



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. King, 2013
    ONCA 417

DATE: 20130620

DOCKET: C54081 and C55948

Rosenberg, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tracy King

Appellant

Tracy King, acting in person on the conviction appeal

Vincenzo Rondinelli, as duty counsel on the conviction
    appeal

Yoni S. Rahamin, for the appellant on the sentence
    appeal

Andrew Wiese, for the respondent

Heard: January 14, 2013

On appeal from the conviction entered on May 19, 2011, by
    Justice R.M. Thompson of the Superior Court of Justice, sitting with a jury, and
    the sentence imposed on June 23, 2011, with reasons reported at 2011 ONSC 3957.

Epstein J.A.:

[1]

The appellant appeals her conviction, following a trial by judge and
    jury, of six counts of uttering a forged document and six counts of trafficking
    in a controlled substance. She also seeks leave to appeal and, if leave is
    granted, appeals the sentence imposed of 42 months.

A.

BACKGROUND

[2]

The basis of the charges can be briefly summarized as follows.

[3]

The appellant, while employed by a doctor as a nurse/receptionist,
    created false prescriptions for oxycodone. She did this at the request of her
    brother, Jason Witte. With the forged prescription in hand, Mr. Witte or one of
    his accomplices, would go to various pharmacies and falsely held themselves out
    to be the person named in the prescription. In this fashion a substantial
    number (estimated to be approximately 500) of oxycodone pills were illegally
    obtained.

[4]

Mr. Witte was subsequently arrested and pleaded guilty to possession for
    the purposes of trafficking (and some unrelated offences). At the appellants
    trial, he gave evidence on the Crowns behalf.  He implicated the appellant in
    the scheme, testifying that the appellant would fax false oxycodone prescriptions
    to pharmacies, and then he or an associate would go to the pharmacy to pick up
    the pills. Mr. Witte explained that he gave the appellant cash to compensate
    her for her participation in the enterprise.

[5]

The prosecution relied on additional evidence, including the testimony
    of the police officers who arrested the appellant and reviewed pharmacy
    security footage; the testimony of one of the appellants colleagues, Bernice
    Ewart; the testimony of the appellants employer, Dr. Robert Marsden; statements
    the appellant gave to the police at the time of her arrest; and a prescription
    for oxycodone the police found in the appellants purse.

[6]

The appellant neither testified nor called evidence in her defence.

[7]

In the conviction appeal, through duty counsel the appellant advances
    two arguments. First, the appellants statements to the police constituted exculpatory
    evidence requiring the trial judge to instruct the jury on the principles in
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742. The appellant argues that the trial judges
    failure to do so constitutes reversible error.  Second, duty counsel submits that
    since the appellant did not cause the oxycodone to be dispensed, she cannot
    be held liable under the common law doctrine of innocent agent. Consequently, the
    trafficking verdicts are unreasonable.

[8]

In her sentence appeal, the appellant submits that the trial judge erred
    by imposing a sentence that was excessive, particularly given her lack of
    previous involvement in the criminal justice system and other personal
    circumstances. She further contends that the trial judge erred by failing to apply
    the parity principle. The appellants position is that a fit sentence falls within
    the reformatory range and a conditional sentence ought to have been imposed.

[9]

I would dismiss the conviction appeal. First, I am satisfied that the
    charge, read as a whole, gave the jury the tools it needed concerning the
    appropriate burden and standard of proof. Second, I am not persuaded by the
    appellants unreasonable verdict argument. In my view, the evidence established
    an uninterrupted causal nexus between the appellant and the pharmacists who dispensed
    the oxycodone pills. Consequently, the jury was permitted to rely on the
    doctrine of innocent agent to convict the appellant, as a principal.

[10]

With
    respect to the sentence appeal, in my opinion, particularly in the light of the
    serious breach of trust, the sentence of 42 months is well within the range.
    The trial judge did not err in failing to impose a conditional sentence - it
    was not open to him to do so. I come to this conclusion notwithstanding Mr.
    Wittes global sentence of 36 months. I see nothing disparate between the two sentences,
    having regard to the differing aggravating and mitigating factors.

B.

ANALYSIS

(1)

The Conviction
    Appeal

(a)     Did the trial judge commit a reversible error in failing to
    include
W.(D.)
instructions?

[11]

In
W.(D.)
, at pp. 757-758, Cory J. set out what is now the commonly-used
    jury instruction on reasonable doubt:

A trial judge might well instruct the jury on the question of
    credibility along these lines:

·

First, if you believe the evidence of the accused, obviously you
    must acquit.

·

Second, if you do not believe the testimony of the accused but
    you are left in a reasonable doubt by it, you must acquit.

