Court of Appeal for Ontario

Date: September 8, 2017

Docket: C61856

Judges: Laskin, Simmons and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

Yancy Loor Appellant

Counsel:

• Michael A. Moon and Leah Gensey, for the appellant
• Anna Martin, for the respondent

Heard: June 15, 2017

On appeal from: The conviction entered on July 16, 2015 and the sentence imposed on September 22, 2015 by Justice Nancy A. Dawson of the Ontario Court of Justice.

Laskin J.A.:

A. Introduction

1Yancy Loor was a low-level member of a small drug trafficking ring dealing in fentanyl. Starting in early July 2013, Loor used a forged prescription to obtain 45 patches of fentanyl – 15 at a time – from a pharmacy in Barrie. He was eventually charged and tried in the Ontario Court of Justice.

2The main issue at trial was identity: was Loor the person who obtained the fentanyl? The evidence of identity was circumstantial as neither of the two pharmacists who dispensed the prescription could identify Loor as the person who came to the pharmacy to get the prescription filled. Loor did not testify.

3In lengthy and thorough reasons the trial judge found Loor guilty of three counts of using a forged document (the prescription) and three counts of trafficking in fentanyl. She sentenced him to 6 years in jail less 18 months credit for pre-sentence custody.

4Loor appeals both his conviction and his sentence. On his conviction appeal he submits that the verdict was unreasonable for two related reasons: the evidence was not sufficient to prove identity beyond a reasonable doubt; and the trial judge could reasonably infer from the evidence that another person, even another member of the trafficking ring, could have impersonated Loor, using fake identification. On his sentence appeal, Loor submits that six years was excessive, disproportionate to his level in the trafficking ring hierarchy, and inconsistent with the sentences imposed on two of the higher-ups.

5We did not call on the Crown on the conviction appeal and it is dismissed. I would also dismiss the sentence appeal.

B. The Conviction Appeal

(a) The fentanyl trafficking ring

6The head of the trafficking ring, the "kingpin", was a man named Raymond Goudreau. The two other higher-ups were Grenville Sinclair and his girlfriend at the time, Julie Baks. Baks was employed as a medical secretary to Dr. Alain Sacksen, who ran a medical clinic in Barrie. Baks' employment was key to the operation of the trafficking ring.

7Their operation, a rather sophisticated scheme, worked as follows. Goudreau would give personal information about an individual to Sinclair. The personal information would include the name, date of birth, health card number, telephone number and address of the individual. Sinclair would give the information to Baks. Baks would use the information to create a fake patient file and then would produce a forged prescription for fentanyl patches for the individual. After she produced the forged prescription she would delete the patient file. Baks would then give the forged prescriptions to Sinclair, who in turn would give them to Goudreau. He would provide them to the fake patients, who would go to the pharmacies and obtain the fentanyl patches (in a couple instances, Sinclair gave the forged prescriptions directly to the fake patients). The patches were then given to Sinclair, or to Goudreau, who trafficked them in North Bay, where a patch could be sold for between $400 and $450.

8When the police raided Goudreau's operation, Baks had created 19 fake patient files, of which Loor was one, and had produced forged prescriptions for 900 fentanyl patches.

9The next two sections of this narrative set out in summary form the circumstantial evidence supporting the trial judge's finding of guilt.

(b) Loor obtains 45 fentanyl patches

10In July 2013, Baks opened a computer file for a fake patient named Yancy Loor. She inputted Loor's health card number, birthdate, address and telephone number. Baks then created a prescription for Loor for 45 transdermal fentanyl patches at the highest available strength, 100 micrograms per hour. Baks forged Dr. Sacksen's signature on the prescription. The prescription contained the same personal information on Loor as in the patient file. After creating the forged prescription, Baks deleted the patient file in Loor's name.

