COURT OF APPEAL FOR ONTARIO

CITATION: R. v. El-Azrak, 2023 ONCA 440

DATE: 20230620

DOCKET: C67472

Fairburn A.C.J.O., Harvison Young and Favreau JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Shereen El-Azrak

Appellant

James Lockyer and Riaz Sayani, for the appellant

Geoffrey Roy and Marina Elias, for the respondent

Heard: December 22, 2022

On appeal from the ruling on a pre-trial Charter application by Justice Chris de Sa of the Superior Court of Justice, dated July 19, 2018, with reasons reported at 2018 ONSC 4450, the convictions entered on September 25, 2018, with reasons reported at 2018 ONSC 5613, and the sentence imposed on October 10, 2019, with reasons reported at 2019 ONSC 5845.

Fairburn A.C.J.O.:

A. OVERVIEW

[1] The appellant was convicted of trafficking in fentanyl and possession of fentanyl for the purpose of trafficking. She used her position as a pharmacist to dispense fentanyl patches that were later trafficked on the streets of Sudbury. She received a 13-year sentence. She appeals from both conviction and sentence.

[2] The central question for resolution at this judge-alone trial was whether the appellant was a knowing participant in the trafficking scheme or whether there was a reasonable doubt as to whether she was the unwitting dupe of others. That question was informed by highly incriminating text messages taken from her two cell phones, both of which were seized during the execution of a search warrant at her home.

[3] This search warrant was the focus of a s. 8 and s. 24(2) Canadian Charter of Rights and Freedoms application at trial. The appellant argued that her s. 8 rights were breached: (a) when the police warrantlessly obtained private information about the appellant from the Ontario College of Pharmacists (the “OCP”) and then used that information to build their grounds for the search warrant that resulted in the seizure of the phones; and (b) when the search warrant issued on insufficient grounds. The s. 8 application was dismissed.

[4] The conviction appeal rests entirely on alleged errors in that s. 8 ruling.

[5] If the conviction appeal fails, the appellant asks this court to vary the 13-year sentence imposed and to substitute one that better meets her unique situation, which is very much informed by extraordinary collateral circumstances.

[6] For the reasons that follow, I would dismiss the conviction appeal, but would grant leave to appeal sentence and allow the sentence appeal.

B. CONVICTION APPEAL

(1) Background Facts

[7] The appellant owned a pharmacy in Toronto. The OCP launched an investigation into that pharmacy, one focussed upon the inventory and management of narcotics. On December 2, 2015, OCP investigator Andrew Hui attended at the pharmacy, made inquiries, conducted audits and printed a report showing the amounts of fentanyl dispensed by the pharmacy from October 1, 2015 to November 27, 2015. This report was referred to at trial as the “Drug Usage Report”.

[8] It turns out that, as the OCP investigation was ongoing, there was a parallel police investigation into fentanyl trafficking that also led to the appellant’s pharmacy. The Greater Sudbury Police Service were investigating a local fentanyl trafficker by the name of Sean Holmes. The police discovered that Mr. Holmes was receiving his fentanyl from Liridon Imerovik in York Region.

[9] The question became: who was supplying the fentanyl patches to Mr. Imerovik? The York Regional Police (the “YRP”) began investigating the matter and soon suspected that the appellant was Mr. Imerovik’s supplier.

[10] On December 7, 2015, Det. Nick Ibbott of the YRP reached out to the OCP to inquire about the appellant’s pharmacy. He and Mr. Hui met the next day, at which time Mr. Hui shared a few pieces of information, including the names of employees of the pharmacy, and the fact that the OCP investigation was related to the management of narcotics. Mr. Hui had also been told by the appellant that she had a previous delivery driver named “Donny” who, at that time, occasionally helped deliver flyers. Police knew the name “Donny” was associated with Mr. Imerovik. Mr. Hui told Det. Ibbott that if he wanted any more information, he would have to make the request in writing by filling out a form and sending it to the OCP.

[11] Later that day, Mr. Hui sent a blank copy of the form to Det. Ibbott, along with a copy of s. 36 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “RHPA”), setting out the circumstances under which the OCP could release information to law enforcement. Later in these reasons, more will be said about s. 36 of the RHPA.

[12] Det. Ibbott returned the form to Mr. Hui, asking for more information than what had already been provided earlier that day. Specifically, Det. Ibbott asked for more personal information pertaining to the appellant. The OCP then provided the appellant’s home address, telephone number, email address, date of birth and OCP number to the officer in writing.

[13] Over a month later, during a conversation with Mr. Hui, Det. Ibbott was also provided with the names of two drug suppliers. Det. Ibbott also submitted another form, requesting a “Drug Usage Report” from October 1, 2015 to November 27, 2015, “generated from [the appellant’s pharmacy] in December of 2015.” This would have been the report that Mr. Hui generated when he was at the pharmacy on December 2, 2015.

[14] On January 14, 2016, Mr. Hui provided Det. Ibbott with the heavily redacted Drug Usage Report, with all third-party information removed. Here is an excerpt from the report that provides a sense of what the officer received from the OCP:

[15] While Det. Ibbott later inquired as to whether he could obtain an unredacted copy of the Drug Usage Report, Mr. Hui responded that the “confidentiality legislation does not permit disclosure of any information with respect to a person other than a member (i.e. the pharmacist).” The officer was told that if he wished to obtain more information, he would need a production order.

[16] Det. Ibbott compared the content of the Drug Usage Report with phone data, specifically data that had been provided to the police by Mr. Imerovik’s phone provider pursuant to judicial authorization. By conducting this comparison, Det. Ibbott was able to identify what he thought was a pattern that suggested that Mr. Imerovik was using his phone in the general vicinity of the appellant’s pharmacy on dates when fentanyl patches were being distributed in large numbers.

[17] By the time that the appellant was arrested on January 20, 2016, there was an abundance of information connecting Mr. Imerovik with the appellant, and Mr. Imerovik with Mr. Holmes, including:

• Phone records showing the appellant and Mr. Imerovik in communication over 1300 times in less than a 4-month period.

• Phone data showing Mr. Imerovik communicating with Mr. Holmes while Mr. Imerovik was in the vicinity of the appellant’s pharmacy.

• Surveillance that showed Mr. Imerovik attending at the appellant’s apartment building and meeting with her brother. Mr. Imerovik had a bag in his hands with contents shaped like a stack of currency bills.

• Surveillance that placed Mr. Imerovik and Mr. Holmes together on or just after dates when Mr. Imerovik had been at the appellant’s pharmacy.

• Surveillance that showed a meeting between Mr. Imerovik and Mr. Holmes at a hotel, with Mr. Imerovik emerging from the meeting with a flowered gift bag in his hand.

• At his arrest, Mr. Imerovik was found to be in possession of the same flowered gift bag which contained $31,905 in cash. Also in his possession were empty fentanyl boxes bearing prescription labels from the appellant’s pharmacy, one of which bore the name of the appellant’s brother.

[18] Following the arrest of Mr. Holmes and Mr. Imerovik, the police obtained and executed a search warrant at the appellant’s home. The appellant’s two cell phones, the ones containing the incriminating text messages, were seized pursuant to that warrant.

