



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Forrester, 2019 ONCA 255

DATE: 20190403

DOCKET: C63047

Strathy C.J.O., Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sean Forrester

Appellant

Stacey Alexander Taraniuk, for the appellant

Brian G. Puddington, for the respondent

Heard: March 4, 2019

On appeal from the conviction entered by Justice Gregory
    M. Mulligan of the Superior Court of Justice on September 29, 2016, with
    reasons reported at 2016 ONSC 8209.

By the Court:

[1]

The
    appellant was convicted on three counts of trafficking in fentanyl, contrary to
    s. 5(1) of the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19,
    and three counts of knowingly using a forged document, contrary to s. 368(1)(a)
    of the
Criminal Code
, R.S.C. 1985, c. C-46. He appeals his
    convictions, asserting principally that the trial judge failed to assist him in
    his defence and misapprehended aspects of the evidence. For the reasons that
    follow, we allow the appeal from the conviction for trafficking on October 30,
    2013 and dismiss the remainder of the appeal. In oral argument, the appellant placed
    greater weight on some of the submissions made in his factum, rather than
    others. We will only address the principal submissions.

Background

[2]

The
    charges related to the appellants alleged participation in a scheme to obtain
    and use forged prescriptions for fentanyl patches. The prescriptions were
    filled at several pharmacies in Barrie, Ontario. One such prescription was
    issued in the name of the appellant, Sean Forrester.

[3]

The architects
    of the scheme were Grenville Sinclair, who was a friend of the appellant, and
    Raymond Godreau. They were assisted by Julie Baks, a medical assistant in a
    doctors office in Barrie, with whom Sinclair had a romantic relationship. The
    doctor himself was not involved in the scheme.

[4]

The scheme
    involved Godreau recruiting patients, who provided him with their health card
    numbers and other personal information, such as birth dates, addresses, and
    phone numbers. He typically passed this information to Sinclair who, in turn,
    gave it to Baks. Sometimes Godreau passed the information directly to Baks. Baks
    created a patient profile on the doctors computer system, issued an
    electronic prescription for fentanyl in the name of the phoney patient, and
    forged the doctors initials on the prescription. Having done so, she erased
    the patient profile. Baks then gave the forged electronic prescription to
    Sinclair.

[5]

Sinclair,
    in turn, gave the forged prescription to Godreau, who gave the prescription to
    the patient named on it, who then had it filled at a pharmacy and delivered
    the drugs to Godreau in exchange for cash. Godreau made the patches available
    for illicit sale on the street. Each prescription was for the maximum dosage a
    doctor could prescribe  three batches of 15 patches over a three-month period.

[6]

Approximately
    19 fraudulent prescriptions were issued under this scheme. Baks, Sinclair, and
    Godreau were eventually arrested, tried, and convicted for their involvement. Sinclair
    was sentenced to a nine-year penitentiary term.

[7]

Baks
    was fired by the doctor for stealing petty cash from the office, an allegation unrelated
    to the false prescription scheme. On her last day of work on August 30, 2013,
    she issued a prescription in the name of Sinclairs friend, the appellant Sean
    Forrester.

[8]

The
    prescription was filled at a Shoppers Drug Mart in Barrie on August 30, September
    30, and October 30, 2013.

[9]

The
    key issue at trial was identity  namely, whether the appellant himself had
    attended at the pharmacy to have the prescription filled, or whether someone
    falsely presented himself as Sean Forrester in order to do so. Sinclair, who
    by the time of trial had pleaded guilty to his involvement in the scheme,
    testified that he had recruited the appellant to participate in the scheme,
    obtained his health card information, gave it to Baks, obtained the prescription
    and drove the appellant to the pharmacy on August 30, 2013 to have the first
    instalment of the prescription filled. Baks testified that she had prepared the
    prescription in the appellants name at Sinclairs request. The pharmacist and
    his assistant testified as to their general protocols for filling prescriptions
    and identifying patients. Neither had any specific recollection of dealing with
    the appellant, but their records indicated that an individual representing
    himself to be Sean Forrester attended at the pharmacy with the prescription.

