Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Brenda Gauthier
Before: Justice J. Bliss
Heard on: August 30, 2018
Reasons for Sentence released on: September 18, 2018
Counsel
P. Brissette — counsel for the Crown
J. Mor — counsel for the accused Brenda Gauthier
BLISS J.:
The Fentanyl Patch Return Program
1In an attempt to quell the illicit use and abuse of fentanyl, the government instituted a program whereby individuals who were prescribed fentanyl in patch form would have to return their used fentanyl patches to the pharmacist in order to renew their prescription. Return a patch and receive a patch is the "patch for patch" or "Fentanyl Patch Return Program". The idea behind the program is that you cannot get more patches than your prescription entitles you to, and you cannot get more than you return unless of course you submit fake used patches and those fake patches fool the pharmacist which is what Brenda Gauthier did.
Medical Background and Legitimate Prescription
2In purely medical terms, Brenda Gauthier was legitimately prescribed fentanyl as part of her pain management regime for chronic abdominal pain. She has fibromyalgia and degenerative disc disease, and has had multiple abdominal surgeries including a hysterectomy, cholecystectomy, and appendectomy. In 2014, her then physician from the Wilderman Pain Clinic put her on the fentanyl patch.
The Offending Conduct
3According to Ms. Gauthier, by 2017, she was being prescribed 75 µg patches which she received as ten 50 µg patches and ten 25 µg patches each month. That, however, was not enough, but it was, according to Ms. Gauthier, the maximum amount she could be prescribed. Before the Patch for Patch program was instituted, Ms. Gauthier would take the used patch and extract any residue left and smoke it. The process would destroy the patch but before the Patch for Patch program, her monthly stipend of fentanyl patches would not be impacted. After the program was instituted, the failure to return a patch meant that her prescription was in jeopardy. Ms. Gauthier was faced with a number of choices; some legal and some illegal. She could seek more fentanyl illicitly from the black market or off the street, she could speak with her physician and find an alternative medication to address her increasing dependence and addiction to fentanyl, she could return only the used patches that she had, or she could return fake used fentanyl patches to the pharmacist so that she could continue to receive whatever amount her prescription set out. Ms. Gauthier chose the last option, and in doing so broke the law.
4In June 2017, the pharmacist at the Rexall pharmacy where Brenda Gauthier presented her prescriptions received an anonymous tip that she was turning in fake fentanyl patches and selling them. The pharmacist contacted police. While the police investigation into Ms. Gauthier selling or trafficking in fentanyl patches proved to be unfounded, they did learn that she had indeed submitted three fake fentanyl patches from March 10, 2017, April 9, 2017 and May 9, 2017 and had received real fentanyl in return.
The Charge and Sentencing Submissions
5Ms. Gauthier has entered a guilty plea to one count of possessing fentanyl on March 10, 2017, contrary to s. 4(1) of the CDSA. In essence, in uttering the forged patch, she received, and was in possession of, fentanyl that she was not entitled to. The prosecution submits that in doing so the appropriate sentence is a conditional sentence of four to six months while the defence submits that in the "unique" circumstances of Ms. Gauthier's case that a conditional discharge and probation would satisfy the principles of sentencing.
Personal Background and Circumstances
6Brenda Gauthier is 42 years old. She has no criminal record. She supports three children who are now between 16 and 22 years of age. Her two sons have cognitive and medical challenges and live with her. Ms. Gauthier's life has been one of dysfunction and abuse. Her history of trauma is alluded to in the psychiatric consultation letter from Dr. Memarpour, but the full extent of the trauma she has endured was detailed in the letters from her family and outlined by Mr. Mor.
7Ms. Gauthier's father was apparently a full patch member of a motorcycle club. He was physically, emotionally and sexually abusive to her and others. When she was nine years old, he was convicted of offences involving children. In her teens she began using drugs and alcohol. At the age of fourteen, she met the man who she would spend the next twenty-one years with. That was a relationship marked by physical, verbal and emotional abuse that she sought to relieve by abusing substances including prescription medications. During that relationship she was diagnosed with fibromyalgia and also suffered mental health issues including depression which, combined with the abuse within her relationship, led her to abuse drugs and alcohol. When that relationship ended, she entered into another physically abusive one and was at one point under psychiatric care.
Post-Arrest Rehabilitation
8Since her arrest, Ms. Gauthier has sought psychiatric help and saw Dr. Memarpour who diagnosed her as suffering from a major depressive disorder and generalized anxiety disorder that initially was only partially responsive to medication. Her polysubstance use was noted by him as being in remission since October 2017. His report indicated that her history of trauma was to be addressed by a referral to Athena, a service for individuals who have had trauma in their life. She has an intake appointment with that agency in November 2018. As of August 2018, Ms. Gauthier has been compliant with her prescribed treatment and stable from a psychiatric point of view.