(2) The Charter Ruling

[19] The appellant argued that the police breached her s. 8 rights when they obtained information from the OCP without obtaining prior judicial authorization. She argued that the private information provided to the police, including her home address, email address, phone number and the Drug Usage Report, was all cloaked in s. 8 protection. As such, according to the appellant, the police required a search warrant before taking possession of that information.

[20] The remedy for this alleged breach was said to be excision from the information to obtain the warrant (the “ITO”) of all information obtained from the OCP, as well as any investigative fact derived from that information. With excision complete, the appellant argued that there would be insufficient grounds to support the warrant.

[21] No excision ever occurred because the trial judge rejected that there had been a s. 8 breach triggered by the OCP passing along information to the police.

[22] In the alternative, the appellant argued that, even if the OCP information remained intact, the grounds contained in the ITO still fell short of what was required to support the search warrant executed at the appellant’s home. Among other arguments, the appellant suggested that even if there were reasonable grounds to believe that the appellant and her pharmacy supplied the drugs, there was no basis to believe evidence would be located at her home.

[23] In other words, on a straight Garofoli review, it was the appellant’s position that the reviewing justice could not have issued the warrant because of the insufficiency of the grounds: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452. The trial judge also rejected these arguments.

[24] While it was unnecessary to do so, in the event that he was wrong in his s. 8 analysis, the trial judge conducted a brief s. 24(2) analysis, explaining why he would not have excluded the evidence even if there had been a s. 8 breach.

(3) Analysis

(a) Introduction

[25] In this court, the appellant advances largely the same arguments advanced before the trial judge. I start with what I will call the “OCP issue” and then turn to what I will call the “Garofoli issue”.

(b) The OCP Issue

[26] There are three components to the OCP issue. The appellant argues that the trial judge erred by: (1) defining the subject matter of the search too narrowly; (2) deciding that the regulatory framework within which pharmacists operate diminished the appellant’s objectively reasonable expectation of privacy; and (3) rejecting that the appellant’s biographical core was implicated by the information that the OCP provided to the police. I will address each of these arguments in turn and explain why I do not accept the appellant’s position. First, though, I turn to the broad legal framework within which each of the issues operates.

(i) The Applicable Legal Principles

[27] Section 8 of the Charter does not exist to protect that which people want to keep private, solely because they want to keep it private. Nor does it exist to hide things that are incriminating, solely because they are incriminating. Rather, s. 8 exists for one purpose and one purpose only: to extend constitutional protection against unreasonable state intrusions to those individuals who have a reasonable expectation of privacy over the subject matter of a search: R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at para. 37; R. v. Plant, 1993 70 (SCC), [1993] 3 S.C.R. 281, at p. 292; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 17-18; and Hunter et al. v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at pp. 159-60.

[28] In determining any s. 8 issue, the court must start by considering whether s. 8 is even engaged, in the sense that there was a search or seizure within the meaning of s. 8 of the Charter. This turns on whether the accused has a reasonable expectation of privacy in relation to the subject matter of the search: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 16. It is the accused’s onus to establish a reasonable expectation of privacy, failing which, s. 8 protection is not extended. Conversely, success in establishing a reasonable expectation of privacy is what grants the accused standing to pursue the s. 8 claim.

[29] Where the accused gets over this hurdle, barring some well-known exceptions, state intrusion into the accused’s privacy interest will only be reasonable when it was authorized by law, the authorizing law was itself reasonable and the execution of the search was itself reasonable: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 34-37; Spencer, at para. 68; and Tessling, at para. 18.

[30] Three broad categories of privacy have emerged over time: territorial, personal and informational privacy. This case involves the latter, informational privacy, which in turn engages with three different concepts of privacy, namely, privacy as secrecy, privacy as control and privacy as anonymity: Spencer, at para. 38. Privacy as secrecy involves the ability to keep in confidence information that the individual wishes to be kept private. Privacy as control involves the ability to decide when, how and to what extent information about oneself will be shared. And privacy as anonymity involves the ability to act publicly while remaining anonymous: Spencer, at paras. 37-43.

[31] Whatever the form of privacy at issue, and in this case it is informational privacy in its various iterations, determining whether someone has a reasonable expectation of privacy necessitates both a factual and a normative inquiry. The factual inquiry necessitates a command over all of the circumstances at work in the case: R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128, at paras. 31, 45; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 10; and R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 26. The normative inquiry is broader in nature, with an eye to protecting that for which we ought to expect protection from a privacy perspective in a free and democratic society. In this sense, s. 8 does not simply focus on the here and now but also concerns itself with the long-term consequences of government action on society as a whole. Properly viewed through a normative lens, privacy interests will rise to constitutional status when those interests reflect the “aspirations and values” of the society in which we live: Orlandis-Habsburgo, at para. 41. See also: Tessling, at para. 42; Spencer, at para. 18; Patrick, at paras. 14-20; and R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321, at paras. 60-74.

[32] The factors for consideration in determining whether there exists a reasonable expectation of privacy are well-known and grouped under four headings that allow for analytical convenience: Marakah, at paras. 10-11; Spencer, at paras. 16-18; and R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320, at para. 13. The test asks the following:

1. What is the subject matter of the search?

2. Does the accused have a direct interest in that subject matter?

3. Does the accused have a subjective expectation of privacy in the subject matter?

4. Would an expectation of privacy be objectively reasonable in the circumstances of the case?

[33] Only where the answer to the fourth question is “yes” does the claimant have standing to assert a s. 8 right: Marakah, at para. 12. If the court determines that the answer is “no”, then the state action cannot violate s. 8. The answer here is no.

(ii) The Subject Matter of the Search

[34] I will start with the Drug Usage Report.

[35] The appellant argues that the trial judge wrongly characterized the subject matter of the search when he found that the Drug Usage Report did not reveal any information about patients or “drug usage patterns of specific targets”. The appellant contends that the trial judge erroneously branded the subject matter of the search as a report showing “dispositions of fentanyl from the pharmacy, the names of employees working at the location, and the owner of the pharmacy.”

[36] The appellant argues that the subject matter of the search should have been defined more broadly, beyond the raw data received by the police from the OCP. According to the appellant, the subject matter should have included inferences that were drawn by combining the Drug Usage Report with the results of other investigative steps. In particular, the appellant contends that when the Drug Usage Report was combined with Mr. Imerovik’s cell phone records, the police were able to glean a lot more information, including the inference that Mr. Imerovik was likely at the appellant’s pharmacy on dates that fentanyl was dispensed.

[37] As well, the appellant argues that, had the police obtained a Drug Usage Report with other types of prescriptions reflected on it, ones like Viagra or anti-depressants, and had the police conducted surveillance at the pharmacy, then they could have drawn inferences about what prescriptions certain patients attending at the pharmacy were obtaining. To be clear, that did not happen, but the appellant says that it could have and, therefore, should inform the subject matter of the search.

[38] In determining the subject matter of the search, we apply a functional and holistic approach, one that derives from the actual circumstances of the case. Undoubtedly, this approach requires that we look beyond the actual information provided and ask whether, with that information in hand, something further is revealed about the individual to whom the information relates: Spencer, at paras. 26, 31 and 47; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at paras. 14-15, 35-39. This requires consideration of not only the raw data that the state came to possess, but also the nature of the information that could be inferentially derived from that raw data: Ward, at para. 93; Marakah, at paras. 14-15; Orlandis-Habsburgo, at para. 75; and Spencer, at para. 26.

