SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

LIRIDON IMEROVIK

REASONS FOR SENTENCE

BEFORE THE HONOURABLE JUSTICE M. FUERST

on January 30, 2019 at NEWMARKET, Ontario

APPEARANCES:

G. Roy/A. Hauk Counsel for the Crown R. Barrs Counsel for the Defendant

Wednesday, January 30, 2019

REASONS FOR SENTENCE

FUERST, J. (Orally):

Introduction

Liridon Imerovik was involved with others in the illicit distribution of hundreds of fentanyl patches.

He pleaded guilty to two counts of trafficking fentanyl, and one count of possession of fentanyl for the purpose of trafficking.

Fentanyl is a dangerous and highly addictive drug. It is included in Schedule 1 of the Controlled Drugs and Substances Act. The maximum sentence for trafficking in fentanyl, and for possession of fentanyl for the purpose of trafficking is life imprisonment. This is a clear indication of Parliament’s view of the seriousness of these offences.

The Circumstances of the Offences

Mr. Imerovik admitted, by way of an Agreed Statement of Facts and by his testimony on the sentencing hearing, that from August 2015 until his arrest on January 19, 2016, he participated in a fentanyl trafficking scheme with a Toronto pharmacist, a Toronto physician, and others.

By arrangement with the pharmacist and the physician, Mr. Imerovik brought patients, and in some instances just patient information (including the names of patients whose fentanyl prescriptions were due for refill) to the physician. As the physician’s trial is still pending, I will refer to him as Dr. X.

Dr. X wrote prescriptions in the names of the patients, for 30 fentanyl patches at a time. Mr. Imerovik collected the prescriptions from Dr. X, and delivered them to the pharmacist, Shereen El Azrak. She dispensed the fentanyl. Mr. Imerovik collected the fentanyl from her, and then sold it to Sean Holmes. Mr. Imerovik collected the money from Mr. Holmes.

When he testified before me, Mr. Imerovik said that he brought Mr. Holmes into the scheme, and met with him once a week.

Mr. Imerovik had regular discussions with Ms. El Azrak, by text. Those messages indicated that they agreed Dr. X would write prescriptions for 30 patches of fentanyl, for each of four patients per week. This number was decided upon, because they were concerned that if too many prescriptions from Dr. X were filled at the pharmacy, it would attract the attention of the authorities.

Initially, Dr. X wrote prescriptions as agreed, for 30 patches of fentanyl per patient for four patients per week. However, Mr. Imerovik sometimes complained to Ms. El Azrak that other people were getting prescriptions from Dr. X, and that if she was allowing more than four per week, the prescriptions should have been given to him.

In September 2015, Dr. X arranged with Ms. El Azrak to increase the number of prescriptions to six per week.

For each patient, Dr. X was paid $1500, and Ms. El Azrak was paid $500. By his own admission, Mr. Imerovik received $1000 per week as his “commission”.

On January 19, 2016, Mr. Imerovik was arrested after meeting with Mr. Holmes and Alexandra Boudreau at a hotel in Vaughan. Mr. Imerovik was in possession of $31,905 in cash. The police found in the hotel room 165 100-microgram patches of fentanyl, which Mr. Imerovik had trafficked to Mr. Holmes.

Mr. Imerovik was in possession of a list of names, broken down into four weeks, with six names per week. All of these individuals had been prescribed fentanyl by Dr. X, which was dispensed by Ms. El Azrak.

The police searched Mr. Imerovik’s apartment. They found another 88 100-microgram fentanyl patches. Some were in a box with a prescription label in the name of Mr. Imerovik’s girlfriend. The police found an empty box for fentanyl patches prescribed for Mr. Imerovik by another physician in January 2015, and other boxes with labels in the names of other people for fentanyl patches prescribed by Dr. X. The police also found $14,283 in cash in a backpack in a closet.

It is agreed that Dr. X began prescribing fentanyl patches that were dispensed by Ms. El Azrak in March 2015, before the Crown alleges that Mr. Imerovik became involved. Approximately 6400 100-microgram patches were dispensed between March 2015 and January 2016.

The precise quantity of fentanyl patches trafficked by Mr. Imerovik is not known. However, it is estimated and agreed by the parties that from August 1, 2015, at which point Mr. Imerovik was involved, to January 20, 2016, approximately 2780 fentanyl patches were dispensed by Ms. El Azrak on the basis of prescriptions written by Dr. X.

Mr. Imerovik testified before me that he trafficked the fentanyl knowing how dangerous it was and the potential for harm to others. He said that his main concern was having a constant supply of fentanyl for himself, because of his own addiction to it.

