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EVIDENCE - Witnesses - Examinations - In chief - Limitations

Wednesday, February 03, 2021 @ 6:24 AM  


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Appeal by the accused from conviction and sentence for uttering forged prescriptions for Fentanyl and possession of stolen property. The appellant was sentenced to 12 months for the uttering convictions and six months consecutive for the possession of stolen property conviction. The Crown alleged Vickerson and Lambie operated a scheme in which they arranged for the appellant to use forged prescriptions to acquire Fentanyl patches from pharmacies. The appellant attempted on two occasions using a forged prescription to obtain Fentanyl patches. When the appellant was arrested, police found a box of documents in her home which belonged to her employer and included referral letters from other physicians and patient test results. The documents were no longer part of active patient files and would have been shredded. The employer testified that employees sometimes took documents for shredding to the hospital. The employer was not asked whether he was aware of any employees who took these documents to their home or whether it was any part of the appellant’s duties to shred documents at the office. The appellant did not testify. The Crown alleged she stole the documents from her employer. Lambie pleaded guilty before the appellant’s trial and testified for the Crown. In Lambie’s examination in-chief, he testified he received no benefit for testifying but that he was trying to change his life and do things the right way. The appellant argued Crown counsel’s questioning was misleading and violated the rule prohibiting questions during examination-in-chief designed exclusively to buttress the credibility of the witness. The appellant argued the conviction for possession of stolen property was unreasonable and that the jury instruction on this charge was inadequate.

HELD: Appeal allowed in part. A new trial was ordered on the possession of stolen property charge. The sentence on the uttering convictions was varied to a conditional sentence. There was no doubt Lambie would be cross-examined about his motives for pleading guilty and testifying, especially any benefit he might have received from the Crown in exchange for his testimony. Given the centrality of Lambie’s motives for testifying to the defence, and the inevitability of that cross-examination, it was difficult to see how the appellant was prejudiced by the questions being put to Lambie in-chief, rather than in reply. Lambie’s evidence that he received no benefit for testifying was difficult to believe but this did not mean the Crown asked a misleading question. The defence cross-examination corrected any possible misapprehension the jury might have been under. By the end of Lambie’s testimony, the jury was well equipped to consider Lambie’s credibility. The jury instructions on the possession of stolen property count were inadequate. The trial judge said nothing about the elements of the offence of theft and did not tell the jury that to convict it must conclude the appellant’s taking of the documents was done fraudulently and without colour of right. This was non-direction amounting to misdirection. It was particularly important the jury was told that an honest belief by the appellant she was authorized to take the documents from the doctor’s 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 appellant’s guilt on this charge without those instructions. The shortcomings in the Vetrovec instruction were not fatal. The jury’s verdicts indicated it understood the danger in relying on Lambie’s evidence alone. The jury’s acquittal of the appellant on the charge of possession of Fentanyl for the purposes of trafficking indicated the jury was not swept along by improper propensity reasoning, based on all the evidence they heard about the forged prescription scheme. The trial judge erred in sentencing the appellant on the uttering counts on the basis she obtained Fentanyl. Even though the appellant did not obtain any Fentanyl, the uttering offences remained serious. On a correct understanding of the facts, a sentence totalling 12 months for the two charges was not inappropriate. The trial judge’s misapprehension of the evidence played a significant role in his decision that a conditional sentence was inappropriate. The circumstances now warranted the imposition of a conditional sentence. Sentence: 12-month conditional sentence.

R. v. Fairbarn, [2020] O.J. No. 5376, Ontario Court of Appeal, D.H. Doherty, L.B. Roberts and A.L. Harvison Young JJ.A., December 11, 2020. Digest No. TLD-February12021005