



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Loor, 2017 ONCA 696

DATE: 20170908

DOCKET: C61856

Laskin, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yancy Loor

Appellant

Michael A. Moon and Leah Gensey, for the appellant

Anna Martin, for the respondent

Heard: June 15, 2017

On appeal from the conviction entered on July 16, 2015
    and the sentence imposed on September 22, 2015 by Justice Nancy A. Dawson of
    the Ontario Court of Justice.

Laskin J.A.:


A.

Introduction

[1]

Yancy Loor was a low-level member of a small drug trafficking ring
    dealing in fentanyl. Starting in early July 2013, Loor used a forged prescription
    to obtain 45 patches of fentanyl  15 at a time  from a pharmacy in Barrie. He
    was eventually charged and tried in the Ontario Court of Justice.

[2]

The main issue at trial was identity: was Loor the person who obtained
    the fentanyl? The evidence of identity was circumstantial as neither of the two
    pharmacists who dispensed the prescription could identify Loor as the person
    who came to the pharmacy to get the prescription filled. Loor did not testify.

[3]

In lengthy and thorough reasons the trial judge found Loor guilty of
    three counts of using a forged document (the prescription) and three counts of
    trafficking in fentanyl. She sentenced him to 6 years in jail less 18 months
    credit for pre-sentence custody.

[4]

Loor appeals both his conviction and his sentence. On his conviction
    appeal he submits that the verdict was unreasonable for two related reasons:
    the evidence was not sufficient to prove identity beyond a reasonable doubt;
    and the trial judge could reasonably infer from the evidence that another
    person, even another member of the trafficking ring, could have impersonated
    Loor, using fake identification. On his sentence appeal, Loor submits that six
    years was excessive, disproportionate to his level in the trafficking ring hierarchy,
    and inconsistent with the sentences imposed on two of the higher-ups.

[5]

We did not call on the Crown on the conviction appeal and it is
    dismissed. I would also dismiss the sentence appeal.

B.

The conviction appeal

(a)

The fentanyl
    trafficking ring

[6]

The head of the trafficking ring, the kingpin, was a man named Raymond
    Goudreau. The two other higher-ups were Grenville Sinclair and his girlfriend
    at the time, Julie Baks. Baks was employed as a medical secretary to Dr. Alain
    Sacksen, who ran a medical clinic in Barrie. Baks employment was key to the
    operation of the trafficking ring.

[7]

Their operation, a rather sophisticated scheme, worked as follows.
    Goudreau would give personal information about an individual to Sinclair. The
    personal information would include the name, date of birth, health card number,
    telephone number and address of the individual. Sinclair would give the
    information to Baks. Baks would use the information to create a fake patient
    file and then would produce a forged prescription for fentanyl patches for the
    individual. After she produced the forged prescription she would delete the
    patient file. Baks would then give the forged prescriptions to Sinclair, who in
    turn would give them to Goudreau. He would provide them to the fake patients,
    who would go to the pharmacies and obtain the fentanyl patches (in a couple
    instances, Sinclair gave the forged prescriptions directly to the fake
    patients). The patches were then given to Sinclair, or to Goudreau, who
    trafficked them in North Bay, where a patch could be sold for between $400 and
    $450.

[8]

When the police raided Goudreaus operation, Baks had created 19 fake
    patient files, of which Loor was one, and had produced forged prescriptions for
    900 fentanyl patches.

[9]

The next two sections of this narrative set out in summary form the
    circumstantial evidence supporting the trial judges finding of guilt.

(b)

Loor obtains 45 fentanyl
    patches

[10]

In July 2013, Baks opened a computer file for a fake patient named Yancy
    Loor. She inputted Loors health card number, birthdate, address and telephone
    number. Baks then created a prescription for Loor for 45 transdermal fentanyl
    patches at the highest available strength, 100 micrograms per hour. Baks forged
    Dr. Sacksens signature on the prescription. The prescription contained the
    same personal information on Loor as in the patient file. After creating the
    forged prescription, Baks deleted the patient file in Loors name.

