COURT FILE NO.: CR-13-0049-00
DATE: 2014-12-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
K. Reitsma, for the Crown
Crown
- and -
ROBERT BUTTON
D. Gunn, for the Defendant
Defendant
HEARD: November 21, 2014 at Kenora, Ontario
Mr. Justice J.S. Fregeau
Reasons For Sentence
Overview
[1] Robert Kirkwood Button (the “defendant”) was originally indicted on a charge of trafficking in a controlled Schedule 1 substance (morphine), contrary to Section 5(1) of the Controlled Drugs and Substances Act (the “CDSA”).
[2] On November 21, 2014, the Crown withdrew this charge and filed a new indictment, pursuant to which the defendant was charged as follows:
That he, between February 29, 2012 and April 2, 2012, at Dryden, Ontario, unlawfully did knowingly make a false or misleading statement in any book, record, return or other document however recorded, required to be maintained, made or furnished, pursuant to the Controlled Drugs and Substances Act and sections 31 and 38 of the Narcotic Control regulations contrary to section 59 of the Controlled Drugs and Substances Act.
[3] An offence contrary to s. 59 of the CDSA is, pursuant to s. 46 of the CDSA, a hybrid offence. The Crown elected to proceed by indictment. The defendant entered a plea of guilty to this charge. On the basis of facts read in by the Crown and admitted by the defendant as being substantially correct, the defendant was found guilty of the charge.
[4] A contested sentencing hearing followed. The Crown is asking that a conviction be entered and a suspended sentence imposed. The defence submits that the appropriate sentence is an absolute or conditional discharge.
[5] At the conclusion of the sentencing hearing, I reserved my decision on sentence. That decision and my reasons for it follow.
The Facts
(a) Circumstances of the offence
[6] The defendant is a licenced pharmacist with the Ontario College of Pharmacists. He has been employed as a pharmacist at the Pharmasave store in Dryden, Ontario since 2007. As a result of receiving information from confidential informants that the defendant was dispensing morphine pills and methadone without prescriptions, members of the OCEB Drug Enforcement Unit began an undercover investigation utilizing a female undercover operative, Detective Constable Taylor (“D.C. Taylor”).
[7] On February 29, 2012 D.C. Taylor attended the Pharmasave store in Dryden, went to the counter area and asked for “Rob”. D.C. Taylor advised the defendant that she was addicted to “oxy’s”, was trying to get off them and that she needed something to help her deal with her situation. In response to a question from the defendant, D.C. Taylor advised the defendant that she had been told that he could “help her out.”
[8] The defendant told D.C. Taylor that he had told himself that he would not do this again, that it was illegal, that he could lose his job and go to jail but that he did not want to see anyone get hurt or dealers make money. D.C. Taylor provided a name and date of birth when asked to do so by the defendant. He entered this information into the computer in anticipation of arranging a doctor’s appointment for D.C. Taylor and eventually being provided with a prescription.
[9] The defendant told D.C. Taylor that he would give her a 20 mg morphine tablet to help her out. When asked by D.C. Taylor if that was all he would provide, the defendant agreed to give her a 30 mg morphine tablet rather than a 20 mg tablet. The defendant advised D.C. Taylor that a local doctor would “cover it.”
[10] The defendant discussed his own addiction issues with D.C. Taylor and advised her of the date of local Narcotics Anonymous meetings. He further advised D.C. Taylor that methadone may be preferable for her. Various doses and a time frame were discussed. Subsequent to these discussions, the defendant provided D.C. Taylor with a single 30 mg morphine pill. When D.C. Taylor asked, “just one?” the defendant told her that this would keep her from getting sick and that she should come back in about 24 hours.
[11] On March 1, 2012 D.C. Taylor once again attended the Pharmasave location and met with the defendant. The defendant told D.C. Taylor that he had been unable to get her in to see the local doctor as they had discussed the previous day. The defendant told D.C. Taylor that he did not like doing this as it made him feel like a drug dealer. The defendant told D.C. Taylor that he would like her to talk to “Erin”, another girl who was “doing really well.” The defendant then gave D.C. Taylor a single 30 mg morphine tablet and told her that he would see her tomorrow.
[12] On Friday March 2, 2012, D.C. Taylor once again attended the Pharmasave store and spoke with the defendant. The defendant asked D.C. Taylor how she was doing and she replied that she was “hurting all over”. The defendant asked D.C. Taylor if she had tapered down before. The defendant also advised D.C. Taylor that he was still hoping to get a local doctor to cover the pills and that she would have to see this doctor at some point.