[39] The fact is that the Drug Usage Report, as captured in the excerpt shown earlier in these reasons, contained what can only be described as bland information, which included the dates on which fentanyl was “prescribed”, the “prescription” number, and the strength and quantity of fentanyl dispensed. The inferences that could be drawn from that data include that the appellant’s pharmacy was dispensing fentanyl patches, of varying strengths and sometimes in large numbers. That is all.

[40] Here, the subject matter of the search did not engage in any meaningful way with personal privacy. While the appellant tries to bolster the sensitivity of the subject matter of the search by injecting a hypothetical scenario involving more sensitive medications and a means by which to infer who was receiving those medications, that is not the scenario here. Indeed, determining the subject matter of a search should not take on hypothetical dimensions. It must remain rooted in reality: what is the subject matter of the search in this case? Focussing where we should, the fact is that the circumstances of this case involve a significantly edited Drug Usage Report, which is singularly focussed upon the distribution of fentanyl and contains no identifying information.

[41] While it is true, as the appellant argues, that the police were able to infer from Mr. Imerovik’s cell records that he was possibly using the appellant’s pharmacy to obtain fentanyl patches, an inference drawn from the location of his phone on days fentanyl was dispensed from her pharmacy, this inference did not change the essential nature of the subject matter of the Drug Usage Report. That subject matter was the raw data reflected in the Drug Usage Report and the immediate inferences that could be drawn from that data.

[42] An example of the subject matter including these kinds of inferences can be found in Doherty J.A.’s decision in Orlandis-Habsburgo. There, the raw data revealed total energy consumed in a home over a lengthy period of time and hourly energy consumption over a two-month period. This data, particularly the hourly pattern of usage data, directly gave rise to a “strong inference” that a grow-op was being operated in the residence: at para. 75. Therefore, the subject matter of the search included both the raw data “and the inferences that [could] be drawn from that data about the activity in the residence”: at para. 75.

[43] The appellant contends that in calibrating the subject matter of the search, one must look not only to the raw data and the inferences that arise from that data, but also to the inferences that can arise from comparing that data with other investigative information. In this case, the appellant says that such information includes Mr. Imerovik’s cell phone data. When comparing the Drug Usage Report with that cell data, the police were able to draw more private inferences, including about Mr. Imerovik’s whereabouts on days that fentanyl was being dispensed. This “indirect information”, the appellant argues, must also be included in the subject matter of the search.

[44] The appellant also relied on Spencer for support. Yet Spencer is of no assistance to her argument.

[45] In Spencer, the police identified an Internet Protocol (“IP”) address corresponding to someone’s use of a computer to access and store child pornography through an online file-sharing program. The question was, who had done so? The way to answer that question was to obtain the subscriber information directly associated with that IP address. In other words, to replace the IP address with a name, so as to unlock the anonymity of the person connected to this very specific and known online activity.

[46] There is a world of difference between Spencer and what the appellant proposes in this case.

[47] In Spencer, “the subject matter of the search [was] the identity of a subscriber whose Internet connection [was] linked to particular, monitored Internet activity”: at para. 33. Here, the subject matter of the search was a Drug Usage Report. On its face, it largely showed when fentanyl was being dispensed from the pharmacy and in what quantity.

[48] The subject matter of a search cannot be, as the appellant suggests, retroactively characterized according to what the information reveals after it has been combined with other investigative facts. If that were the analytical approach to determining the subject matter of a search, it would not be a stretch to suggest that virtually all information obtained by the police would ultimately result in privacy claims.

[49] The whole nature of a police investigation is to thread together investigative facts that eventually provide a window into what is undoubtedly private. Indeed, such investigative techniques would not be necessary could the picture be obtained from the outset. The subject matter of the search cannot be characterized based on what the police conclude at the end of their completed investigation; it must be considered solely from the perspective of what the raw data reveals and what, if any, inferences can be taken directly from that data.

[50] Respectfully, were it otherwise, society’s legitimate interest in privacy and being left alone, as balanced against society’s legitimate interest in “[s]afety, security and the suppression of crime”, would quickly become skewed: Tessling, at para. 17; Hunter, at pp. 159-60; and Edwards, at para. 30. Professor Steven Penney refers to this as the “privacy versus security” debate and calls it “a perpetually polarizing dialectic”: Steven Penney, “The Digitization of Section 8 of the Charter: Reform or Revolution?” (2014) 67 S.C.L.R. (2d) 505, at p. 506.

[51] The normative approach asks what a reasonable person would expect in a free and democratic society. That reasonable person undoubtedly has an interest in not only protecting privacy, but also in ensuring the effectiveness of law enforcement. If the subject matter of a search could be characterized by every inference that could be taken from the raw data, when placed against all other investigative facts, this would result in anything but effective and efficient investigations.

[52] This is not even to mention the fact that investigations evolve over time and the inferences that can be derived from raw data can morph with the evolution of further investigative facts. The police must be able to determine at the time they come into possession of information whether it is the subject of a reasonable expectation of privacy. If the subject matter of the search is constantly in flux and depends on the possibility that it may reveal important information after being combined with the results of other investigative steps – that may or may not be contemplated or even possible at the time of the original search – police cannot make informed decisions as to whether prior judicial authorization will be required. Such a procedure would be unworkable. Rather, the subject matter of the search must be fixed at the time of the search and the inferences that can be taken from the data must be ones that arise directly from that data.

[53] As for the appellant’s phone number, email address and home address, the trial judge said that while it was “clearly personal information”, this was raw data that did not lend itself to further inferences.

[54] While the appellant argues that her phone number and email address could have provided a window into all kinds of private information about her, it is not at all clear how this would be so. Again, this is entirely unlike Spencer, where the police knew about a course of Internet activity associated to an IP address; they simply needed the subscriber data for that IP address in order to strip the Internet activity of its anonymity. In this case, on the other hand, it is not clear how the police would use the appellant’s phone number, which was actually wrong by two digits, or her email address to strip her of any anonymity. Indeed, this did not happen. The appellant also concedes that the email address was not used for anything.

[55] As for the wrong phone number, the appellant suggests that the police could have used it to connect her phone to Mr. Imerovik’s phone records. Leaving aside that it was a wrong number, the police did not do that. Rather, the police obtained the appellant’s actual phone number through surveillance and Mr. Imerovik’s phone data, for which the police had prior judicial authorization.

[56] As for the appellant’s home address, it was equally benign. While the appellant says that a home address can reveal information about one’s socioeconomic status, and perhaps at the edges that is true, her address did not unlock any further information. For instance, it said nothing about what was happening inside of the appellant’s home. It really was just an address.

[57] Therefore, at its highest, the subject matter of the search was a home address, an email address that was used for no investigative purpose, a wrong phone number and a heavily redacted Drug Usage Report.

