Ontario Court of Justice

Date: 7 March 2018

Court File No.: Ottawa 15-A10885

Between:

Her Majesty the Queen

— AND —

Waseem Shaheen

Before: Mr. Justice Robert Wadden

Sentence Submissions heard: March 2, 2018

Decision Released: March 7, 2018

Counsel:

• Melodie Foerster and Kristen Mohr, counsel for the PPSC
• Diane Condo, counsel for the defendant

SENTENCE

WADDEN J.:

[1]

Waseem Shaheen, a pharmacist, was convicted after trial of trafficking over 5,000 patches of fentanyl over a two year period. Evidence at trial showed that when his criminal activity was at risk of being discovered, he staged a false robbery at his pharmacy to cover up the inventory discrepancy, then lied to the police and defrauded his insurance company. He is before me for sentencing on his convictions for the offences of trafficking in fentanyl, public mischief and fraud.

[2]

The Crown seeks a sentence of 15 years' incarceration. The defence suggests that due to Mr. Shaheen's health issues a jail sentence would be unduly harsh and requests that I impose a suspended sentence for the drug trafficking and a conditional sentence for the remaining offences, or in the alternative a penitentiary sentence far less than that sought by the Crown.

Facts of the Offences

[3]

At the time he committed these offences, Mr. Shaheen was a successful businessman and a licenced pharmacist who had grown his business to the point where he owned three separate pharmacies in the City of Ottawa. The offences before me took place at his IDA Pharmacy on Rideau St. The findings at trial were that over the course of two years Mr. Shaheen ordered supplies of fentanyl patches from his licenced suppliers using his business accounts. The fentanyl was delivered to his pharmacy and some patches were dispensed to legitimate patients, but the vast majority were either provided under false prescriptions to a co-conspirator, Mr. Mehdi Rostaee, or unaccounted for. The finding at trial was that of 6705 fentanyl patches, 100-microgram size, delivered to the pharmacy in 2013 and 2014, 5198 were trafficked by Mr. Shaheen. The Crown estimates the street value of these drugs, at $200 per patch, to be over $1,000,000.

[4]

The discrepancy between the amount of fentanyl ordered and dispensed was discovered by Mr. Shaheen's employees in October 2014. A pharmacy assistant, Carson Morris, conducted an inventory at the IDA Rideau and discovered the large discrepancy. He confronted Mr. Shaheen and brought his concerns to the attention of the Ontario College of Pharmacists.

[5]

When Mr. Shaheen learned of Mr. Morris' inquiries he contacted Mr. Rostaee, and in a conversation covertly recorded by Mr. Rostaee Mr. Shaheen enlisted his help in carrying out a false robbery of the IDA Rideau pharmacy. During the recorded conversation, Mr. Shaheen admitted to having provided Mr. Rostaee with "mountains" of fentanyl, and explained that the recently discovered discrepancy was a problem. Mr. Shaheen and Mr. Rostaee discussed exactly how the staged robbery should proceed. Two days later, on October 26, 2014, when Mr. Shaheen was working alone at the pharmacy, the store's video surveillance recorded the robbery taking place, as had been agreed upon during the recorded conversation. After the robbery, Mr. Shaheen called the police to report it, and he maintained this deceit in his ongoing dealings with the police.

[6]

As a result of the robbery, Mr. Shaheen made a claim to his insurance company of over $36,000 for the value of narcotics that were lost.

[7]

After trial before me, Mr. Shaheen was found guilty of Public Mischief by reporting a robbery that did not happen; Fraud against the Travelers Insurance company; and Trafficking in Fentanyl contrary to the Controlled Drugs and Substances Act.

Background of Mr. Shaheen

[8]

A substantial amount of background information about Mr. Shaheen has been made available to the court through his testimony at trial, affidavits filed on pre-trial applications and through doctors' reports and letters filed at the sentence hearing.

[9]

Mr. Shaheen, who is 47 years old, was born in Jordan and attended the University of Damascus where he studied Pharmacy and Pharmaceutical Chemistry, graduating in 1994. He immigrated to Canada and completed his equivalency exams, becoming a registered member of the Ontario College of Pharmacists in 1999. He eventually bought his own pharmacy, the IDA Rideau pharmacy, in 2011, and later expanded his business with the purchase of two more pharmacies in Ottawa, in 2013 and 2014, all of which he managed until his arrest. He is married and his wife was involved in his business with him. The couple have four young children. Mr. Shaheen is also the caregiver for his elderly father.

[10]

As a result of these charges Mr. Shaheen was no longer able to practice as a pharmacist and he had to sell his businesses. All of his money has been exhausted and he is currently subsisting on social benefits.

