COURT FILE NO.: CR-17-02740

DATE: 20180925

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHEREEN EL-AZRAK and OMAR EL-AZRAK

Defendants

Geoffrey Roy and Amanda Hauk, for the Crown

Kim Schofield, for the Defendant, Shereen El-Azrak

Peter Zaduk, for the Defendant, Omar El-Azrak

HEARD: May 7-11, 14, 22-25, 28-31, June 1, 4, 15, 18, 28 and July 16, 2018

REASONS FOR JUDGMENT

DE SA J.:

Overview

[1] The accused are each charged with 2 counts on the indictment. The Crown alleges that between the dates of August 1, 2015 and January 20, 2016, Shereen El-Azrak (Shereen) and Omar El-Azrak (Omar) trafficked in fentanyl and possessed fentanyl for the purpose of trafficking contrary to s. 5 of the Controlled Drugs and Substances Act.

[2] After hearing the evidence and argument, I reserved my decision. These are my reasons.

Summary of Facts

[3] Shereen is a pharmacist. At the relevant time, she had a “delivery driver” by the name of Liridon Imerovik (Imerovik) or “Donny”. She was also affiliated with a doctor, Dr. Otto, who would routinely write and send prescriptions for fentanyl to Shereen’s pharmacy (the Weston PharmaChoice) for processing.

[4] The Crown theory is that Donny was obtaining illicit prescriptions from Dr. Otto in the names of various patients. Shereen knew the prescriptions to be false, and knowingly filled them. The fentanyl would be given by Shereen to Donny for illicit distribution. The Crown alleges that Omar also participated in the scheme by obtaining fentanyl by prescription, and providing the fentanyl to Donny for sale in exchange for money.

[5] Much of the evidence at trial was tendered by way of agreement. An agreed statement of facts was filed. In addition, a book of documents was filed on consent. Within that book of documents was included a drug usage report listing the fentanyl dispensed from the Weston PharmaChoice over the relevant period (the Drug Usage Report).

[6] I will not summarize the contents of the agreed statement of facts in all of its detail, but will merely outline some of the main facts.

Imerovik Trafficking Drugs to Holmes

[7] In October 2015, the York Regional Police Service (YRPS) commenced an investigation into the alleged trafficking of fentanyl in York Region. The YRPS received information from the Sudbury Police that a known fentanyl trafficker (Sean Holmes) was traveling to York Region to obtain his fentanyl.

[8] Police investigation confirmed that Sean Holmes was routinely meeting with Imerovik when he would attend York Region. On the basis of surveillance (observed meetings and exchanges), police identified Imerovik as Holmes’ supplier of fentanyl.

[9] On January 19, 2016, at approximately 11:15 p.m., police observed Sean Holmes and Alexandra Boudreau arrive at Hotel Novotel located at 200 Bass Pro Mills Drive, Vaughan. They checked into hotel room #321.

[10] At approximately 11:40 p.m., police observed Imerovik arrive at Hotel Novotel. After attending at Holmes’ hotel room (#321), he left the room carrying a flowered gift bag. Surveillance confirmed this bag was not in Imerovik’s possession prior to his attendance at the hotel.

[11] Imerovik returned to his vehicle. Imerovik placed the flowered gift bag inside the car and drove away. He was subsequently stopped by a marked police car and placed under arrest for trafficking a controlled substance. After his arrest, $31,905 was recovered from the flowered gift bag. The money was organized into 6 large bundles and 1 smaller bundle with different coloured elastics.

[12] In Imerovik’s front right pants’ pocket, police located two prescription labels from the lids of fentanyl prescription boxes. Both were from Weston PharmaChoice, with the following details: (1) a prescription in the name of Assouyouti Moustapha dated January 15, 2016 for 30 fentanyl patches (prescription #N055440); and (2) a prescription in the name of Omar El-Azrak dated December 1, 2015 for 30 fentanyl patches (prescription #N05546).

[13] In Imerovik’s front left pants’ pocket, police found an envelope that had a list of names broken down by weeks. In each week, there are six names. If the list is compared to the Drug Usage Report (October 1 to January 20), all of the patients on the list had been dispensed fentanyl from the pharmacy, and more or less according to the weeks listed on the paper with some measure of variation.

Search of Holmes’ Hotel Room

[14] Police then executed a Controlled Drugs and Substances Act search warrant at room #321 at Hotel Novotel. Sean Holmes and Alexandra Boudreau were arrested inside the hotel room.

[15] Police searched the hotel room (#321) and found 3 plastic boxes on the top shelf of the hotel closet. In total 165 patches of 100 mcg fentanyl were seized from the boxes.

[16] The 165 patches seized from Holmes at the hotel at the time of arrest would be valued at approximately $33,000 which is consistent to the funds located on Imerovik at the time of his arrest.

[17] Police also located an empty box of fentanyl patches with a prescription label in the name of Alexandra Boudreau. The prescription label indicated that it was written by Dr. George Otto and filled at Weston PharmaChoice.

Arrest of Sophia Zegas and Search of red Jeep Cherokee

[18] Following Imerovik’s arrest, police executed a Controlled Drugs and Substances Act search warrant at Imerovik’s home address of 2900 Highway 7 West, suite #2500 in Vaughan. During the search of the address, police seized a total of 88, 100 mcg fentanyl patches. Fifty-eight of the patches were found in a kitchen drawer, some in boxes, and some loose. Of the 58, 30 were in a box that had the prescription label for Sophia Zegas, dated December 29, 2015 and prescribed by Dr. George Otto.