[13] The defendant once again suggested that D.C. Taylor should sit down with his addictions group to talk about how others handle withdrawal issues. When D.C. Taylor advised the defendant that she was travelling to Thunder Bay on the weekend, the defendant asked if she was driving. She replied that she was not and that she would be back on Monday. The defendant then provided D.C. Taylor with four 30 mg morphine pills. He also provided D.C. Taylor with his cell phone number suggesting that they could meet to talk if she wished.
[14] On April 2, 2012 D.C. Taylor called the defendant and left a message. He called back later that evening and the two arranged to meet for coffee. During this meeting, the defendant again discussed addiction issues with D.C. Taylor.
[15] At 11:38 pm that evening, the defendant drove with D.C. Taylor to the Pharmasave store. Upon returning to his vehicle, the defendant gave D.C. Taylor three 60 mg morphine pills, three 30 mg morphine pills and four T400 Tramadol pills. Tramadol is a prescription drug, but not a restricted narcotic under the CDSA. The defendant also gave D.C. Taylor a Tramadol drug awareness sheet and a dosage recommendation. The defendant then dropped D.C. Taylor off at her motel.
[16] At no time during the interactions of the defendant and D.C. Taylor was money requested or offered. The defendant’s employer suffered no financial loss.
[17] The defendant was arrested and charged on April 24, 2012. He was released from custody on April 27, 2012 on an undertaking with conditions.
(b) Circumstances of the offender
[18] The defendant was born on June 19, 1960. He was 51 years old at the time of the offence and is 54 years of age today. He has no criminal record. In 1988, at 28 years of age, the defendant addressed an alcohol dependency issue and joined Alcoholics Anonymous. He has been a committed member of this organization for over 25 years.
[19] At the same time, while married with two children, the defendant returned to school and completed his high school education. After graduating in 1991, he attended the University of Manitoba, completed an undergraduate degree, applied for and was accepted into the faculty of pharmacy. He graduated in 1999 and has worked as a pharmacist in Dryden since that time.
[20] Tragically, in 2007 the defendant lost one of his sons at the age of 23 in a car accident. His other son currently struggles with serious mental health issues.
[21] As a result of his judicial interim release conditions, the defendant was unable to work as a pharmacist for approximately three months following his arrest and release from custody. As a result of these conditions being amended, the defendant returned to work at the Pharmasave store in Dryden in July 2012.
[22] Disciplinary proceedings against the defendant by the Ontario College of Pharmacists are pending. As of the time of this sentencing hearing, it is not known if a conviction for this offence will result in the suspension or loss of the defendant’s pharmacy license. At the same time, it is not known if a discharge will allow the defendant to retain his license. The defendant’s direct employer and the Regional Manager for Pharmasave Drugs Ltd. remain fully supportive of him.
[23] Defence counsel has filed a compendium of 58 letters of reference in support of the defendant. This booklet is a veritable “Who’s Who” of the Dryden medical, professional and business community. It includes letters attesting to the character of the defendant from medical doctors, law enforcement personnel, co-workers, pharmacy patients, fellow church members, long term friends and members of the Dryden business community.
[24] There is a common theme to these letters. From all perspectives noted above, the defendant is described as a person of integrity and a valuable and involved member of his community. He is a passionate and dedicated member of relevant and important community organizations such as the Coalition for a Smoke Free Dryden, Alcoholics Anonymous, his church and the Narcotics Task Force. This latter group includes a variety of health care professionals devoted to addressing the very serious opiate addiction issues in Dryden and northwestern Ontario.
[25] Mr. Button is generally recognized to be a respected, knowledgeable, devoted and compassionate pharmacist, generous with his time in addressing the issues of both patients and non-patients. Of note, he is also generally recognized to be, by medical professionals and others, unusually compassionate and empathetic toward individuals struggling with addictions, sometimes to a fault.
[26] Of particular significance to me on this sentencing hearing is a letter of support provided by Dr. Mark Dahmer. Dr. Dahmer indicates that he and each member of the medical staff at the Dingwall Medical Group in Dryden who know the defendant, jointly recommended him for the position of pharmacist at the local hospital. This occurred at a point in time after the defendant’s legal issues were well publicized in this small community.