·

Third, even if you are not left in doubt by the evidence of the
    accused, you must ask yourself whether, on the basis of the evidence which you
    do accept, you are convinced beyond a reasonable doubt by the evidence of the
    guilty of the accused.

[12]

Post-
W.(D.)
,
    there was uncertainty as to whether the
W.(D.)
instruction was
    required beyond cases where the accused testifies and his or her evidence
    conflicts with that of prosecution witnesses.


[13]

In
R. v. B.D.
, 2011 ONCA 51, 271
    O.A.C. 241,
this court resolved the uncertainty. At para. 114, Blair
    J.A., for the court, concluded that the principles underlying
W.(D.)
have a broader sweep. Where credibility findings must be made on a vital
    issue concerning which there is conflicting evidence favourable to the accused,
    whether raised by the Crown or defence, the trial judge must relate the concept
    of reasonable doubt to those credibility findings.

[14]

In
    the appellants statements to the police, she made a series of exculpatory
    comments. She repeatedly told the police that she did not do it and that it
    was not [her]. The appellant submits that, based on
B.D.
,
a
W.(D.)
instruction was
    required.

[15]

The
    Crown takes issue neither with this proposition nor with the appellants submission
    that a passage containing the familiar
W.(D.)
formula cannot be found in
    the charge.

[16]

However,
    in circumstances such as this, where
W.(D.)
is necessary, the question
    is not whether the exact words suggested by Cory J. can be found. The question
    is whether the jury was properly equipped by having the appropriate burden and
    standard of proof explained to them.  In this case I would answer that question
    in the affirmative.

[17]

The
    charge was replete with passages instructing the jury that the Crown bore the burden
    of proving the appellants guilt beyond a reasonable doubt, that burden never
    changed and that the jury had to consider all of the evidence in deciding
    whether the Crown had met this burden. At p. 102, the trial judge specifically
    instructed the jury as follows:

If you decide that Tracy King made remarks that may help her in
    her defence, or if you cannot decide whether she made them, you will consider
    that statement, along with the rest of the evidence, in deciding whether you
    have a reasonable doubt about Tracy Kings guilt.

[18]

In
    my view, the trial judge did not suggest that the jurys task was to choose
    between two versions of events. In fact, given the nature of this case  the
    evidence and the issues for the jurys determination  the jury was not
    required to make such a choice.  The jury had the Crowns evidence from which
    they could conclude that the appellant was involved in the distribution of
    oxycodone.  They had no other version  only the appellants denial that she
    was involved.

[19]

In
    these circumstances, I am satisfied that the charge, read as a whole, properly
    explained to the jury the appropriate burden and standard of proof. I would
    therefore not give effect to this ground of appeal.

(b)     Was the trafficking verdict unreasonable?

[20]

Duty
    counsel submits that the appellants conduct does not amount to trafficking since
    the actual distribution of the narcotics, an essential element of the offence
    of trafficking, depended on the independent actions of a pharmacist.

[21]

This
    argument engages the common law doctrine of innocent agency. Under this
    doctrine, criminal liability may attach to a person who does not personally
    commit the elements of the offence where the person intentionally causes some
    or all of the elements of the offence to be committed by another person
    innocent of the offence. A finding of criminal liability through innocent agency
    is contingent on the degree of control the accused has over the various
    essential elements of the offence.

[22]

The
    classic example of innocent agency is employing unwitting drug mule. In this
    example, the offender asks a dupe to transport a package into the country.
    Unbeknownst to the dupe, the package contains illegal narcotics. Once the dupe
    is caught, neither the dupe nor the offender would be guilty of importing
    narcotics under the standard rules for principal liability  the dupe lacks the
mens rea
(assuming no wilful blindness) while the offender has not
    personally committed the
actus reus
. Under the innocent agent
    doctrine, the offender is held liable because he caused the innocent agent to
    commit the
actus reus
.

[23]

Duty
    counsel, relying on this courts decision in
R. v. Verma

(1996),
    31 O.R. (3d) 622, argues that the innocent agent doctrine does not apply on
    these facts. In
Verma
, the accused was a physician who was approached by
    an undercover officer posing as a patient. The officer requested and received a
    prescription for codeine. During the following two weeks the officer returned on
    two occasions and received prescriptions in exchange for $40 each time. The
    officer then requested prescriptions in the name of his girlfriend, Ingrid
    Floyd, who did not exist. Dr. Verma wrote three prescriptions in the name of
    Ingrid Floyd in exchange for $40 per prescription. Dr. Verma was subsequently
    charged with trafficking in codeine relating to the Ingrid Floyd
    prescriptions. The trial judge acquitted Dr. Verma on the basis that he had not
    committed the
actus reus
of trafficking.

