



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fairbarn, 2020 ONCA 784

DATE: 20201211

DOCKET: C64968

Doherty, Roberts and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tracy Fairbarn

Appellant

Cate Martell, for the appellant

David Quayat, for the respondent

Heard: November 26, 2020 by
    video conference

On appeal from the convictions returned
    on November 1, 2017 by a jury presided over by Justice P. Sutherland of the
    Superior Court of Justice, and from the sentences imposed on January 26, 2018,
    reported at 2018 ONSC 343.

By the Court:


overview

[1]

The appellant was charged with four counts in a
    multi-count indictment:

·

two counts of uttering a forged prescription for
    Fentanyl;

·

one count of possession of Fentanyl for the
    purpose of trafficking; and

·

one count of possession of stolen property.

[2]

The appellant was convicted on the two uttering
    charges, and the possession of stolen property, but acquitted on the charge of
    possession of Fentanyl for the purpose of trafficking. The trial judge imposed
    a total sentence of 18 months. The appellant appeals conviction and sentence.

[3]

For the reasons that follow, we would:

·

Dismiss the conviction appeals on the uttering
    forged documents charges;

·

Allow the appeal on the charge of possession of
    property obtained by theft and order a new trial; and

·

Allow the sentence appeal on the uttering forged
    documents charges and vary the sentence to a conditional sentence of 12 months.

the evidence at trial

[4]

This prosecution came out of a lengthy
    investigation focused on Adam Vickerson and Gavin Lambie. The Crown alleged Vickerson
    and Lambie operated a scheme in which they arranged for persons, often addicts,
    to use forged prescriptions to acquire Fentanyl patches. Vickerson created the
    forged prescriptions. Lambie recruited individuals who attempted to fill the forged
    prescriptions for Fentanyl patches at various pharmacies. The appellant was one
    of those individuals.

[5]

Lambie was initially charged with Vickerson, but
    pled guilty a few months before the trial and became the main Crown witness. By
    the time the case got before the jury, Vickerson and the appellant were the
    only remaining accused. Of the 20 counts that went to the jury, Vickerson was
    charged with 19. The appellant was charged with four.

[6]

In the course of the trial, the Crown led evidence
    of 25 transactions in which different people, under the direction of Vickerson
    and Lambie, obtained or attempted to obtain Fentanyl patches using false
    prescriptions at pharmacies. The appellant had nothing to do with any of these
    transactions. The Crown also led evidence of two incidents in which the Crown alleged
    the appellant was involved in obtaining or attempting to obtain Fentanyl using
    forged prescriptions.

[7]

According to Lambie, the appellant, used a
    forged prescription in the name of Tracy Hunter to obtain 15 Fentanyl patches
    from a pharmacy on September 26, 2013. The appellants friend, Stephanie
    Goodfellow, testified the appellant sometimes used the name Tracy Hunter.

[8]

Lambie testified the appellant went into the
    pharmacy and came out with 15 Fentanyl patches, gave Lambie 10, and kept the
    other 5.

[9]

The doctor whose name appeared on the
    prescription testified he did not write the prescription and Tracy Hunter was
    not a patient of his.

[10]

The jury convicted the appellant on the charge
    of uttering the forged prescription. They were satisfied the appellant presented
    a forged prescription in the name of Tracy Hunter to the pharmacist. The jury
    acquitted the appellant on the related charge of possession of Fentanyl patches
    for the purposes of trafficking. This verdict indicates the jury was not
    satisfied beyond a reasonable doubt the appellant was actually able to fill the
    forged prescription and deliver the Fentanyl patches to Lambie. The jurys acquittal
    finds support in the absence of any documentation in the pharmacys records pertaining
    to the dispensing of Fentanyl patches to Tracy Hunter on September 26, 2013.
    In the normal course of the pharmacys business, that documentation should have
    been in the records if Fentanyl patches were actually sold to Tracy Hunter.

