COURT FILE NO. 2628/17

DATE: 20201015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

David Wilson, for the Crown

– and –

TODD EDMUND KEHOE

Stephen White, for the offender

Heard: September 10, 2020

S.T. BALE J.:

[1] Following trial by judge alone, the offender was found guilty of trafficking in fentanyl, contrary to s. 5(1) of the Controlled Drugs and Substances Act, knowingly causing a person to use forged fentanyl patches as if they were genuine, contrary to s. 368(1)(b) of the Criminal Code, and obtaining merchandise by false pretence, contrary to s. 362(1)(a) of the Code.

Circumstances of the offences

[2] On October 1, 2016, the Government of Ontario instituted a patch-for-patch fentanyl control program.[^1] Pursuant to the legislation, patients who receive a prescription for fentanyl are required to return their used patches to a pharmacy before receiving new ones.

[3] The offender had a prescription for fentanyl patches. The forgery and false pretense offences arose from the "return" by the offender of forged patches. The trafficking offence arose from the trafficking of patches obtained in that manner.

[4] Following the receipt of several tips, the police conducted surveillance of the offender on Tuesday, April 4, 2017. The following is a summary of their observations:

• a red van was observed at Sullivan's Pharmacy in East City;
• the offender got out of the van and entered the pharmacy;
• the offender left the pharmacy with a prescription bag and returned to the red van;
• the van travelled to a Shell station. At the station, the offender was seen leaving the passenger side of a silver Mazda and entering the passenger side of the red van. The red van had arrived at the station approximately three minutes before the offender was seen leaving the Mazda; and
• the van then travelled to Park Street where someone left the van and entered 194 Park Street North.

[5] On Tuesday, April 11, 2017, the police again conducted surveillance of the offender. The following is a summary of their observations:

• the same red van arrived at the area of 194 Park Street North;
• the offender and Bridget Bennewith entered the van;
• the van travelled to Sullivan's Pharmacy;
• the offender left the van and entered the pharmacy;
• the offender left the pharmacy with a prescription bag and returned to the red van;
• the van left the pharmacy and later stopped on the shoulder of the road where it remained for some time; and
• the van then returned to 194 Park Street North where Ms. Bennewith left the van and entered the residence.

[6] On Tuesday, May 16, 2017, the police again conducted surveillance of the offender. The following is a summary of their observations:

• the same red van arrived at the area of 194 Park Street North;
• Ms. Bennewith got into the van;
• the van travelled to Sullivan's Pharmacy;
• the offender got out of the van and entered the pharmacy;
• the offender left the pharmacy with a prescription bag and got back into the red van;
• the van travelled to the Shell gas station where it remained for some time and both the offender and the driver of the van were seen going into and coming out of the store; and
• the van then returned to 194 Park Street North where Ms. Bennewith left the van.

[7] On Tuesday, June 20, 2017, the police again conducted surveillance of the offender. The following is a summary of their observations:

• the offender left his residence on Marsdale Drive and entered a white pickup truck;
• the pickup truck travelled to 194 Park Street North where Ms. Bennewith was seen standing outside the residence;
• as the pickup was followed from the residence, a female was observed in the back seat on the passenger side of the vehicle;
• the pickup travelled to Sullivan's Pharmacy;
• the offender entered the pharmacy;
• the offender left the pharmacy with a prescription bag and returned to the pickup; and
• the pickup travelled to a convenience store, then back to 194 Park Street North, and then to a convenience store at Marsdale Drive where the offender entered an older Mercedes.

[8] The police arrested the offender as he left the Mercedes. The police then searched him, the Mercedes, and the white pickup truck. They found $570 cash and two open fentanyl patch containers on his person, and a prescription bag and six empty fentanyl patch containers in the truck. At the same time, the police arrested the driver of the pickup truck and found a fentanyl patch in the centre console of the truck. The driver told the police that the offender had given him the patch for driving him around. The police also arrested the driver of the Mercedes and found a half fentanyl patch on the front seat of the car.