9Addressing her opioid dependence, Ms. Gauthier has, since April 2017, ceased using any opioids. Her addictions and community service worker at "The Well", who she has seen since last September, reports that her successful opiate withdrawal has been without medical supports; specifically, methadone. Despite still caring for her two sons, she has taken the first step away from reliance on social assistance and has been volunteering twice a week with the Alliston & District Humane Society and has hopes to be a veterinary technician.
Aggravating Factors
10Despite the very positive steps Brenda Gauthier has taken to address her opioid addiction and criminality, this particular offence has a number of aggravating components to it. That the drug involved is fentanyl cannot be ignored. It is a drug that has become a scourge on communities leaving victims from all walks of life in its wake. There was some sophistication to Ms. Gauthier's offending. She presented fake fentanyl patches that clearly fooled the attending pharmacist and she did it on three occasions. It has been suggested that some for the fentanyl crisis might lie with others including the over-prescribing of fentanyl as a pain management tool and lack of oversight. Mr. Mor stressed that prior to the change in the regulation, what Ms. Gauthier did was not illegal but was a response to having used up all of her allotment of fentanyl in patch form but still having to get whatever residue was left to manage her increasing tolerance of the drug and decreasing tolerance of her pain. Whatever risks Ms. Gauthier engaged in as a result of her illicit obtaining of the patches was self-directed, any abuse was self-inflicted, and she did not expose the greater public to any harm either from the sale or distribution of the patches she received. Ms. Gauthier submits that she did what she did because did not want to resort to illegal sources where she could not be confident about the quality or the integrity of what she was receiving. Defence counsel acknowledges the drug involved and her other options, but submits that a discharge should be imposed nonetheless and supports this position by reference to four Ontario Court of Justice decisions: R. v. Marchese [2017] O.J. No. 1123, R. v. Chivers [2017] O.J. No. 6889, R. v. D.L.P. [2017] O.J. No. 3307 and R. v. Abbott [2017] O.J. No. 5287.
Jurisprudence on Addiction and Sentencing
11In D.L.P. (supra para 8) Doody J. wrote of his concurrence with Justice Rose's comments in Marchese "that the war on drugs should not be waged against addicts such as Mr. Marchese who is making significant, real and ongoing efforts to properly address his addiction" "…His is a public health issue primarily, and much less a matter of criminal interdiction."
12Much like the circumstances in Chivers, Ms. Gauthier's criminality does not have its roots in the unlawful use of fentanyl but emanates from her use of a lawful prescription for a legitimate medical purpose, but over time that prescription fueled a tolerance and an addiction.
Sentencing Principles
13Ms. Gauthier's unique personal circumstances might reduce her moral blameworthiness, but in imposing any sentence, the seriousness of the crime, the moral blameworthiness of the offender, denunciation and specific and general deterrence must be balanced.
14Section 718 of the Criminal Code sets out the principles behind any sentence:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
Section 718.2 outlines considerations, applicable to this case, that guide the imposition of a sentence. In particular:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender…
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders
The Discharge Analysis
15In considering whether a discharge is appropriate, the defence submits that such a disposition is clearly in the best interests of the accused in that it sanctions her conduct, albeit in a way that does not jeopardize her future prospects for employment, would assist her rehabilitation and reintegration into society, and would not be disproportionate to the offence given the particular and peculiar circumstances in which it was committed.
16The real issue is whether the granting of a discharge would be "contrary to the public interest" in that it would not be deleterious. (R. v. D'Eon [2011] N.S.S.C. No. 330 at para 25.)
17Would a discharge for an individual who provides a counterfeit patch to get fentanyl because they are abusing it be deleterious? We are in the midst of an opioid, and in particular fentanyl, crisis. What does a discharge say to others who might be tempted to follow her example? Given the widespread use and abuse of fentanyl, a sentence needs to sufficiently sanction conduct like Ms. Gauthier's by imposing a sentence that is meaningful. (see R. v. Wigglesworth [1983] S.J. No. 774 (Q.B.).) That does not mean that imposing a sentence that sends a message to others trumps other considerations as a sentence should still be the least restrictive sanction that meaningfully denounces and deters. Despite the need for general deterrence and denunciation, a discharge may still satisfy all of the principles of sentencing and not be contrary to the public interest.
