lifestyle.

The Pre-Requisites for a Conditional Sentence

75Section 742.1(a) of the Criminal Code sets out two pre-requisites. The first is that the sentence must not endanger the safety of the community.

76These offenders have been on bail for an extended period of time without a major incident.

77Mr. Tremblay has a dated criminal record and Ms. Ruddy has none.

78Mr. Tremblay’s physical condition is poor and has been made more complicated by his bicycle accident in 2020 when he sustained a head injury, fractured his jaw, cheekbone and a bone near his eye. Since then, he has been unsteady on his feet and very reliant on Ms. Ruddy for many aspects of daily life. I do not think he poses as a safety risk if he was sentenced to a custodial sentence to be served in the community.

79The second pre-requisite is that a conditional sentence must be consistent with the fundamental purpose and principles of sentencing. Denunciation and deterrence are paramount sentencing objectives in crimes of dishonesty. However, a conditional sentence can have both a denunciatory and deterrent effect. (See R. v. Sharma at paragraph 110; R. v. Proulx 2000 SCC 5 at paragraphs 41, 67).

80In addition, I find that the lengthy period of time taken to complete this case, the protracted period of pretrial bail and the associated prolonged period of jeopardy and limitations on the offenders’ liberty interests, even under fairly unrestrictive conditions, are powerful mitigating factors. I acknowledge that part of the delay is attributable to the global pandemic. I acknowledge as well that Ms. Ruddy’s pregnancy caused substantial delay along with motions and difficulties in finding dates when all counsel were available.

81Also, in relation to Mr. Tremblay, he has a poor record of compliance with both probation orders and bail conditions. His track record of breaches detracts from his suitability for a community sentence. However, he is older, perhaps more mature, and not in good physical condition.

82The fact remains that these offenders have been caught up in the criminal justice system for an excessive period of time and this reality must be accounted for in their sentence.

83In my view, the delay in this case of over five years warrants adjusting a fit and appropriate sentence from a potential period of incarceration to a custodial sentence to be served in the community.

84Having considered the aggravating and mitigating factors involved in this case, the principles of sentencing, the presentence reports, Gladue considerations and the mitigating effects of an excessively lengthy period of bail, I conclude that a conditional sentence would not be inconsistent with the fundamental purpose and principles of sentencing.

85In relation to Ms. Ruddy, a first time offender who has been under the shadow of these charges since 2017, I conclude that in her situation a conditional sentence would not be inconsistent with the fundamental purpose and principles of sentencing.

Disposition

86With respect to Albert Tremblay, on count 4, forgery, I sentence you to a global custodial sentence to be served in the community, also known as a conditional sentence, of 12 months to be followed by two years’ probation. You are entitled to a credit of 39 days for your pretrial custody which consists of 26 actual days multiplied by 1.5. This means that the sentence you are receiving today is a conditional sentence of 326 days. On count 6, possession of property obtained by crime, 2 months concurrent to count 4, on count 7 possession of fentanyl, 12 months concurrent and on count 8, possession of oxycodone, 12 months’ concurrent.

87With respect to Amanda Ruddy on count 10, forgery, I sentence you to a similar global custodial sentence to be served in the community of 12 months, to be followed by two years’ probation. You are entitled to a credit of 110 days for your pretrial custody based on 73 actual days times 1.5. This means the sentence you are receiving today is a conditional sentence of 255 days. On count 12, possession of property obtained by crime, 2 months concurrent to count 10 and on count 13, possession of fentanyl, 6 months concurrent.

88Both offenders must obey all of the conditions listed below:

a. Keep the peace and be of good behaviour;

b. Appear before the Court when required to do so by the court;

c. Report today by telephone to a conditional sentence supervisor and thereafter report when required by the supervisor and in a manner directed by the supervisor;

d. Remain in Ontario unless you have prior written permission from the court or the supervisor to leave the province;

e. Notify your supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation;

f. Cooperate with your supervisor. You must sign any releases necessary to permit the supervisor to monitor your compliance and you must provide proof of compliance with any condition of this order to your supervisor on request;

g. Reside at an address approved by the supervisor and not change that address without obtaining the consent of the supervisor in advance;

h. The home confinement condition will be in effect for the first 5 months of sentence. During the period of home confinement, you shall remain in your residence or on the property of your residence at all times except:

i. Between 9:00 a.m. and 1:00 p.m. on Wednesdays and Saturdays in order to acquire the necessities of life. These times and dates can be adjusted with the approval in advance of your supervisor;

ii. For any medical emergencies involving you or any member of your immediate family (spouse, child, parent, sibling)

iii. For going directly to and from or being at school, employment, court attendances, religious services and legal or medical or dental appointments for immediate family members;

iv. For going directly to or from and being at assessment, treatment or counselling sessions

v. For carrying out any legal obligations regarding compliance with this Conditional Sentence Order

i. During your period of home confinement you must present yourself at your doorway upon the request of your supervisor or peace officer for the purpose of verifying your compliance with your home confinement condition.

j. You will provide your employment and/or school schedule in advance to your supervisor;

k. You are permitted to be away from your residence for any other reason as deemed appropriate by your supervisor. You must have this permission in advance and in writing from your supervisor;

l. you are not to possess or consume alcohol, cannabis or any intoxicating substances unless prescribed by a duly qualified medical practitioner.

89Regarding the period of probation following the completion of the conditional sentence supervisor, both offenders must obey all of the conditions listed below:

a. Keep the peace and be of good behaviour;

b. Appear before the Court when required to do so by the court;

c. Notify the probation officer in advance of any change of name or address and promptly notify the probation officer of any change in employment;

d. Report by phone (613-735-6809) within 72 hours of the completion of your conditional sentence to a probation officer and after that, at all times and places as directed by the probation officer or any person authorized by the probation officer to assist in your supervision;

e. Reside at an address approved by the probation officer and not change that address without obtaining the consent of the probation officer in advance;

f. Attend and actively participate in all assessment, counsel or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer;

g. You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed;

90You shall reside at an address approved by your probation officer and not change your address without prior permission.

91You shall not possess or consume any substances included in the Controlled Drugs and Substances Act unless prescribed by a duly qualified health practitioner.

Ancillary Orders

92The following ancillary orders will issue:

a. Forfeiture of all items seized during the execution of the search warrant at 1351 Westmeath Road

b. Destruction order for all narcotics seized, and

c. An order that all monies seized by forfeited to Legal Aid Ontario.