[9] Over the course of their investigation, the police obtained four fentanyl patch return sheets that had been submitted by the offender to his pharmacist. Based upon analyses of those sheets by Health Canada and expert evidence led by the Crown, I concluded that the patches attached to the sheets were forgeries. During a later search of Ms. Bennewith's apartment, the police found evidence that she was engaged in the forgery of fentanyl patches.

Circumstances of the offender

[10] The offender is 40 years old. He is single and lives with his parents in Peterborough.

[11] His pre-sentence report is generally positive.

[12] He told the pre-sentence report writer that his parents have a positive relationship, free of abuse. He said that his childhood was excellent and that the family spent a lot of time together. He said that he could not have asked for better parents and that he has a great relationship with both. He also has a good relationship with his older sister whom he sees mostly on holidays.

[13] The offender has a grade 12 education. At the age of 32, he suffered a mini-stroke and was unable to work. Before the stroke, he had been employed for more than 10 years. He has now fully recovered from the stroke but remains unemployed and in receipt of social assistance. He expressed to the report-writer that he would like to resume employment in the industry in which he had previously been employed. He said that he has some debt but is managing financially.

[14] The offender told the report-writer that he used marijuana, cocaine and MDMA between the ages of 17 and 19 and that he continues to use marijuana regularly. He said that he was prescribed fentanyl by his physician in 2009, after suffering a back injury. He said that he took the fentanyl as prescribed for the first two years but then began to abuse it. He has been on a methadone program since June 2017.

[15] In 2012 or 2013, the offender was the victim of a home invasion. He was assaulted and robbed of his fentanyl patches. His parents report that he is being treated for depression and anxiety.

[16] The offender's family members and some friends expressed shock in learning of his offences and felt that they were totally out of character. Others were not surprised, reporting that he had been associating with the wrong crowd. His sister reported that he is a "follower".

[17] The offender told the report-writer that he does not agree with his conviction as he was prescribed fentanyl, and said that he is not a "bad person". He said that he has been distancing himself from "negative" associates that he had been involved with in the past. He likes to play games, read, rollerblade, play hockey and spend time with friends in his free time.

[18] In exercising his right of allocution, the offender said that he is sorry for what he did. I am prepared to take his word for it.

The positions of the parties

[19] Crown counsel submits that the appropriate range of sentence on the trafficking offence is four years, and on the forgery and false pretense offences, two years each. Considering the totality principle under s. 718.2 of the Code, he submits that the forgery and false pretence sentences should be served concurrently with the trafficking sentence.

[20] Defence counsel submits that a conditional sentence of two years less a day would be appropriate on a global basis.

Purpose and principles of sentencing

[21] Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[22] Section 10(1) of the Controlled Drugs and Substances Act provides that, without restricting the generality of the Criminal Code, 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, and treatment of offenders in appropriate circumstances, and acknowledgment of the harm done to victims and to the community.

[23] Section 718.1 of the Code provides, as the fundamental principle of sentencing, that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[24] Section 718.2 of the Code provides that a court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or decreased to account for any aggravating or mitigating circumstances relating to the offence or the offender;

(b) a sentence should be similar to those imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders.

Analysis

Nature of the trafficking

[25] The threshold question on this sentencing is the nature of the trafficking in which the offender was engaged. Crown counsel argues that the evidence establishes that it was commercial, low-level, street-trafficking, because there is no other explanation for the accused to have engaged in the forgery and false pretense offences over a period of approximately eight months.

[26] Defence counsel argues that the trafficking did not involve commercial transactions; but rather, a friendly sharing of fentanyl patches among prescription-holders. I do not accept the defence characterization of the trafficking, for the following reasons.

[27] First, defence counsel's argument is based on the evidence of Crown witness Brian Kent. It is therefore important to look closely at that evidence. The relevant portions are the following:

Examination-in-chief

Q. Before Mr. Kehoe exited your vehicle did he give you anything?

A. Um, yes on the way to the store, um, he had given me a what I would call a 25 milligram - microgram sorry - fentanyl patch just as a token of, you know, thanking me for driving him.