The Circumstances of Mr. Imerovik

Mr. Imerovik is now 28 years old. He is single.

He grew up in Toronto as the eldest of two children, in a stable and loving family. He left high school without completing his diploma. He held some short-term employment positions, before going to work at his father’s restaurant.

In 2010, he and his father were in a motor vehicle collision. Both suffered injuries. Mr. Imerovik injured his shoulders and back. He was prescribed percocet for pain management. He became addicted. Eventually he switched to oxycontin, and became addicted to it.

Mr. Imerovik was hired by Ms. El Azrak to do legitimate deliveries, for which he was paid $500 per week. He testified that he intentionally got a job as a delivery person at the pharmacy, so that he would have ready access to opioids. There was a medical clinic located at the pharmacy. He was able to obtain prescriptions for 100 oxycontin pills a month from the physician there.

After the physician left the clinic, Mr. Imerovik became involved with Ms. El Azrak and Dr. X in the fentanyl trafficking scheme, in 2015. For his participation, he received the additional weekly “commission”.

Mr. Imerovik testified before me that he began using fentanyl patches because he could no longer get high from oxycontin alone. He had access to fentanyl patches through Dr. X and the pharmacy. He became addicted to fentanyl.

As a result of his addiction, he became distant and withdrawn from his family. He gained a great deal of weight, and at one point weighed around 300 pounds. He denied his parents’ suspicions that he was using drugs.

After his arrest, he was released on a house arrest bail with his parents as sureties. For about six months, he was bound by a house arrest condition.

As a result of his arrest, Mr. Imerovik’s mother lost her security clearance, and was unable to continue working at her job as a security screener at Pearson Airport.

While on release, in mid-2017 Mr. Imerovik was arrested on another matter that remains outstanding. He was re-released on a house arrest bail, but with a different surety.

After his initial arrest, he got off fentanyl and used only oxycontin. In May 2016, he began seeing a physician who gradually reduced the amount of oxycontin he was prescribed.

In August 2017, Mr. Imerovik went to a physician who runs addiction clinics. He got off oxycontin and began a methadone program with that physician. It involved attending weekly for urine drug screening. He was fully compliant with the methadone program. He tested negative for drug abuse from January 2018 on. The physician gradually reduced the dosage of methadone Mr. Imerovik was taking.

Mr. Imerovik began attending a gym regularly, and lost around 100 pounds. He discussed his addiction with his parents and sister, and became more communicative with them. His parents and sister testified before me that once he told them about his drug addiction, they supported him in his efforts to get clean. They are happy with his progress and remain supportive of him.

Effective the end of November 2018, Mr. Imerovik is no longer on methadone. He testified that he is substance-free.

The physician who runs the methadone program described Mr. Imerovik as highly motivated. However, he recommended that Mr. Imerovik have counselling on a regular basis to reduce the risk of relapse. In late 2018, Mr. Imerovik registered for counselling with Addiction Services for York Region.

In October 2017, Mr. Imerovik sustained bilateral shoulder dislocations, associated with displaced fractures, during an event that was described as a generalized seizure. He required surgery. A physician’s report indicates that he has limited range of movement in both shoulders, rated at 15 percent on the left and 30 percent on the right, and that he needs assistance in daily activities such as getting dressed and bathing. He requires regular intense rehabilitation to prevent “frozen shoulder” and further loss of range of movement. His prognosis for physical improvement is very poor, and he will require long term care.

In late December 2017, he suffered a second seizure, described as a generalized tonic-clonic seizure.

Mr. Imerovik currently is unemployed and unable to work because of disability resulting from his shoulder injury. He is supported financially by his parents. Once he has served his sentence, he intends to move to Macedonia, which is his mother’s native country. He plans to attend university there and to start a new life working with people suffering from drug addiction.

The Positions of the Parties

On behalf of the federal Crown, Ms. Hauk and Mr. Roy seek a sentence of 8 years in jail, plus a s. 109 order, a DNA order, and forfeiture of all cash seized by the police. They submit that denunciation and general deterrence are the paramount objectives of sentencing in this case.

They emphasize the insidious nature of fentanyl, the large number of patches involved, and the fact that Mr. Imerovik played a key role in the scheme. Without him, the scheme would not have been as successful as it was. They concede the mitigating factors of the guilty pleas, Mr. Imerovik’s status as a relatively youthful first offender, his addiction, his good prospects for rehabilitation given his family and community supports, and that he has been out of custody on a house arrest bail. However, they rely on R. v. Loor, 2017 ONCA 696, for the proposition that trafficking significant amounts of fentanyl should attract a significant penitentiary sentence.