11Shortly afterwards, Yancy Loor went to the Express Aid IDA Pharmacy in Barrie and tendered the prescription to one of the pharmacists, Jamil Rashid. Because Loor had never filled a prescription at the pharmacy before, Rashid did three things. First, he called Dr. Sacksen's office to verify the prescription. Baks told him that the prescription was correct. Second, as required by provincial legislation, Rashid verified Loor's identity. He did so by comparing the photo on the health card Loor had produced for identification with the person standing in front of him. Rashid was satisfied that the person at the pharmacy was the same person whose photo was on the health card. Third, as a further check, Rashid handwrote Loor's health card number, which was the same as the number in the patient file at Dr. Sacksen's office and on the forged prescription.

12Rashid then dispensed 15 patches to Loor, the first of three installments, at a cost of $228.93. Rashid did not, however, make a copy of Loor's health card.

13On August 1, 2013 a different pharmacist dispensed the second installment of 15 patches of fentanyl. She had no independent recollection of doing so but was adamant that when dispensing narcotics her practice was to check identification unless she knew the person, and she did not know Loor. The pharmacy's prescription record showed that 15 patches were dispensed to a man named Yancy Loor with the identical personal information and health card number as on the original prescription.

14On September 3, 2013 Rashid dispensed the last installment of 15 fentanyl patches to a person with the same personal information and health card number as Yancy Loor.

(c) Loor is located and arrested

15When the police arrested Goudreau they obtained his cellphones, which contained contact lists. One of Goudreau's contacts was "Yanz" with a telephone number the same as the number on Loor's deleted patient file at Dr. Sacksen's office and on the prescription records from the pharmacy.

16A police officer named Justin Ford called the number and when a male voice answered he asked "Yancy"? The male responded "yeah". Ford then asked "Yancy Loor"? Again, the male responded "yeah". Ford identified himself as a police officer from the street crime unit. The male said he would get his lawyer to call him back. Ford gave the male his police-issued cellphone number. A lawyer named Craig Bottomley called Ford on behalf of his client Yancy Loor.

17Loor was arrested at the Central North Correctional Centre, where he was in custody on another matter. On arrest he identified himself as Yancy Loor, and asked to speak to his lawyer, Craig Bottomley.

18From among Loor's property at the jail, Ford found Loor's health card, which by this time had expired. The card had the same number and date of birth as in Dr. Sacksen's patient file and the IDA Pharmacy records. In Ford's lay opinion the photo on the heath card was a photo of Loor.

(d) Discussion

19Because Loor was convicted on circumstantial evidence of identity, two legal standards come into play on this appeal: the standard to convict where the evidence of identification is solely or primarily circumstantial; and the standard of appellate review of the reasonableness of a verdict based on circumstantial evidence.

20In recent decisions, the Supreme Court of Canada has emphasised that no particular form of words is required to express the standard for a conviction based on circumstantial evidence. Even ordinary proof beyond a reasonable doubt language is acceptable. See for example R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33; and R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 17-22.

21But in Villaroman, Cromwell J. favoured language that focuses on inference drawing because that language alerts the trier of fact to the danger of coming to an unwarranted or speculative conclusion. The standard may thus be expressed as follows: in a case where the sole or primary evidence of identification is circumstantial, in order to convict, the trier of fact must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference that can be drawn from the evidence.

22On appeal, where the Crown's case at trial depended on circumstantial evidence, to uphold the reasonableness of the verdict, an appellate court must be satisfied that the trier of fact acting judicially could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence: see Villaroman at para. 55. But Cromwell J. also added at para. 71: "[T]hat it is fundamentally for the trier of fact to draw the line … that separates reasonable doubt from speculation." An appellate court is justified in interfering only if the trial judge's conclusion that the evidence excluded any reasonable alternative to guilt was itself unreasonable.

23In the present case, the trial judge was well aware that the evidence against Loor was entirely circumstantial. She recognized that neither pharmacist could identify Loor as the person who came to their pharmacy to get the prescription for 45 fentanyl patches filled. The pharmacy did not have video surveillance available. And Rashid did not make a copy of the health card presented to him to identify the person asking to have the prescription filled.