Legal Parameters
[27] Pursuant to s. 46 of the CDSA, when the Crown proceeds by indictment, a person found guilty of an offence under s. 59 of the CDSA is liable to a fine not exceeding $5,000.00 or to imprisonment for a term not exceeding three years or to both. There is no minimum penalty for this offence.
[28] Pursuant to s. 730(1) of the Criminal Code, where an accused is found guilty of an offence other than an offence for which a minimum penalty is prescribed or an offence punishable by imprisonment for 14 years or for life, the court may, if it considers it to be in the best interest of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or conditionally.
[29] Thus, if I am persuaded that it is in the best interest of the defendant and not contrary to the public interest, I am by law able to grant the defendant either an absolute or conditional discharge for this offence.
The Position of the Crown
[30] The Crown concedes that the objective of specific deterrence of the defendant has been satisfied by his arrest and the legal process to which he has been subjected to date. The Crown submits that the relevant sentencing objectives in this case are general deterrence and denunciation. Two reasons are advanced for this submission.
[31] First, the Crown submits that the defendant abused a position of trust in order to commit the offence for which he has been found guilty. This is said to be an aggravating factor which must be considered on sentencing. It is submitted that the defendant is licensed to dispense narcotics and provided with access to these drugs. In return, the defendant is required to comply with all relevant regulations. The Crown submits that the defendant ignored his obligations as a pharmacist in regard to a very dangerous drug and while doing so openly acknowledged the criminality of his actions. Further, this was not an isolated, impulsive act. The Crown reminds this court that the defendant did this on four separate occasions.
[32] Second, the Crown submits that prevalence of the problem of abuse of prescription narcotics in northwestern Ontario is a factor on sentencing in regard to the need for general deterrence. All parties are in agreement that the abuse of prescription narcotics is an epidemic. The Crown submits that the defendant chose to “play God” and provide D.C. Taylor with dangerous narcotics without a prescription and with no idea what she was going to do with the drugs. In doing so, it is submitted that the defendant put her safety and the safety of others at risk.
[33] The Crown submits that the unauthorized dispensing of prescription narcotics is not a rare or unusual situation. The integrity of the system that the state has chosen to put in place to control the distribution of narcotic drugs must be maintained. The imposition of a criminal record and the consequences of same to a well-educated, knowledgeable professional is said to be necessary to adequately address both general deterrence and denunciation. To grant a discharge in these circumstances would diminish general deterrence, which is suggested by the Crown to be contrary to the public interest.
The Position of the Defence
[34] The defence submits that the court must, to properly sentence this accused for this offence, carefully assess the particular facts of the offence to determine the motivation of the accused and the true nature of the offence. It is submitted that the undercover officer presented herself as a relatively intelligent and well-dressed individual, addicted to oxycontin and needing help in trying to overcome her addiction.
[35] It is submitted that the defendant’s motivations were totally benign. He provided the officer with drugs that were less addictive than the drug reportedly being abused and in dosages that would have been prescribed if an individual were in a medical step-down program. The defendant sought to minimize pain for an addict with no personal benefit to himself. In the process of doing so, the defence asks this court to recognize that the defendant encouraged the officer to seek medical attention, attempted to facilitate this and repeatedly encouraged the officer to attend Narcotics Anonymous meetings.
[36] The defence submits that, in these circumstances, the defendant’s characteristic empathy and desire to want to help those in need compromised his decision making process. It is submitted that this represents a lack of true criminal intent on the part of the defendant.
[37] The defence submits that the defendant has entered a plea of guilty, recognizes the inappropriateness of his actions and is genuinely remorseful. It is submitted that the arrest of the accused, in and of itself, has fully addressed specific deterrence.
[38] In regard to general deterrence, the defence submits that it is appropriate to consider the true nature of the offence and to ask who the court is attempting to deter in sentencing this accused. It is suggested that this is not a drug trafficking case. The defence asks this court to accept their characterization of the defendant’s actions as those of an over compassionate pharmacist prescribing drugs to a recovering addict in need.
[39] The defence notes that the defendant spent three nights in custody subsequent to arrest and that his original release conditions prevented him from working as a pharmacist for approximately three months.
[40] Finally, the defence asks this court to be cognizant of the fact that disciplinary proceedings are pending against the defendant. It is not clear what the final position of the Ontario College of Pharmacists will be, however it is submitted that it is reasonable to infer that the criminal sentence imposed on the defendant will be relevant to those proceedings. A discharge will obviously assist the defendant in retaining his license.