18Mr. Mor stresses the prior legality of Ms. Gauthier's conduct, but that does not address her repeated, and somewhat sophisticated, fabrication of a used patch to get around the new regime to acquire a fentanyl patch that she was not entitled to. It ignores the fact that she was abusing fentanyl.
The Dangers of Fentanyl
19The comments of the Court of Appeal in R. v. Loor [2017] O.J. No. 462 are instructive:
35 Fentanyl, like heroin, is an opioid. Opioids are drugs that act on the central nervous system to relieve pain. Unlike heroin, which is illegal, fentanyl is a prescription drug, which can be obtained legally for therapeutic use.
36 Therapeutically, fentanyl is used for the management of moderate to severe chronic pain. Patches are an effective way to administer fentanyl because they are applied to the skin and provide a patient with continuous pain relief for up to three days. But fentanyl is a very powerful drug, according to Dr. Woodall, up to 100 times more powerful than morphine and 20 times more powerful than heroin. Because it is so potent, fentanyl is only prescribed in a patch under strict medical supervision and to those who are "opioid tolerant", that is to those who have been taking opioids for a long time.
37 Because fentanyl is so potent it becomes a very dangerous drug when it is not used for therapeutic reasons under medical supervision. Those who have a prescription for it and yet abuse it, or those without a prescription who buy a patch on the street or borrow one from a friend are at risk of toxicity and death.
38 The effects of fentanyl are why people abuse it. Fentanyl gives people a high, a feeling of well-being, of euphoria. Those who use it for a long time may become addicted. But because fentanyl depresses the central nervous system, it can slow down the way one's brain functions, decrease one's heart rate, and slow down one's breathing. A person who takes enough fentanyl may eventually stop breathing and die.
39 When abused, fentanyl patches are especially dangerous. People can abuse a fentanyl patch in many different ways. They can inject the patch contents intravenously, cut up the contents and chew small portions at a time, inhale it, smoke it, and even make tea with it. What makes the patch particularly dangerous is the medication's location within the patch. The medication is in a matrix, essentially buried inside the patch. To get the medication out of the patch a person has to chop it up or melt it down or heat it up. But then the person will not know how much fentanyl has been released. Its potency for an individual is thus often unpredictable. And so, Dr. Woodall concludes, a lot of deaths have been associated with the abuse of fentanyl patches.
Sentencing Decision
20The way in which Ms. Gauthier has responded following her arrest should be commended. She has put herself well on the way to rehabilitation, has completely stopped using fentanyl, and has begun reintegrating herself more into society by doing volunteer work with a view to continuing her education and returning to the workforce. Over her life, she has been repeatedly victimized and dealt a difficult hand, and is now starting to take hold of her life and manage her pain management regime with a great deal of openness and support from those who are working with her and family. That being said, there are a number of factors in relation to the community interest that militate against a discharge: This was not opportunistic but well thought out. There was an element of sophistication. The act of producing a knowingly fake patch to the pharmacist was something that involved time and thought and action and Ms. Gauthier repeated this criminal charade three times each time fooling the pharmacist and obtaining fentanyl. She did so to be able to abuse fentanyl. We have an opioid crisis from both the abuse by addicts of legitimate prescriptions of fentanyl and from its illicit acquisition. If the consequence of submitting fake fentanyl patches to a pharmacy on multiple occasions to get more fentanyl and subvert the legal scheme is a discharge, that does not, in my view, send a message of consequential condemnation. The circumstances do not support a discharge.
21While I am not satisfied that it is not contrary to the public interest to impose a discharge, I am also not satisfied, given the factors in s.718, that a custodial sentence, even one that is served in the community, is necessary given the significant rehabilitative steps Ms. Gauthier she has engaged in. Imposing a custodial sentence, separating her from society, even in the community by way of a conditional sentence order, is not necessary to deter her or others. A criminal record denounces her conduct. More would do nothing to assist in her rehabilitation or to denounce her conduct. In particular, she does not need to be deprived of her liberty. Sanctioning her conduct by way of a suspended sentence with appropriate probationary terms that allow her to continue her rehabilitative steps will address both society's interests and Ms. Gauthier's.
The Sentence
22The sentence will be suspended and Brenda Gauthier will be placed on probation for a period of 12 months. Apart from the statutory terms, she will be required to attend and participate in such assessment, counselling or rehabilitative programs as directed by her probation officer and complete them to the satisfaction of the probation officer for substance abuse and for victims of abuse, and sign any releases to enable her probation officer to monitor her attendance and completion of any such programs. The letters and reports filed should be forwarded to probation so that any rehabilitative programs can be tailored to Ms. Gauthier's particular circumstances.
Released: September 18, 2018
Signed: Justice J. Bliss