R. v. Rak, 2015 ONCJ 543

ONTARIO COURT OF JUSTICE DATE: 2015·10·01 COURT FILE No.: Peterborough Citation: R. v. Rak , 2015 ONCJ 543 BETWEEN: HER MAJESTY THE QUEEN — AND — Ernest Paul Stanley Rak Before Justice R. Beninger Heard on June 10, Sept. 9 and Sept. 15, 2015 Reasons for Decision released on October 1, 2015 M. DiCarlo ................................................................................................ counsel for the Crown D.

McFadden .................................................................... counsel for the accused Ernest Rak Beninger J.: On June 10, 2015, Ernest Rak entered a guilty plea under s. 5(1) of the Controlled Drugs and Substances Act to one count of trafficking fentanyl. Fentanyl is a

Schedule I substance under the CDSA. Mr. Rak was detained in pre-trial custody at the date of the guilty plea. The guilty plea followed a number of judicial pre-trials with Crown and defence.

Facts of the Case The admitted facts on the guilty plea were as follows. Police were conducting an investigation which they named “Project Blackrock.” The primary focus of the investigation was on prescription drugs. The investigation included the use of an undercover police officer. On May 27, 2014, the undercover officer met with Mr. Rak. The undercover officer purchased somewhere in the range of 10 to 20 hydromorphone pills. Mr. Rak was a facilitator to the purchase, but was not involved in the hand to hand purchase. Mr.

Rak did not plead guilty to the count of trafficking hydromorphone, but counsel agreed that the sale of the hydromorphone pills could be considered by the Court as part of the facts pursuant to s. 725(1)(c). On June 4, 2014, Mr. Rak met again with the undercover officer. Mr. Rak acquired one 50 mg. fentanyl patch from a third person, and then sold the patch to the undercover officer. The price was $250, and Mr. Rak said that his cut on the deal was $25. Sentencing Hearing Sentencing in the case was adjourned to allow the Crown to call expert evidence. On Sept. 9, 2015, Dr.

Karen Woodall, a forensic toxicologist with the Centre of Forensic Sciences, testified. I heard sentencing submissions from counsel on September 15, 2015. On that date, I sentenced Mr. Rak to a ‘time served’ disposition. Mr. Rak’s pre-trial custody was 434 days. On a 1.5 to 1 basis, the pre-trial credit for Mr. Rak was 651 days, being the equivalent of 21.75 months. In addition to his pre-trial custody, I placed Mr. Rak on probation for 12 months and made ancillary orders under s. 109, for life, and for

DNA. I reserved reasons for my decision for no more than 30 days, and I am providing those reasons today. Fentanyl is a very dangerous drug Fentanyl is a very dangerous drug. All of the evidence and case law is consistent on that point. The Crown called Dr. Karen Woodall to testify at the sentencing hearing. Dr. Woodall was qualified to testify as to “pharmacology and toxicology, including the forensic aspects of fentanyl, and use, abuse and effects of fentanyl.” Dr. Woodall described fentanyl as an extremely powerful opioid drug. It is 100 times stronger than morphine, and 20 times stronger than heroin. In Dr.

Woodall’s opinion, fentanyl is a more dangerous drug than either morphine or heroin. Fentanyl is used as a painkiller for chronic severe pain. Fentanyl may be produced illicitly. It can be made into pills which look like OxyContin pills, or mixed into other drugs such as cocaine. In those forms, persons may take fentanyl without knowing that they are taking fentanyl. Pharmaceutical fentanyl comes in different forms, which may include delivery by patch, orally or by spray. As Dr. Woodall noted, the consequences to the user may be equally bad whether a person is abusing illicit or pharmaceutical fentanyl.

It is a drug with a high abuse potential. The case before this Court concerned a pharmaceutical patch of fentanyl.

With a fentanyl patch, the drug is absorbed through the skin. Fentanyl patches come in different types. Patches hold different amounts of the drug, ranging from a delivery to the patient of 12.5 micrograms per hour up to 100 micrograms per hour. As Dr. Woodall said, “there is a lot of fentanyl in a patch.” Fentanyl is only available by prescription, and only to persons who have an existing tolerance for opioids at the time it is prescribed. In addition to having a pre-existing tolerance for opioids, the safe use of fentanyl requires following a proper protocol. The drug needs to be gradually absorbed.

Doctors who prescribe the drug have charts to use to calculate a patient’s tolerance. Patients are given guidelines and strict instructions for its use. There are numerous ways to abuse fentanyl. Patches can be tampered with, or cut into smaller portions. As the patches are not designed or intended to be cut up, small portions of patches may contain dangerous or even lethal doses of fentanyl. Even the amount of fentanyl left in a used patch may be enough to cause a drug overdose. Once removed from the patch, the drug can be inhaled or injected. The risks of fentanyl abuse have been known for some time. Dr.