[19] In the same drawer, police located 11 empty boxes for fentanyl 100 mcg patches. One box had a prescription for Imerovik, dispensed on January 15, 2015 from Weston PharmaChoice, with a prescription written by Dr. Gabriela Franklin.

[20] Police located an additional 6 boxes for 100 mcg fentanyl patches (5 per box) in the TV stand drawer. The prescription labels on two of the boxes were in the name of Shannon McPherson and Charlene Chevers and both had dispensing dates of January 11, 2016 from Weston PharmaChoice and from prescriptions given by Dr. George Otto.

[21] Police located $14,283 in Canadian currency in a backpack in the bedroom closet, in a “Nestle” brand cooler bag.

[22] Police also searched a Jeep Cherokee with license plate BXBJ613. Police had observed Imerovik driving this red Jeep Cherokee on numerous occasions during the investigation.

[23] In the back seat of the red Jeep Cherokee, the police found a doctor requisition form in the name of Imerovik. They also located several medical documents in the names of other persons which included: extensive medical documents and a photocopy of the health card of Assouyouti Moustapha; two Doctor Authorization forms for Halima Kaarshe, from Weston PharmaChoice and printed on December 16, 2015; a CD and related medical documents for Alicia Helm.

Arrest of Dr. Otto and Search of Dr. Otto’s Car and Office

[24] On March 23, 2016, police arrested Dr. George Otto and executed warrants at his office, his residence and on his car.

[25] Inside the trunk of his car, police found a Sun Life Insurance bag containing a series of patient labels. These labels had the names, dates of birth and OHIP numbers for various patients. The names listed on the patient labels were all patients who had been dispensed fentanyl from Weston PharmaChoice.

[26] Various “blank” handwritten prescriptions signed by Dr. Otto for 100 mcg fentanyl (quantity 30) with these same type of patient labels secured onto them were located in the vehicle.

[27] A series of paper strips were also located. Each strip had a patient name, a health card number and a date. The date, and names on the paper strips correspond to patients listed in the Drug Usage Report obtained from the Weston PharmaChoice.

Otto’s Home

[28] Police also searched Dr. Otto’s residence. On the second shelf in the closet of the master bedroom police located a sheet with a list of names on it, and dates beside each name. The names on that list correspond with records of patients who received prescriptions for fentanyl from Dr. Otto and subsequently filled them at Weston PharmaChoice. The police also found a paper from a prescription pad that had several names on it, including that of Omar El-Azrak.

Conspiracy to Traffic Fentanyl involving Imerovik

[29] Taken together, the evidence clearly demonstrates that Imerovik and Dr. Otto were involved in an illegal scheme to possess fentanyl for the purpose of trafficking. Given the various documents seized from Dr. Otto and Imerovik at the time of their arrest, together with a review of the Drug Usage Report, it is clear that both Donny and Dr. Otto were involved in creating false prescriptions to obtain fentanyl from the Weston PharmaChoice.

[30] The evidence also clearly establishes that Donny was diverting fentanyl obtained from the Weston PharmaChoice pharmacy. Items seized during his arrest and the warrants at his address as well as at the Hotel Novatel, in combination with the Drug Usage Report, confirms Donny was illegally diverting fentanyl.

[31] Counsel for Shereen El-Azrak does not dispute that the Crown has established that there is a conspiracy to illicitly possess fentanyl between Imerovik and Otto. The evidence also clearly establishes that Donny was diverting fentanyl obtained from the Weston PharmaChoice by using the false prescriptions obtained from Dr. Otto. Having reviewed the evidence, I am satisfied beyond a reasonable doubt of this fact. The main question in issue is whether or not Shereen knowingly participated in the scheme.

[32] The primary evidence relied upon by the Crown to establish Shereen’s “knowledge” are text messages between Imerovik and Shereen seized from Shereen’s phone. There is no dispute that these text messages are between Imerovik (Donny) and Shereen. The defence disputes that the content of the text messages pertain to an illicit conspiracy. Shereen testified at the trial, and provided explanations for many of the text messages relied upon by the Crown. I have outlined this evidence below.

Text Messages between Shereen and Imerovik

[33] Between August 2015 and January 2016, Shereen El-Azrak and Donny communicated via text message regarding prescriptions numerous times. Shereen testified and admitted that these text conversations were between herself and Donny (Imerovik). Many of the communications tendered by the Crown between Donny and Shereen relate to Donny obtaining prescriptions from Dr. Otto and Donny bringing the prescriptions to Shereen to process.

[34] In one exchange on August 26, 2015, Shereen had discussions with a person by the name of “Ro” regarding this arrangement with Donny. In that text, Shereen explained to Ro:

Why do you all have to go and talk and say I took a lot of money from Donny father, ok, and I told joe this so that no one talks again. Donny has a doctor who writes for him prescriptions for patches. I dispense it to him, it was a secret because he doesn’t want anyone to know who is the doctor.

By the way, it’s not 20000$ or 30000$ like what has been said.

Please stop the rumours

Am not stupid to give stuff without prescriptions

[35] According to Shereen, this arrangement was a legitimate arrangement where she was filling prescriptions from Dr. Otto. She would refer patients to Dr. Otto, and he would reciprocate by referring patients to the pharmacy. According to Shereen, Donny also had his own arrangement with Dr. Otto regarding new patients.

