



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fitzsimmons, 2016 ONCA 107

DATE: 20160205

DOCKET: C57970

Watt, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Amy Fitzsimmons

Appellant

James E. Dean, for the appellant

Ruth McGuirl, for the respondent

Heard: January 25, 2016

On appeal from the conviction entered on June 21, 2013
    and the sentence imposed on August 14, 2013 by Justice W.G. Rabley of the Ontario
    Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of possession of Oxycodone for the purpose
    of trafficking and was sentenced to two years imprisonment. She appeals
    conviction and seeks leave to appeal sentence.

[2]

The facts surrounding the conviction are as follows. The appellant was
    serving an intermittent sentence at the Elgin Middlesex Detention Centre
    (E.M.D.C.), which commenced on February 18, 2012. On six occasions, she was
    caught bringing prescription drugs into the jail. On each occasion she was and
    had been given misconducts by the staff.

[3]

On February 28, 2012, the appellant brought 213 OxyNeo and 7 Cesamet
    pills into the E.M.D.C. The first 94 OxyNeo pills were found in two cylinder
    containers, which were hidden in the collar of the appellants coat. The
    remaining 119 OxyNeos and 7 Cesamet pills were located in the appellants
    underwear following a strip search.

[4]

At trial there was no issue that the appellant possessed a controlled
    substance. The only question for determination was whether the Crown proved
    beyond a reasonable doubt that she possessed the Oxycodone for the purpose of
    trafficking.

[5]

The appellant submits that the trial judge erred in finding that she had
    the requisite intent. In particular, she argues that the verdict was
    speculative and unreasonable, that the trial judge failed to properly apply the
    principles in
R. v. W. (D.)
, [1994] 3 S.C.R. 521,

and that
    he reversed the burden of proof.

[6]

We would not give effect to these arguments.

[7]

It was open to the trial judge to reject the appellants evidence based
    upon the conflicting testimony she gave on her bail hearing. There was also
    other evidence, including the quantity of pills and the way they were packaged,
    which supported a conviction. In these circumstances, the verdict was not
    unreasonable.

[8]

We find no error in the
W. (D.)
analysis
.
The trial
    judge specifically considered the principles of
W. (D.)
and applied
    the three-step test. He rejected the appellants evidence, did not have a reasonable
    doubt as a result of it, and concluded based on the relevant evidence at trial
    that the Crown had proved its case beyond a reasonable doubt.

[9]

There was also no reversal of the burden of proof. The trial judge
    simply found that the there was no credible evidence to support the defences
    theory that the pills were for the appellants personal use.

[10]

With respect to the sentence appeal,
trial
    judge committed no error in principle. The sentence is not demonstrably unfit.
    The trial judge considered the correct principles and the circumstances of the
    offence and the offender. The sentence falls within the appropriate range.

[11]

The
    conviction appeal is dismissed. Leave to appeal sentence is granted, but the
    sentence appeal is dismissed.

David
    Watt J.A.

P.
    Lauwers J.A.

C.W.
    Hourigan J.A.