Q. Is that what he said or is that what you assumed?

A. He said, you know kind of thing, I forget the exact wording. But it was something along the lines of "Hey thanks, I appreciate you helping me today" and um, like I said, gave me one.

Q. And that's a 25-microgram fentanyl patch?

A. Correct.

Q. Did you ask for that?

A. No.

Q. And what you have just gone over is that the entirety of the discussion that you remember around that fentanyl patch?

A. Yeah. Like I said it was very brief, just a couple of friends. You know I did him a favour, I guess. I don't want to put words in his mouth, but he just said, you know, thank you again for helping me out, driving me, and he gave me as a gesture, I guess.

Cross-examination

Q. You told us about the quick transaction with the patch. You had a prescription?

A. Correct.

Q. And you told us that you knew Todd had a prescription and that he knew you had a prescription.

A. That's correct.

Q. Would you have described yourself as addicted to fentanyl at that time?

A. Um, if I didn't have it certainly my body would react so that's part of the effect of the drug so I guess you can call it that.

Q. You needed it?

A. Yeah, without it I would be in pain.

Q. Did you know why Todd had been prescribed fentanyl? What the reason was?

A. We had talked about it but I don't remember the clinical terms but, um, I had been lead that he had suffered chronic pain do to a disability. I don't know what that disability was. I forget. He told me but I forget.

Q. Was your prescription also the result of an injury?

A. Correct.

Q. If you are feeling particularly. If you are feeling a particular amount of pain do you sometimes take your patch a little more frequently than the doctor suggested was appropriate?

A. At times. Yeah.

Q. If that happens when you get to the end you run out right?

A. It happens. Yeah.

Q. Amongst people you know who were also prescribed fentanyl, and yourself, was there a general practice of helping each other out, if you run out of meds?

Mr. Wilson: Sorry. Can I just clarify. Are we just talking about Mr. Kent and Mr. Kehoe or talking about Mr. Kent, Mr. Kehoe and others?

Mr. White: We're talking about Mr. Kent and others, including Mr. Kehoe.

A. Okay. No. I would not say it was a general practice. No.

Q. Did it happen.

A. It did occur over a period of years, for sure. Yup. Those who were prescribed it. Primarily Todd and myself.

Q. So if you ran out, he might help you out and if he ran out, you might help him out?

A. Yup.

Q. Did you ever pay each other for fentanyl?

A. No.

Q. Did you pay anything for fentanyl that day?

A. No.

[28] In summary, Mr. Kent's evidence on the subject was that at times, over a period of years, he and the offender had helped each other out when one or the other had run out of patches; but that on the day of the arrests, he received a patch for driving the offender around. There was no evidence to connect "sharing" with the conduct that forms the subject-matter of the trafficking conviction.

[29] Second, an occasional sharing of patches does not account for the evidence of forgery and false pretenses. If that were the extent of the trafficking, it would not have been necessary for the offender to return forged patches to the pharmacy, on a regular basis. Defence counsel suggests that there might be another explanation, such as that the offender was smoking or otherwise using his patches in a manner which would prevent him from returning them after use; however, there was no evidence to support any such explanation.

[30] Third, when the offender was arrested, the police found $570 in cash in his pocket. Defence counsel's response to this fact is to the effect that lots of people have cash in their pockets, that $570 is "not an outrageous amount", and that there is no indication that the offender had a regular income stream that could not otherwise be explained. While this may be true, the evidence of the cash found must be considered in the context of the whole of the evidence. The offender had picked up four 25 microgram patches and four 50 microgram packages about an hour earlier when his prescription was filled. The police found six empty fentanyl patch containers in the truck. Of those six patches, two are accounted for (the patches in the possession of Messrs. Kent and Gorton); however, the remainder are not.