[11]

The second incident involving the appellant
    occurred on September 30, 2013. According to Stephanie Goodfellow, the
    appellant asked her to take a prescription for Fentanyl to the pharmacy and
    have it filled for the appellant. The appellant asked Ms. Goodfellow to use a
    forged prescription in Ms. Goodfellows name to obtain the drugs for the
    appellants terminally ill father. The appellant made up a story explaining why
    she could not legitimately obtain the prescription herself.

[12]

Ms. Goodfellow agreed to help her friend out.
    She attempted to fill the prescription, but when the pharmacist questioned the legitimacy
    of the prescription, Ms. Goodfellow panicked and left without obtaining the
    drugs.

[13]

The doctor whose name appeared on the
    prescription testified Stephanie Goodfellow had never been a patient of his and
    he had not written a prescription.

[14]

Lambie testified he knew the appellant found someone
    willing to fill a forged prescription. She had provided Ms. Goodfellows health
    card number to Lambie. Vickerson prepared the forged prescription in Ms.
    Goodfellows name. Lambie knew the prescription was not filled because Ms.
    Goodfellow had become frightened and left the pharmacy.

[15]

The jury convicted the appellant of uttering a
    forged prescription in the name of Ms. Goodfellow.

[16]

Count 3 charged the appellant alone with
    possession of property obtained by crime. This offence had no connection to the
    forged prescription scheme giving rise to the other 19 counts in the indictment.

[17]

When the police arrested the appellant at her
    home, they found a box of documents in a closet in her bedroom. The documents belonged
    to her employer, Dr. Liquornik, and included referral letters from other
    physicians and patient test results. Some patients were identified by name. The
    documents were no longer part of Dr. Liquorniks active patient files and
    would, in the normal course, have been shredded.

[18]

Dr. Liquornik explained the documents were
    supposed to be shredded in the office. Although no one had permission to remove
    the documents from his office, Dr. Liquornik was aware that, on occasion, his
    employees took documents for shredding to the hospital where the documents
    could be destroyed much more quickly using the equipment there. Dr. Liquornik was
    not asked whether he was aware of any employees who took these documents to
    their home. He was also not asked whether it was any part of the appellants
    duties to shred documents at the office.

[19]

The appellant did not testify. On the evidence, she
    was clearly in possession of the documents found in her closet. The Crown
    alleged she had stolen them from her employer. The Crown did not suggest a
    motive and did not contend the documents had any connection to the forged
    prescription scheme.

[20]

The appellants trial counsel argued the
    appellant may have taken the documents from her employers office under the
    mistaken belief she was permitted to take those documents to the hospital to
    shred them. Counsel further argued the appellant may have taken the documents
    to her home, intending to take them on to the hospital. Counsel submitted, if the
    jury accepted this explanation or had a doubt about it, the Crown had not
    proved the appellant acted fraudulently and without colour of right and she
    could not be convicted of theft:
Criminal Code
, s. 322.

THE CONVICTION APPEAL

A.

the alleged improper examination in-chief of the
    witness, lambie

[21]

Lambie had pled guilty before the appellants trial
    commenced. He had not been sentenced, although the Crown and Lambies counsel
    had agreed to a joint submission of six years with a very substantial deduction
    for pretrial custody and time spent on bail. Lambie signed a 20-page statutory
    declaration purporting to outline his involvement in the scheme and indicating
    he was prepared to testify for the Crown.

[22]

Early in Lambies examination in-chief, Crown
    counsel asked him whether he had received any benefit for testifying. Lambie
    said no. Crown counsel then reviewed the jail sentence Lambie would receive. Next,
    Crown counsel asked Lambie why he was testifying. Lambie indicated he was trying
    to change his life and do things the right way. He was now attending Narcotics Anonymous.
    The Crown asked whether there were any triggers to his decision to change his
    lifestyle. Lambie responded one of his best friends had died of a drug
    overdose. Crown counsel asked what drug had been involved and Lambie replied Fentanyl.