(iii) Direct Interest in the Subject Matter

[58] The trial judge found that the appellant had a direct interest in the subject matter of the search. I agree. The appellant clearly had a personal and business interest in the information provided. Although the appellant did not have exclusive control over the information, to the extent that she had any privacy interest over the information it was not extinguished simply because it was given to the OCP: Orlandis-Habsburgo, at paras. 83-85.

(iv) Subjective Expectation of Privacy

[59] The trial judge did not deal with whether the appellant had a subjective expectation of privacy in the information provided by the OCP to the police. While not a prerequisite to or determinative of the existence of a reasonable expectation of privacy, it is not entirely clear why he skipped this step: Orlandis-Habsburgo, at para. 82. It seems the trial judge did so since the appellant “did not testify and express her subjective perspective on the issue” and so he decided to move on to address “whether or not the expectation of privacy was objectively reasonable”.

[60] Just because an accused does not testify, that does not mean that a subjective expectation of privacy does not exist or that this third stage of the inquiry need not be addressed. While it was not always the case, today it takes little to cross the subjective expectation of privacy threshold. In appropriate circumstances, it can be inferred: Patrick, at para. 37; Marakah, at para. 22; and R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 20.

[61] Despite his failure to address the issue, I read the trial judge’s reasons as in essence inferring the existence of a subjective privacy interest. I say this because the trial judge moved along to consider, as he put it, whether the subjective privacy interest was objectively reasonable in the circumstances. I will now focus on that issue.

(v) Was the Appellant’s Expectation of Privacy Objectively Reasonable in the Circumstances?

[62] This is where the bulk of the trial judge’s reasoning lay. It is also where the bulk of the parties’ submissions on appeal lay. And it is really where the normative lens takes focus.

[63] The appellant argues that the trial judge made two errors under the fourth prong of the test for determining the appellant’s standing to assert s. 8.

[64] First, the appellant says that the trial judge erred when he concluded that the regulatory framework within which the appellant worked diminished the objective reasonableness of her privacy interest. To the contrary, the appellant says that the regulatory framework actually enhanced her privacy interest. Second, the appellant says that the trial judge erred when he concluded that her personal information, provided by the OCP to the police, did not implicate her biographical core. I will deal with these alleged errors in this order.

1. The Impact of the Regulatory Framework on the Appellant’s Privacy Interest

[65] In my view, while not determinative of the privacy issue at work in this case, the regulatory framework within which the s. 8 issue operates diminishes the appellant’s reasonable expectation of privacy. To understand why this is so, we have to first look to the statutory provisions at work.

a. Sections 36(1)(e), 36(1.2), 36(1.3) and 36(1.4) of the RHPA

[66] Section 36(1)(e) of the RHPA permitted, but did not require, the OCP to disclose the information about the appellant and her pharmacy in aid of the police investigation. The salient provisions follow:

Confidentiality

36 (1) Every person employed, retained or appointed for the purposes of the administration of this Act, a health profession Act or the Drug and Pharmacies Regulation Act … shall keep confidential all information that comes to his or her knowledge in the course of his or her duties and shall not communicate any information to any other person except,

(e) to a police officer to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result;

Definition

(1.2) In clause (1) (e),

“law enforcement proceeding” means a proceeding in a court or tribunal that could result in a penalty or sanction being imposed. 1998, c. 18, Sched. G, s. 7 (2); 2007, c. 10, Sched. M, s. 7 (2).

Limitation

(1.3) No person or member described in subsection (1) shall disclose, under clause (1) (e), any information with respect to a person other than a member. 1998, c. 18, Sched. G, s. 7 (2); 2007, c. 10, Sched. M, s. 7 (3).

No requirement

(1.4) Nothing in clause (1) (e) shall require a person described in subsection (1) to disclose information to a police officer unless the information is required to be produced under a warrant. 1998, c. 18, Sched. G, s. 7 (2); 2007, c. 10, Sched. M, s. 7 (4). [Emphasis added.]

[67] The term “member” is defined in s. 1(1) of the RHPA as a “member of a College” and the term “College” refers to “the College of a health profession or group of health professions established or continued under a health profession Act”. Each “health profession Act” is listed in Schedule 1 of the RHPA, including the Pharmacy Act, 1991, S.O. 1991, c. 36, which continues the OCP (s. 5). As a licenced pharmacist, the appellant was a “member” of the OCP.

[68] Distilled, I see the statute as operating in the following way:

(1) subject to some statutorily defined exceptions, the OCP must keep confidential “all information” that comes into its knowledge in the course of its duties (s. 36(1));

(2) one such exception is where the information is given to the police in aid of an investigation with a view to, or which will likely lead to, a legal proceeding that could result in a penalty or sanction (ss. 36(1)(e), 36(1.2));

(3) where that exception applies, the OCP may provide information about members but not about non-members (ss. 1(1), 36(1.3)); and

(4) unless the information is required to be provided by “warrant”, the provision of that information is at the discretion of the OCP (s. 36(1.4)).

b. The RHPA Reduces the Objective Reasonableness of the Privacy Interest at Work

[69] The appellant says that these sections enhance, not detract from, the appellant’s reasonable expectation of privacy because they create a presumption of confidentiality.

[70] Before responding directly to this argument, it is important to clarify the role a legislative scheme, such as the RHPA, plays in determining whether there is a reasonable expectation of privacy. In Gomboc, at para. 33, Deschamps J. for the plurality noted that, in the contractual context, contracts of adhesion require a cautious approach because a person may not know the terms governing their relationship with the holder of the information or that those terms could permit disclosure to the police. As Deschamps J. put it:

In view of the multitudinous forms of information that are generated in customer relationships and given that consumer relationships are often governed by contracts of adhesion … there is every reason for proceeding with caution when deciding what independent constitutional effect disclosure clauses similar to those in the [operative terms] may have on determining a reasonable expectation of privacy.

[71] Accordingly, rather than concluding that the legislative scheme, which permitted disclosure, was sufficient to erode the expectation of privacy, the plurality in Gomboc viewed this as but one factor among many constituting the totality of circumstances informing whether there existed an objectively reasonable expectation of privacy. The two dissenting judges, McLachlin C.J. and Fish J., joined the plurality in this observation, making for a majority on the point. As the dissenting judges put it, at para. 115: “The legislation is only one factor that is to be considered when determining whether an expectation of privacy is objectively reasonable and it may be insufficient to negate an expectation of privacy that is otherwise particularly compelling.”

[72] Therefore, I start by recognizing that the operation of the RHPA in this case is not dispositive of the claimed privacy interest. The respondent correctly acknowledges this fact. At the same time, it is in my view a strong factor for consideration.

[73] This is not a case involving a contract of adhesion, the nuances of which may not be known by a consumer who has been drawn into said contract. While the appellant could not have negotiated her way out of the disclosure provisions in the RHPA, as a professional pharmacist, she is to be taken to have known the rules and regulations governing the profession that she willingly entered.

[74] In this case, the legislation clearly works against any objectively reasonable privacy interest. The appellant was operating in a highly regulated environment. She knew the rules by which she was governed, including those related to disclosure. She knew that the OCP would be highly engaged, indeed, concerned with narcotic distribution, would be watching such distribution closely, and would be in a position to share information with the police provided that it only related to her.