Fentanyl and Its Impact on the Community

[11]

The Crown filed evidence of Dr. Karen Woodall, a forensic toxicologist, who provided evidence about the nature and effect of fentanyl. Fentanyl is a synthetic opioid, of the same drug family as heroin or morphine. It can be 20 times stronger than heroin and up to 100 times more potent than morphine. Its medical use is as a prescription drug for individuals who have already built a tolerance to opioids through other medications. Aside from its therapeutic uses, fentanyl is a potent drug of abuse, including through the injection or inhaling of patch contents or chewing patches. Effects of opioid use can include suppression of pain, euphoria, feelings of well-being and drowsiness. Long-term use or abuse can lead to addiction. The potential level of toxicity depends on an individual's tolerance, but for an opioid-naïve person consumption of even a small dose could be fatal. The risk is that the depression of the central nervous system becomes so acute that a person will stop breathing and die.

[12]

According to the Canadian Centre on Substance Abuse, between 2009 and 2014 there were at least 1019 drug poisoning deaths in Canada where post-mortem screening detected the presence of fentanyl. More than half of these occurred in 2013 and 2014. In Ontario, there were 466 fentanyl-implicated deaths, with an increase of 1.7 times from 2009 to 2013. Within Ottawa, the Shepherds of Good Hope has had to devote inordinate resources within the last year to address the street-level opiate crisis, in order to deal with and prevent overdoses.

Range of Sentence

[13]

The principles of sentencing set out in ss. 718 and 718.2 of the Criminal Code include denunciation of unlawful conduct, deterrence of the offender and others from committing offences, assisting in rehabilitating offenders and promoting a sense of responsibility in offenders. The Court should impose sentences similar to those imposed for similar offences committed in similar circumstances.

[14]

The most serious offence before me is the conviction for trafficking in a Schedule I substance, fentanyl, contrary to s. 5(3) of the Controlled Drugs and Substances Act. The maximum penalty is imprisonment for life. There is no minimum penalty. A conditional sentence is not available, according to s. 742.1(c) of the Criminal Code.

[15]

The Court of Appeal has repeatedly emphasized principles of denunciation and deterrence in sentences for drug trafficking. In recent decisions the Court recognized the seriousness of trafficking in fentanyl, even in small quantities. In R. v. Lu 2016 ONCA 479, the Court upheld a sentence of 2 ½ years for possession for the purpose of trafficking of 20 patches of fentanyl, stating that: "Fentanyl is one of the most highly addictive and dangerous drugs. It is illegally obtained exactly in this way, through the misappropriation of legally dispensed prescriptions. General deterrence and denunciation are paramount factors." In R. v. Gatfield, 2015 ONCJ 526, a sentence of 30 months was imposed for trafficking in two fentanyl patches. In R. v. Medeiros-Sousa, 2014 ONCJ 4515, a pharmacy assistant who stole opioids worth over $10,000, including 58 fentanyl patches, was sentenced to 30 months jail. In R. v. Lesslie, 2017 ONSC 6574, a fentanyl addict who obtained over 900 patches for his own use, though defrauding doctors, was sentenced to 22 months jail. In R. v. McArthur, 2016 ONCJ 244, the accused, a medical doctor, forged prescriptions for a large amount of hydromorphone and 60 fentanyl patches to feed her own addiction. She was sentenced to two years imprisonment. In R. v. Klammer, 2016 ONSC 4038 the offender was sentenced to 33 months for trafficking six patches of fentanyl.

[16]

A series of cases dealing with large-scale fentanyl trafficking include the related decisions of R. v. Godreau, 2016 ONSC 6318, R. v. Baks, 2015 ONCA 560 & 615, R. v. Sinclair, 2016 ONCA 683, and R. v. Loor, 2017 ONCA 696. In those cases the charges and subsequent convictions arose out of a scheme wherein a series of forged prescriptions for fentanyl patches were issued for false patients of a medical doctor, through the use of health cards, identities and personal information to open false patient profiles and issue prescriptions for fentanyl. According to the facts as set out in R. v. Loor, Mr. Godreau was the "kingpin" of the operation, and Grenville Sinclair and his girlfriend Julie Baks were involved at a high level as well. Ms. Baks was employed as a medical secretary, which was crucial to the drug trafficking ring. The operation went on for 5 months in 2013 and produced forged prescriptions for 900 fentanyl patches.

[17]

Mr. Loor was described by the Court of Appeal as "a low-level member of [this] small drug trafficking ring dealing in fentanyl" who was personally responsible for the trafficking of 45 patches of fentanyl. His sentence of six years imprisonment was upheld by the Court, in a decision in which Laskin J.A. extensively discussed the deadly nature of fentanyl trafficking. Ms. Baks pleaded guilty and the Court of Appeal determined that a sentence of six years was fit, taking into account mitigating factors including influence from her boyfriend. Mr. Sinclair's sentence was eight years, having pleaded guilty. Mr. Godreau was convicted after trial and sentenced to ten years.