[10]

Sinclair gave two
    statements to the police. He admitted to lying in the first, but claimed that
    the second was truthful. Sinclair testified at trial that on August 30, 2013, he
    asked the appellant if the appellant would like to participate in the scheme,
    and the appellant said yes. Sinclair obtained the appellants health card
    information and personal information directly from him. They drove that same
    day to the doctors office, Sinclair got the prescription from Baks, and they
    drove to the pharmacy. The appellant had the prescription filled, paying for it
    with cash provided by Sinclair, and then Sinclair paid the appellant approximately
    $500 to $700 in cash in exchange for the drugs. Sinclair testified that he did
    not recall paying the appellant when the prescription was filled a second time
    on September 30, 2013. He also did not recall receiving the third batch on
    October 30, 2013.

[11]

The appellant
    testified in his defence. He maintained that he did not participate in the
    scheme, and claimed that Sinclair must have used his health card or health card
    information. He could not recall where he was on the various dates the
    prescriptions were filled. He claimed that his health card had been lost, or
    stolen, possibly by Sinclair.

Reasons of the trial judge

[12]

The trial judge identified
    the central issue as whether there was reasonable doubt that the appellant went
    to the pharmacy on August 30, September 30, and October 30, 2013 to have the
    prescription filled. He instructed himself on the principles in
R. v.
    W.(D.)
, [1991] 1 S.C.R. 742, in applying the presumption of innocence and
    the burden of proof and those in
Vetrovec v. The Queen
, [1982] 1
    S.C.R. 811, in relation to the assessment of Sinclairs evidence. He accepted
    Sinclairs evidence as truthful and supported by his long friendship with the
    appellant. Sinclairs evidence was also supported by the manner in which the
    scheme was carried out, and by the procedures followed by the pharmacy to confirm
    patient identity.

[13]

The trial judge
    rejected the appellants evidence, finding that he had a motive of financial
    gain, given his economic circumstances, and an opportunity in light of the
    evidence that he was off work on each of the three days. Despite his claim that
    he had lost his health card, there was no notation on the Ministry of Health
    and Long-Term Cares records that his card had been reported lost or stolen and
    he never replaced the card. The trial judge accepted Sinclairs evidence and
    found that the evidence as a whole left him with no reasonable doubt. He
    convicted the appellant on all counts.

Analysis

(a)

Failure to assist self-represented accused

[14]

The appellant claims
    that the trial judge failed to ensure that he had an opportunity to bring forward
    his defence and claims that the trial judge either misinformed him or failed to
    inform him about important aspects of his defence.

[15]

A trial judge has a
    duty to assist a self-represented accused and to guide him or her throughout
    the trial so that his or her defence is brought out with its full force and
    effect:
R. v. Richards
, 2017 ONCA 424, 349 C.C.C. (3d) 284, at para.
    110;
R. v. Chemama
, 2016 ONCA 579, 351 O.A.C. 381, at para. 13;
R.
    v. Tran
(2001), 55 O.R. (3d) 161 (C.A.), at pp. 170-72; and
R. v.
    McGibbon
(1988), 45 C.C.C. (3d) 334 (Ont. C.A.), at p. 347. The scope of
    the duty depends on the particular circumstances of the case and is
    circumscribed by what is reasonable:
Richards
, at para. 111;
Chemama
,
    at para. 14; and
R. v. Taubler
(1987), 20 O.A.C. 64 (C.A.), at para.
    30.

[16]

A trial judge, of
    course, has other duties, one of which is to ensure that the trial is
    effective, efficient and fair to both sides:
R. v. John
, 2017 ONCA 622,
    350 C.C.C. (3d) 397, at para. 47; and
R. v. Snow
(2004), 73 O.R. (3d)
    40 (C.A.), at para. 24. This includes ensuring that the trial does not become
    mired in irrelevant evidence and that the rules of evidence are applied fairly
    to both parties.