[23]

Counsel for the appellant moved for a mistrial. He
    argued Crown counsels questioning was misleading and violated the rule prohibiting
    questions during examination in-chief designed exclusively to buttress the
    credibility of the witness.

[24]

The trial judge dismissed the motion for a
    mistrial:
R. v. Vickerson

et al.
, 2017 ONSC 6168. On appeal,
    counsel renews the arguments rejected at trial.

[25]

It is not necessary to explore the limits of the
    rule against oath-helping. In the circumstances of this case, there was
    absolutely no doubt Lambie would be cross-examined about his motives for
    pleading guilty and testifying, especially any benefit he may have received
    from the Crown in exchange for his testimony. In fact, Lambie was
    cross-examined at length about his deal with the Crown.

[26]

If Crown counsel had not canvassed Lambies
    motives for pleading guilty and testifying during examination in-chief, Lambies
    cross-examination would inevitably have opened the door to the same questions by
    the Crown in reply. Given the centrality of Lambies motives for testifying to
    the defence, and the inevitability of that cross-examination, it is difficult
    to see how the appellant was prejudiced by the questions being put to Lambie
    in-chief, rather than in reply.

[27]

As a matter of practice, Crown counsel should
    have outlined for the court his proposed line of questioning before he asked
    Lambie about his motives for testifying. Had he done so, the defence would have
    had an opportunity to put its position forward and the trial judge could have
    made a ruling setting the boundaries for the Crowns line of questioning. In
    different circumstances, some of the questions asked by Crown counsel may have been
    improper and undermined the fairness of the trial.

[28]

Crown counsels question, which elicited evidence
    that Lambies friend had died of a Fentanyl overdose, was unnecessary and
    potentially prejudicial. The Crown could have made Lambies reasons for
    testifying clear without identifying Fentanyl as the drug that had caused his
    friends death.

[29]

Fortunately, the trial judge neutralized the
    potential prejudice when he told the jury:

The fact that there are people in our society
    that are addicted to Fentanyl and have died by overdose of Fentanyl are facts
    that are irrelevant to your determination of whether the Crown has proved beyond
    a reasonable doubt the offences charges against  Tracy Fairbarn.

[30]

Counsel for the appellant also argues, apart
    from any improper oath-helping, Crown counsels questions of Lambie created a
    misleading picture which could not be cured on cross-examination. Counsel contends,
    that by eliciting Lambies evidence he received no benefit for his testimony,
    Crown counsel improperly put evidence before the jury he knew to be inaccurate.

[31]

Counsel further submits the language used by the
    Crown in questioning Lambie about the sentence he was to receive misled the
    jury about the real length of the sentence Lambie would serve. Lastly, counsel
    argues the Crown erroneously told the jury Lambie had been sentenced when in
    fact he had not been sentenced before he testified.

[32]

We would not give effect to these arguments. Lambies
    evidence that he received no benefit for testifying was difficult to believe. The
    incredulity of the answer does not, however, mean the Crown asked a misleading
    question. Crown counsel could not dictate Lambies answer. If Lambie did not
    consider the sentence he received a benefit, his answer was a truthful one,
    regardless of how incredible that answer may have seemed to the jury. Lambies evidence
    he received no benefit, arguably inured to the benefit of the defence.
    Certainly, it provided a reason for the jury to conclude Lambie was lying in
    his evidence. At a minimum, the answer opened the door to fruitful
    cross-examination.

[33]

The Crowns description of the sentence to be
    imposed on Lambie was arguably incomplete in that it did not identify the
    actual amount of time Lambie would spend in jail. The defence
    cross-examination, however, corrected any possible misapprehension the jury may
    have been under.

[34]

Crown counsel did mistakenly indicate on more
    than one occasion Lambie had been sentenced before he testified. When Crown
    counsels error was pointed out, the trial judge allowed Crown counsel to tell
    the jury he had been mistaken, and Lambie had, in fact, not been sentenced when
    he testified. This correction avoided any potential prejudice.

