Court of Appeal for Ontario
Citation: R. v. Baks, 2015 ONCA 560
Date: 2015-07-28
Docket: C59322
Before: Doherty, Gillese and Brown JJ.A.
Between
Her Majesty the Queen
Respondent
and
Julie Marion Baks
Appellant
Counsel: Candice Suter, for the appellant Faiyaz Amir Alibhai, for the respondent
Heard: July 23, 2015
On appeal from the convictions entered and sentence imposed by Justice George Beatty of the Ontario Court of Justice, dated May 16, 2014.
APPEAL BOOK ENDORSEMENT
Conviction Appeal
[1] The Crown concedes that, on the facts, the appellant should have been acquitted on the two trafficking counts set out in counts 2 and 3 (Info 140854). We also agree that the convictions for forgery in counts 4 and 6 (Info. 140855) should be stayed based on the Kienapple principle.
Sentence Appeal
[2] The nine-year sentence was the product of a joint submission. It is important to give effect to joint submissions where it is not contrary to the public interest to do so. This court will always be reluctant to interfere with a sentence that, like this sentence, is the product of an informed joint submission. However, if having regard to all of the relevant factors, this court concludes that the sentence is “manifestly unfit”, the court must exercise its supervisory function.
[3] This was a serious offence involving a large amount of a very dangerous drug. The appellant played a key role in the somewhat sophisticated scheme that led to the acquisition of the drugs. In doing so, she betrayed the trust of her employer, a doctor in whose name the fraudulent prescriptions were written.
[4] On the facts as described above, a nine-year sentence would be entirely appropriate. However, there are several powerful mitigating factors that must also be considered:
The appellant is a young person who has no prior criminal record and no history of criminal involvement;
The appellant’s rehabilitative prospects are, by any measure, excellent;
She acted at the instigation and under some pressure from one of the “higher ups” in the scheme with whom she had a romantic relationship; and
The appellant provided early and full cooperation to the police. She gave a statement and testified against the two “higher ups”. One of those two has since pled guilty. The timely and valuable assistance provided by the appellant had to be given significant weight on sentence.
[5] We have been advised that the one co-accused against whom the appellant testified has pled guilty after his preliminary inquiry and received nine years – the same sentence imposed on the appellant. That co-accused occupied a higher rung in the criminal enterprise than did the appellant. In fact, he recruited her and enlisted her involvement. We think a person in the appellant’s place would reasonably consider that her sentence should have been lower than that imposed on the co-accused.
[6] Bearing in mind the limited case law available in respect of this drug and the circumstances as outlined above, we would allow the appeal and vary the sentence to six years.