[17]

Failure to assist a self-represented
    accused is not an independent ground of appeal, but raises the possibility of
    an unfair trial or miscarriage of justice that may attract appellate
    intervention under s. 686(1)(a)(iii) of the
Criminal Code
: see
R.
    v. Dixon
, 2018 BCCA 181, at para. 44;
R. v. West
, 2010 NSCA 16, 288
    N.S.R. (2d) 293, at para. 72; and
R. v. Assoun
, 2006 NSCA 47, 244
    N.S.R. (2d) 96, at para. 264, leave to appeal to S.C.C. refused, [2006]
    S.C.C.A. No. 233. Not every breach of a trial judges obligation to a self-represented
    accused will render a trial unfair or result in a miscarriage of justice. The
    Court of Appeal of Manitoba noted in
R. v. Olenick
, 2010 MBCA 107, 262
    Man. R. (2d) 15, at para. 8, that it is the
cumulative
    effect
of any errors that the court needs to consider:

The determination of whether the trial judges assistance was
    inadequate and compromised the accuseds ability to bring out his defence is
    arrived at by considering a number of factors. To begin with, the court takes
    into account the totality of the circumstances, including the sophistication of
    the accused, the seriousness of the offence and the nature of the defence. The
    entire trial record is reviewed, including, in this case, the many pre-trial
    conferences that occurred.
It is the cumulative effect of
    the errors that is looked at in order to determine whether the self-represented
    accuseds ability to properly defend his case resulted in a miscarriage of
    justice.
[Emphasis added.]

[18]

The court must
    determine whether at the end of the day, the accused had a fair trial or
    whether, on the contrary, a miscarriage of justice has occurred. In this case,
    having reviewed the trial record and the appellants arguments, we are
    satisfied that the trial was fair.

[19]

The appellants arguments
    must be considered in the context of the trial as a whole. The record discloses
    that the appellant is intelligent and articulate and had a good understanding
    of trial procedure and of the issues that had to be addressed. There were three
    days devoted to preliminary matters, six days of evidence and one day of
    closing submissions. At the outset of the trial, six days before the appellant was
    arraigned, the trial judge provided him with a detailed 22-page memorandum concerning
    trial procedures, important principles of criminal law, the essential elements
    of the offences with which he was charged, his right to examine witnesses and
    to call evidence, and certain rules of evidence, among other things. The trial
    judge read the memorandum into the record. The memorandum noted that if the
    appellant had questions during the course of the trial, he could raise them at
    any time. Significantly, in light of the arguments made by the appellant in
    this court, the memorandum highlighted in two places the need to challenge the
    evidence of a Crown witness whose evidence the appellant intended to contradict
     i.e., the rule in
Browne v. Dunn
(1893), 6 R. 67 (H.L. (Eng.)).

[20]

The record shows that
    the trial judges assistance continued throughout the trial, including giving
    the appellant appropriate opportunities to prepare for the examination of witnesses
    and for his own evidence. The record indicates that the appellant was actively
    involved in his trial, cross-examining and examining witnesses, raising
    evidentiary issues, and making focused and informed submissions in the course
    of the trial and in his closing argument.

[21]

Finally, the record
    demonstrates that the appellant was aware that the key issues at trial were the
    veracity of Sinclairs claim that the appellant participated in the offences,
    and whether Sinclair or some person other than the appellant had the
    prescription filled at the pharmacy. Central to the resolution of these issues
    was the appellants whereabouts on the days of the offences and how Sinclair
    obtained the appellants health card information.

[22]

In this context, the
    appellant makes three principal arguments: (i) the trial judge refused to
    permit him to refresh his memory concerning his whereabouts on the dates
    referred to in the indictment; (ii) the trial judge misinformed him about his
    ability to adduce alibi evidence; and (iii) the trial judge invoked the rule
    in
Browne v. Dunn
, and drew an adverse inference from the appellants
    failure to confront Sinclair, a Crown witness, with contradictory evidence
    during cross-examination.