[11]

Shortly afterwards, Yancy Loor went to the Express Aid IDA Pharmacy in
    Barrie and tendered the prescription to one of the pharmacists, Jamil Rashid.
    Because Loor had never filled a prescription at the pharmacy before, Rashid did
    three things. First, he called Dr. Sacksens office to verify the prescription.
    Baks told him that the prescription was correct. Second, as required by
    provincial legislation, Rashid verified Loors identity. He did so by comparing
    the photo on the health card Loor had produced for identification with the
    person standing in front of him. Rashid was satisfied that the person at the
    pharmacy was the same person whose photo was on the health card. Third, as a
    further check, Rashid handwrote Loors health card number, which was the same
    as the number in the patient file at Dr. Sacksens office and on the forged
    prescription.

[12]

Rashid then dispensed 15 patches to Loor, the first of three
    installments, at a cost of $228.93. Rashid did not, however, make a copy of
    Loors health card.

[13]

On August 1, 2013 a different pharmacist dispensed the second
    installment of 15 patches of fentanyl. She had no independent recollection of
    doing so but was adamant that when dispensing narcotics her practice was to
    check identification unless she knew the person, and she did not know Loor. The
    pharmacys prescription record showed that 15 patches were dispensed to a man
    named Yancy Loor with the identical personal information and health card number
    as on the original prescription.

[14]

On September 3, 2013 Rashid dispensed the last installment of 15 fentanyl
    patches to a person with the same personal information and health card number
    as Yancy Loor.

(c)

Loor is located and
    arrested

[15]

When the police arrested Goudreau they obtained his cellphones, which
    contained contact lists. One of Goudreaus contacts was Yanz with a telephone
    number the same as the number on Loors deleted patient file at Dr. Sacksens
    office and on the prescription records from the pharmacy.

[16]

A police officer named Justin Ford called the number and when a male
    voice answered he asked Yancy? The male responded yeah. Ford then asked Yancy
    Loor? Again, the male responded yeah. Ford identified himself as a police
    officer from the street crime unit. The male said he would get his lawyer to
    call him back. Ford gave the male his police-issued cellphone number. A lawyer
    named Craig Bottomley called Ford on behalf of his client Yancy Loor.

[17]

Loor was arrested at the Central North Correctional Centre, where he was
    in custody on another matter. On arrest he identified himself as Yancy Loor,
    and asked to speak to his lawyer, Craig Bottomley.

[18]

From among Loors property at the jail, Ford found Loors health card, which
    by this time had expired. The card had the same number and date of birth as in
    Dr. Sacksens patient file and the IDA Pharmacy records. In Fords lay opinion
    the photo on the heath card was a photo of Loor.

(d)

Discussion

[19]

Because Loor was convicted on circumstantial evidence of identity, two
    legal standards come into play on this appeal: the standard to convict where
    the evidence of identification is solely or primarily circumstantial; and the
    standard of appellate review of the reasonableness of a verdict based on
    circumstantial evidence.

[20]

In recent decisions, the Supreme Court of Canada has emphasised that no
    particular form of words is required to express the standard for a conviction
    based on circumstantial evidence. Even ordinary proof beyond a reasonable doubt
    language is acceptable. See for example
R. v. Griffin
,
2009 SCC 28, [2009] 2 S.C.R. 42, at
    para. 33; and
R. v. Villaroman
,
2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 17-22.

[21]

But in
Villaroman
, Cromwell J. favoured language that focuses
    on inference drawing because that language alerts the trier of fact to the
    danger of coming to an unwarranted or speculative conclusion. The standard may
    thus be expressed as follows: in a case where the sole or primary evidence of
    identification is circumstantial, in order to convict, the trier of fact must
    be satisfied beyond a reasonable doubt that the guilt of the accused is the
    only reasonable inference that can be drawn from the evidence.

[22]

On appeal, where the Crowns case at trial depended on circumstantial
    evidence, to uphold the reasonableness of the verdict, an appellate court must
    be satisfied that the trier of fact acting judicially could reasonably be
    satisfied that the accuseds guilt was the only reasonable conclusion available
    on the totality of the evidence: see
Villaroman
at para. 55. But
    Cromwell J. also added at para. 71: [T]hat it is fundamentally for the trier
    of fact to draw the line  that separates reasonable doubt from speculation.
    An appellate court is justified in interfering only if the trial judges
    conclusion that the evidence excluded any reasonable alternative to guilt was
    itself unreasonable.