[18]

A decision with factual similarity to Mr. Shaheen's case is R. v. Patel, [2017] O.J. No 5375, in which a pharmacist pleaded guilty to trafficking, and possession for the purpose of trafficking, 3000 fentanyl patches over a two-year period. In passing sentence, Graham J. found that as a pharmacist Mr. Patel's breach of trust was egregious and his moral blameworthiness was exceptionally high. In spite of his plea of guilt and his genuine remorse, the Court found that a sentence of eleven years jail was appropriate, relying on the fact that Mr. Patel "trafficked a significant quantity of maximum strength fentanyl patches without regard to the potentially catastrophic consequences to members of the public." The Court noted that, as Mr. Patel was a pharmacist, "through his experience and training he must have known that he was putting lives at risk."

[19]

It is clear from an analysis of these cases that in sentencing for the offence of trafficking in fentanyl principles of denunciation and deterrence are paramount. Even offenders who traffic small amounts to feed their own addictions usually receive penitentiary terms. Those involved in sophisticated schemes involving large amounts of fentanyl receive significantly higher sentences. As Laskin J.A. stated in R. v. Loor, at para 50, "offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences."

[20]

In this case, a suspended sentence, as proposed by defence counsel, is simply not within the range of appropriate sentences.

Mitigating Factors

[21]

In determining a fair sentence for Mr. Shaheen I have to consider the mitigating and aggravating factors that apply to him.

[22]

Mitigating factors include his lack of a criminal record and the material and emotional support he has provided for his family over the years. In addition, he is well-regarded among those who know him socially. Letters filed by Mr. Shaheen's wife and by members of his church attest to his qualities as a husband and parent and to his support within the community.

[23]

Defence counsel also relies upon Mr. Shaheen's former status as a well-established professional and businessman, and the professional loss he has suffered. It is hard to put much weight on this as it was this status that put him in the position of trust that he abused in committing these crimes. His professional career has been ruined by his own criminal actions. As noted by the Court of Appeal in R. v. Drabinsky, 2011 ONCA 582, "the offender's prior good character and standing the community are to some extent the tools by which they commit and sustain frauds over lengthy periods of time. Considerable personal hardship, if not ruin, is virtually inevitable upon exposure of one's involvement in these kinds of frauds." Although the offences in R.v. Drabinsky were different from Mr. Shaheen's the principles are applicable to his sentencing – prior good character and his personal ruin and humiliation are relevant mitigating factors but they cannot take his sentence outside the appropriate range.

[24]

Counsel relies significantly on Mr. Shaheen's numerous health issues that, she submits, would result in excessive hardship if incarcerated. Mr. Shaheen had a kidney transplant in 2012, after having been on dialysis since 2011. He has type 2 diabetes, cholesterol issues, recurrent pancreatitis, heart disease and recurrent urethral strictures. Although he is currently doing well, his immunosuppression puts him at increased risk of infection, and he is being maintained on immunosuppression, blood pressure and cardiac risk reduction medications and insulin. His conditions require frequent medical care and monitoring. Mr. Shaheen also suffers from depression and anxiety which are aggravated by his legal situation and the prospect of incarceration.

[25]

In addressing Mr. Shaheen's medical issues, the Crown filed evidence from Correctional Service Canada outlining the level of medical care available in federal penitentiaries. There is a Health Services Sector within CSC that is accredited to provide health care to inmates and includes care by physicians, nurses and other health professionals. Health services, including mental health services, are provided in individual institutions, regional hospitals and Regional Treatment/Psychiatric Centres across Canada. Health related issues are taken into consideration during the admission process to facilitate access to the appropriate health care resources. CSC officials are of the view that they are able to meet the medical needs of an inmate with diabetes, anxiety, depression, kidney problems, pancreatic issues and heart problems.

[26]

Defence counsel relies on the unreported Youth Court decision in R. v. S.K., and similar cases cited in that decision, in which offenders who were quadriplegic or otherwise wheelchair bound at the time of sentencing were spared incarceration. This is a far cry from the circumstances of Mr. Shaheen. His health issues are numerous and will warrant care and careful monitoring by Correctional Services Canada. But Mr. Shaheen is ambulatory and according to the evidence he is currently doing well from a medical point of view. Many of his health issues pre-date his arrest – after receiving the kidney transplant he was able to continue working as a pharmacist, build his business and operate his three pharmacies. There was no evidence at trial that his health issues significantly impeded his ability to work or deal with his employees. He committed these offences while he had many of these same health problems. As in the case of R. v. Drabinsky, there is no evidence that Mr. Shaheen's health problems cannot be addressed by the correctional authorities and his sentence should not fall outside the appropriate range for these crimes.

Aggravating Factors

[27]

The aggravating factors are substantial.