[36] She would give Donny a $20 bonus for new patients that were brought to the pharmacy. Shereen testified that many of the texts with Donny dealing with prescriptions relate to “patients” that Donny was trying to bring in to the pharmacy. According to Shereen, this was just part of the business.

[37] At some point, the texts indicate that Shereen became worried about the number of fentanyl prescriptions going through the pharmacy. She spoke to Donny about reducing the number of fentanyl prescriptions from Dr. Otto. Donny agreed to reduce the number. On August 30, 2015, the following exchange took place:

Shereen: Hi Donny, I was thinking about these prescriptions and I think 4 is quite a lot especially after what is going on and the pharmacy flagged for dispensing a lot of these patches, now it will be monitored, so, we need to find a plan, at least until everything is fine.

Shereen: So maybe u should think of something.

Donny: I think ur right.

Shereen: It’s still ok to have prescriptions it’s just the volume.

Shereen: Will talk about it later still plenty of time.

Shereen: Plus the guy could not tell me anything last time bec I have real prescriptions.

Donny: we just gonna do a little for now.

Donny: Slow things a lot.

[38] According to Shereen, she had concerns that Dr. Otto was writing too many fentanyl prescriptions for new patients. Shereen also had concerns about some of the younger patients Donny was bringing in. She knew fentanyl was bad and there were risks. She testified that she started to restrict the number of “new patients” and started to only dispense to patients she knew. She was trying to control the situation.

[39] However, many of the texts between Shereen and Donny evidently deal with just “prescriptions”, not patients. There is no communication regarding the identity of a patient, there is no reference to a patient’s name, or a patient’s particular medical circumstances.

[40] I don’t accept the explanation offered by Shereen regarding the meaning of the text messages. When viewed in context, it is clear that the texts relate to a scheme to illicitly dispense fentanyl and the need to cover that supply with “prescriptions”.

[41] I find that Shereen was aware that the prescriptions from Dr. Otto were not legitimate and that she was aware that Imerovik was diverting fentanyl. No doubt, Shereen was trying to limit the volume of fentanyl going out of the pharmacy to avoid detection. The texts indicate that Donny was limited to 4 prescriptions per week from Dr. Otto, and at some points, as much as 6. The lists seized from Donny at the time of his arrest, as well as the Drug Usage Report support this interpretation. From the texts, Shereen believed this number could go through the pharmacy without drawing attention to the scheme.

[42] The texts indicate that Shereen had also been unlawfully dispensing fentanyl to more people than just Donny. When Donny initially became aware that Shereen was illicitly supplying fentanyl to others in October of 2015, the texts indicate he was upset about it. Shereen assured Donny that he was still getting more fentanyl than the others. Donny was also worried that Dr. Otto had become known to other dealers, and these other dealers would not have their patients under “control”. He was concerned that the scheme would be revealed. On October 3, 2015, the texts between Donny and Shereen were as follows:

Shereen: Otto was going to fax me 4, u can tell him to fax for 6 as he will not be able to post date prescriptions he’s not comfortable with it, that’s what he told me.

Donny: I get it but why are u making so much volume to help these random people.

Shereen: Am not helping random ppl Donny.

Donny: U told me u have no space to dispense

Donny: It was because they were takin the space.

Shereen: And I did not reduce u

Donny: I just don’t get that u told me no space and when other random are getting it.

Shereen: I will just tell u 1 thing Donny, it up to u if u want to believe, no one gets more than what you get.

Shereen: And if u want to knw exactly how many scripts was dispensed to them, it was 5

And I told Kaife am not taking no more.

U can Ask Kaife, they already took 6 or 7 scripts to the other pharmacy.

Donny: But I’m scared because these people. So many people know. He’s the new kumra now.

Donny: But I just feel if too many come from Otto it’s no good

Donny: Different doctors are better.

Donny: If so much come from Otto it looks bad

Sherreen: If you meet Otto Tom tell him to reduce or stop these ppl.

Shereen: I will talk to him too

Shereen: Because when this started I was worried.

Shereen: Then Kaife told me he wants more.

Donny: Like even a total of 6 in a week is so much from Otto.

Donny: if it’s just 4 it looks normal.

[43] On October 9, 2015, Donny again raised the issue of Shereen sending other dealers to Dr. Otto for prescriptions. Donny was still worried that Dr. Otto’s numerous prescriptions would draw the attention of the authorities and reveal the fentanyl conspiracy. He said to her:

Donny: This Arab guy will do anything in his power to convince u to work with Otto

Donny: I won’t be mad if u do I don’t have the right to be mad at u for anything but I just see all of it happening again… And I’m scared to work with Otto at the same time as someone else I’m not ready to go to jail.

Donny: I can’t go to jail so if he is getting from Otto just let me know so I can back off.

Donny: But if I know someone is getting from Otto as well and I’m not comfortable with that person then I would need to look for another doctor.

Shereen: Didn’t I talk to him and told him.

[44] On October 23, 2015, Donny again expressed concerns that Shereen was using Dr. Otto to get prescriptions for other dealers.

Donny: After today I will just care for bringing u patients and my own business.

Donny: And u think that if they ever get in trouble u think they won’t talk about u

Donny: I would rather sit in jail for years then say u were involved.