[31] Fourth, the offender was arrested on June 20, 2017. On three prior occasions – April 4, 2017, April 11, 2017 and May 16, 2017 - the offender was observed engaging in similar activities involving Ms. Bennewith and the pharmacy. Mr. Kent was not the driver on those earlier occasions. While there was no direct evidence of trafficking on those occasions, they are relevant to my determination of the nature of the trafficking in which the offender was engaged on June 20, 2017.

[32] Fifth, on April 4, 2017, the police were provided with three return sheets, at least two of which the offender must have returned on earlier dates. The patches on those sheets and on the one returned to the pharmacy on April 11, 2017 were forged. Added to that evidence was the evidence of the pharmacist to the effect that as early as October 2016, he had sufficient concerns with the authenticity of the patches being returned by the offender that he called the police (his call was not returned) and spoke with the offender's physician and the offender himself, in relation to those concerns.

[33] Sixth, common sense tells us that Ms. Bennewith was not forging the patches and providing them to the offender for nothing. And given that she travelled with the offender to the pharmacy on each occasion, it would seem likely that she received patches for her efforts. The offender would have had no control over her use, abuse or other disposition of those patches.

Dangers of fentanyl

[34] The fact that an opioid crisis exists and that opioid use has resulted in many deaths over recent years is beyond dispute. As Petersen J. put it in R. v. Olvedi, 2018 ONSC 6330, at paras 12-15: "Fentanyl, in particular, has assumed centre stage in the unfolding tragedy. … It is ravaging communities and claiming lives."

[35] Defence counsel argues that in considering the dangers of fentanyl use, the court should consider that in this case, there is no evidence that the offender provided fentanyl to anyone who was not a prescription-holding fentanyl user. He argues that all the dangers of fentanyl relating to its relative strength and the potential of a user to be mistaken about the quantity or quality of the drug do not exist. He argues that selling to such users is less morally culpable than selling it to users who don't know what they are getting into or do not have a prescription to use the drug at all. He says that the patches in this case were distributed to regular users who used it for pain control. However, that explanation accounts for one patch, at most, and I have found that multiple patches were trafficked.

Case law

[36] In R. v. Barham, 2014 ONCA 797, the offender appealed a 12-month sentence for possession of hydromorphone for the purpose of trafficking. In dismissing the appeal, the court said:

As for the second ground of appeal, contrary to the appellant's contention, the 12-month sentence for the hydromorphone offence is not harsh and excessive. Hydromorphone is a synthetic heroin substitute and is as serious a drug as heroin. Trafficking in heroin, even small amounts, will attract penitentiary time. [Citation omitted.]

[37] In R. v. Mudford (June 3, 2016), Simcoe, CR5-15 (S.C.J.), the offender was convicted of trafficking in fentanyl as a result of his selling one 100-microgram patch of fentanyl for $100. The source of the fentanyl was a legitimate prescription which the offender had just filled. In sentencing the offender to 27 months in penitentiary, Lofchik J. noted the following:

There is ample authority to support the imposition of a penitentiary sentence on even first offenders who are addicts, for the sale of small amounts of fentanyl, particularly in cases where exceptional circumstances do not exist. It is a message that the Court of Appeal has been sending for some time.

[38] In R. v. Lu, 2016 ONCA 479, the appellant was convicted of possession for the purpose of trafficking in relation to four boxes of fentanyl patches, each containing five 100-microgram patches. He was sentenced to two and one-half years in prison. In upholding the sentence on appeal, the court reasoned: "Fentanyl is one of the most highly addictive and dangerous drugs. It is illegally obtained exactly in this way, through the misappropriation of legally dispensed prescriptions. General deterrence and denunciation are paramount factors."

[39] In R. v. Fairbarn, 2018 ONSC 343, prescription pads stolen from the offender's employer were used to forge prescriptions for fentanyl that were then filled at a pharmacy. The offender did not write the prescriptions but did use a forged prescription to obtain 15 patches of fentanyl. On a conviction for causing a person to use a forged document as if it were genuine, she was sentenced to 12 months in prison.