[41] Given the very high regard in which the defendant is held by his patients and by other members of the medical community in Dryden, it is submitted that the defendant’s ability to maintain his position as a pharmacist is in the public interest.
Case Law
[42] In R. v. Fallofield 1973 CanLII 1412 (BC CA), [1973] CarswellBC 184, a decision of the British Columbia Court of Appeal which is still considered authoritative on the point, the Court reviewed the relevant authorities and provided the following guidance to a court when considering the granting of a discharge:
The (relevant) section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law or the offence is punishable by imprisonment for 14 years or for life…
The section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivial violation.
Of the two conditions precedent to the exercise of the jurisdiction, the first is that the court must consider that it is in the best interests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused, that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused then that brings the next consideration into operation.
The second condition precedent is that the court must consider that a grant of discharge is not contrary to the public interest.
Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions.
In the context of the second condition, the public interest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the discharge provisions.
The powers given by s. (730) should not be exercised as an alternative to probation or suspended sentence.
Section (730) should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in the application of the discharge provisions.
[43] In R. v. Moreau 1992 CanLII 3313 (QC CA), [1992] CarswellQue 267, the Quebec Court of Appeal heard a sentence appeal in regard to an accused who pled guilty to shoplifting and was refused a discharge. The Court found that the trial judge concluded that the appellant had failed to establish that her professional career would be affected by a conviction and thus rejected the submission for a discharge.
[44] The Quebec Court of Appeal, at para. 10, held that there is no burden on an accused to establish that his or her employment would be endangered by a criminal conviction in order to obtain a discharge. The Court noted the comments of Mr. Justice Martin of the Ontario Court of Appeal in R. v. Meyers (1977), 1977 CanLII 1959 (ON CA), 37 C.C.C. (2d) 182, p. 185
In our view, the trial judge, in declining to grant the appellant a discharge because the registration of a conviction would have no immediate effect upon his employment, applied much too narrow a test in deciding whether the granting of a discharge was in the best interests of the appellant.
[45] The Quebec Court of Appeal commented further on the exercise of judicial discretion in the granting of a discharge, at paragraphs 15 and 16:
Discharges should, of course, only be granted when the conditions of s. 736 have been met and where the sentencing judge considers that it would be in the best interests of the accused and not contrary to the public interest. Beyond that, the section requires no specific proof of employment jeopardy, although this may, in some cases, justify the granting of a discharge.
Section 736 is expressed in broad terms. To grant a discharge instead of convicting the accused of the offence, the court must consider it to be in the best interest of the accused and not contrary to the public interest to do so. While the section should, of course, be applied judiciously with those criteria in mind, I see no basis for interpreting or applying it restrictively or exceptionally.
Aggravating and Mitigating Factors
[46] In committing this offence contrary to s. 59 of the CDSA, the defendant committed a breach of trust. On this point, I reject the submission of the defence that this was not a breach of trust. The defendant, as a licensed pharmacist, was entrusted by the state to safeguard and dispense dangerous narcotic drugs only in certain conditions and to properly document the dispensing of all such drugs. The defendant abused the trust placed in him by the state on four separate occasions.
[47] There are numerous mitigating factors, including but not limited to the following:
The defendant has entered a plea of guilty to the offence, thereby accepting full responsibility for his actions. When provided with an opportunity to speak to this court, the defendant expressed genuine remorse and significant insight into the personal weaknesses which I accept led him to commit this offence. The defendant stated that he, and professional colleagues with whom he has conversed, have learned a great deal as a result of the accused being prosecuted for this offence. I accept these comments to be true and accurate;
The defendant is 54 years of age and has no criminal record. He has established that he remains a very highly regarded member of the community of Dryden in general and of the Dryden health care community in particular, despite his involvement in the offence before the court;
The defendant devotes much of his free time to important and relevant community initiatives, the Narcotics Task Force being one of note;
The defendant has faced, and overcome, significant challenges in his life, including his personal addiction issues and the loss of a 23 year old son to a car accident;
The defendant has the support of his family, his employer, patients and numerous members of the Dryden business and health care community;
I accept that the defendant’s actions were motivated only by the desire to help, and not to harm, a person that he perceived to be in genuine need. There was no personal gain or satisfaction sought or received.