Shereen: Donny this was my last time to give them bec Otto back dated.

Shereen: Next time they have their pharmacy

Donny: If we gonna work on cleaning things up its not good to still give to them.

Donny: if college comes and see that 12 patients a week from Otto that is crazy.

Shereen: I swear I dispense to u, ro, alex and Sean

Shereen: 2 frm semeer this week

Donny: These patches are so bad

Donny: On news everyday

Donny: And we have too much talk about the pharmacy from joe and all these people.

Donny: We need to stay very low.

Shereen: Yea but remember dr writes ligid prescription.

Shereen: They can’t tell me one word.

Donny: I know this Shereen but they gonna ask who did u give the medication too

Donny: what if they ask u who came to pick up the meds

Donny: They will see its fishy with so many a week.

[45] At some point, it appears that Shereen dispensed more fentanyl than she had prescriptions to cover for. She needed Donny’s help to get additional prescriptions to cover for the overages. For example, on September 1, 2015, she had the following conversation with Donny:

Donny: Also Otto is waiting for me I told him slow things so only 2 this week.

Donny: Do u know any names that are due?

Shereen: Ok I will check when I reach the pharmacy and will let u knw.

Donny: Shereen I really mean it when I say don’t worry about $$$

Donny: Please don’t ever worry abot it cuz this guys will never pay u

Shereen: thx Donny I know, it’s not that it’s the prescriptions.

Donny: I will get some from Otto

Donny: I will make a deal with Otto

Donny: I will tell him we have a problem and we will not be able to continue if we dot fix it.

Donny: He will have no choice but to send some.

Donny: Listen we need to make a plan

Donny: This can’t continue like this.

Shereen: Let’s see if G will fix

[46] On January 3, 2016, Shereen had the following conversation with Donny:

Shereen: What am I gonna do with the replacement scripts.

Donny: For who?

Shereen: For alex Sean rosa

Donny: Rosa and then

Shereen: Can Otto give me frm his patients

Donny: Well we will just use 4 names.

Donny: Better our names then them

Donny: And tell them to pay 2000

Donny: 1500 for ott and 500 for patient

Shereen: They paid Otto already.

Donny: Okay I will ask him

Shereen: If he can find 4 frm his just this time.

[47] On January 5, 2016, Donny confirmed he got names for the scripts from a connection at the hospital:

Donny: I have the scripts.

Shereen: Ok pls.

Shereen: Did they get the names to give to him.

Donny: No connection in the hospital.

[48] On January 6, 2016, Shereen spoke to Rosetta and limited her to 5 prescriptions:

Shereen: I spoke with Doctor tonight, he will give total of 5 scripts for u, Sean and Alex, so see how ur gonna do it.

Ro: our always changing your mind with me. One day You say one thing and the next day another thing then your mad. What are we supposed to do?

Ro: Today you said we can gather a few names now your telling us only 5.

Shereen: The dr said total of 5, so that’s like 3 for each.

Shereen: He doesn’t want to overdo this even with Donny he reduced him a lot.

[49] On January 12, 2016, Shereen spoke with Donny:

Donny: We need to fix the advances

Donny: Very important

Donny: if u like I can get w script from Otto so u can cover for some boxes

Donny: If u like

Donny: Under my name

Shereen: the prob is we need many scripts.

Donny: We can make a meeting with Otto

Donny: me u and him

Donny: And bring this up to him

Shereen: I don’t think he will agree.

[50] Exchanges between Donny and Shereen in January again reflects their concerns about the fentanyl advances and the fact that they did not have a sufficient number of prescriptions to cover them. On January 12, 2016, the exchange went as follows:

Donny: We need to fix the advances.

Donny: if u like I can get w script from Otto so u can cover for some boxes.

Donny: Under my name.

Shereen: The prob is we need many scripts.

Donny: We can make a meeting with Otto

Donny: Me u and him

Shereen: I don’t think he will agree.

Shereen: He’s just too comfortable now

Shereen: We opened this to him.

Shereen: It’s ok I will see him tomorrow and get this fixed.

Shereen: But it’s good that u get good patients.

Shereen: And they go and see him, that way he justifies.

[51] Shereen testified, in cross-examination, that she needed to get additional scripts to cover boxes of fentanyl that were “stolen” by Joe Commisso. According to Shereen, Joe Commisso (a patient) had stolen a large box containing numerous patches, and she needed to get prescriptions to cover the stolen patches. According to the defence, the numerous references regarding Shereen trying to obtain prescriptions with Donny relate to this stolen box of fentanyl. They do not relate to a scheme to traffic fentanyl.

[52] I have no doubt that Shereen was in need of prescriptions to cover fentanyl advances made to other customers. When police executed warrants at the pharmacy, they located various hand written notations consistent with “debt lists” (Exhibit 40). While Shereen testified that Donny made some of the notations on the debt list, Shereen acknowledged these debt lists belonged to her. A number of individuals were listed together with notations referencing “scripts” owing in relation to “boxes”. Some of the notations included:

Cosmo: owes script for 13 boxes and need to pay

Joe: owes script for 26 boxes and needs to pay. Owes 75 oxy. Total 30 Box + 75 oxy (paid $1000).

Frank: Advanced 4 boxes.

Rosa: Advanced 6 boxes from next script.