[75] The appellant maintains that, even if the RHPA worked to decrease her reasonable expectation of privacy, the OCP needed to engage with the disclosure provisions through the exercise of “independent and informed judgment”. This language is borrowed from para. 107 of the Orlandis-Habsburgo decision. In that case, Doherty J.A. found that s. 32(g) of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 (the“MFIPPA”), which was then worded very similarly to the current s. 36(1)(e) of the RHPA, vested a discretion in the record holder to release information to the police. Section 32(g) of the MFIPPA at the time of Doherty J.A.’s decision read as follows:

Where disclosure permitted

32 An institution shall not disclose personal information in its custody or under its control except,

(g) if disclosure is to an institution or a law enforcement agency in Canada to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result.

[76] Doherty J.A. held that s. 32(g) of the MFIPPA did not contemplate an ongoing sharing of information, but rather, to meet s. 8 compliance, it required an “independent and informed judgment” on the part of the record holder.

[77] That is precisely what happened in this case.

[78] The police made specific requests for information. The OCP considered and responded to those requests. The OCP, and Mr. Hui, in particular, exercised independent judgment in deciding what information to provide. For example, when Det. Ibbott asked to see the Drug Usage Report, Mr. Hui decided to redact the information provided. Mr. Hui also denied the police request for further information, namely, the unredacted Drug Usage Report, because, in his independent judgment, providing that information would breach s. 36 of the RHPA.

[79] While the appellant argues that there was an internal protocol in place at the OCP that required all police requests for information to be dealt with by a person who did not work at the investigative level, and Mr. Hui breached that protocol by responding to the request himself, the question is not whether internal protocols are breached, but whether independent and informed judgment is exercised. Regardless of whether an internal protocol was breached or not, and I should not be taken as suggesting it was, Mr. Hui’s actions demonstrate the exercise of independent and informed judgment.

2. Did the Information Engage the Appellant’s Biographical Core of Personal Information?

[80] As noted in Plant, at p. 293, the laudable values of individual dignity, integrity and autonomy require that s. 8 seek to protect a biographical core of personal information that “individuals in a free and democratic society would wish to maintain and control from dissemination to the state.” This biographical core includes information that “tends to reveal intimate details of the lifestyle and personal choices of the individual”: at p. 293. The appellant argues that this is precisely the type of information that was provided by the OCP to the police.

[81] I see no error in the trial judge’s conclusion to the contrary.

[82] I start with the respondent’s reference to this court’s decision in R. v. Shaheen, 2022 ONCA 734, leave to appeal requested, [2022] S.C.C.A. No. 512, a decision that is said to definitively decide against describing the information at issue as falling within a biographical core of personal information. I do not see Shaheen as definitive on this point.

[83] Like the appellant, Mr. Shaheen was a pharmacist trafficking in fentanyl patches. And like the appellant, the OCP shared information with the police about Mr. Shaheen’s pharmacy, namely, records detailing narcotics received and dispensed by the pharmacy. In this court’s brief decision dismissing the conviction appeal, the court noted in a single sentence that the trial judge “did not err when he held that the disclosure by the [OCP] to the police was authorized by s. 36(1)(e) of the [RHPA] and therefore did not violate s. 8 of the Charter.”

[84] This sentence from the Shaheen decision, however, does not resolve the question in the case at hand as to whether the information tended to reveal intimate details about the lifestyle and personal choices of the appellant. Rather, when the sentence from Shaheen is read contextually with the ruling under review, this court’s reasons simply appear to acknowledge what is not in dispute in this case, namely, that s. 36(1)(e) of the RHPA permits the OCP to share information with the police. The question remains, in what situations can that occur in a constitutionally compliant fashion?

[85] In my view, the appellant’s address does not reveal intimate details of the lifestyle and personal choices of the appellant. Even though the police were able to attend at her apartment building and confirm that she lived there by watching a surveillance video to which the landlord gave them access, there are simply no intimate details concerning one’s life revealed from just a home address. To be sure, it reveals nothing about what is taking place within the home. In other words, in providing the appellant’s address to the police, the OCP did not equip them with a better understanding of what was in her apartment or what she was doing in her apartment.

[86] I agree with the trial judge that addresses are frequently kept on police, government and other databases. For instance, the police could have easily found the appellant’s address had she been a driver registered in the Ministry of Transportation of Ontario database. As the appellant acknowledges, there would have been nothing wrong with the police obtaining the appellant’s address from a witness or employee of the pharmacy, many of whom may have known where she lived. Moreover, the police could have simply followed the appellant from her pharmacy to that address. Quite simply, the appellant had no objectively reasonable privacy interest in her address: R. v. Nguyen, 2023 ONCA 367, at paras. 30-35; R. v. Saciragic, 2017 ONCA 91, at paras. 31-34, leave to appeal refused, [2017] S.C.C.A. No. 106; and R. v. Yu, 2019 ONCA 942, 151 O.R. (3d) 244, at para. 76, leave to appeal refused, [2020] S.C.C.A. No. 38.

[87] As for the cell phone number, the appellant argues that it could have provided intimate access to the appellant’s social media accounts. That did not happen. Nor is it at all clear that it could happen, especially with a wrong number.

[88] In my view, standing on its own, a cellular phone number does not engage with the lifestyle and personal choices of the accused: R. v. Lattif, 2015 ONSC 1580, 331 C.R.R. (2d) 72, at paras. 6-10; R. v. Browne, 2017 ONSC 5046, at para. 71; R. v. Khan, 2014 ONSC 5664, at para. 27; and R. v. Chaudhry, 2021 ONSC 394, at para. 67. In my view, the simple fact of a phone number – and that is all it was in this case, only it was a wrong phone number – is a long distance from the biographical core information envisioned in Plant.

[89] In any event, the police obtained the appellant’s correct telephone number from surveillance and under judicial authorization when they pursued Mr. Imerovik’s cellular phone data, an exercise that included the subscriber data for the numbers that connected to Mr. Imerovik’s phone.

[90] The appellant did not press the point on her email address, given that nothing of any investigative value came from it.

[91] As for the Drug Usage Report, it is difficult to ascertain how, if at all, it touched on the appellant’s biographical core of personal information. While it showed how many fentanyl patches were dispensed from her pharmacy over a period of time, there was no personal information and certainly nothing that could rise to the level of something over which a person in her position would wish to maintain control. Indeed, as a pharmacist, she must have known she could not maintain control over it.

(vi) Conclusion

[92] In the totality of the circumstances, including the regulatory framework within which the appellant worked, I see no error in the trial judge’s conclusion that she did not have a reasonable expectation of privacy in the information that was warrantlessly provided by the OCP to the police.

(c) The Garofoli Issue

[93] The appellant advances an alternative argument. Even if the police properly came into possession of the OCP information, and therefore nothing needs to be excised from the ITO, she claims that the trial judge erred by concluding that there was sufficient evidence upon which the search warrant could issue.

[94] Absent an error of law, a misapprehension of the evidence or a failure to consider relevant evidence, this court must defer to a reviewing justice’s decision under Garofoli: R. v. Grant (1999), 1999 3694 (ON CA), 132 C.C.C. (3d) 531 (Ont. C.A.), at para. 18, leave to appeal refused, [2001] 1 S.C.R. xii. To be sure, reviewing judges work within a small orbit. They must not substitute their opinion for that of the issuing judge: R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20, leave to appeal refused, [2010] 1 S.C.R. ix; Garofoli, at p. 1452.