(i)

Refreshing memory

[23]

The appellant claims
    that the trial judge failed to correct his misapprehension that he was not
    entitled to refer to his text messages to determine his whereabouts on August
    30, September 30 and October 30, 2013 when he was alleged to have had the
    fentanyl prescription filled at the pharmacy.

[24]

We do not accept this
    submission. Based on the pre-trial conference, the information supplied to him
    by the trial judge, and the manner in which the evidence was developed at trial,
    the appellant understood that his opportunity to commit the offences was an
    important evidentiary issue. The Crown had led evidence to show that he was not
    at work on the dates in question and had the opportunity to commit the
    offences. He knew that he was entitled to call evidence to establish that he was
    in some other place at the time of the alleged offences. The appellant was not
    deprived of an opportunity to present evidence of his whereabouts at the time
    of the offences. He has not established that his defence would have been
    assisted by reference to his text messages, which he could obviously have
    reviewed in preparing to give his evidence.

(ii)

Alibi

[25]

The appellant says
    that the trial judges explanation of alibi evidence was misleading and may
    have caused him to refrain from crucial lines of cross-examination, because he
    mistakenly believed that he was required to give prior notice of an alibi to
    the Crown. Specifically, the trial judge stated an alibi is basically
    indicating that you could not do it because you  were not there, or someone
    else did it or something like that. It is showing that you were incapable of
    committing the offence because of whatever circumstances.

[26]

In addition to this
    instruction, the trial judge gave the appellant a standard form of jury
    instruction on the meaning of an alibi.

[27]

We do not accept the
    appellants submission. There is no indication that he was unaware of his
    entitlement to show that he could not have committed the offences because he
    was in some other location at the material times. Nor is there any indication
    that he somehow curtailed his cross-examination of Sinclair. He had, in fact,
    given notice of a potential alibi from a woman who he claimed was with him at
    the time of the alleged offence on August 30, 2013. The police interviewed her
    and took her statement  a statement that did not particularly assist the
    appellant. The appellant was aware that he could call the woman as a witness
    and there was some discussion that he might do so, but it never happened.

[28]

The appellant
    conducted the trial and made submissions to demonstrate that Sinclair was
    responsible for the offences and he was not. The trial judges description of
    the meaning of alibi did not affect the appellants right to a fair trial.

(iii)

The rule in
Browne v. Dunn

[29]

The appellant submits
    that the trial judge breached his obligation to assist him and erred in law in
    applying the rule in
Browne v. Dunn
by drawing an adverse inference as
    a result of his failure to cross-examine Sinclair concerning the discovery of
    the missing wallet.

[30]

The issue arose in the
    following manner. The appellant testified in-chief that in May 2013 he lost his
    wallet while out with Sinclair and others. His wallet had contained his
    non-photo bearing red and white health card, and other identification. He
    reported the wallet missing to police in Barrie and Elora. He testified that
    when replacing his drivers licence, he told a clerk at Service Ontario that he
    also lost his health card, but did not take the necessary steps to replace his
    health card. He did not report the missing health card to the Ministry of
    Health and Long-Term Care, and it was not flagged as lost or stolen in the
    Ministrys records. The Ministrys records adduced at trial indicated that the
    card had not been used during the period in question.

[31]

After he had completed
    his evidence, the trial judge ordered a recess to give the appellant an
    opportunity to decide whether there was anything else he wished to say. After
    the break, the appellant testified, for the first time, that at some time
    Sinclair had telephoned him to say that he (Sinclair) had found the missing
    wallet, but failed to return it to the appellant. This late-breaking evidence
    was clearly designed to show that the appellant could not have committed the
    offences and that Sinclair did.

[32]

The trial judge
    immediately reminded the appellant of his instructions about the rule in
Browne
    v. Dunn
and pointed out that he had not asked Sinclair about the missing
    wallet. The appellant acknowledged that he had not, but pointed out, correctly,
    that the Crown had put the question to Sinclair. The discussion then turned to
    the potential confirmatory evidence of another witness, whom the appellant
    ultimately did not call.