[53] The debt lists seized confirm that Shereen had been advancing fentanyl regularly and required prescriptions to cover them. Clearly she made advances which needed to be covered by prescriptions, and as such, I accept Donny was assisting with obtaining the prescriptions to help cover them. At some point, the advances got out of control and Donny was helping Shereen to cover them with prescriptions.

[54] However, this does not change the fact that many of the conversations with Donny clearly deal with their own illicit scheme to traffic fentanyl. Shereen was knowingly supplying Donny with fentanyl for the purposes of trafficking. The text messages make this clear. I reject Shereen’s explanations regarding the nature of her discussions with Donny.

[55] My conclusion is supported by the fact that Shereen was backdating many of the fentanyl prescriptions she received from Dr. Otto.

[56] When a narcotic is dispensed from the pharmacy, the prescription number (RX number) is registered chronologically in the system. If one were to look at each of the prescription numbers issued on a single day for all the narcotics dispensed from the pharmacy, they would increase sequentially and in chronological order. Accordingly, the prescription number should relate to the date and time the drug is dispensed.

[57] From a review of the Drug Usage Reports for the fentanyl dispensed from Weston PharmaChoice, the sequence of drugs dispensed has been altered. In other words, the prescription numbers do not proceed in sequential order. From a review of the numbers, it becomes evident that various fentanyl prescriptions have been “backdated”. In other words, the date on the prescription has been manually altered to indicate that the drug was dispensed on an earlier date.

[58] In her testimony, Shereen admitted that she had been backdating prescriptions. According to Shereen, she backdated prescriptions because Dr. Otto had been away for vacation in early October and was suspended in November. She testified that she was trying to match the date on the record to the date on the actual prescription. According to Shereen, she did not want to be filling prescriptions during a period when the doctor was suspended.

[59] I do not accept this explanation. Even if this were a reasonable explanation for the period when Dr. Otto was suspended, there would be no reason to backdate when he was away on vacation in October. Moreover, there are dates in January when prescriptions were backdated. In my view, the backdating was likely done to conceal the number of fentanyl prescriptions being dispensed at a certain period of time. Again, a chronological ordering of the prescription numbers makes this evident.

[60] If the numbers are reordered sequentially, it becomes apparent that in certain instances, certain patients have been prescribed a substantial amount of fentanyl over a short period of time (Alexzandra Commisso, Sean Amouri). The backdating would conceal this fact. In addition, the backdating could be used to conceal the actual number of fentanyl prescriptions that were being dispensed at any one time from the pharmacy.

[61] Whether the backdating was used for this purpose or not would not change my assessment of the meaning of the text messages. The text messages make it clear that Shereen was knowingly participating in the scheme to traffic in fentanyl with Donny.

[62] In making this determination, I recognize the burden always remains on the Crown to prove the allegations beyond a reasonable doubt. The accused is presumed innocent until the Crown proves the offences beyond a reasonable doubt. Where there is defence evidence, including testimony from the accused as in this case, the court must not assume that its verdict can be based on a choice between the Crown’s evidence and the accused’s evidence. I must apply the rules set out in R. v. W.D., [1991] SCR 742, as follows:

1. If I believe the evidence of the accused, I must acquit.

2. If I do not believe the evidence of the accused, but I am left with a reasonable doubt by it, I must acquit.

3. Even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence I accept, I am convinced beyond a reasonable doubt by the evidence of the accused’s guilt.

[63] I am satisfied beyond a reasonable doubt that Shereen El-Azrak is guilty of the charges. I reject Shereen’s evidence, and I am not left in doubt by it. I am satisfied beyond a reasonable doubt that the text messages relate to Shereen’s participation in the illicit scheme to possess and traffic fentanyl with Donny. There is no other reasonable interpretation for those messages when considered in the context of the evidence as a whole. Having regard to the evidence I accept, I am satisfied beyond a reasonable doubt that Shereen willingly participated in the scheme to illegally possess and traffic in fentanyl.

[64] As such, I find her guilty of both charges in the indictment.

Allegations against Omar

[65] The Crown alleges that Omar was a party to the fentanyl scheme. The Crown takes the position that Omar participated in the trafficking by allowing Donny and Shereen to use his fentanyl/prescriptions for illicit distribution. In exchange, the Crown argues that the evidence demonstrates that Omar would receive cash payments from Donny.

[66] The Crown relies largely on various conversations between Donny and Shereen regarding Omar and his fentanyl. The conversations demonstrate that Shereen and Donny were using prescriptions in the name of Omar. Omar’s fentanyl was being given to Donny for sale. The Crown takes the position that the texts together with the other evidence demonstrates that Omar knowingly participated in the scheme.

[67] For example, on August 14, 2015, the following exchange took place relating to Omar’s prescriptions:

Donny: But u gave me a extra one because yesterday u gave me one.

Donny: So today should have only been 5 for one of them

Donny: But when u give me ur omars give him 5 boxes and I’ll use the extra one u gave me.

Shereen: Shall I give omar to moe

Donny: I don’t think moe will take it

Donny: Unless u come with him.

Donny: Monday I’m coming to pay my bills

Donny: Everything I will pay.

Donny: If u want bring it home

Donny: And ur brother can meet me on the weekend.

Shereen: I can’t am already late

Shereen: Shall I give it to Mario am meeting him today for his drink

Donny: Okay so just bring it home

Donny: No, don’t give it to him.

