CITATION: R. v. Lesslie 2017 ONSC 6574
Court File No. 15-0276-00
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
DAVID LESSLIE
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE MADAM JUSTICE M. FUERST on June 9, 2017 at BARRIE, Ontario
APPEARANCES: L. Boyd Counsel for the Crown V. Cojacaru Counsel for David Lesslie
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
REASONS FOR SENTENCE 1
Transcript Ordered........................ June 26, 2017 Transcript Completed...................... November 02, 2017 Ordering Party Notified................... November 02, 2017
FRIDAY, JUNE 9, 2017
U P O N C O M M E N C I N G:
R E A S O N F O R S E N T E N C E
Introduction
Fentanyl is an opioid analgesic used to treat pain syndromes. It may be administered by a patch formulation applied to the skin, such that it is slowly administered through absorption to the skin. Typically, a patch is changed every 72 hours.
Fentanyl is considered a narcotic for gradual pain control. As decisions of various courts have pointed out, it is a highly addictive drug that can be dangerous if misused.
Over a period of 34 months, David Lesslie obtained over 224 prescriptions for narcotics, most particularly fentanyl, from 45 doctors. The narcotics were dispensed to him at 29 pharmacies.
Mr. Lesslie’s activity first came to the attention of the police as a result of contact from a pharmacist, in March 2013. Further investigation revealed that Mr. Lesslie had obtained hundreds of fentanyl patches, along with morphine and oxycodone tablets, and doses of methadone.
Mr. Lesslie admits that he repeatedly obtained prescriptions for Schedule 1 drugs without disclosing to the prescribing physician that he had obtained other prescriptions for such drugs from other practitioners within the preceding 30 days, contrary to s. 4(2)(b) of the Controlled Drugs and Substances Act. This offence is commonly referred to as “double doctoring”.
The Circumstances of the Offences
Mr. Lesslie pleaded guilty to eleven counts of double doctoring and one count of fraud under $5000. The activity relating to each count can be summarized as follows:
Count 2: Between November 3, 2010, and November 17, 2012, Mr. Lesslie obtained 86 prescriptions for a total of 600 fentanyl patches from Dr. Heung- Wing Li in Scarborough. The fentanyl patches were in varying strengths. Mr. Lesslie failed to disclose to Dr. Li that during this period, he obtained narcotic prescriptions from six other doctors, in the 30 days preceding the various prescriptions from Dr. Li. These other prescriptions included fentanyl patches, and methadone. Mr. Lesslie had signed a contract with Dr. Li that he would not seek opioid medication from another physician.
Count 3: Between November 6, 2010, and May 29, 2012, Mr. Lesslie obtained prescriptions for 242 fentanyl patches from Dr. Sathiyapooma Manoharan in Toronto. Dr. Manoharan was not aware that Mr. Lesslie obtained narcotic prescriptions from other physicians including Dr. Li in the 30 days preceding her prescriptions.
Count 4: On each of November 16, 2010, and December 14, 2010, Mr. Lesslie obtained a prescription for 90 morphine sulfate tablets from Dr. Andrew Haines in Barrie. Dr. Haines was not aware of the other narcotic prescriptions Mr. Lesslie obtained in the preceding 30 days.
Count 8: On November 12, 2012, Mr. Lesslie obtained a prescription for 5 patches of fentanyl from Dr. Peter Holloway in Wasaga Beach. Dr. Holloway was not aware that Mr. Lesslie had obtained a prescription for fentanyl from Dr. Li within the preceding 30 days.
Count 10: On November 29, 2012, Mr. Lesslie obtained a prescription for 5 fentanyl patches from Dr. Marius Van Der Merwe in Collingwood. Dr. Van Der Merwe was not aware of other narcotic prescriptions obtained by Mr. Lesslie in the preceding 30 days.
Count 11: On December 10, 2012, Mr. Lesslie obtained a prescription for a four week supply of morphine from Dr. Hans Harlos in Elmvale. Dr. Harlos was not aware of other narcotic prescriptions obtained by Mr. Lesslie in the preceding 30 days.
Count 13: On January 22, 2013, Mr. Lesslie obtained a prescription from Dr. James McInnis in Wasaga Beach for 30 fentanyl patches, to be dispensed at the rate of 10 patches per month. Dr. McInnis was not aware of the other prescriptions obtained by Mr. Lesslie in the preceding 30 days. When Mr. Lesslie attempted to fill the first repeat, Dr. McInnis was advised by the pharmacist of an alert regarding double doctoring. Dr. McInnis cancelled the remaining repeats. The pharmacist contacted the Ontario Provincial Police, who began an investigation.