24The trial judge also understood the standard for convicting on the basis of circumstantial evidence of identity. After an exhaustive review of that evidence, she considered and rejected the possibility of any reasonable inference from the evidence other than guilt. She concluded:

I am satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. Based on the evidence I accept, I am convinced beyond a reasonable doubt of Mr. Loor's guilt. There is nothing in the evidence or the lack of evidence that I have heard that causes a reasonable doubt.

25Nonetheless, Loor submits that the circumstantial evidence of identification was insufficient to prove his guilt and that the trial judge failed to consider the possibility that another person, even another person within the trafficking ring, could have impersonated Loor, with false identification, to obtain the fentanyl patches. I do not agree with either branch of Loor's submission.

26The trial judge reasonably concluded that no reasonable inference other than guilt was available on the evidence. She also properly rejected, at least implicitly in the passage from her reasons quoted above, the suggestion that Goudreau or Sinclair or some other person used a fraudulent health card with Loor's personal information on it to obtain the fentanyl patches. That possibility was nothing more than mere speculation or conjecture.

27The following pieces of circumstantial evidence especially show that the only reasonable inference from the evidence was that Yancy Loor went to the IDA Pharmacy on three occasions and, using a forged prescription, obtained 45 patches of fentanyl:

• Rashid testified that the photo on the health card in Loor's name tendered for identification was the photo of the person who obtained the fentanyl patches. The trial judge was entitled to accept Rashid's evidence;

• The health card tendered to Rashid had the same number as the health card Ford later seized from Loor's property;

• Rashid's evidence and the practice of the pharmacists, which the trial judge accepted, show that the same person went to the pharmacy all three times;

• Ford gave evidence, which the trial judge accepted, that the photo on the health card he seized from Loor's property was a photo of Loor; and

• The telephone number in Goudreau's contact list for "Yanz" was the same number on Loor's patient file and on the prescription. And when Ford telephoned that number Loor answered the phone. As the trial judge reasonably found:

I find it beyond the bounds of coincidence that the same named individual and phone number appear in this document and the same named individual and phone number are linked through the officer's call some ten months later. I reject any suggestion, either overt or implied, that the number did not link up with the accused before the court at the time of the commission of the offences and I find that it did so.

28Appellate intervention is not justified. The conviction appeal is dismissed.

C. The Sentence Appeal

(a) Overview

29The trial judge sentenced Loor to 6 years less 18 months credit for pre-sentence custody. Loor submits that his sentence was excessive, disproportionate to his role in the drug trafficking ring, and inconsistent with the sentences imposed on Baks and Sinclair.

30I disagree. Sentencing judges have wide latitude in fashioning a fit sentence, and the sentences they impose attract significant deference from an appellate court. We may interfere only if the sentence is demonstrably unfit or the sentencing judge commits an error of law or principle that has an impact on the sentence: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11.

31Here, the trial judge committed no error in principle and the sentence she imposed was fit. She recognized that Loor's sentence must be proportionate to the seriousness of his crimes and his moral blameworthiness, and that the principles of specific and general deterrence and denunciation are important principles in sentencing drug traffickers. She took into account the aggravating considerations that might tend to increase Loor's sentence, and the mitigating considerations that might tend to reduce it. Finally, she fairly reconciled the sentence she imposed on Loor with the sentences for Baks and Sinclair.

32In Lacasse at para. 12, Wagner J. for the majority wrote that "proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender." Proportionality means that the sentence imposed depends on the gravity of the crime and its consequences and on the offender's degree of responsibility or moral blameworthiness.

(b) Gravity of Loor's crimes

33Unless used for therapeutic purposes, under proper medical supervision, fentanyl is a highly dangerous drug. Its widespread abuse, though recent, has quickly become entrenched in our country. Every day in our communities, fentanyl abuse claims the lives of Canadians.

34At the sentencing hearing, the Crown filed affidavit evidence from Dr. Karen Woodall, a toxicologist at the Centre of Forensic Sciences, as well as the transcript of her evidence from another case. The purpose of her evidence was to show the dangers of fentanyl abuse and the serious consequences of fentanyl trafficking. Dr. Woodall has studied the effects of fentanyl and has co-authored two articles on fentanyl abuse – one on the oral abuse of fentanyl patches and another on fentanyl-related deaths in Ontario. The following is a summary of her evidence.

