



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vickerson, 2020 ONCA 434

DATE:  20200702

DOCKET: C66462

Doherty, MacPherson and Benotto
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adam Vickerson

Appellant

Dirk Derstine and Geoff Haskell, for
    the appellant

David Quayat, for the respondent

Heard: in writing

On appeal
    from the convictions entered on November 1, 2017 and the sentence imposed on
    February 9, 2018 by Justice Phillip Sutherland of the Superior Court of
    Justice.

REASONS
    FOR DECISION

[1]

The appellant was convicted by a jury of theft
    under $5,000, five counts of possession of fentanyl for the purpose of
    trafficking, conspiracy to traffic fentanyl, and ten counts of uttering a
    forged document. He was sentenced to 10 years incarceration.

[2]

He appeals his convictions and sentence on
    several grounds relating to procedural fairness. He was self-represented and
    incarcerated throughout trial. He alleges that he was not sufficiently assisted
    by the trial judge and he did not receive access to the Crowns digital
    disclosure because he had no computer access at the remand facility. In fact,
    he only received access to the digital materials entered as exhibits after the
    conclusion of evidence.

[3]

The appellant submits that, in addition to the
    unfairness, the verdict is unreasonable, and acquittals should be entered on
    the five counts of possession for the purpose of trafficking and the conspiracy
    to traffic fentanyl. (He does not dispute possession of fentanyl).

[4]

The Crown agrees that the appeal should be
    allowed due to the appellants lack of access to disclosure before and during
    trial. However, the Crown says that a new trial should be ordered.

[5]

The appellant relies on
R. v. Dillabough
(1975), 28 C.C.C. (2d) 482 (Ont. C.A.), to support the submission that
    acquittals be entered.

[6]

In
Dillabough
,
    the appellant was convicted of assault causing bodily harm on the man who was
    living with his estranged wife. He was given an intermittent sentence of 30
    days. This court allowed the appeal because:

a.

The trial judge had failed to consider a relevant
    statutory defence that was clearly available to the accused.

b.

The trial judge made no credibility findings in
    a case where the Crowns evidence and the defence evidence diverged significantly.

c.

The trial judge received evidence from the
    appellants wife who was not competent to testify.

d.

The trial judge did not find the essential facts
    which had to be determined by him before he could determine guilt or innocence.

[7]

Instead of ordering a new trial, this court
    entered an acquittal saying, at page 483: We also have in mind that the
    appellant has already served three weekends out of a 30-day intermittent term,
    being the sentence imposed by the Judge for this offence. Under these
    circumstances it would be inappropriate to direct a new trial.

[8]

We do not agree that, because appellant has
    served a portion of his sentence, he should be acquitted of the trafficking
    charges. The fact that an appellant has served a portion of the sentence is not
    a stand-alone basis to substitute an acquittal for a new trial: see
Brouillard
    Also Known As Chatel v. The Queen
, [1985] 1 S.C.R. 39, at para. 32.

[9]

Nor do we accept that the verdict was
    unreasonable. There is evidence on which a properly instructed jury could
    convict the appellant. The police investigated the appellant and his associates
    pursuant to an investigation called Project Tango and Cash, which targeted distributors
    of fentanyl. In December 2013, police executed search warrants and arrested
    approximately 25 suspects in connection with the investigation. They seized a
    cellphone from which approximately 9,500 text messages were extracted, along
    with various photographs, some of which included pictures of the appellant.
    There was circumstantial evidence that the appellant had possession of the
    phone. The Crown alleges that the appellant had forged prescriptions, filled
    them at various pharmacies and trafficked.

[10]

The conviction appeal is allowed, and a new
    trial is ordered on all counts. It is unnecessary to consider the sentence
    appeal under the circumstances.

Doherty J.A.

J.C. MacPherson J.A.

M.L. Benotto J.A.