Donny: Bring it home I will meet him tomorrow.

Donny: Poor Omar been so long for him.

Donny: I hope he will be happy.

Donny: I love his smile when he gets it.

Donny: He only does that smile when I give him $.

Shereen: Well yes he told me I don’t want anymore.

Donny: How come

Shereen: I feel there is problems

Donny: He is stressing u think

Shereen: No he feels these boxes

Shereen: R problems

Shereen: To u

Shereen: Do I ow u frm last week

Donny: No I don’t think so

Donny: U gave it to me

Shereen: Ok so there is nothing else except 5 for omar.

Shereen: Where will u meet him.

[68] On August 19, 2015, the following exchange took place:

Shereen: Hi Donny, r u taking omar 5?

Donny: Yes of course

Donny: Do u have it with u

Donny: I will be paying my things as well as pick up Omar things.

Donny: If Omar has it he needs to bring it to me.

Donny: And he was mad

Donny: Saying why is it every 2 months.

Donny: And that he wants 2

Shereen: Who was mad

Donny: Omar

Donny He asking me why is it always every 2 months.

Donny: I always said check if Omar is due

Shereen: Don’t I need to give u 5 for omar because of this extra

Shereen: And u will use 1

Donny: I will send someone with money to pay my receipts.

Donny: And they will pick up Omar things.

Donny: And it will take me a couple days to deal with it.

Donny: I have to be safe.

Donny: I have to wait for someone to come.

Donny If I had $ I would give it today for him.

[69] On September 11, 2015:

Donny: How is ur brother

Shereen: Depressed.

Sheren: What can we do

Shereen: D u think Otto can give him script

Donny: Yes

Donny: What name

Shereen: His

Donny: He’s due again?

Shereen I have to check.

[70] On September 22, 2015:

Shereen: Hi Donny am trying to find out from kosi what he needs for his brother but he is not answering can u pls find out.

Shereen: Also ask Otto to start sending the scripts and my brother he did not send yet.

Donny: Okay I’ll call Kosi

Donny: And he will send ur brothers tomorrow with 2 others and 2 the next and 2 after that.

Donny: Friday I’ll have the money ready to give to ur brother.

[71] On November 24, 2015:

Shereen: Can I give u my brother stuff Tom until I get prescription frm Otto so that he doesn’t miss November.

Donny: Yes please

Donny: If u like just use one of mine if it’s a problem for u

Shereen: My brother gets upset with me thinking I don’t want to dispense him

Shereen: That’s why I asked u if u could take it.

Shereen: Don’t tell him that I told u he’s upset

Shereen: He doesn’t tell me he’s upset but I feel it.

Donny: Otto wouldn’t write anything for old patient.

Donny: I swear to god he wouldn’t write because Otto is not in office

Donny: He gave all new patients that are back dated.

Shereen: I know that.

Donny: But I have plans with ur brother now once Otto is back.

Donny: I’m gonna help him like crazy.

Donny: His sister is the best connection in the world and he is so patient for his 1.

[72] As evident from the above texts, most of the evidence relied upon by the Crown against Omar comes from the acts and declarations of the alleged co-actors. The Crown seeks to rely upon the co-actors exception to establish its case.

[73] The first step of Carter requires defining the relevant “conspiracy” to which the allegation of agency relates. This assists with defining the relevant considerations for step 2 and step 3. As Rosenberg J.A. explained in R. v. Bogiatzis, 2010 ONCA 902, at paras 34-37:

The theory of agency only makes sense in the context of the actual conspiracy to which the accused is alleged to be a member, not some other conspiracy. The co-conspirator is not the accused’s agent for all possible purposes, but in relation to a specific agreement.

[74] In this case, the relevant conspiracy is a narrow one, and as noted above, relates to the use of Omar’s prescriptions in the diversion of fentanyl. In reviewing the evidence, I am satisfied beyond a reasonable doubt from the various text messages between Shereen and Donny and medical records tendered by the Crown, together with the seizures at the time of Imerovik’s arrest that Shereen and Imerovik were using Omar’s prescriptions to illegally sell fentanyl.

[75] The question, however, remains whether or not Omar was a party to the conspiracy and to what extent the text messages between Donny and Shereen can be used to prove the case against Omar.

[76] The Carter approach request three steps to be followed before the trier of fact is permitted to consider such acts or declarations as evidence against the accused. As restated by McIntyre J. in R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694 at para. 73, those steps are as follows:

1. The trier of fact must first be satisfied beyond reasonable doubt that the alleged conspiracy in fact existed.

2. If the alleged conspiracy is found to exist then the trier of fact must review all the evidence that is directly admissible against the accused and decide on a balance of probabilities whether or not [the accused] is a member of the conspiracy.

3. If the trier of fact concludes on a balance of probabilities that the accused is a member of the conspiracy then [the trier] must go on and decide whether the Crown has established such membership beyond reasonable doubt. In this last step only, the trier of fact can apply the hearsay exception and consider evidence of acts and declarations of co-conspirators done in furtherance of the object of the conspiracy as evidence against the accused on the issue of his guilt.

[Emphasis added.]

[77] The defence takes the position that I am not entitled to consider the text messages themselves in determining whether branch two is made out. According to the defence, I am only entitled to consider the following evidence under the second branch of Carter:

1. December 4, 2015: Omar is at PharmaChoice late in the afternoon while Imerovik is present as well as a number of other adults.