[24]

This
    court dismissed the Crown appeal. Finlayson J.A. held, at para. 34, that to be
    liable under the innocent agent doctrine, actions of the innocent agent must
    be controlled by or directly attributable to the acts of the principal. In
Verma
,

the doctor merely provided the means by which the patient was able, at
    his own discretion, to obtain narcotics from a pharmacist of his choice. Most
    importantly, the doctor did not, by signing the prescription, cause the
    pharmacist to fill the order. In short, the intervention of a non-innocent
    purchaser disrupted Dr. Vermas liability.

[25]

The
    Crown, relying on
R. v. Devgan

(2007), 226 C.C.C. (3d) 312
    (Ont. S.C.), argues that
Verma

is distinguishable.  Dr. Devgan participated
    in a scheme whereby he would write prescriptions for narcotics and fax them to
    a pharmacy to be filled. An accomplice would then pick up the pills, sell them,
    and split the proceeds with Dr. Devgan. One particular pharmacist filled many
    of the fraudulent prescriptions. At various times, the pharmacist confirmed the
    details with Dr. Devgan personally or someone in his office.

[26]

The
    trial judge found that Dr. Devgan could be held liable on the innocent agent
    doctrine. At para. 35, he distinguished
Verma

on the basis that
    the person who obtained the prescriptions was not working in league with Dr.
    Verma. Thus, the undercover officer decided which pharmacist he would take the
    prescriptions to without any input or involvement with Dr. Verma. In contrast,
    in
Devgan
there was an uninterrupted causal nexus between Dr. Devgan
    and the pharmacist (at para. 36). In other words, Dr. Devgan (personally or
    through his accomplice) directed the pharmacist to fill the prescription, in
    contrast to Dr. Verma who never directed a pharmacist to do anything.

[27]

In
    my view, this case is more in line with
Devgan
than with
Verma
.
    The appellant initiated the illegal enterprise by forging a prescription for oxycodone.
    She then directly faxed it to pharmacists who reasonably believed that a doctor
    had ordered the prescription. By filling the prescriptions, the pharmacists had
    unwittingly committed the
actus reus
of the offence of trafficking in
    oxycodone. The pharmacists actions were directly attributable to the
    appellants acts; there was an uninterrupted causal nexus between the
    appellants acts of forging the prescriptions and sending them to the
    pharmacists and the pharmacists acts of filling the prescriptions. In this
    manner the pharmacists were innocent conduits through which the appellant
    trafficked in oxycodone. The doctrine of innocent agent applies to bring the
    appellants conduct into the scope of the trafficking activity.

[28]

I
    would therefore not give effect to this ground of appeal.

(c)     Conclusion  conviction appeal

[29]

For
    these reasons I would dismiss the appellants conviction appeal.

(2)

The Sentence
    Appeal

(a)     Sentencing Proceedings

[30]

Before
    the trial judge, counsel for the appellant argued in favour of the imposition
    of a sentence within the reformatory range, to be served in the community. He relied
    heavily on the following facts:

·

the appellant was a first-offender;

·

she is a caring mother of three teenaged sons, one of whom faces significant
    challenges primarily arising from the effects of ADD;  and

·

she is highly motivated by education and career aspirations that
    may lead to a career in law.

[31]

The
    Crown, sought a term of imprisonment in the range of four to five years.  The
    Crown relied on the seriousness of the offences  forgery and trafficking in a
    large number of a highly addictive Schedule 1 substance and the significant
    breach of trust.

[32]

At
    the outset of his reasons, the trial judge recognized that the appellant did
    not personally sell drugs. Rather, she used various pharmacists as innocent
    agents to facilitate the trafficking she engaged in with Mr. Witte and his
    accomplices.

[33]

The
    trial judge emphasized the appellants serious breach of trust in using her
    employers position to obtain an advantage for herself, and observed that this
    conduct caused considerable damage to the reputation of her own profession and
    to the personal integrity of her employer. The trial judge noted that the
    appellants mother, also a nurse in Dr. Marsdens office, lost her job as a
    result of this criminal conduct. Furthermore, the offences were committed for
    money rather than because of any medical problem as the appellant has no
    addiction problems. The trial judge also highlighted the insidious nature of
    oxycodone.

[34]

The
    trial judge identified various mitigating factors. The appellant, a first
    offender, had a rough go at life, enduring physical abuse during childhood
    and at the hands of the fathers of her children. The trial judge was aware that
    a period of incarceration would have a significant impact on the appellants
    ability to care for her children. She is the single mother of three teenaged
    sons who have difficulties: one of her sons struggles considerably with the
    effects of ADD. The trial judge also noted the appellants intelligence and her
    motivation to complete university and attend law school.