On behalf of Mr. Imerovik, Mr. Barrs seeks a reformatory sentence. He agrees that fentanyl is an insidious substance, but suggests that much of the blame for its abuse lies with the pharmaceutical companies and the medical profession who touted it as a miracle drug. He emphasizes that Mr. Imerovik’s circumstances are unique. He is a first offender who was relatively youthful when he became involved in a scheme that he did not create. He was an addict who had become addicted to opioids after a car accident. The pharmacist and the physician who were behind the scheme took advantage of his addiction and used him to traffic for their financial benefit. Unlike them, his participation did not involve a breach of trust. He has rehabilitated himself and is clean and sober. Because of his permanent disability, he will be unable to protect himself in a penitentiary setting. He has been on a house arrest bail for about two years in total, which should attract some credit against his sentence. Mr. Barrs did not seek any credit for any pre-trial custody. He made no submissions about the ancillary orders sought, including the Crown’s request for forfeiture.

The Principles of Sentencing

The objectives of sentencing that I am required to consider are set out in s. 718 of the Criminal Code. They are: the denunciation of unlawful conduct and the harm done to victims or the community; 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 to victims or the community.

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 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 set out some aggravating factors. 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.

The offences in this case involve fentanyl. There can be no doubt that it is a very dangerous substance when used illicitly, because of its potency. It has been described as 20 times more powerful than heroin. It is particularly dangerous when it is obtained through the adulteration of patches, because its dosage cannot be determined by the user. Its abuse puts users at risk not just of addiction, but also of death. As its abuse has become more widespread in Ontario, lives have been lost in our communities. All of this was recognized by the Court of Appeal for Ontario, in its decision in Loor.

For those reasons, deterrence, most particularly general deterrence, as well as denunciation, must be the paramount objectives of sentencing for trafficking fentanyl. While I do not ignore rehabilitation as an objective in fashioning a fit sentence for Mr. Imerovik, it plays a lesser role than denunciation and deterrence.

Analysis

Sentencing is, as expressed by the Supreme Court of Canada, “a highly individualized exercise that goes beyond a purely mathematical calculation”: see R. v. Lacasse, 2015 SCC 64, at paragraph 58. Judges often attempt to locate a particular case on a continuum known as a range of sentence. In Loor in 2017, the Court of appeal for Ontario observed that it might be too early to establish a range of sentence for fentanyl trafficking, because so few cases had reached that court.

Neither Crown nor defence counsel provided me with a case that suggests the Court has more recently identified an applicable range of sentence. In any event, as the Supreme Court of Canada expressed in Lacasse, at paragraph 478, ranges are primarily guidelines, and not hard and fast rules that straightjacket the exercise of the sentencing judge’s discretion.

I treat the fentanyl trafficking cases to which I was referred by Crown counsel as guideposts, but not as decisions that handcuff me. In determining the appropriate sentence, I must have regard to the gravity of the offence, Mr. Imerovik’s degree of responsibility, and the specific circumstances of this case.

There is no doubt that trafficking in fentanyl has attracted significant penitentiary sentences, even for first offenders. For example, in R. v. Lu, 2016 ONCA 479, the Court of Appeal for Ontario upheld a sentence of two and a half years in jail for an offender who trafficked 20 fentanyl patches, and emphasized that general deterrence and denunciation are the paramount factors. Defence counsel provided me with no jurisprudence in support of his submission that a reformatory length sentence should be imposed on Mr. Imerovik.

Of the cases referenced by Crown counsel, a series of three sentencing decisions of the Court of Appeal for Ontario in fentanyl trafficking cases are important to my determination of the appropriate sentence for Mr. Imerovik.

The offender in R. v. Baks, 2015 ONCA 560, participated in a fentanyl trafficking operation, along with a Mr. Godreau and a Mr. Sinclair. The operation involved the trafficking of 990 fentanyl patches of the highest potency of 100 micrograms. Ms. Baks was employed in a physician’s office. She created false patient profiles which she inputted into her employer’s computer system without the physician’s knowledge. She then created false fentanyl prescriptions for the fictitious patients. She gave the prescriptions to Mr. Sinclair. They were passed on by Mr. Sinclair, or more often by Mr. Godreau, to the fake patients, who had the prescriptions filled. The fentanyl patches were given to Mr. Sinclair or Mr. Godreau, who then trafficked them for profit.