Count 14: On February 8, 2013, Mr. Lesslie obtained a prescription from Dr. Aamir Haq in Toronto, for five fentanyl patches. Subsequently Mr. Lesslie obtained other prescriptions from Dr. Haq, as follows: February 14, 2013, two fentanyl patches; February 22, 2013, five fentanyl patches; March 7, 2013, five fentanyl patches; March 21, 2013, five fentanyl patches, and April 4, 2013, five fentanyl patches. Dr. Haq was not aware of other narcotic prescriptions that Mr. Lesslie obtained in the preceding 30 days.
Count 15: On each of February 5, and February 18, 2013, Mr. Lesslie obtained a prescription from Dr. Arash Mazaheri in Toronto for one fentanyl patch. Dr. Mazaheri was not aware of other narcotic prescriptions that Mr. Lesslie obtained in the preceding 30 days.
Count 16: On February 20, 2013, Mr. Lesslie obtained a prescription from Dr. Stewart Ibrahim in Brampton for ten fentanyl patches; on March 11, 2013, for ten fentanyl patches; on March 27, 2013, for ten fentanyl patches; on May 1, 2013, for five fentanyl patches; and on May 13, 2013, for ten fentanyl patches. Dr. Ibrahim was not aware of other narcotic prescriptions that Mr. Lesslie obtained in the preceding 30 days.
Count 17: On June 8, 2013, Mr. Lesslie saw Dr. Valerie Krym in the emergency department of a Toronto hospital. He received fentanyl by injection, and in addition a prescription for fifteen fentanyl patches. Dr. Krym was not aware of other narcotic prescriptions that Mr. Lesslie obtained in the preceding 30 days.
Mr. Lesslie also pleaded guilty to a count of fraud under $5000. In the period between October 4, 2010, and April 11, 2013, Mr. Lesslie was eligible to receive benefits under the Ontario Drug Benefit Program. Each time he filled a prescription, the provincial government paid the cost for the narcotic drug that was dispensed. Mr. Lesslie paid a nominal fee of $2 per prescription. By means of double doctoring, he defrauded the Ontario Drug Benefit Program. Although the Crown proceeded on the basis of a charge of fraud under $5000, the actual amount of the fraud was $11,995.67.
The Circumstances of Mr. Lesslie
Mr. Lesslie is 51 years old. He lives in Collingwood with his wife, daughter and grandchildren. They live in rented premises.
Mr. Lesslie has a previous criminal record for fail to appear in court and theft under, in 2003.
He was prescribed fentanyl and other opiates, after multiple operations on his back relating to damaged spinal discs, from 1986 to 2013. He became dependent on fentanyl as a result.
Mr. Lesslie has hepatitis C.
I was told that at the time of his arrest, Mr. Lesslie worked cleaning up housing construction sites. However, records show that he was receiving Ontario Works since November 2008, and that he declared no income, including in the fall of 2013.
Mr. Lesslie’s brother, who operates a concrete forming business, provided a letter offering Mr. Lesslie employment, effective in April 2017.
Mr. Lesslie has been a patient of the Opioid Agonist Therapy Program of Ontario Addiction Treatment Centres, in Collingwood, since October 2013. He attends the clinic once a week to receive methadone, which he takes daily. He is being treated for an anxiety disorder, in addition to substance abuse disorder. He sees a physician for weekly drug screens. One of those screens was positive for opiates, in October 2014.
Mr. Lesslie was arrested on April 20, 2013, and released on a promise to appear and undertaking. After additional charges were laid, he was re-released on a recognizance with a surety and conditions, on September 13, 2013. One of the conditions was that he be in his residence at all times unless with a surety or Nicole Lesslie. In August 2015, Crown counsel was asked to agree to loosen the house arrest condition so that Mr. Lesslie could walk his grandchildren around Collingwood. Crown counsel said that she would agree to amendment of the condition so that he could be out of his house without a surety between 8:00 a.m. and 4:00 p.m. In October 2015, Mr. Lesslie asked that the condition be loosened to permit him to be out of his residence without a surety from 7:00 a.m. to 7:00 p.m., as an employment exception. Mr. Lesslie did not apply for a bail variation to effect either of his requests.
Mr. Lesslie spent seven days in pre-trial custody.
In court, Mr. Lesslie told me that he has turned his life around, and he is a different person today than he was five years ago. He indicated that he has the support of his wife and children.