[95] The question is not whether the reviewing justice would have issued the warrant. The question is whether the issuing justice could have done so: Garofoli, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 51-52; and R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. Therefore, the focus of a Garofoli review is on whether there is reliable evidence that might reasonably be believed upon which an authorization could have issued: Garofoli, at p. 1452; Araujo, at para. 51.

[96] The “reasonable grounds to believe threshold” does not require proof beyond a reasonable doubt or even proof on a balance of probabilities. It requires that the well-known standard of “credibly-based probability” be applied: Hunter, at pp. 167-68; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81. The question for the issuing justice is whether the ITO sets out sufficient grounds to establish a reasonable belief that an offence has been committed and that there will be evidence of that offence located in the location to be searched. The answer in this case was yes.

[97] I have reviewed the ITO. It is full of information connecting the appellant to the alleged offences. Among other things, the ITO discloses numerous facts connecting Mr. Imerovik to the appellant. It also connects Mr. Imerovik to the appellant’s home, including the fact that it discusses a video of his presence in the lobby of the appellant’s condominium building where Mr. Imerovik met with the appellant’s brother while holding a package in the shape of a stack of money. Against this fact, it was open to infer that Mr. Imerovik brought money to her home which was the proceeds of trafficking.

[98] The appellant says that the trial judge erred in finding that there were sufficient grounds to justify searching the appellant’s residence. I do not agree.

[99] Among other things, the ITO made clear that the appellant was believed to be involved in this trafficking scheme with others, including with Mr. Imerovik.

[100] The ITO made it equally clear that Mr. Imerovik was believed to be involved in fentanyl trafficking, including recounting occasions when he was seen meeting with Mr. Holmes, a known fentanyl trafficker. Clearly, the appellant would need to communicate with Mr. Imerovik and perhaps others. Indeed, by the time the police had applied for the search warrant, they had already connected the appellant’s phones to Mr. Imerovik’s phone and established, as reflected in the ITO, that the two communicated a great deal.

[101] In all of these circumstances, the issuing justice was entitled to infer that evidence of the trafficking offence would be found at the appellant’s home. This was a matter of common sense. It was entirely reasonable to believe that the appellant, who was believed to be trafficking in fentanyl, would have the proceeds of this crime, her phones containing communications and even drug debt lists at her home.

[102] In the circumstances of this case, the trial judge was entitled to find that the ITO contained information that supported the inference that there would be evidence of drug trafficking at the appellant’s home.

(d) Section 24(2)

[103] Given my conclusions on s. 8, there is no need to address s. 24(2). I would simply say that I see no error in the trial judge’s approach.

C. SENTENCE APPEAL

[104] The appellant argues that the trial judge erred when he imposed a 13-year sentence for trafficking in fentanyl and a concurrent 10-year sentence for possession of fentanyl for the purpose of trafficking. If the conviction appeal is dismissed, she asks that we vary the sentence to a conditional sentence. While I would not grant a conditional sentence, I would grant the sentence appeal and vary the sentence to one of eight years.

[105] I want to make clear at the outset that I appreciate how extraordinary this sentence is for the extremely serious crime committed by the appellant. As such, these reasons should not be read as diluting the proper range of sentence for grave offences of this nature. The result turns exclusively upon the extreme and unique collateral circumstances at work in this case.

(1) Reasons for Sentence

[106] The trial judge provided brief reasons for sentence. He reviewed the parties’ positions, noting that the trial Crown sought a sentence of 11 to 14 years and that the defence advocated for a suspended sentence, with the alternative being a sentence of 3 to 4 years in custody. I pause here to note that, while the trial judge was right about what the trial Crown advanced as the correct range of sentence, his reasons do not reflect the fact that, in the end, the trial Crown only asked that a 12-year sentence be imposed.

[107] In his reasons, the trial judge acknowledged that the appellant suffers from Von Hippel Lindau Disease (“VHL”) and that the disease affects various parts of the body, leading to both cancerous and non-cancerous tumours and lesions which can be recurrent, multiple and unpredictable. The trial judge did not make mention of the fact that the appellant’s young daughter and many of her family members are also battling with this genetic and extremely rare disease.

[108] The trial judge found that while incarceration would be difficult for the appellant, he was satisfied that her medical condition could be “monitored in custody.” He also found that, while the consequences of her incarceration on her children was “unfortunate,” she “should have thought of these consequences before engaging in serious criminal activity.”

[109] The trial judge acknowledged that he could take “collateral consequences of this sort into account” but held that the sentence had to remain proportionate to the gravity of the offence and the degree of responsibility of the offender.

[110] At the time that this sentence was imposed, a conditional sentence was not available for this offence. Having acknowledged that fact, the trial judge reviewed the operative sentencing principles, and then considered the appropriate sentencing range.

[111] He cited R. v. Shaheen, 2018 ONCJ 150, the first instance sentencing decision of the case mentioned earlier in these reasons involving another pharmacist who trafficked in fentanyl patches. At first instance, Mr. Shaheen received a 14-year sentence. Notably, after the appellant was sentenced in this case, this court reduced Mr. Shaheen’s sentence to one of 12 years.

[112] The trial judge noted that this was the appellant’s first offence and that she had what he described as good rehabilitative potential. Even so, for the trial judge, the seriousness of the offence, including that it was motivated strictly by greed, required that a 13-year sentence be imposed.

(2) The Appellant Raises Errors in Principle and a Failure to Take Into Consideration Relevant Facts

[113] Trial judges have a broad discretion in imposing a sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 39. Deference is owed to those exercises of discretion.

[114] Unless a sentence is demonstrably unfit or the sentencing judge commits an error in principle that impacts the sentence, an appellate court should not vary the sentence on appeal: Lacasse, at paras. 39, 41 and 44; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 46; and R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 25. In my view, as discussed below, the trial judge committed errors in principle and failed to take into account a relevant factor that impacted the sentence. Therefore, no deference is owed.

(a) Conditional Sentence is Now Available

[115] The appellant points to the fact that, unlike at the time of sentencing, a conditional sentence is now available for the offences with which she stands convicted: Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, 1st Sess., 44th Parl., 2022 (assented to 17 November 2022), S.C. 2022, c. 15; Criminal Code, R.S.C. 1985, c. C-46, s. 742.1. A conditional sentence now being available, and this case still being in the system, the appellant argues that this court should now consider substituting a conditional sentence.

[116] For reasons that will become clear, although a conditional sentence is now available for the crimes with which the appellant stands convicted, it would not be appropriate to impose one in this case. Quite simply, the extreme gravity of what the appellant did cries out for a custodial sentence of some length.

[117] Accordingly, the change in the law has no practical impact on the sentencing here.

(b) Lack of Parity with the Shaheen Case

[118] The second alleged error is that the trial judge used the first instance sentencing decision in the Shaheen case, where a 14-year sentence was imposed, as a benchmark. That case is said to be much worse than this one and, in any event, the sentence imposed at trial was varied by this court to one of 12 years. The appellant argues that a problem with parity has now crystalized because she has received a longer sentence than Mr. Shaheen, who she says was a far worse offender.