[35]

In summary, the Crowns questions did not
    mislead the jury. The defence was able to fully cross-examine to clarify any inaccuracies
    or uncertainties. The cross-examination effectively revealed the apparent
    untruthfulness of some of Lambies answers. By the end of his testimony, the
    jury was well equipped to consider Lambies credibility.

B.

the conviction on the charge of possession of
    stolen property

[36]

The appellant submits the conviction for
    possession of stolen property is unreasonable. She also contends the jury
    instruction was inadequate.

[37]

We would not give effect to the first argument. The
    appellants defence on this charge required the jury have a reasonable doubt on
    two things. First, the jury had to have a doubt whether the appellant
    mistakenly believed she was authorized to remove the documents from her
    employers office. Second, the jury had to have a doubt whether she intended to
    take the documents found in her bedroom closet to the hospital for shredding. If
    the jury did not have a reasonable doubt on both factual questions, the
    appellants defence on this charge would fail.

[38]

A defence based on a mistaken belief is
    difficult to make out when the accused does not testify. There was no evidence the
    appellant was aware people were taking documents from her employers office for
    shredding, and no evidence shredding documents was any part of the appellants
    duties. While her employers testimony provided an evidentiary basis for the
    defence advanced, the evidence in support of the defence was far from compelling.
    It cannot be said any reasonable jury, properly instructed, would have been
    left with a doubt about the appellants guilt. The verdict was not unreasonable.

[39]

We do, however, accept the appellants second
    argument. The jury instructions on this count were inadequate.

[40]

The trial judge had a difficult task. He had to
    instruct the jury on 20 different charges. To assist the jury, he organized the
    counts by reference to offences that shared common elements, and he gave the
    jury written schedules summarizing the evidence on each of the specific counts.

[41]

Following the format outlined above, the trial
    judge instructed the jury on a theft charge involving Vickerson only,
    immediately before he instructed the jury on the charge alleging the appellant
    was in possession of stolen medical records. The theft charge against Vickerson
    alleged he stole a prescription pad from a doctors office. His liability on
    that count turned entirely on whether he had taken the pad. If Vickerson took
    the prescription pad, he was guilty of theft. There was no other defence available.

[42]

When instructing the jury on the theft charge against
    Vickerson, the trial judge described all of the elements of the offence of
    theft, including the requirement that the taking be fraudulent and without
    colour of right. Neither of those elements of the offence were in issue on the
    theft charge against Vickerson.

[43]

On the charge the appellant was in possession of
    stolen property, unlike the theft charge against Vickerson, the taking of the
    documents was not in issue. Again, unlike the theft charge against Vickerson,
    the appellants state of mind was central to whether she had committed theft
    and was in possession of stolen property.

[44]

In his instructions on the charge of possession
    of stolen property, the trial judge said nothing about the elements of the
    offence of theft, presumably because he had just reviewed those elements when
    instructing on the theft charge against Vickerson. The trial judge did not tell
    the jury that to convict it must conclude the appellants taking of the
    documents was done fraudulently and without colour of right.

[45]

The failure to instruct the jury on the meaning
    of the words fraudulently and without colour of right, and to relate those
    concepts to the evidence and the positions of the parties, was non-direction
    amounting to misdirection. It was particularly important the jury be told that
    an honest belief by the appellant she was authorized to take the documents from
    the doctors office and have possession of the documents at her home was a
    defence, even if the belief was mistaken. The jury could not properly determine
    the appellants guilt on this charge without those instructions. The conviction
    cannot stand.

C.

the instructions to the jury

[46]

The appellant takes issue with two aspects of
    the jury instruction. First, she alleges various errors in relation to the
Vetrovec
instruction as it applied to Lambie. Second, the appellant submits the trial
    judge failed to adequately instruct the jury that each count in the multi-count
    indictment must be considered separately. The appellant argues the trial judge
    should have told the jury that evidence relating to the counts involving
    Vickerson only was inadmissible against the appellant and that the evidence on
    each of the two uttering forged document charges against the appellant had to
    be considered separately. The Crown had not argued that evidence on one count
    was admissible on the other count.