2. December 18, 2015: The brief meeting between Omar and Imerovik where Imerovik is seen carrying a bag.

3. A single text from the phone registered to Omar and directed to Shereen’s phone which provides:

“Hi Shereen Donny messaged me and he is going crazy he’s saying that his friend said you only gave him four and your are saying you gave five”.

4. January 20, 2016: Police located close to $18,000 in Omar’s dresser. While the bag is similar to the bag carried by Imerovik when he met with Omar on December 18, there is no clear evidence that it is actually the bag carried by Imerovik 33 days earlier. Accordingly, the defence takes the position I can make nothing of the bag which the money is contained within. Shereen also testified that approximately ½ of this money belonged to her and she had withdrawn it. She kept it in Omar’s dresser to keep it from the kids.

[78] Given the limited evidence which is “directly” admissible against Omar, the defence argues that Omar cannot be connected to the conspiracy on a balance of probabilities under branch two so as to allow the Crown to rely on the communications between Shereen and Donny. According to the defence, these texts are inadmissible hearsay as against Omar, and cannot be considered in determining whether or not the Crown has made out its case.

[79] The defence also points to the importance of the third branch which limits what can be relied upon in assessing whether the offence has been made out. The defence takes the position that the various texts would not be “in furtherance” of the conspiracy. Much of the content of the text messages is “commentary” made by the co-actors about Omar. Accordingly, they would also be inadmissible under branch three. As explained in R. v. Blake (1844) 6 QB 126, at p. 138

… a mere statement, made by one conspirator to a third party, or any act of such conspirator not done in pursuance of the conspiracy, is not evidence for or against another conspirator.

[80] The Crown disagrees. The Crown takes the position that I can consider the text messages as a backdrop to Omar’s conduct in assessing whether he is connected to the conspiracy. I can also consider the label with Omar’s name on it which was seized from Imerovik at the time of his arrest. The Crown also takes the position that I can also consider the patient medical records demonstrating that Omar was receiving fentanyl. According to the Crown, when these medical records are considered in conjunction with the text messages, it makes clear that Omar was connected to the conversations and the conspiracy.

[81] The Crown argues that to consider whether someone is a member of a conspiracy, one must consider the member’s connection to the actual conspiracy alleged (Filiault and Kane (1982), 1981 3165 (ON CA), 63 C.C.C. (2d) 321 (Ont. C.A.)). In support of its position, the Crown relies on the statements of Weiler J.A. in R v. Gagnon, 2000 16863 (ON CA), 2000 CarswellOnt 3317 (Ont. C.A.) at para. 62:

Second, the trial judge did not simply tell the jury to use the all of the evidence as background. He said they could consider “all of the evidence as a background against which to interpret the acts and declarations of the person in question.” Given the trial judge’s instructions to consider only his words and deeds, at this stage in reference to each accused, the jury would have understood that they were to take a contextual approach to the evidence. The members of the jury were entitled to consider the hearsay acts of alleged co-conspirators to give meaning to the evidence of the appellants’ own acts and declarations. [Emphasis added]

[82] The defence vehemently disagrees with the Crown’s suggested approach. The defence takes the position that this approach collapses the first and second branches and essentially makes available all the evidence of the co-actors against the accused at branch two. According to the defence, this approach would completely negate the protections afforded by the second branch of the Carter test. The “context” must be limited to evidence reasonably proximate and clearly related to the accused’s own acts and declarations.

[83] The defence also argues that the label found in Imerovik’s possession and Omar’s medical records are not admissible. According to the defence, they again are the acts and declarations of the co-conspirators and/or pure hearsay. The actions of co-actors would only be admissible against Omar if and when he was found to be a probable member of the conspiracy.

Application of Branch Two and Three

[84] Although the acts and declarations of an alleged co-conspirator in furtherance of the alleged conspiracy may be provisionally admissible, the accused cannot be incriminated or convicted on the basis of such acts and declarations unless there is evidence directly admissible against him that demonstrates he was a party to the common design: R. v. Mota, 1979 CarswellOnt 81 at para. 22. In other words, there must be evidence apart from the hearsay statements themselves which ties the accused to the conspiracy and establishes his involvement on a balance of probabilities. As Martin J. also explained in R. v. Baron (1976), 1976 775 (ON CA), 14 O.R. (2d) 173 (C.A.) at p. 544:

The separate acts of alleged conspirators may initially and provisionally be admitted and viewed in combination, in order to establish the conspiracy.

If, however, at the end of the whole case there is no evidence afforded by the accused’s own acts or declarations admissible against him, that he was a party to the conspiracy he must be acquitted. [Emphasis added]

[85] I agree with the Crown that the accused’s acts and declarations must be considered in the context of the alleged conspiracy. The relevance of Omar’s actions when considered in the context of the alleged conspiracy are the basis for determining whether these actions are sufficiently probative of his involvement. The relevance and probative value of the “directly admissible” evidence are necessarily understood from the perspective of the conspiracy identified in branch one.

[86] The evidence is not being “admitted” against the accused at the second stage. It is merely being considered for the purpose of assessing the claim of the accused’s involvement and for determining the materiality or relevance of his own actions in context.