[33]

The appellant says
    that the trial judge should have informed him that although he was entitled to
    draw an adverse inference from the failure to cross-examine Sinclair on the
    point, it was discretionary and there were other alternatives, including
    permitting Sinclair to be re-called so the question could be put to him.

[34]

The rule in
Browne
    v. Dunn
is a rule of trial fairness. It requires a party cross-examining a
    witness to give notice to a witness whose credibility the cross-examiner
    intends to later impeach:
R. v. Dexter
, 2013 ONCA 744, 313 O.A.C. 226,
    at paras. 4, 17-22. The effect to be given to a breach of the rule is in the
    discretion of the trial judge, having regard to all the circumstances. It may
    include permitting counsel to recall the witness whose evidence has been
    impeached without notice. It may also include taking into account the failure to
    cross-examine when assessing the credibility of the party who failed to
    cross-examine:
R. v. Paris
(2000), 150 C.C.C. (3d) 162 (Ont. C.A.), at
    para. 22.

[35]

In his reasons for
    judgment, the trial judge made preliminary references to several legal
    principles, noting that [t]he rule in
Browne v. Dunn
is instructive
    when the cross-examination or lack of cross-examination of a Crown witness, in
    this case, Mr. Sinclair, is considered in the light of subsequent defence
    evidence from Mr. Forrester. He referred to the rule again in his reasons,
    noting that the appellant did not ask Sinclair any questions about whether he
    impersonated the appellant or had possession of the appellants wallet. Still
    later, the trial judge noted that in his own evidence, the appellant claimed
    that Sinclair had told him that he (Sinclair) had found the appellants wallet,
    but that the appellant had never put this evidence to Sinclair during
    cross-examination. The trial judge took into account the appellants failure to
    cross-examine Sinclair as one of a number of reasons for his acceptance of
    Sinclairs testimony and his rejection of the appellants, and why he was not
    left in reasonable doubt by the balance of the evidence.

[36]

We find no error in
    the exercise of the trial judges discretion in drawing an adverse inference
    from the appellants failure to cross-examine Sinclair on the issue of the
    allegedly missing wallet. The appellants defence rested on his theory that
    Sinclair had had the prescription filled and had used his health card without
    his permission. The trial judge clearly brought home to the appellant the
    importance of challenging a witness on evidence he proposed to impeach. Most of
    the appellants cross-examination of Sinclair was peripheral to the theory of
    the defence. He was given a full and fair opportunity to put that theory to
    Sinclair but never did so. Instead, he attempted to impeach Sinclairs
    credibility in other ways. The trial judge was not required to instruct the
    appellant on how to conduct his cross-examination of Sinclair. We dismiss this
    ground of appeal.

(b)

Misapprehension of evidence

[37]

The appellant claims
    that the trial judges misapprehension of certain features of the evidence
    undermined his conclusions and permits appellate intervention. We will address
    only the principal alleged misapprehensions identified in oral argument.

(i)

The health card

[38]

The appellant asserts
    that the trial judge failed to consider the appellants compelling narrative
    of the lost health card, which we outlined above, as raising a reasonable
    doubt about his guilt. In our view, the trial judge did not misapprehend the
    appellants evidence; he simply did not accept it. He referred at length to the
    appellants evidence concerning the loss of his wallet and the health card, as
    well as to the evidence that there was no notation on the Ministry of Health
    and Long-Term Cares records that the card had been reported lost or stolen.

[39]

As we have noted, the
    appellant never cross-examined Sinclair with respect to his assertion that
    Sinclair had possession of his health card. Indeed, he did not cross-examine Sinclair
    on most of his evidence concerning the appellants involvement in the offences.
    This, together with the appellants late-breaking story about Sinclair
    finding the wallet, explains why the trial judge did not find the appellants
    narrative compelling, and why he concluded that it did not raise a reasonable
    doubt.