While not a factor in mitigation, it is relevant on sentencing to consider that the defendant, for reasons known only to the investigating police agency, spent three nights in custody prior to release. Upon release, conditions initially placed on his release precluded the defendant from working at his profession for approximately three months, resulting in significant financial loss to him and his family.
Principles of Sentencing
[48] Pursuant to s. 718 of the Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) To denounce unlawful conduct;
(b) To deter the offender and other persons from committing offences;
(c) To separate offenders from society when necessary;
(d) To assist in rehabilitating offenders;
(e) To provide reparations for harm done to victims or to the community.
[49] The fundamental principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[50] Defence counsel has submitted, and the Crown has conceded, that specific deterrence of Mr. Button is not required. I agree. Mr. Button’s offending conduct has been highly publicized in the small community of Dryden. He has suffered personal and professional embarrassment and financial penalty as a result of his actions. Disciplinary proceedings are pending against him. I have no doubt that Mr. Button will never again appear before any court as a result of similar conduct.
[51] The Crown has submitted that general deterrence and denunciation are the relevant sentencing objectives for this court. In support of this, I have been referred to numerous sentencing decisions involving breach of trust situations and large scale financial frauds as well as narcotic trafficking cases. Quite frankly, and with respect to the Crown’s position, I do not find any of these cases particularly helpful to me in deciding whether to grant a discharge in the case at bar.
[52] First, the defendant has not been found guilty of trafficking in a narcotic. The Crown chose to withdraw that original charge in favour of the much less serious offence to which he has pled guilty. The Crown cannot then, in my opinion, rely on trafficking cases in support of their sentencing position.
[53] Secondly, while I have found this to be a breach of trust situation, I agree with the defence submission that the motivations of the defendant have to be considered in assessing the level of moral blameworthiness of the defendant. Financial gain was not the motivation of the defendant. I accept that his motivations, while professionally misguided, were personally honourable. He was presented with a person whom he saw to be suffering. He dispensed small dosages of a restricted narcotic to her, consistent with what she would have been prescribed in a medically supervised step-down program.
[54] I find it to be significant that, at the same time, he attempted to facilitate the undercover officer seeing a medical doctor as well as advised her on narcotic counselling services available locally.
[55] I am persuaded that the granting of a discharge is in the best interests of Mr. Button. Specific deterrence and rehabilitation are not in issue. He is considered to be a person of integrity and good character. He has been, and no doubt will continue to be, a contributing member of his community. The manner in which he has overcome the various challenges life has presented him should serve as an example to others.
[56] Finally, while it is uncertain at this point, I choose to infer that the entry of a conviction against him may have serious professional repercussions. While this would obviously be contrary to Mr. Button’s best interests, given the regard in which he is held by his patients, his employer and medical doctors, this would also be contrary to the public interest.
[57] I am also persuaded that it would not be contrary to the public interest to grant Mr. Button a discharge. I acknowledge the Crown’s submission that due regard must be had to general deterrence when dealing with an offence involving the disbursal of dangerous narcotic drugs by a health care professional in breach of his professional obligations.
[58] However, in what I find to be the highly unusual and unique circumstances of this case, I have asked myself exactly who would be deterred by imposing a conviction and a criminal record on Mr. Button. Certainly not drug traffickers who are motivated only by financial gain without regard to the pain and misery their actions have on the general population. Nor do I accept that other health care professionals need to be deterred from engaging in similar conduct by imposing a conviction on Mr. Button. I have no doubt that word of Mr. Button’s actions, and the pain and distress it has caused he and his family, have travelled far and wide within his profession. The professional discipline which he is yet to receive will be publicized within his profession and will also serve to accomplish this goal.
[59] The various sentencing objectives are not necessarily reconcilable in each and every case. Depending on the specific facts of a case, one or more of these objectives may receive more weight. At the end of the day, the sanction imposed on a particular offender in a particular case must be just.
[60] I consider it to be in Mr. Button’s best interest, and not contrary to the public interest, that he receive an absolute discharge for the offence to which he has pleaded guilty. For the reasons stated herein, I order that Robert Button be discharged absolutely.
The Hon. Mr. Justice J.S. Fregeau
Released: December 11, 2014
COURT FILE NO.: CR-13-0049-00
DATE: 2014-12-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown
- and –
ROBERT BUTTON
Accused
REASONS FOR SENTENCE
Fregeau J.
Released: December 11, 2014
/sf