R. v. Li Date:, 2017 BCPC 414

Citation: R. v. Li Date: 20171206 2017 BCPC 414 File No: 233780-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WAN JI LI EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K. DENHOFF Counsel for the Crown: A. Rice Counsel for the Defendant: B.R. Anderson

Place of Hearing: Vancouver, B.C. Date of Hearing: December 6, 2017 Date of Judgment: December 6, 2017 [1] THE COURT: Mr. Li has pled guilty to four counts of selling prescription drugs, contrary to C.01.041(1) of the Food andDrug Regulations C.R.C. c.870. [2] The charges arose out of an investigation by Pfizer Pharmaceuticals into the sale of Viagra and Cialis on craigslist. BothViagra and Cialis, which are for the treatment of erectile dysfunction, are manufactured and distributed by Pfizer.

The drugs wereoffered for sale on craigslist for a much lower price than they can be bought from a pharmacy, and so Pfizer hired a private investigatorwho made three purchases from Mr. Li in 2014. The purchases were on April 24 for $240; on June 6 for $40; and on August 15 for $80. A fourth purchase was made on May 7, 2015 for $100. The drugs sold also included Duloxetine, which is intended to treat depressionand anxiety. [3] The drugs were analyzed by Pfizer and were found to be counterfeits from China. None of the drugs can be lawfully purchasedin Canada without a prescription from a medical practitioner.

Some of the drugs contained other drugs not normally contained in Viagraor Cialis. [4] The Crown argues that there are several aggravating circumstances relating to the offences. Mr. Li was advertising for the saleof the drugs on craigslist from 2013 to 2015, although it is not known how many sales he may have made.

Since the drugs were notprescribed there were no medical assessments for the consumption of the drugs and no ongoing medical monitoring while the drugswere being used. [5] The Crown relies on a health risk assessment which comments on the health risks associated with using Viagra without aprescription. The primary side effects of the drug are fairly minor and include headaches, nasal congestions and urinary tract infections,all at very low percentages ranging from 2 percent to 16 percent of users.

The most serious risk is a possible relationship between the useof Viagra and cardiovascular events, although the relationship is not fully understood. [6] It is not difficult to accept that the consumption of regulated drugs without a prescription and without medical monitoring maypose health risks. Moreover, the drugs were sold without any packaging instructions, so purchasers may not have known therecommended dosage. [7] The Crown further argues that the court should consider that Canada Border Services intercepted over 100 shipments oferectile dysfunction drugs between 2012 and 2015.

Although the drugs were not addressed to Mr. Li, they were addressed to addressesrelated to Mr. Li. Canada Border Services sent over 100 notices to the addresses on the intercepted packages, cautioning that theimportation of drugs was a violation of the Food and Drug Act. [8] The Crown says the court should infer that the shipments were intended for Mr. Li and that he knew about them. Also, thatMr. Li received the notices from Canada Border Services. However, Mr. Li does not admit to knowing about the shipments or toreceiving any of the notices from Canada Border Services.

In the circumstances it was incumbent upon the Crown to conduct what hasbecome known as a "Gardner hearing" based on the law in R. v. Gardner, (1982) (SCC), 2 S.C.R. 368 para. 111. Inparticular, the Crown must prove all facts relied upon in addition to the essential legal ingredients of the offence if those facts arecontested. See also R. v. Paul,

(2011) B.C.C.A. 433 para. 55 and R. v. Smith

(2017) B.C.C.A. 112 paras. 26-28. [9] The Crown did not prove the importation allegations at the sentencing hearing, which is likely for the same reason that theCrown did not proceed with the importation charges on the Information. Since the Crown did not prove those facts which are contestedby Mr. Li, they will not be considered on sentencing. [10] The court is left with the essential facts on four counts of selling drugs contrary to C.01.04(1) of the Food and DrugRegulations, which provides that no person shall sell a prescription drug without a prescription. The three drugs sold by Mr.

Li are drugswhich require a prescription. The penalty for selling prescription drugs without a prescription is found in s.31 of the Food and Drug Act,by which an offender is liable to a fine not exceeding $5,000; or to imprisonment for a term not exceeding three years; or to both. [11] The Crown seeks a conditional sentence order for 18 months on various conditions and relies primarily on sentencing cases forthe unlawful sale of steroids. However, steroids are a controlled drug under the Controlled Drugs and Substances Act, and so thosecases are not a helpful guide.

As noted by the Crown and Defence in this case and by the Supreme Court of Newfoundland in R. v.Huynh

(2017) N.L.T.D.G. 44 para. 45, there is a dearth of case law on breaches of the Food and Drug Act for the sale of prescriptiondrugs. [12] The fact that Canada Border Services sent over 100 notices to an address related to the importation of prescription drugs withoutany charges being pursued suggests that breaches of this type are not considered a priority for enforcement. It seems that it was only atthe urging of Pfizer, which was presumably concerned about loss of profits and which conducted the entire investigation and handed thefile to the Crown, that steps were taken to prosecute the sales by Mr.