[35]

Acknowledging
    the importance of the principles of denunciation and general deterrence, and having
    regard to the totality principle, the trial judge sentenced the appellant to 42
    months for each count, to be served concurrently, yielding a sentence of three
    and a half years.

(b)     Fresh Evidence

[36]

With
    the Crowns consent, the appellant filed fresh evidence. The appellant provided
    an affidavit updating the progress she has made since she was sentenced, in
    furthering her education. The fresh evidence also provided additional detail about
    the appellants sons. A psychologist gave more information about the one son
    who continues to struggle with various psychological issues. Another affidavit
    speaks to the fact that the appellant is unable to identify anyone who will
    look after her children were she to be incarcerated.

(c)     Analysis

(i)

Principles
    Relevant to Appellate Review of Sentences

[37]

Absent
    an error in principle, failure to consider a relevant factor, or an
    overemphasis of the appropriate factors, this court should only intervene if
    the sentence is demonstrably unfit: see
R. v. C.A.M.
,
[1996] 1 S.C.R. 500, at para. 90;
R.
    v. L. M.
, 2008 SCC 31,
[2008] 2 S.C.R. 163, at para. 14.

[38]

In
R. v. Ramage
, 2010 ONCA 488, 265 O.A.C. 158, at para. 70, Doherty J.A.
    noted that appellate deference to the sentencing judges decision makes sense
    for many reasons, including the advantage he or she has in being able to assess
    the severity of the crimes in the context of the particular community  in this
    case the small community of Owen Sound. In the words of Doherty J.A., the trial
    judge, is much better placed to determine the sentence needed to adequately
    protect the community than is [this court] sitting at a distant place often
    years [in this case 4 years] removed from the relevant events.

[39]

The
    trial judges discretion should not be interfered with lightly.

(ii)

Was the sentence excessive?

[40]

The appellants overarching submission is that the trial judge erred in
    failing to consider a conditional sentence. She argues that the paramount
    principles influencing the determination of a fit sentence in this case are
    specific deterrence and rehabilitation. With these objectives in mind, and particularly
    given she is a first-offender, the appellant argues that the trial judge should
    have considered all other dispositions before imposing a custodial sentence.

[41]

The
    problem with this submission is that it is only appropriate to consider a
    conditional sentence if the trial judge properly rejects probationary measures
    and a penitentiary term as the appropriate sentence: see
R. v. Proulx
,
    2000 SCC 5, [2000] 1 S.C.R. 61, at para. 58. By deciding on a sentence outside
    the reformatory range, a conditional sentence was not available.

[42]

This
    observation begs the question of whether the 42-month sentence was manifestly
    unfit, the issue upon which counsel for the appellant focused in oral argument
    and to which I now turn.

[43]

The
    answer involves an examination of the circumstances of the offence and the
    offender, and the application of the provisions of s. 718 of the
Criminal Code

as illuminated by the jurisprudence.

[44]

In
    my view, in the circumstances of this case, it cannot be said that the sentence
    of 42 months, or any sentence outside of the reformatory range, is manifestly
    unfit.

[45]

The
    offence of trafficking in oxycodone is serious  this one particularly so.  It
    was carefully crafted.  It involved several people  those who knowingly participated
    in the criminal enterprise and others who were unwittingly involved.  The
    offences were committed on a number of occasions over a period of three months.
    For financial gain, the appellant took advantage of the doctor for whom she and
    her mother worked, and facilitated the distribution of a large quantify of highly
    addictive dangerous drugs into a small community.

[46]

The
    appellant points to a number of cases involving trafficking of oxycodone where
    the offender received a lower sentence, and in some cases, a conditional
    sentence. These cases are distinguishable in two main respects.

[47]

First,
    the appellant was convicted not only of trafficking in oxycodone, but also of
    six counts of uttering forged documents. Forgery is a very serious crime by
    itself.  In
R. v. Scott
, 2007 ONCA 231, this court upheld a sentence
    of 12 months imprisonment for a husband who forged his wifes signature 26
    times, leading to a loss of approximately $114,994.07. In upholding the
    sentence, this court stressed, at para. 2, the breach of trust here and the
    planning and deliberation that went into the scheme, denunciation and general
    deterrence were paramount[,] and that a conditional sentence would not satisfy
    those principles. Those words apply with equal force to this case.

[48]

Second,
    the cases cited by the appellant do not involve the significant aggravating
    factor of breach of trust, an enumerated aggravating factor under s.
    718.2(a)(iii) of the
Criminal Code
: see
R. v. Pierce
(1997),
    32 O.R. (3d) 321, at para. 48.