The Court of Appeal for Ontario described Ms. Baks as playing a key role in a somewhat sophisticated operation involving a large amount of a very dangerous drug. It noted that she betrayed the trust of her employer. The offence was serious. The Court found that a 9 year jail term would be entirely appropriate. However, the Court recognized that there were mitigating factors that it described, at paragraph 4, as “powerful”.

The offender was a young person with no prior criminal record, her rehabilitative prospects were excellent, she acted at the instigation of and under some pressure from someone above her in the scheme with whom she had a romantic relationship, and she cooperated with the police by giving a statement and testifying against Mr. Sinclair and Mr. Godreau, who were higher up in the operation. The Court reduced her sentence, imposed on her guilty plea, from 9 years to 6 years in jail.

Subsequently, in R. v. Sinclair, 2016 ONCA 683, the Court reduced the offender’s sentence imposed on his guilty plea, from 9 to 8 years, to provide parity with the sentence of Ms. Baks. The Court noted that Mr. Sinclair had made excellent progress in custody such that his rehabilitation was realistic, and that he too testified against Mr. Godreau.

Mr. Godreau was sentenced after a trial to 10 years in jail: see R. v. Godreau, 2016 ONSC 6318. The trial judge relied on the sentences arrived at by the Court of Appeal for Ms. Baks and Mr. Sinclair. He noted the absence of mitigating factors and the fact that Mr. Godreau had a prior criminal record for drug trafficking.

The offender in Loor participated in the fentanyl trafficking operation run by Ms. Baks, Mr. Sinclair and Mr. Godreau. He obtained a total of 45 fentanyl patches, using a forged prescription prepared in his name by Ms. Baks, on three occasions. He did not profit much financially. He was described by the Court of Appeal for Ontario, at paragraph 41, as a “low-level member” of the drug trafficking ring. However, he had a previous criminal record, including for trafficking. The appellate court found that his crimes and their consequences were serious, and upheld a sentence imposed after trial of 6 years in jail less pre-trial custody. The Court pointed out that it was an aggravating factor that Mr. Loor had a previous criminal record, including a conviction described as a conviction for trafficking.

The Court commented at paragraph 32 that proportionality means that the sentence imposed “depends on the gravity of the crime and its consequences and on the offender’s degree of responsibility or moral blameworthiness”. At paragraph 41, the Court suggested that an offender’s status as an addict trafficker might serve to reduce his moral blameworthiness.

Against that background, I turn to the aggravating and mitigating factors in this case.

The aggravating circumstances are significant. They include:

1. The substance involved, fentanyl in the form of patches, is an exceedingly dangerous drug, the abuse of which is associated with deaths in Ontario and across the country.
2. The fentanyl trafficking in this case was not casual or spur of the moment. It was a calculated operation of some sophistication.
3. Mr. Imerovik’s involvement in the fentanyl trafficking operation was not short-lived. It spanned several months.
4. While I accept that Mr. Imerovik did not craft the scheme, he was not just a bit player. He had an integral role in the operation’s success. He provided the patient information to the physician, collected the prescriptions and delivered them to the pharmacist, collected the fentanyl from the pharmacist, and then trafficked it to an individual whom he brought into the scheme. He participated in discussions about the quantity of fentanyl that would be distributed, with a view to avoiding detection by the authorities.
5. During the period of his involvement, an estimated 2780 fentanyl patches of maximum strength were dispensed by the pharmacist. By Mr. Imerovik’s admission, most of those patches were trafficked by him. This is a very large number, significantly exceeding that in the case of Baks, Sinclair and Godreau. It is a reasonable inference that some, if not all, of the patches purchased by Mr. Holmes were in turn distributed to members of the public, creating a potentially catastrophic health risk to users.
6. There was an aspect of commercial gain to Mr. Imerovik’s activity, in that he was paid $1000 per week for his participation.
7. Mr. Imerovik admitted he knew that fentanyl was a dangerous drug that could potentially harm others.

There are important mitigating circumstances. They include:

1. Mr. Imerovik pleaded guilty, which is a sign of his remorse and acceptance of responsibility for his actions.
2. He is a first offender.
3. He was relatively youthful when he committed the offences.
4. Although, as I have noted, there was a commercial aspect to Mr. Imerovik’s participation, I accept that the feeding of his own fentanyl addiction was an important motivator for his involvement. After his arrest, he took impressive steps to address his addiction. It is very much to his credit that he persevered, made life-style changes, and succeeded in getting clean of substance use. That said, in R. v. Ward (1980), 56 C.C.C. (2d) 15, the Court of Appeal for Ontario observed that the fact the offender had, during the interval between the commission of the offence and his trial rid himself of his drug dependency, was a mitigating circumstance but not an exceptional circumstance.
5. The pre-sentence report was a positive one.
6. Mr. Imerovik remains motivated to take steps, most particularly to engage in counselling, to ensure that he does not relapse. He has the support of his parents and sister. His prospects of rehabilitation are very good.