[47]

The trial judge gave a
Vetrovec
instruction in respect of several Crown witnesses who played various roles in
    the forged prescription scheme. We do not accept the reference to the other
    witnesses as
Vetrovec
witnesses necessarily watered down the
    instruction as it applied to Lambie. We do accept, however, Lambie should have
    been singled out for a more focused
Vetrovec
warning. On the evidence,
    there was very strong reason to believe Lambie had received a more lenient
    sentence in exchange for testifying in support of the Crowns case. He was a
    quintessential
Vetrovec
witness for that very reason. The trial judge
    should have highlighted this concern when explaining the dangers associated
    with relying on Lambies evidence.

[48]

The trial judge also should have distinguished between
    the appellant and Vickerson when outlining to the jury evidence that was
    capable of confirming Lambies evidence. In a trial involving more than one
    accused, evidence can be confirmatory of an accomplices evidence as against a
    specific accused, only if the potential confirmatory evidence is admissible
    against that accused: see
R. v. Perciballi
(2001), 154 C.C.C. (3d) 481
    (Ont. C.A.), aff, [2002] 2 S.C.R. 761. For example, evidence from a person
    involved in one of the forged prescription transactions that did not involve
    the appellant, and which tended to confirm Lambies evidence in respect of that
    transaction, could not confirm Lambies evidence as it related to the two
    transactions said to involve the appellant.

[49]

The shortcomings in the
Vetrovec
instruction were not fatal. The jurys verdicts indicate it understood the
    danger in relying on Lambies evidence alone. The jury acquitted the appellant
    on the charge of possession of Fentanyl for the purposes of trafficking. That
    charge depended entirely on Lambies evidence the appellant delivered the
    Fentanyl patches to her. The jury convicted on the related charge of uttering a
    forged document. There was confirmatory evidence on that charge from Ms.
    Goodfellow. The jury also convicted on the uttering charge involving the
    appellants attempt to have Ms. Goodfellow fill a forged prescription. Lambie
    did give evidence about the transaction involving Ms. Goodfellow. His evidence,
    however, played a secondary role. Ms. Goodfellows evidence, which was not
    seriously challenged in many respects, was the key evidence on this count. The verdicts
    tell us the jury got the message about the dangers inherent in relying on Lambies
    evidence alone.

[50]

The appellants argument the trial judge failed
    to adequately protect against the misuse by the jury of evidence relevant only to
    the charges against Vickerson has merit. In the end, however, we think the
    charge adequately addressed that concern.

[51]

The trial judge repeatedly told the jury to
    consider the count separately. The format of his charge effectively separated
    the charges. The trial judge also identified the evidence relevant to each
    charge and provided the jury with a separate schedule for each count
    summarizing the relevant evidence. The trial judge did not, as he could have in
    a case like this in which most of the evidence was admissible against only one
    of the two accused, expressly tell the jury that none of the evidence, except
    the evidence on the two counts on which the appellant was charged, was relevant
    to the appellants guilt.

[52]

Once again, however, the verdicts provide cogent
    evidence the jury did address each count separately. The jurys acquittal of
    the appellant on the charge of possession of Fentanyl for the purposes of
    trafficking indicates the jury was not swept along by improper propensity
    reasoning, based on all the evidence they had heard about the forged
    prescription scheme being operated by Vickerson and Lambie. The acquittal on
    that charge is a strong indicator the jury limited its consideration of the
    evidence to the evidence pertaining only to that transaction.

the sentence appeal

[53]

The trial judge imposed concurrent 12-month
    sentences on the two uttering charges. He imposed a consecutive sentence of 6
    months on the charge of possession of stolen property. As we would order a new
    trial on the charge of possession of stolen property, the fitness of the
    sentence imposed on that charge is no longer germane.