[40] In R. v. Loor, 2017 ONCA 696. the offender was sentenced to six years in prison, less 18 months' credit for pe-sentence custody. In that case, the ringleaders recruited individuals to be the subject of prescriptions forged by a medical secretary. Those individuals would then attend a pharmacy, have the prescriptions filled, and remit the patches to the ringleaders. Mr. Loor had the prescription forged in his name filled three times, yielding a total of 45 patches. In upholding the sentence, the court commented that it was too early in its jurisprudence to establish a range for fentanyl trafficking, but that "generally, offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences."

Aggravating and mitigating factors

Mitigating factors

[41] The offender has strong family support and is a good candidate for rehabilitation.

[42] Although he had a conviction for impaired driving approximately 20 years ago, his minimal involvement with the criminal justice system is a mitigating factor.

[43] Defence counsel argues that because there was a legitimate Charter challenge in this case, the offender should receive the same mitigation as he would have received had he pleaded guilty, in the absence of that challenge. I disagree. The rationale for guilty plea mitigation is that a guilty plea indicates remorse and a positive step toward rehabilitation and saves valuable judicial resources. That rationale is not applicable in this case. I also note that at trial, the offender argued that the forgeries had not been sufficiently proved.

[44] Defence counsel argues that the offender is entitled to mitigation as an addict-trafficker. Again, I disagree. The extent of his addiction, at the time of the offences, is not at all clear, and I can see no connection between the trafficking and the addiction. The scheme in which he was involved did not yield him any more fentanyl than that which he was prescribed; and the trafficking suggests that he did not require all the patches prescribed to him.

Aggravating factors

[45] The offender trafficked a highly dangerous drug. At the time of his arrest, at least four of the eight patches that he had picked up, about an hour before, were unaccounted for.

[46] The offender deceived his pharmacist over a period of approximately eight months. Defence counsel argues that the offences in this case were less morally blameworthy than in the cases of forged prescriptions, because the offender did not receive any more patches than those to which his prescription entitled him. He argues that what the offender did was simply a breach of the regulatory scheme. While I take the point, it remains true that walking into the pharmacy and tendering the forged patches involved a high degree of moral blameworthiness.

[47] Crown counsel argues that this was a sophisticated crime involving, as it did, the forgery of fentanyl patches, and their use to deceive the pharmacy, and to evade the regulations intended to prevent the abuse of fentanyl, and the often-dire consequences that follow such abuse. Defence counsel disagrees. He argues that the crime should not be seen as particularly sophisticated, because the pharmacist had immediately noticed that the original forgeries were "bungled". However, the patches were forged by Ms. Bennewith using a computer, a scanner and the necessary supplies, the offender knew they were forged, and the scheme required the use of his prescription. The offender was able to use forged patches to obtain fentanyl for seven or eight months before being caught. In my view, the sophistication of the crime was sufficient to be an aggravating factor.

Disposition

[48] For the reasons given, denunciation and deterrence must be the primary objectives in arriving at a fit sentence for Mr. Kehoe. At the same time, it is important not to lose sight of other sentencing objectives and principles, including, rehabilitation, totality, parity and restraint.

[49] Mr. Kehoe you will serve a penitentiary sentence of 26 months on the conviction for trafficking in fentanyl (Count 1), and 18 months each on knowingly causing a person to use forged fentanyl patches as if they were genuine (Count 2) and obtaining merchandise by false pretence (Count 3), both concurrent to the sentence on Count 1.

[50] In addition, there will be the following ancillary orders:

• a weapons prohibition order under s. 109(2)(a) of the Criminal Code for 10 years, and under s. 109(2)(b) of the Code for life; and
• an order authorizing the taking of a DNA sample, and an order that you report and submit to the taking of the sample.

"S.T. Bale J."

Released: October 15, 2020

REASONS FOR SENTENCE

S.T. BALE J.

Released: October 15, 2020

[^1]: Safeguarding our Communities Act (Patch for Patch Return Policy), 2015, and O. Reg. 305/16.