[49]

In
    my view, the case that is most helpful in determining a fit sentence for the
    appellant is
R. v. Domke
, 2006 ABPC 252, 400 A.R. 112. In that case,
    the accused was a youthful first offender who worked as a prison guard. Inmates
    intimidated him into trafficking approximately 600 pills of prescription drugs
    in the prison. Domke was charged with four counts of possession for the
    purposes of trafficking. Allen Prov. Ct. J. stressed the accuseds breach of
    trust in imposing a harsher penalty and sentenced the accused to 5 years of imprisonment.
    This sentence was imposed despite a confession upon arrest, a guilty plea, and
    the hardship a former prison guard would face in prison.

[50]

The
    facts of this case, considered in the light of the relevant sentencing principals
    and the jurisprudence involving crimes of trafficking in oxycodone, uttering
    forged documents and breaches of trust, support the exercise of the trial
    judges discretion in sentencing the appellant to 42 months imprisonment.

[51]

The
    fresh evidence speaks forcefully to the appellants many challenges and her
    many strengths. While this evidence, particularly the evidence relating to her childrens
    needs, is relevant to the determination of a fit sentence, it adds little to the
    evidence available to the trial judge that he clearly considered. As a result ,
    the fresh evidence does not affect my view of the trial judges exercise of
    discretion.

(iii)

Did the trial judge err in failing to apply the parity principle?

[52]

The
    parity principle is codified in s. 718.2(b) of the
Criminal Code
. The
    principle

requires that a sentence should be similar to sentences
    imposed on similar offenders for similar offences committed in similar
    circumstances: see Clayton Ruby,
Sentencing
, 7
th
ed.
    (Markham: LexisNexis Canada Inc., 2008), at para. 2.21.

[53]

The
    appellant submits that the trial judge violated the parity principle by giving
    her a sentence (42 months) that was higher than the sentence Mr. Witte received
    (36 months). I disagree.

[54]

Mr.
    Wittes 36-month sentence has to be regarded in the light of the fact that this
    global sentence was imposed upon conviction following guilty pleas of charges set
    out in two indictments. He pled guilty to assault arising out of a domestic
    situation and possession of marijuana. On the information relating to the
    charges connected to the appellants charges, Mr. Witte pleaded guilty to four
    counts of possession of oxycodone for the purposes of trafficking. I observe
    that possession for the purposes of trafficking is a less serious offence that
    those for which the appellant was convicted  trafficking in a controlled
    substance.

[55]

The trial judge was aware of the facts surrounding Mr. Wittes
    conviction and sentencing. He was mindful of the similarities and of the
    differences between the offenders and the offences.

[56]

While both were part of the same scheme designed to illegally
    obtain oxycodone for the purposes of trafficking and both were treated as first
    offenders, there were differences. Mr. Witte, unlike the appellant, took
    responsibility for his conduct. He confessed soon after arrest and co-operated
    with the police. He pleaded guilty. Also, Mr. Wittes participation was influenced
    by his addiction to oxycodone.

[57]

By contrast, the appellant was in it for the money.
A
s the trial judge emphasized, the
    appellant illegally used her employers position as a doctor for personal
    financial gain. In doing so, she committed a serious breach of trust, the
    significance of which was discussed above.

[58]

This comparison demonstrates that there were factors relevant to
    the determination of Mr. Wittes sentence that supported leniency. These
    factors did not apply to the appellant. Similarly, there were aggravating
    factors in the appellants circumstances that did not apply to Mr. Witte.

[59]

As a final comment I add that a fit sentence
    must be ascertained on an individual basis. It is therefore inappropriate to
    allow the parity principle, a principle that, by definition, considers another
    sentence imposed on another offender, to dominate the determination of a fit
    sentence. Parity does not require equal sentences. It requires only understandable
    sentences when examined together:
R. v. Issa
(1992), 57 O.A.C.
    253, at para. 9.

(d)     Conclusion  sentence appeal

[60]

In my view, even with the fresh evidence in mind and having
    regard to the parity principle, a penitentiary sentence of 42 months
    imprisonment is a fit sentence.  As a result, it was not open to the trial
    judge to consider a conditional sentence.

[61]

For these reasons I
see no reason to interfere
    with the sentence.

C.

DISPOSITION

[62]

I
    would dismiss the conviction appeal. I would grant leave to appeal sentence but
    dismiss the sentence appeal.

Released:

MR                                        Gloria
    Epstein J.A.

JUN 20 2013                          I agree M. Rosenberg
    J.A.

I agree
    P. Lauwers J.A.