I have considered defence counsel’s submission that because of his disability, Mr. Imerovik would be unable to defend himself in a penitentiary setting. I accept that he has physical limitations, but there is no evidence before me that he would be at any greater risk of harm in any particular penitentiary than he would be in a reformatory. Further, there is no evidence before me that those who operate the penitentiaries take the well-being of their inmates any less seriously than do those who run the reformatories.

I do take into account, however, that because Mr. Imerovik’s physical limitations make certain daily activities more challenging for him, a custodial setting will be more difficult for him than if he had no limitations.

Conclusion

This is a very serious set of offences involving large amounts of a dangerous drug. The gravity of the offences is substantial. Even though there was no breach of trust on Mr. Imerovik’s part, his moral blameworthiness is significant.

Were it not for the mitigating factors, the sentence suggested by Crown counsel would be entirely appropriate. However, a sentence of 8 years in jail does not adequately reflect the mitigating factors, particularly that Mr. Imerovik was an addict who has taken steps to address his substance abuse problem. While those factors do not operate to reduce an otherwise appropriate jail sentence to one of reformatory length, they do operate to reduce the sentence below 8 years.

The appropriate sentence is one of 6 years in jail.

I have been asked to give some credit for Mr. Imerovik’s time on a house arrest release. That time is approximately two years. I have little information as to the impact of the house arrest on Mr. Imerovik, in particular his ability to carry on normal relationships, employment and activities. He testified that he is unable to work because of his disability. I conclude that his bail conditions had no impact on employment. Clearly, he was able to attend medical appointments, to participate in a methadone program, and to initiate counselling. He was able to maintain contact with his family. He lived with his parents for the first half year of his release. Since he began living with a different surety, his parents visit him often. His relationship with his girlfriend ended not because of his bail conditions, but because she did not wish to follow his lead to become drug-free.

In short, while every house arrest release imposes some restriction on the individual’s liberty, there is no evidence before me that Mr. Imerovik’s activities or relationships have been constrained in any significant way.

I grant him 4 months’ credit for the time spent on house arrest bail.

Mr. Imerovik, please stand. I sentence you on count 1 to 6 years in jail, less 4 months for the time on house arrest bail, leaving a sentence to be served of 5 years and 8 months. I sentence you on count 4 to 5 years and 8 months in jail to be served concurrently, and on count 5 to 5 years and 8 months in jail to be served concurrently.

I recommend you for placement in a minimum security institution. This recommendation will be endorsed on the warrant of committal.

On each count, I make a s. 109(2)(a) order for 10 years, a s. 109(2)(b) order for life, and an order that you provide bodily fluid samples for DNA testing. I order forfeiture as requested by the Crown.

You may be seated.

Mr. Roy, Mr. Barrs, is there anything else that needs to be addressed?

MR. BARRS: No thank you.

MR. ROY: No. I haven’t looked at the indictment today. I believe there’s another charge Mr. Imerovik is facing which should be double checked, but if so...

THE COURT: All right.

MR. ROY: ...I’d ask that the other charge be withdrawn.

THE COURT: I’ll need to endorse the indictment in any event, and I want to put the recommendation on the warrant of committal. Could we have the security staff up please, Madam Registrar?

COURTROOM REGISTRAR: Yes.

THE COURT: Thank you. All right. If we can just have Mr. Imerovik back to the front of the court so I can read the endorsement, please. And you have the warrant, or a warrant there so we can make that endorsement? All right.

I make the following endorsement on the indictment. Mr. Imerovik is sentenced on count 1 to 6 years in jail, less 4 months credit for strict bail conditions, for a sentence to be served of 5 years and 8 months in jail; on count 4 to 5 years and 8 months in jail concurrent. Excuse me, I need Mr. Imerovik to stay while I finish reading this. On count 4 to 5 years and 8 months in jail concurrent; and, on count 5 to 5 years and 8 months in jail concurrent. There is a section 109(2)(a) order for 10 years, a section 109(2)(b) order for life, and a DNA order on all counts. Forfeiture as requested by the Crown is ordered. All other counts are withdrawn at the request of the Crown. I recommend incarceration in a minimum security institution. And we’ll have the warrant ready momentarily. Thank you. All right. So when that warrant is ready, I’ll endorse it.

COURTROOM REGISTRAR: Yes.

THE COURT: Thank you.

MATTER CONCLUDED.