Woodall published papers on fentanyl- related deaths in 2006 and 2008. Those papers were referred to in the course of the cross-examination of Dr. Woodall by defence counsel. The number of fentanyl related deaths increased between 2002 and 2004. In the paper published in 2006, Dr. Woodall concluded that over half of the cases that were reviewed related

to persons abusing fentanyl from their own prescriptions. Only one death could be conclusively determined to have involved fentanyl which had been purchased on the street. Dr. Woodall has had ongoing access to data from drug overdose death investigations. While she was unable to provide specific numbers, it was her opinion that there has been a significant increase over the last few years in the number of deaths from fentanyl abuse by persons who did not have prescriptions for fentanyl. The abuse of fentanyl has increased since 2006.

In her opinion, the data that she has reviewed is consistent with what she termed a ‘dramatic shift’ from Oxycontin abuse to fentanyl abuse, which occurred when Oxycontin regulations were changed to make the abuse of Oxycontin more difficult. Dr. Woodall’s evidence was that prescriptions for fentanyl have increased since the change in the OxyContin regulations. Dr. Woodall agreed with defence counsel that the dangers posed by the abuse of fentanyl are becoming more widely known. This year, there has been a great deal of media interest in the issue.

Along with the widespread media attention to the issue, there has been a public education effort to communicate the known dangers of fentanyl to persons who may be at risk. It is not evidence, but I could not help but notice a poster placed in a public area in close proximity to this Courthouse last month which warned local drug users of the overdose dangers posed by fentanyl. Statutory sentencing principles The purpose and principles of sentencing are set out in s. 718 of the Criminal Code.

The manner in which those principles are applicable to drug offences is reviewed carefully in many of the fentanyl sentencing cases to which I refer below.

In addition, s. 10 of the CDSA sets out the purpose of sentencing under that Act. Case Law There is case law on fentanyl sentencing to provide some guidance. The only case brought to my attention from the Ontario Court of Appeal was R. v. Baks 2015 ONCA 560 , with an addendum 2015 ONCA 615 . The facts in that case involved a very large amount of fentanyl, with the drugs being obtained in what the Court described as a ‘sophisticated scheme’ involving forgery and a breach of trust. There were 20 counts of trafficking in fentanyl, along with counts of trafficking in Oxycodone and forgery. The legal principles determined by the Court of Appeal focused on

a) giving effect to a joint submission and

b) parity of sentencing. The case did not address a range of sentencing for trafficking in fentanyl. A contested SCJ case was R. v. McMahan and Edwards, released Dec. 18, 2014 at Kitchener by Mr. Justice Glithero (unreported). Dr. Woodall gave evidence at the sentencing hearing for Mr. Edwards. The offences in that case involved trafficking 15 patches of fentanyl on two separate occasions for a total of 30 patches. The patches in question ranged from 25 to 100 micrograms. The sentence was one of 32 months in jail. Another contested case was R. v.

Barr, dated Oct. 8, 2014, at Sarnia in the Ontario Court of Justice (unreported) before Justice Austin. On the facts, the offender was in possession of 19 patches of fentanyl for the purpose of trafficking. The sentence was a penitentiary term. Evidence as to the dangers of fentanyl given by Dr. Woodall in a different court proceeding was noted by Justice Austin.

The case of Her Majesty the Queen v. Richard Miller, dated Aug. 11, 2014 at Barrie in the Ontario Court of Justice (unreported) was heard as a contested sentencing hearing by Justice J.B. Wilson. There were fourteen 50 microgram fentanyl patches sold for $1,260. Again, evidence from Dr. Woodall was noted. A penitentiary sentence was imposed. On the same date, in the case of Her Majesty the Queen v. Mario Cloutier (unreported), Justice J.B. Wilson sentenced the offender to a penitentiary term for trafficking two Fentanyl patches. The defence argued for a much lesser period of custody.