Li. [13] Nevertheless, the sales by Mr. Li were a contravention of the Food and Drug Act for which he must be sentenced. The court inHuynh noted that the normal penalty for a regulatory offence of this type is a fine. [14] R. v. Thomson (1992) (MB CA), 78 M.R. (2d) 206, 16 W.A.C. 206 involved the case of a veterinarianselling large quantities of restricted drugs under the Food and Drug Act. He was able to obtain the drugs by virtue of his professionallicence. The street value of the drugs was $5,000. He was convicted of three counts and fined $1,000 on each count, which was

increased to $2,000 per count on appeal. The Crown had sought a jail sentence on appeal, noting that the maximum sentence was a$5,000 fine or three years imprisonment or both. The Court of Appeal stated as follows: The Crown seeks the imposition of a jail term in substitution for the fine imposed. There are no cases reported in Canada where jailterms have been imposed for this type of offence.

The Court cannot be used as a vehicle to express condemnation of a social problemwhen Parliament has chosen not to address that problem with legislation to increase the maximum punishment permitted under the Act.The case for a jail term has not been made out on the evidence before this Court. [15] The facts in Thomson were more aggravating than in this case, as Dr. Thomson used his professional licence to obtain the drugsfor resale. The amount of the drugs sold was almost $5,000, whereas in this case it was $460, and Dr.

Thomson did not plead guilty butwas convicted. [16] Following Thomson, a medical doctor was sentenced to imprisonment for the sale of Valium to a teenage boy and teenage girlin R. v. Davidson (1984) (NB CA), 137 A.P.R. 338, 52 N.B.R. (2d) 338 (C.A.). At the time the doctor was inpossession of a significant number of pills, approximately 51,000. The trial judge imposed a sentence of six months imprisonment and afine of $3,000. The Court of Appeal reduced the term of imprisonment to one month. The court noted that the case was serious becausethe doctor took advantage of the trust that society placed in him.

He sold the drugs to teenagers and he had been convicted of severaldrug offences in the past, one of which resulted in a jail term. It should be noted that Valium is a controlled drug under the C.D.S.A. [17] As in Thomson, the case for a jail term has simply not been made out in this case, whether served in the community as theCrown suggests, or otherwise. There are several mitigating factors. Mr. Li pled guilty. The total amount of the four sales was $460, andMr. Li does not have a criminal record. [18] Mr. Li is 34 years old and emigrated from China when he was 10 years old.

He was raised by his mother, with whom he stilllives. He operates a business with four employees which has been very successful. Letters of reference in favour of Mr. Li were filedwith the court. [19] Taking into consideration the principles of sentencing, including denunciation, deterrence, rehabilitation and parity, I agree withDefence counsel that an appropriate sentence is a suspended sentence or a conditional discharge along with a fine. A conditionaldischarge would be in the best interest of Mr.

Li, particularly since he travels overseas both for business and to see relatives still in China. [20] The real issue is whether it would be contrary to the public interest to grant a conditional discharge to Mr. Li. Given all of themitigating circumstances, society is best served by allowing an individual who is contributing to society by operating a business andemploying others, to continue to contribute to society without being burdened by a criminal record. Moreover, the same goals of asuspended sentence can be achieved through the conditions of a conditional discharge with a penalty of a fine. [21] Mr.

Li is granted a conditional discharge for a period of 12 months, the terms of which are as follows. You will keep the peaceand be of good behaviour. You will report to a probation officer at 275 East Cordova Street by 4:00 p.m. today and thereafter as andwhen directed, only for the purpose of monitoring the completion of your community work service hours.

When you first meet withyour probation officer, you will provide your residential address and your phone number, and you will not change your address or phonenumber without prior written notification of your probation officer. [22] You will perform 50 hours of community work service. You must not rent, possess or use a rental postal box. You must notuse any money transfer service other than in your own name. You may only possess one cellular telephone, and it must be registered inyour name.

You must provide your probation officer with your monthly telephone statements if requested to do so by your probationofficer. [23] You will pay a fine of $1,000 per count for a total of $4,000, and you will pay that fine by June 30th, 2018. [24] There is a victim surcharge of $200 per count, for a total of $800. You will pay that amount within two months of today's date. [25] THE COURT: Anything further, counsel? [26] MS. RICE: Just is there a date for completion of the 50 hours of community work service? [27] THE COURT: By the end of the 12 months. [28] MS.

RICE: By -- okay. [29] THE COURT: I understand he is working full-time, and so it seems reasonable that he will have the 12 months to perform thatservice. [30] MS. RICE: Sure. [31] THE COURT: Okay. (REASONS FOR SENTENCE CONCLUDED)