The Positions of the Parties
On behalf of the federal Crown, Ms. Boyd seeks a sentence of 5 years in jail. She does not suggest that Mr. Lesslie obtained the opioids for the purpose of trafficking, but she emphasizes the magnitude of the double-doctoring in this case. Mr. Lesslie engaged in a deliberate and prolonged course of conduct that involved deceiving many doctors in order to receive fentanyl in particular. He abused a benefit program intended to assist the financially needy. Fentanyl is a powerful narcotic with the potential to be harmful. Access to it needs to be carefully controlled, for the protection of the public. Mr. Lesslie committed some of the offences reflected by counts 16 and 17, after his original arrest and release. Denunciation and general deterrence are the paramount objectives of sentencing in this case.
On behalf of Mr. Lesslie, Mr. Cojacaru submits that a conditional sentence of imprisonment of two years less than a day should be imposed, with a house arrest condition for the first four months. The aggravating factor of acting for commercial gain is absent in this case. Mr. Lesslie is a fentanyl addict. He obtained the opiates for his own use, because of his addiction. Since his arrest, he has sought to address his addiction issue. He pleaded guilty. He has been on bail for an extended time. He does not pose a risk to the community if he were to serve his sentence in the community. Mr. Cojacaru asks that Mr. Lesslie be credited for his time on a strict bail by a factor of one third, and for the equivalent of 11 days of pre-trial custody.
The Principles of Sentencing
The objectives of sentencing long recognized at common law have been codified in s. 718 of the Criminal Code. They are: the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.
Additionally, s. 10(1) of the Controlled Drugs and Substances Act states that the fundamental purpose of any sentence for a designated substance offence is to contribute to respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, treatment, and acknowledgement of the harm done to victims and the community.
Section 718.1 of the Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.
I agree that denunciation and general deterrence are key objectives in sentencing an offender for the offence of double-doctoring. Specific deterrence must also play a role in a case like this, where the conduct was repetitive over a period of time. Rehabilitation takes something of a back seat, but its prospect cannot be ignored for an offender with no, or only a minimal, prior criminal record.
Analysis
The nature of the controlled substance primarily involved in this case is a highly aggravating factor. Fentanyl is a powerful opiate, described as being many times more potent than heroin. It is sought after “on the street” because of its powerful effect. But, it is highly addictive and, when not used as intended by a prescribing physician, very dangerous. Its availability “on the street” through illicit distribution has led to overdose deaths in communities across the country. All of this underscores the societal importance of ensuring that access to fentanyl is carefully controlled, and that its availability through prescription is not abused.
Mr. Lesslie’s double doctoring offences were committed repeatedly and over a long period of time. The offences involved the deception of numerous physicians, and attendances at a number of pharmacies to fill prescriptions that he obtained by deceit. His activity was not spur of the moment, but rather very deliberate. This is illustrated by the range of physicians and pharmacies he visited to obtain and fill prescriptions to which he knew he was not entitled. The quantity of narcotics, particularly the number of fentanyl patches obtained, is highly aggravating. So too is the fact that he persisted in the activity after his first arrest.
While I recognize that the narcotics were not distributed within the community, the fact that Mr. Lesslie gained possession of large quantities of fentanyl represented a potential risk to the community in the event they fell into the wrong hands. In addition, he abused an important social program that is intended to assist those in financial need.
There are mitigating facts in this case that must be considered. The mitigating effect of Mr. Lesslie’s guilty pleas is somewhat tempered by the fact that they were not early pleas. His pleas are, however, a sign of remorse and willingness to accept responsibility for his actions. They spared the time and expense of a trial.
Mr. Lesslie is not a first offender. His criminal record is, however, relativity minimal, and did not involve jail sentences.
The Crown does not suggest that Mr. Lesslie obtained the prescriptions for the purpose of trafficking the drugs, or that he did traffic them. I accept that Mr. Lesslie is an addict and that he obtained the fentanyl patches and other narcotics for his own use. While the quantity is very high, the individual dosages were sometimes significantly lower than the dosage that the medical records indicate he was accustomed to taking.
Mr. Lesslie’s criminal conduct is attributable to his fentanyl addiction, not to monetary greed. I accept that he became addicted to fentanyl after a series of back surgeries. Mr. Lesslie has come to recognize that he has a substance abuse problem. He sought help for it at an opioid therapy program, where he receives methadone. He has been attending the program for over three years. With one exception, his drug screens apparently have been negative for opioids. This indicates compliance with the program.
For a variety of reasons, the guilty plea and sentencing proceedings were subject to unfortunate delays. Mr. Lesslie’s house arrest bail condition has been in place for about 45 months. There is no evidence before me of breach of the release terms.