A number of other fentanyl cases have been brought to my attention from the Ontario Court of Justice and the Superior Court of Justice. Those cases include: 1) Her Majesty the Queen v. John Paul Barribeau (2014) at Kitchener (SCJ) 2) Her Majesty the Queen v. Roger Rowley (Mar. 13, 2014) at Bradford (OCJ) 3) Her Majesty the Queen v. Dustin Blair Mitchell (Apr. 17, 2014) at Sarnia (OCJ) 4) Her Majesty the Queen v. Colton Victor Srokosz (Dec. 12, 2014) at Chatham (OCJ) 5) Her Majesty the Queen v. James Smith

(2015) ONSC 4064. The five cases noted above were all joint submissions which were accepted by the sentencing Justice. As one might expect, the cases involved varying fact situations, with varying quantities of fentanyl being trafficked. The offenders appeared before the Court with differing backgrounds and

circumstances. The joint submission sentences accepted for trafficking in fentanyl were severe. The sentencing range on the joint submissions was in the penitentiary range. The Courts have recognized and emphasized the dangers of fentanyl in the community, and the importance of deterring the sale of fentanyl in the community. Positions of Counsel In this case, the Crown submitted that a jail sentence of 30 months was appropriate. The Crown emphasized the sentencing principles of denunciation and deterrence.

The Crown noted the evidence before the Court as to the dangers presented by the abuse of fentanyl in the community. The defence argued for a ‘time served’ disposition, noting that Mr. Rak had served the equivalent of almost 22 months in pre-trial custody as of the date of sentencing. The defence noted that Mr. Rak had entered a guilty plea, and that he was suffering from significant health issues. Mr. Rak There were aggravating and mitigating factors that I considered in Mr. Rak’s case. In aggravation: - 1) By all accounts, fentanyl is a very dangerous drug.

There needs to be a strong message that trafficking fentanyl in the community will be met with a significant jail sentence. - 2) His involvement in trafficking narcotics was not an isolated event. A week before trafficking the fentanyl, Mr. Rak was involved in facilitating the sale of hydromorphone pills to

the undercover officer. - 3) Mr. Rak had a substantial criminal record, which dated back to 1990. He was previously convicted of drug trafficking offences in 2012, and received a jail term on that occasion. That is a relevant aggravating factor under s. 10 of the CDSA. In mitigation: - 1) Mr. Rak entered a guilty plea, and accepted responsibility for his conduct. - 2) Mr. Rak sold one fentanyl patch, on one occasion. Sentencing Mr. Rak was one of the first individuals in this jurisdiction to enter a guilty plea to the offence of trafficking in fentanyl. The first judicial pre-trial for Mr.

Rak was in February, 2015. Mr. Rak entered a guilty plea in reliance upon a sentencing range proposed by his lawyer at a continuation of the judicial pre-trial. After hearing the positions of both the Crown and the defence, I advised Mr. Rak’s lawyer that I anticipated, subject to any subsequent binding appellate authority being released, that I would follow the defence’s proposed sentencing range. On April, 2, 2015, I heard a guilty plea from Robert Loveday, who was the individual who gave Mr. Rak the same fentanyl patch, which Mr. Rak gave to the undercover officer.

There was a joint submission for the equivalent of 18 months in jail, which I accepted. There was very strong mitigation in Mr. Loveday’s guilty plea, as he gave up the opportunity to pursue triable issues in his case. With respect to parity in sentencing, I note that Mr. Rak received a higher sentence than Mr. Loveday did. The trafficking in question concerned the same single fentanyl patch. Mr. Rak was, arguably, lower in the supply chain than Mr. Loveday.

At this time, the dangers of fentanyl are becoming more widely known in the community. Public health authorities are taking appropriate steps to educate the public, including persons at risk, as to the dangers of abusing fentanyl. Law enforcement authorities and the Crown have clearly made it a priority to prosecute offenders, and to seek severe penalties. The Crown argues that I should apply the same sentencing considerations with fentanyl that the Court of Appeal has applied with heroin.

It is well established law that trafficking in heroin will attract a penitentiary term, subject to very exceptional circumstances. That principle has been clearly known for about 20 years. Another case cited by the Crown was R. v Barham 2014 ONCA 797 . The case involved possession for the purpose of trafficking hydromorphone, and the Court of Appeal noted that hydromorphone “is as serious a drug as heroin.” The Crown submits that I should apply a similar analysis to fentanyl. I note that the actual sentence in R. v. Barham, supra, was one of 12 months in jail.

On the evidence, fentanyl is a more powerful drug than heroin. There are distinctions that may be made between the substances, and Crown and defence may each have arguments as to how those distinctions should affect sentencing, if at all. I am not persuaded that appellate authority provides a clear guideline as to a range of sentencing for fentanyl offences at this time. Mr. Rak received a jail sentence in the high reformatory range for trafficking one patch of fentanyl. Although fentanyl abuse has been a public health issue for a number of years, the law with respect to sentencing for fentanyl

offences is still evolving. Offenders appearing before the court in the future for sentencing on fentanyl offences may find themselves in a different sentencing position than did Mr. Rak. Released: October 1, 2015 Signed: “Justice R. Beninger”