[119] While I would not describe Mr. Shaheen as a far worse offender than the appellant, there is no question that his case carries some additional aggravating features. This is very possibly why the trial Crown in the case at hand invited the court to impose a 12-year sentence on the appellant, given that the Shaheen sentence, at that time, was one of 14 years.

[120] As we know from earlier in these reasons, Mr. Shaheen was also a pharmacist trafficking in fentanyl patches. There are many similarities between this case and that one, including that the appellant is a first-time offender with no criminal record. On that point, this court, in part, reduced Mr. Shaheen’s sentence to 12 years because of concerns over a failure to apply the principle of restraint to a first-time offender.

[121] Importantly, Mr. Shaheen was proven to have trafficked in almost double the amount of fentanyl patches as the appellant, namely, over 5,000 patches, over a longer period than the appellant. This is compared with the 2,780 patches that were proven to have been trafficked by the appellant over a much shorter period of time.

[122] Still, there is an additional aggravating factor in Shaheen. When he realized that the discrepancy in the fentanyl inventory had been discovered by a pharmacy assistant, he conspired with a confederate to stage a robbery of the pharmacy in an effort to hide the missing “mountains” of fentanyl he had trafficked. That staged robbery took place and then Mr. Shaheen reported it to the police, all done in an effort to deceive. To make matters even worse, he made an insurance claim after the staged robbery, claiming that he had lost over $37,000 in narcotics.

[123] In my view, the Shaheen case undoubtedly has worse facts than this one and yet, in the wake of this court’s variation of the sentence in the Shaheen case, he is now serving a shorter sentence than that of the appellant. This creates an issue of parity.

(c) Failure to Properly Take into Account the Collateral Consequences

[124] The real crux of this sentence appeal, though, does not lie in the above arguments. Rather, it lies in what is said to be the trial judge’s erroneous approach to the operative collateral circumstances in this case, circumstances that arise from the appellant’s and her daughter’s common medical condition. The appellant has filed fresh evidence to bring this court an update on the progression of their disease. The respondent concedes its admissibility.

[125] Despite the admissibility of the fresh evidence, the respondent says that there is nothing new in the evidence that reaches beyond what the trial judge knew at the time that he sentenced the appellant. As the respondent points out, the trial judge was well-aware of the fact that VHL is an unpredictable disease and can be fatal. For the respondent, the fact remains that, though the appellant and her daughter suffer from this tragic disease, the crime the appellant committed was serious and involved such a grave breach of trust that she needed to be sentenced in accordance with that conduct, appropriately resulting in a 13-year sentence.

(i) Factual Backdrop for the Collateral Circumstances

[126] This is truly an extraordinary case, not only in the sense that the appellant is extremely ill, but also in the sense that her young child and, indeed, many other family members are also extremely ill. Before discussing how this impacts on the sentence, I will attempt to summarize the medical landscape and the implications of that landscape.

[127] Virtually all of the information that follows, except for the more recent updates, formed part of the record from the sentencing proceeding.

[128] The appellant’s family has been impacted by VHL, a very rare genetic disorder. There is no cure for this disease. It is an autosomal dominant disorder, meaning that family members have at least a 50 percent chance of being struck by the disease. The appellant’s family has been struck at a rate higher than 50 percent.

[129] The disease impacts the nervous system, kidneys, pancreas, eyes and other body sites. It results in tumours that impact the nervous system and can cause cancer in the kidneys and pre-cancerous lesions in other areas of the body. As explained by the appellant’s uncle, who is a gastroenterologist and hepatologist, certified by the Royal College of Physicians and Surgeons of Canada, and who is an active doctor, researcher and lecturer in Toronto, lesions caused by this disease are recurrent, multiple and unpredictable. The single most important technique to manage the disease is timely and unyielding monitoring.

[130] The first person in the appellant’s family who was diagnosed with the disease was another uncle, the brother of the uncle mentioned above and also a doctor. This uncle has undergone over 15 surgeries to manage the disease since his original diagnosis. The appellant was diagnosed with the disease many years ago. She, herself, has gone through countless surgeries, has had recurrent kidney cancers and lives with tumours in her nervous system that are closely monitored. The appellant’s mother also had the disease. She died from it in 2018, which was during the trial of this matter. The appellant also has an aunt who died from the disease at 56 years of age. She also has another uncle who died from the disease at 54 years of age.

[131] The appellant’s sister also has the disease and was diagnosed in her late teens. Her sister has undergone multiple brain and spinal surgeries here in Toronto. Despite eye surgeries, she is now completely blind. The appellant’s brother also has the disease, which has taken much the same course. In his case, however, the disease has forced him to lose both kidneys.

[132] The appellant herself is now blind in one eye because of the disease and has numerous tumours that are being closely monitored.

[133] This brings us to the appellant’s young daughter who was also diagnosed with the disease a few years ago. I have decided not to chronicle in any detailed way the course of this child’s disease and her journey to date in the medical system. Needless to say, it must be terrifying for the child and her loved ones. The only way to deal with this disease is through close, intensive monitoring and a failure to do so can lead to what is described in the record as “horrific complications” and death.

[134] All of this information was available at the time of sentencing. So, too, was the fact that the appellant is a single mother of her two children. Her other child has never been diagnosed with the disease.

[135] Their father lives in Egypt. He only visits the children for one week a year. The father provided a letter to the trial judge at sentencing that suggested that he could not take responsibility for the children in Egypt, should the appellant be incarcerated. He also said that, in any event, he would be unable to obtain the care required to address his daughter’s health condition should she go to live with him in Egypt. The child’s current health team is at the Hospital for Sick Children in Toronto.

[136] Although during oral submissions, at the time of sentencing, defence counsel suggested that the family would endeavour to work something out for the children should the appellant be incarcerated, it was not at all clear what the plan would be. What was certain at the time was that the appellant’s active physician uncle and his wife, who live in Toronto, would be unable to provide constant care for the children. Nor could the appellant’s sister provide that care, especially because she has been rendered blind by VHL and already has a child with VHL.

[137] The fresh evidence provides a window into the progress of the disease since the time of sentencing. As for the appellant, she has undergone another surgery for tumour removal since that time. She now has small tumours developing in her neck and thoracic spine, as well as in her head, all of which need to be monitored very closely. She also has cancerous tumours in one of her kidneys that have increased in size. There is also a potential tumour in the only eye from which she can still see. The daughter’s care continues to be provided on an ongoing basis. It has worsened and monitoring remains a priority. There is no dispute that the appellant, very familiar with the disease, is in the best position to provide that monitoring.

[138] The final update provided by way of the fresh evidence is that the father of the children is now prepared to take them to Egypt should the appellant be incarcerated. She has been on bail pending the appeal until now. Even so, because the daughter’s medical condition cannot be properly monitored in Egypt, the plan is that the appellant’s uncle and the child’s father will travel with the child back to Toronto once or twice a year to obtain the medical attention she requires. The children are Canadian citizens.

(ii) What is the Fit Disposition?