[28]

Fentanyl is a drug created for those who suffer from acute pain, intended to be used under medical supervision. It can only be bought with a prescription and its dispensing is subject to narcotic control monitoring. When trafficked illegally, it is a deadly drug, one that is at the forefront of the opioid crisis ravaging our cities.

[29]

Mr. Shaheen, a licenced pharmacist, was entrusted with the distribution of fentanyl for medical purposes. The proper functioning of our medical system relies on control of a supply of narcotics. A pharmacist dispenses narcotics to those to whom they are prescribed as part of their medical treatment. At the same time a pharmacist is responsible for preventing the unauthorized distribution of narcotics, as their presence on the street can result in crippling addiction or death. Within a pharmacy, narcotics are subject to strict controls and kept under lock and key. The ordering and distribution of narcotics even within a pharmacy is restricted to designated individuals.

[30]

Mr. Shaheen was not only an established and respected pharmacist, he was the owner of three pharmacies. He was in a position to control, and cover up, the flow of fentanyl into his business. Any employee who had questions about the stock was answerable to him, and he was in a position to deflect or delay their inquiries. As such, Mr. Shaheen was at the highest position of trust for his profession, even more so than the offender in R. v. Patel, who was an employee pharmacist.

[31]

Mr. Shaheen not only abused his position of trust in ordering and illegally trafficking the fentanyl but also in his efforts to cover up his crime. Mr. Shaheen was verbally abusive to his pharmacy assistant, Carson Morris, a young man with a keen interest in pharmacology who was at the onset of his career. Mr. Morris was alert enough to detect the inventory discrepancy, resourceful enough to investigate it and brave enough to confront Mr. Shaheen and report him to the College. In response, he was verbally abused by Mr. Shaheen and fired, and had great difficulty getting further work in his field.

[32]

Furthermore, the staging of the robbery is a significant aggravating factor. Mr. Shaheen was able to take this step by virtue of his position as owner of the pharmacy, in control of the work schedule and security system within the business. As is clear from the recorded conversation with Mr. Rostaee, Mr. Shaheen was the directing mind of the staged robbery, discussing in detail how it would unfold. After it occurred, he made the false report the police and caused them to embark on the investigation of a false crime. He continued to lie to the police throughout their investigation. It is hard to overstate the seriousness of this act. Mr. Shaheen enlisted a drug addict, Mr. Rostaee, to go to his premises armed with knife and appear to rob him. In doing so, he endangered the public, the police and Mr. Rostaee. It would not have taken much for things to have unfolded differently so that serious harm may have come to Mr. Rostaee or an innocent bystander. Mr. Shaheen was acting in complete disregard of this risk, endangering others to cover up his drug trafficking. To complete the cover-up he defrauded his insurance company of over $36,000.

[33]

The volume of drugs involved and the length of time over which the crime occurred is also a significant aggravating factor. It is apparent, through direct or circumstantial evidence, that Mr. Shaheen trafficked 5198 maximum strength fentanyl patches over a two year period. This far exceeds the amounts found in other reported decisions. In R. v. Godreau, the offender received ten years for trafficking 900 patches. In R. v. Patel, the offender received eleven years for trafficking 3000 patches.

[34]

Mr. Shaheen is not an addict. None of the fentanyl was for his own use. His only apparent motivation was greed. As a trained professional, he would have been aware of the debilitating and deadly effects of this drug in the hands of addicts. Yet he conducted a drug trafficking scheme worth over a million dollars, profiting on the misery of others.

[35]

The reported case with facts most similar to Mr. Shaheen's is R. v. Patel, which involved a significantly smaller quantity of fentanyl and in which the offender pleaded guilty and was found to be genuinely remorseful.

[36]

Mr. Shaheen is more culpable than Mr. Patel. He was the owner of the pharmacy, not just an employee. He trafficked a far larger quantity of fentanyl. He used a drug addict to stage a robbery, made a false report to the police and defrauded his insurance company. He may regret having been caught, but I do not find that he has insight into the harm he has done or remorse for his actions.

[37]

Mr. Shaheen's crimes, and their context, place him at the high end of the range, even for a first time offender with his personal circumstances. A sentence near that sought by the Crown is justified.

Sentence

[38]

On the offence of trafficking, contrary to s. 5(3) of the CDSA, Mr. Shaheen will be sentenced to 14 years imprisonment. For the offences of Public Mischief and Fraud Over, the sentences will be five years each, concurrent to the 14 years.

[39]

There will be a weapons prohibition for 10 years, pursuant to s. 109 of the Criminal Code. A sample of DNA will be ordered taken for the DNA Databank. A restitution order, pursuant to s. 738 of the Criminal Code, will be made payable to Travelers Canada Insurance in the amount of $36,046.39.

Released: March 7, 2018

Signed: "Justice Robert Wadden"