Court of Appeal for Ontario

Date: 2022-10-26 Docket: C65070

Before: Tulloch, Thorburn and George JJ.A.

Between: His Majesty the King, Respondent and Waseem Shaheen, Appellant

Counsel: Diane Magas, for the appellant Colleen Liggett and Giuseppe Cipriano, for the respondent

Heard and released orally: October 19, 2022

On appeal from the convictions entered by Justice Robert Wadden of the Ontario Court of Justice on November 17, 2017, with reasons reported at [2017] O.J. No. 7031, and from the sentence imposed on March 7, 2018, with reasons reported at [2018] O.J. No. 1255.

Reasons for Decision

[1] The appellant was found guilty of trafficking in fentanyl, fraud and public mischief. He was subsequently sentenced to 14 years’ incarceration.

[2] The appellant is a pharmacist who owned three pharmacies in Ottawa, including the IDA pharmacy on Rideau Street. Between 2013 to 2014, the appellant trafficked over 5,000 fentanyl patches. This was done through dispensing patches under fraudulent prescriptions to his co-conspirator, Mr. Medhi Rostaee, and others, which left a significant discrepancy in the inventory of legitimately purchased patches and resulted in a number of patches being unaccounted for.

[3] To cover up the discrepancy in inventory, the appellant staged a fake robbery of his pharmacy with Mr. Rostaee. Afterwards, the appellant claimed insurance for the value of fentanyl that was allegedly stolen.

[4] The appellant appeals both his conviction and sentence. On his conviction appeal, the appellant submits that the trial judge erred in (1) dismissing his Charter applications; and (2) assessing the evidence adduced at trial. Further, the appellant appeals his sentence on the basis that the trial judge did not give appropriate weight to the mitigating factors and failed to apply the principle of restraint.

[5] We would dismiss the appellant’s conviction appeal. However, we would grant leave to the appellant’s sentence appeal and vary his sentence to one of 12 years’ imprisonment.

A. Conviction Appeal

[6] The appellant submits that the trial judge erred in rejecting his pretrial and midtrial s. 11(b) Charter applications. We would dismiss this ground of appeal. In our view, the trial judge properly categorized the periods of delay and appropriately considered the complexity of the case. The trial judge also correctly applied the transitional exception as articulated in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 and R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659. Consequently, the appellant’s s. 11(b) ground of appeal fails.

[7] We would similarly dismiss the appellant’s ss. 7 and 8 Charter grounds of appeal. No breaches arose when the Ontario College of Pharmacists (“the College”) shared the fruits of their investigation with the police. While the trial judge did not specifically use the language from R. v. White, [1999] 2 S.C.R. 417, or R. v. Fitzpatrick, [1995] 4 S.C.R. 154, he nevertheless applied the correct legal principles to find that the appellant’s right against self-incrimination was not violated. The trial judge also did not err when he held that the disclosure by the College to the police was authorized by s. 36(1)(e) of the Regulated Health Professionals Act, 1991, S.O. 1991, c. 18, and therefore did not violate s. 8 of the Charter. Finally, we see no error in the trial judge’s ruling on the appellant’s lack of standing to challenge the production orders.

[8] With respect to the substantive conviction appeal, the appellant submits that the trial judge committed a number of legal errors, which included applying an uneven level of scrutiny to the defence’s evidence, shifting the burden of proof to the appellant, and drawing improper inferences from the circumstantial evidence.

[9] We see no merit to the appellant’s arguments. The case was overwhelming. While the main Crown witness, Mr. Rostaee, had credibility issues, the trial judge paid particular attention to the fact that this witness was a classic Vetrovec witness and applied the appropriate considerations and warning in the circumstances: R. v. Vetrovec, [1982] 1 S.C.R. 811. Since there was substantial corroboration of Mr. Rostaee’s testimony, the trial judge found his evidence to be believable. In contrast, the trial judge found numerous factors which significantly undermined the appellant’s credibility. These findings are owed deference, and we see no error.

[10] Accordingly, we would dismiss the appellant’s conviction appeal on all grounds.

B. Sentence Appeal

[11] We would grant leave to appeal the sentence and allow the sentence appeal for the following reasons.

[12] An appellate court is entitled to vary a sentence if it is found to be demonstrably unfit, or if the sentencing judge made an error in principle that had an impact on the sentence: R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at paras. 25-26; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 41 and 44.

[13] We agree with the trial judge’s assessment of the appellant’s personal circumstances, as well as his characterization of the egregious nature of the offence. We also agree that the principles of denunciation and deterrence were paramount considerations in this case.

[14] However, we find that the trial judge erred in failing to consider and apply the principle of restraint. Where an offender has never served a period of incarceration, the shortest sentence possible ought to be imposed: see e.g., R. v. Borde (2003), 63 O.R. (3d) 417 (C.A.), at para. 36; R. v. Disher, 2020 ONCA 710, 153 O.R. (3d) 88, at para. 59; R. v. Desir, 2021 ONCA 486, at para. 31. While the objectives of denunciation and deterrence must be given adequate weight, they should rarely be the sole determinants of the length of a first penitentiary sentence: Borde, at para. 36.

[15] The appellant was a 47-year-old first-time offender, and he suffers from a progressively deteriorating kidney disease and other health related issues. We are of the view that the trial judge did not sufficiently balance the principles of restraint in imposing the sentence of 14 years. This is an error which justifies intervention by this court.

[16] In the circumstances, while we agree with the aggravating and mitigating factors highlighted by the trial judge, we would allow the sentence appeal and reduce the sentence to one of 12 years’ incarceration.

“M. Tulloch J.A.”

“J.A. Thorburn J.A.”

“J. George J.A.”