[139] The trial judge noted that the appellant has VHL and provided a brief overview of what the disease involves. Near the end of his reasons on sentence, the trial judge briefly addressed the collateral circumstances, but was satisfied that the appellant’s medical condition could be monitored in custody. While he found that the impact of the appellant’s incarceration on the children would be “unfortunate,” he does not appear to have taken the daughter’s illness into account.

[140] It is not clear how the trial judge arrived at the conclusion that the appellant’s condition could be effectively monitored in custody. The reasons and the record, however, suggest that this finding was, in part, based on the obligation on the part of the correctional authorities to provide any necessary care, and the absence of any evidentiary foundation to say that the appellant’s condition could not be accommodated and monitored in custody.

[141] On appeal, the fresh evidence does not add much more on this point. The only relevant additional information is an excerpt from a doctor’s report filed as fresh evidence, where the doctor mentions having contacted the “health unit of Grand Valley Institution for Women … to inquire about their ability to provide care for [the appellant]” (emphasis in original). The doctor received an email back suggesting that Grand Valley “could accommodate the high-level needs of a patient with VHL.”

[142] While the trial judge seems to have acknowledged that he could take the collateral circumstances into account, it is unclear how he did so. I say this because he arrived at a sentence that was higher than what the trial Crown asked for and only one year shy of the sentence imposed by the trial judge in Shaheen, a case involving more serious aggravating factors.

[143] In my view, the reasons demonstrate that the trial judge failed to take into account that, in some circumstances, a sentence may be reduced where there is evidence suggesting that a term of imprisonment would be experienced by an offender in a disproportionate manner because of collateral circumstances. This is a relevant part of the proportionality analysis. As this court noted in R. v. Shahnawaz (2000), 2000 16973 (ON CA), 51 O.R. (3d) 29 (C.A.), at para. 34, leave to appeal refused, [2001] 1 S.C.R. xvii:

What we are left with as a relevant factor for consideration is the evidence, accepted by the trial judge, that imprisonment had and would probably continue to have an “extreme effect” on Mr. Shahnawaz. Given this fact, it becomes necessary to adjust the sentence imposed on this particular offender so as to ensure that it does not become disproportionate to his crime.

[144] Undoubtedly, a collateral consequence can arise from the commission of an offence, the conviction for an offence or the sentence imposed for an offence: R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 47. Sometimes adjusting a sentence downward is entirely necessary to ensure that a sentence does not become disproportionate to the crime, because the offender is not like other offenders in the sense that they will not experience incarceration in the same way. In other words, although only arising in rare and extreme circumstances, if an offender is going to experience custody in a more severe way, then a sentence can become disproportionate to the offender’s offending behaviour.

[145] This also comes back to the principle of parity, in the sense that like offenders should be treated alike, but from time to time, collateral consequences will mean that “an offender is no longer ‘like’ the others,” something that can render the sentence unfit: Suter, at para. 48.

[146] Of course, in most cases, there will be reason to conclude that an offender’s medical condition can be properly treated in custody in accordance with the statutory obligations of correctional authorities, such that the offender will not experience the sentence in a disproportionate way: R. v. Hanse, 2022 ONCA 843, at para. 52; R. v. R.C., 2015 ONCA 313, at para. 8; R. v. H.S., 2014 ONCA 323, 308 C.C.C. (3d) 27, at paras. 37-38; and R. v. R.L., 2013 ONCA 504, at paras. 38-40.

[147] However, in my view, the trial judge erred by failing to take these sentencing principles into account and overlooking the severe negative effect that this sentence would have on the appellant. The appellant’s and her daughter’s disease is extraordinary. The appellant’s condition is very advanced. She has lost sight in one eye and has a tumour developing in the other. She has tumours throughout her body. She works with a medical team and time is critically of the essence.

[148] She has always been the sole caregiver for her daughter (and son). She is the one who has managed her daughter’s disease to date and reacts when action is needed. While the trial judge is right that she should have thought about that when she committed the offences, the fact remains that we are here now. Two Canadian citizens may well have to leave Canada to live with their father while their mother is incarcerated. In this case, it is not just about a child leaving the country, but a child being pulled away from the security of her medical team and from the possibility of receiving quick treatment, which she will require as issues inevitably arise. It also means that the appellant, the child’s mother, will not only have to live with the anxiety of her own disease while incarcerated, but she will also have to live with the knowledge that her child, who is in so much need, has had her access to urgent medical care jeopardized. It also means, of course, that the appellant will see her children infrequently.

[149] These are indeed extraordinary collateral circumstances, the likes of which are extremely severe, if not unique. They simply were not dealt with in the sentencing reasons.

[150] There is little that can be said by way of mitigation here. I want nothing in these reasons to be read as suggesting that what the appellant did constitutes anything but a profound breach of trust. She entered a professional field that exists to do good, to improve health, to care for others. She betrayed those responsibilities. She abused her position as a pharmacist by trafficking in fentanyl from her pharmacy and, through those actions, visited untold harm on communities, families and, in fact, their beloved children.

[151] We have become all too familiar with the fact that consumption of even the smallest amount of fentanyl can kill. And it does, over and over and over again. She was a knowing purveyor of misery, all driven by nothing but greed. She failed in her duty as a pharmacist and failed in her duty as a human being.

(iii) Where Does this Leave Us with Collateral Circumstances?

[152] The appellant says that the sentence should be served in the community. The respondent says the 13 years already imposed is right. I am of the view that the correct answer is somewhere in between.

[153] I have no doubt that custody will be experienced by the appellant in a much more severe way than others. She is currently 44 years of age, still relatively young, but not according to the ages that some of her family members with this disease have died.

[154] I look to the sentence that the courier, Mr. Imerovik received. While he pled guilty, he received a six-year sentence. His work was critical to the trafficking operation. I also look to the sentence that Dr. George Otto received, the physician who wrote the fake prescriptions and also facilitated the entire scheme. He received a sentence of 12 years but absconded from Canada. He is yet to start serving his sentence.

[155] I also look to the Shaheen sentence of 12 years, a case involving more aggravating factors than this one.

[156] Taking into account the extreme seriousness of the appellant’s conduct, a conditional sentence or even a low penitentiary sentence is simply not available. Yet, there are strong collateral circumstances at work here, ones that I conclude should have an impact on sentence. I find that the appropriate sentence is one of eight years.

[157] To be clear, this sentence should not be taken as signalling any change in this court’s approach to sentencing in cases such as these. The appellant needs to think very hard about how she will give back to the community from which she took so much when she emerges from what can only be described as a very light sentence.

D. CONCLUSION

[158] I would dismiss the conviction appeal. I would grant leave to appeal sentence, grant the sentence appeal and vary the sentence on the trafficking count to one of eight years and on the possession for the purpose of trafficking count to one of eight years concurrent. This sentence takes into account the minimal amount of pre-sentence detention credit pursuant to R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. All other orders remain undisturbed.

[159] It is obviously open to the appellant to seek early parole from the Parole Board of Canada, which has statutory authority pursuant to s. 121(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 to grant early parole if the inmate is suffering from exceptional circumstances. I trust these reasons will be of assistance to the Parole Board in the event that any such application is brought.

Released: June 20, 2023 JMF

“Fairburn A.C.J.O.”

“I agree. A. Harvison Young J.A.”

“I agree. L. Favreau J.A.