(ii)

The
modus operandi
of the scheme

[40]

The appellant says
    that the trial judge erred in finding that the execution of the scheme in the
    appellants case was consistent with the execution of the scheme in other cases,
    and supported Sinclairs evidence that the appellant committed the offences. He
    argues that his case was different from the norm because, in all other cases,
    it was
Godreau
who recruited the phoney
    patients, supplied them with the prescription and received the drugs from
    them. This was the only case in which Sinclair recruited the patient and
    received the drugs.

[41]

The trial judge was
    alive to the fact that this was the only case in which Sinclair was the
    recruiter and in which he provided Baks with information concerning a friend.
    The trial judge mentioned this fact at several points in his reasons. What was
    consistent with the
modus operandi
of the overall scheme was that in
    every case, it involved the health card information of a
real
    person
, a prescription made out to that person using his or her personal
    information, and that same
real person
attending
    at the pharmacy and producing the necessary personal information to obtain the
    drugs. The participation of the real person was necessary in light of the more
    stringent procedures used at the pharmacy for the acquisition of monitored
    narcotic drugs like fentanyl.

[42]

The trial judge did
    not misapprehend the evidence. He understood that while this case was not an
    exact template of the procedure used in other cases, the differences were not
    material. What was important was that the scheme relied on the use of the
    health information of real individuals who could use their own photo identification
    cards (IDs) to obtain the forged prescriptions and have them filled.

[43]

For these reasons, we
    reject this ground of appeal.

(iii)

Procedures at the pharmacy

[44]

The appellant says
    that in finding that he, rather than an imposter, attended at the pharmacy to
    have the prescription filled, the trial judge misunderstood the procedures used
    at the pharmacy for the identification of customers.

[45]

Sinclairs evidence
    was that on the first occasion, August 30, 2013, he himself drove the appellant
    to the pharmacy and the appellant personally acquired the drugs. The appellants
    evidence was that he did not do so, and suggested that either Sinclair or
    someone else must have had the prescription filled.

[46]

The trial judge
    expressly accepted Sinclairs evidence on this issue. He noted, among other
    things, that Sinclair was six feet two inches tall and 33 years old. The
    appellant was five inches shorter, ten years older and had a different build.
    The inference was that Sinclairs own photo ID could not have been used to have
    the prescription filled in the appellants name.

[47]

The pharmacist and his
    assistant could not speak to what actually occurred on August 30, 2013 or on
    the other two dates, but testified that their normal practice was to require
    photo ID. If the person having the prescription filled could not produce photo ID,
    they would normally call the doctors office to confirm the prescription. In
    fact, Sinclair and Baks testified that a forged prescription was always filled
    immediately so that Baks was on hand in the doctors office in case the
    pharmacist called to query it. In this case, there was no notation in the
    pharmacy records to indicate that photo ID had not been produced or that the
    doctors office had been contacted.

[48]

The trial judge was
    entitled to infer from this evidence that photo ID had been used to have the
    prescription filled and that, consistent with the
modus operandi
of
    the scheme, the real person named on the prescription was able to have the
    prescription filled using his or her own photo ID. He was also entitled to find
    that, in this case, the real person was the appellant. The trial judge did not
    misapprehend the evidence.

Disposition

[49]

We accept the
    appellants submission that there was no evidence to support the appellants
    conviction for trafficking on October 30, 2013 given Sinclairs evidence that he
    could not recall having received the third batch of fentanyl patches from the
    appellant. We accordingly allow the appeal with respect to the conviction on
    that count only, quash that conviction, and enter an acquittal in its stead. We
    dismiss the appeal on the other counts. The outcome of this appeal does not
    alter the appellants sentence, including the three years incarceration,
    concurrent on all counts.

Released: GS  APR 03 2019

G.R. Strathy C.J.O.

Paul Rouleau J.A.

B.W. Miller J.A.