[87] If there is nothing, independent of the hearsay statements themselves, connecting the accused to the conspiracy, the second branch of the test will not be satisfied. It is only if the evidence directly admissible against the accused establishes “probable” membership in the conspiracy that the “in furtherance” hearsay statements can be considered to “prove” the offence (at stage three).

[88] If the evidence “directly admissible” against the accused is sufficient to demonstrate “probable membership” to the conspiracy, the statements made by the co-actors can be considered against the accused to prove the offence. As explained in Mapara at para. 28:

…it is not unfair to expect people who enter into criminal conspiracies to accept that if they are charged, the evidence of their co-conspirators about what they said in furtherance of the conspiracy may be used against them.

[89] In my view, I can consider the following evidence under branch two:

1. On December 18, 2015, CCTV video of Oamr El-Azrak meeting with Imerovik at 4-408 Forrest Laneway. During the meeting Imerovik was observed to be carrying a small rectangular item, consistent with bundles of money concealed in a white and purple bag.

2. On January 19, 2016, when Imerovik was arrested after leaving the hotel room associated to Sean Holmes, he was carrying a gift bag with the $31,905. At the time, he had in his possession two prescription labels from the lids of fentanyl boxes. Both were from Weston PharmaChoice. One was in the name of Omar El-Azrak, dated December 1, 2015 for 30 fentanyl patches with a prescription #N005546.

3. On January 20, 2016, police seized approximately $18,000 cash from a bedroom associated to Omar El-Azrak. The cash was located in a white and purple plastic bag. The bag was similar in size, shape and colour to the bag seen in the video in Imerovik’s possession on December 18, 2015. The cash both inside and outside of the bag was wrapped in coloured elastics similar to those elastics used to wrap the cash found in the flowered gift bag seized on Imerovik at the time of his arrest on January 19. Shereen, however, testified that she would also keep her funds in this drawer.

4. The patient medical records for Omar El-Azrak from Weston PharmaChoice detailing the prescription history for 100 mcg fentanyl patches during the period of the conspiracy.

[90] I don’t agree with the defence that the prescription in Imerovik’s possession in Omar’s name is inadmissible against Omar. The label in Omar’s name is relevant as real or tangible evidence: R. v. Emes, 2001 3973 (ON CA); R. v. Bridgman, 2017 ONCA 940. It connects Omar to Imerovik in the context of the relevant conspiracy in a very significant way, particularly when considered in the context of the various text messages between Shereen and Imerovik, and the previous meeting between Omar and Imerovik.

[91] This label would be evidence that is directly admissible against the accused to establish his membership. Contrary to the defence position, evidence admissible under the second branch against the accused is not limited to acts and declarations. Evidence directly admissible against the accused which implicates the accused in the conspiracy can be considered. It would make no sense not to consider otherwise “admissible” evidence in the assessment.[^1] In R. v. Carter, [1982] 1 SCR 938, 1982 35 (SCC), the Supreme Court explained at page 946-947:

In deciding the issue of membership for the purpose of determining guilt or innocence on the charge contained in the indictment, the hearsay exception may be brought into effect, but only where there is some evidence of the accused’s membership in the conspiracy directly admissible against him without reliance upon the hearsay exception raising the probability of his membership. It is not necessary that the directly admissible evidence be adduced first before any evidence of the acts and declarations of other conspirators may be received. [Emphasis added]

[92] Similarly, I also view Omar’s patient records (tendered as business records) as relevant under the second branch. They are “circumstantial evidence” of his connection to a fentanyl supply from Weston PharmaChoice.

[93] While the records are admissible as circumstantial evidence, however, I am not satisfied the patient records are highly probative of Omar’s involvement in this case. During the course of the trial, the Crown called evidence demonstrating that Shereen would dispense fentanyl to Donny (as part of the scheme) without the actual participation of the patients. Accordingly, the weight that Omar’s patient records receive as they pertain to Omar’s involvement in the conspiracy is necessarily limited. This is also true of the fentanyl label in Donny’s possession.

[94] My primary concern with relying on the hearsay exception here is that, in my view, the only evidence that really demonstrates Omar’s involvement in the conspiracy are the texts between the co-actors themselves. In my view, absent a consideration of the hearsay content of those text messages (which clearly implicate Omar), the evidence directly admissible against Omar is ambiguous at best. To get past the second branch, I would have to place substantial reliance on “content” of the hearsay statements made by the co-actors. I agree with the defence that this would be going beyond the “context” which is contemplated in their use at the second stage. It would be circumventing the protection afforded to the accused by the second stage.

[95] In my view, it would be unsafe to place reliance on the conversations of Donny and Shereen to convict the accused given the limited evidence directly implicating Omar in the scheme.

[96] On the basis of the evidence properly admissible against Omar, I am not satisfied beyond a reasonable doubt that Omar was also involved in the scheme to traffic in fentanyl.

[97] Accordingly, I acquit Omar on both counts.

Justice C.F. de Sa

Released: September 25, 2018

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

SHEREEN EL-AZRAK and OMAR EL-AZRAK

Defendants

REASONS FOR JUDGMENT

Justice C.F. de Sa

Released: September 25, 2018

[^1]: For example, if a firearm known to belong to the accused was found in possession of an alleged conspirator in a shooting, this evidence would be admissible against the accused under the second branch. The firearm would not be an “act or declaration”, however, it would still be relevant to the assessment of membership. This may be a more obvious example. However, the fentanyl label and patient records are no different.