(i) Evidence of Karen Woodall

35Fentanyl, 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.

36Therapeutically, 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.

37Because 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.

38The 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.

39When 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.

(ii) The gravity of Loor's crimes

40Loor trafficked in 45 patches of fentanyl, as the trial judge found a "not insignificant amount" of this dangerous drug, worth somewhere between $18,000 and $20,000 on the street in North Bay. In addition, by using a forged prescription Loor planned and carried out a fraud on the pharmacy. His crimes and their consequences were serious.

(c) Loor's degree of responsibility and moral blameworthiness

(i) Loor's role

41Loor was 39 years old when he committed these offences. He must accept a fair measure of responsibility for his role. Although he was a low-level member of Goudreau's trafficking ring, his role was necessary to the successful operation of the scheme. He and the others that went to the pharmacies were needed to obtain the fentanyl patches. And in carrying out his role he must accept responsibility for deceiving the IDA Pharmacy and two of its pharmacists. He was unable to prove that he was an addict trafficker, which might have served to reduce his moral blameworthiness.

(ii) Aggravating and mitigating considerations

42The trial judge properly took into account and weighed the aggravating and mitigating considerations that tended to increase and reduce Loor's sentence.

43The aggravating considerations included:

• Loor had a previous criminal record, including a conviction for trafficking;

• He trafficked 45 patches of the highest strength, 100 micrograms per hour;

• He trafficked a highly dangerous drug; and

• He deceived a pharmacy and two of its pharmacists.

44The mitigating considerations included:

• Loor had a gap in his criminal record, and no convictions for nearly five years before these offences;

• He did not profit much from his trafficking;

• He had strong family support and has young children;

• He had done significant volunteer work at the Jane/Finch Community and Family Centre; and

• He showed good behaviour while in custody.

(iii) The sentences for Baks and Sinclair

45Baks and Sinclair were higher-ups in the trafficking ring. Each played a key role in the scheme. Baks trafficked 900 fentanyl patches, 20 times more than did Loor. Sinclair likely trafficked a similar amount. After pleading guilty Baks was initially sentenced to nine years on a joint submission, but on appeal, her sentence was reduced to six years, the same as Loor's sentence: see R. v. Baks, 2015 ONCA 560. Sinclair, too, was initially sentenced to nine years after pleading guilty, but on appeal his sentence was reduced to eight years: see R. v. Sinclair, 2016 ONCA 683. Yet there is no inconsistency in the sentences imposed by this court on Baks and Sinclair and the sentence imposed by the trial judge on Loor. Each of them is understandable.

46This court reduced Baks' sentence from nine years to six years because of a powerful set of mitigating considerations (in addition to her guilty plea):

• She was a young person with no previous record, and no indication of any previous criminal activity;

• She had excellent prospects for rehabilitation;

• She acted at the instigation of and under pressure from Sinclair, with whom she had a romantic relationship; and

• Most important, early on she fully cooperated with the police's investigation and then gave a statement and testified against both Sinclair and Goudreau.

47This court reduced Sinclair's sentence from nine years to eight years because two of the mitigating considerations that reduced Baks' sentence also applied to his sentence:

• He had excellent prospects for rehabilitation; and

• He testified against Goudreau.

48None of these mitigating considerations that reduced the sentences for Baks and Sinclair apply to Loor. A six year sentence for Loor is not demonstrably unfit or out of line with the sentences imposed on Baks and Sinclair.

(d) Conclusion

49Loor has failed to demonstrate that his sentence was unfit or reflected any error in principle. The Crown invited us to establish a range for fentanyl trafficking, while acknowledging that sentencing is a "highly individualized exercise" and that the relevant considerations affecting a sentence will vary from individual to individual: see Lacasse at para. 58.

50Few fentanyl trafficking cases have reached this court. It is thus perhaps too early in our jurisprudence to establish a range. But I think it fair to say that generally, offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.

51Although I would grant leave to appeal sentence, I would dismiss Loor's sentence appeal.