I have not been provided with caselaw that indicates a range of sentence for double doctoring of this kind. Crown counsel relied on sentences imposed in cases where fentanyl was trafficked, or at least possessed for the purpose of trafficking, with the prospect of financial gain. Significant penitentiary sentences were imposed in those cases. But, as I have already said, this is not a case of trafficking. Trafficking in fentanyl and possession of fentanyl for the purpose of trafficking carry maximum sentences of life imprisonment. In contrast, double doctoring carries a maximum sentence of seven years in jail. In that way, it is more akin to the offence of simple possession, on the sentencing scale. In fact, the offence of double doctoring is found within s. 4 of the Controlled Drugs and Substances Act, which also contains the offence of possession.
Balancing the aggravating and mitigating factors, and having regard to the applicable principles of sentencing, I am satisfied that a high end reformatory length sentence should be imposed.
I am not satisfied that Mr. Lesslie should be permitted to serve the sentence in the community as a conditional sentence of imprisonment. Such a sentence would not be consistent with the fundamental purpose and principles of sentencing set out in the Criminal Code, given the extended period of time over which the offences were committed, the number of occurrences, the nature of the drug primarily obtained, the quantity obtained, and the deliberate nature of Mr. Lesslie’s conduct.
I conclude that a global sentence of 22 months in jail, followed by probation to assist Mr. Lesslie in his rehabilitation, is appropriate.
The remaining issue is the credit to be given for the time spent on a house arrest bail. It is clear that time spent under stringent bail conditions must be taken into account as a relevant mitigating circumstance. The amount of credit will depend on a number of factors, including the ability of the offender to carry on normal relationships, employment and activity. The offender should provide the sentencing judge with information as to impact of the conditions: R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 205 C.C.C. (3d)488(Ont. C.A.).
I was given limited information about the impact of the strict bail conditions on Mr. Lesslie. Obviously his liberty was impacted. But, I am not satisfied that he had any real prospect of gainful employment that was impaired, or that his relationships with family members were disrupted, or that he could not participate in activities important to him such as religious observance, or that he could not obtain necessary medical or dental care. I note that he failed to proceed with a bail review after Crown counsel agreed to loosen the house arrest condition. In these circumstances, he is entitled to limited credit for his time on bail under house arrest. The appropriate credit for the 45 months spent on bail under house arrest, combined with credit of 11 days for pre-sentence custody, is 12 months.
Conclusion
Mr. Lesslie, please stand. On count 2, I sentence you to 22 months in jail, less credit of 12 months for strict bail conditions and pre-trial custody, leaving a net jail sentence to be served of 10 months.
The jail term will be followed by 18 months of probation. The conditions are the statutory conditions and in addition the following:
Report within 48 hours of release to a probation officer and thereafter as required;
Do not purchase, possess or consume any controlled drugs that have not been prescribed for you by a physician by a legitimate prescription in your name;
Attend for any assessment and counselling as recommended by your probation officer and sign releases so that your progress can be monitored by your probation officer;
Not stop that assessment and counselling without the prior written permission of your probation officer.
I impose a concurrent sentence of 10 months in jail on each of counts 3, 4, 8, 10, 11, 13, 14, 15, 16, 17, and 23.
You may be seated. There were no ancillary orders requested as I recall, Ms. Boyd.
MS. BOYD: That’s correct, Your Honour.
THE COURT: Is there anything that needs to be clarified, Ms. Boyd, or Mr. Cojacaru?
MR. COJACARU: No, Your Honour.
MS. BOYD: The only thing, Your Honour, when you mentioned the first – the first count I think you referred to it as count 1 instead of count 2?
THE COURT: Oh, count 2 then, yes.
MS. BOYD: I may be mistaken, it’s late in the day.
THE COURT: No, you’re correct, count 2, that was...
MS. BOYD: Thank you.
THE COURT: If I said count 1 that was my error, I may have misread. All right, are there any recommendations that you want noted on the warrant, Mr. Cojocaru?
MR. COJOCARU: Just in terms of his methadone, Your Honour.
THE COURT: Yes.
MR. COJOCARU: His first methadone dose, he needs to take it tomorrow morning.
THE COURT: And all the counts, I take it, are withdrawn at the request of the Crown, Ms. Boyd?
MS. BOYD: Yes, all remaining counts, please, be marked withdrawn.
THE COURT: I have endorsed on the indictment, Mr. Lesslie is sentenced on count 2 to 22 months in jail, less credit of 12 months for pre-trial custody and strict bail conditions leaving a net jail sentence of 10 months. That is followed by probation of 18 months on conditions read into the record. I impose concurrent sentences of 10 months in jail on each of counts 3, 4, 8, 10, 11, 13, 14, 15, 16, 17 and 23. All other counts are withdrawn at the request of the Crown. The jail is requested to provide Mr. Lesslie with his daily dosage of methadone.
...WHEREUPON PROCEEDINGS WERE CONCLUDED
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Regina v. David Lesslie,
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