[54]

The appellant submits the trial judge erred in
    sentencing the appellant on the basis she had obtained Fentanyl. Counsel
    submits the jurys verdicts make it clear the appellant did not obtain any
    Fentanyl on either of the two occasions on which she used forged prescriptions
    in an effort to obtain Fentanyl. Crown counsel on appeal agrees the trial judge
    erred in indicating the appellant had obtained Fentanyl.

[55]

The trial judges misdescription of the
    appellants conduct is significant. However, even though the appellant did not
    obtain any Fentanyl, the uttering offences remain serious. She attempted to illegally
    acquire a significant amount of a deadly drug, much of which was no doubt
    headed for the criminal marketplace. On a correct understanding of the facts, we
    are satisfied a sentence totalling 12 months for the two charges was not inappropriate.

[56]

That brings us to the question of whether the sentence
    should be varied to a conditional sentence. In refusing a conditional sentence,
    the trial judge repeated his error by describing the appellants offences as
    involving the obtaining of Fentanyl. The only authority he referred to,
R.
    v. Giannilos
, [2016] O.J. No. 7004 (SCJ), involved an accused who had obtained
    a number of Fentanyl patches. The trial judges misapprehension of the evidence
    played a significant role in his decision that a conditional sentence was inappropriate.

[57]

The trial judge fully set out the many
    mitigating factors applicable to the appellant and I need not repeat them here
    (
R. v. Fairbarn
et al., at para. 36). In addition to those factors,
    some three years have now passed since the appellant was sentenced. She has
    been on bail and there is no suggestion she has not complied fully with the
    terms of her bail. The court must also take into account the present
    circumstances. The pandemic certainly renders incarceration more difficult and
    potentially more dangerous than it was before March 2020.

[58]

In our view, the circumstances now warrant the imposition
    of a conditional sentence of 12 months. We are confirmed in our view by Crown
    counsels acknowledgement during oral argument that a conditional sentence of
    one year would, in the particular circumstances of this case, be an appropriate
    sentence at this time.

[59]

We would vary the sentence imposed to one of 12
    months, concurrent on each count of uttering. The parties agree the sentence
    should also be varied to remove the victim fine surcharge: see
R. v. Boudreault
,
    2018 SCC 58.

conclusion

[60]

As indicated at the outset, we dismiss the
    conviction appeals on the two uttering charges, and vary the sentences on those
    charges to concurrent conditional sentences of one year. The conditional
    sentence shall contain the following terms:

·

the appellant must not possess or consume any
    unlawful drugs or substances (as defined in the
Controlled Drugs and
    Substances Act
), except with a valid prescription in her name;

·

notify the officer in charge (or designate) of
    her address in writing within 48 hours of any change in her address; and

·

remain in her residence at all times except:

1) while
    travelling directly to and from and while attending at her place of work;

2) while
    travelling directly to and from and while attending unit 316, 43 The Queensway
    North, Keswick, Ontario;

3) while
    travelling directly to and from and while attending medical appointments for
    herself, her children, or her parents; and

4) each
    Thursday and Saturday, between the hours of 2:00 p.m. and 4:00 p.m., in order
    to acquire the necessities of life for herself, her children or her parents.

[61]

We remove the victim fine surcharge.

[62]

We order a new trial on the charge of possession
    of stolen property.

[63]

It is clearly up to the Crown to decide whether
    to proceed with a new trial on the single count of possession of stolen
    property. We make two observations that may assist the Crown in the exercise of
    its discretion. First, had this court dismissed the appeal from the possession
    of stolen property charge, we would still have imposed a conditional sentence. Second,
    if any jail term is appropriate on the possession of stolen property charge, a sentence
    of about 30 days would be an appropriate sentence. We note the appellant has
    served 6 weeks.

[64]

Counsel may address the question of bail pending
    trial with Justice Doherty by conference call or in writing.

Released:
DD DEC 11 2020

Doherty J.A.

L.B. Roberts J.A.

A. Harvison Young J.A.