[23]

In the present case, the trial judge was well aware that the evidence
    against Loor was entirely circumstantial. She recognized that neither
    pharmacist could identify Loor as the person who came to their pharmacy to get
    the prescription for 45 fentanyl patches filled. The pharmacy did not have
    video surveillance available. And Rashid did not make a copy of the health card
    presented to him to identify the person asking to have the prescription filled.

[24]

The trial judge also understood the standard for convicting on the basis
    of circumstantial evidence of identity. After an exhaustive review of that
    evidence, she considered and rejected the possibility of any reasonable
    inference from the evidence other than guilt. She concluded:

I am satisfied beyond a reasonable doubt that the only rational
    inference that can be drawn from the circumstantial evidence is that the
    accused is guilty. Based on the evidence I accept, I am convinced beyond a
    reasonable doubt of Mr. Loors guilt. There is nothing in the evidence or the
    lack of evidence that I have heard that causes a reasonable doubt.

[25]

Nonetheless, Loor submits that the circumstantial evidence of identification
    was insufficient to prove his guilt and that the trial judge failed to consider
    the possibility that another person, even another person within the trafficking
    ring, could have impersonated Loor, with false identification, to obtain the fentanyl
    patches. I do not agree with either branch of Loors submission.

[26]

The trial judge reasonably concluded that no reasonable inference other
    than guilt was available on the evidence. She also properly rejected, at least
    implicitly in the passage from her reasons quoted above, the suggestion that
    Goudreau or Sinclair or some other person used a fraudulent health card with
    Loors personal information on it to obtain the fentanyl patches. That
    possibility was nothing more than mere speculation or conjecture.

[27]

The following pieces of circumstantial evidence especially show that the
    only reasonable inference from the evidence was that Yancy Loor went to the IDA
    Pharmacy on three occasions and, using a forged prescription, obtained 45
    patches of fentanyl:

·

Rashid testified that the photo on the health card in Loors name
    tendered for identification was the photo of the person who obtained the fentanyl
    patches. The trial judge was entitled to accept Rashids evidence;

·

The health card tendered to Rashid had the same number as the
    health card Ford later seized from Loors property;

·

Rashids evidence and the practice of the pharmacists, which the
    trial judge accepted, show that the same person went to the pharmacy all three
    times;

·

Ford gave evidence, which the trial judge accepted, that the
    photo on the health card he seized from Loors property was a photo of Loor;
    and

·

The telephone number in Goudreaus contact list for Yanz was
    the same number on Loors patient file and on the prescription. And when Ford
    telephoned that number Loor answered the phone. As the trial judge reasonably
    found:

I find it beyond the bounds of coincidence that the same named
    individual and phone number appear in this document and the same named
    individual and phone number are linked through the officers call some ten
    months later. I reject any suggestion, either overt or implied, that the number
    did not link up with the accused before the court at the time of the commission
    of the offences and I find that it did so.

[28]

Appellate intervention is not justified. The conviction appeal is
    dismissed.

C.

The sentence appeal

(a)

Overview

[29]

The trial judge sentenced Loor to 6 years less 18 months credit for
    pre-sentence custody. Loor submits that his sentence was excessive,
    disproportionate to his role in the drug trafficking ring, and inconsistent
    with the sentences imposed on Baks and Sinclair.

[30]

I disagree. Sentencing judges have wide latitude in fashioning a fit
    sentence, and the sentences they impose attract significant deference from an
    appellate court. We may interfere only if the sentence is demonstrably unfit or
    the sentencing judge commits an error of law or principle that has an impact on
    the sentence: see
R. v. Lacasse
,
2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11.

[31]

Here, the trial judge committed no error in principle and the sentence
    she imposed was fit. She recognized that Loors sentence must be proportionate
    to the seriousness of his crimes and his moral blameworthiness, and that the
    principles of specific and general deterrence and denunciation are important
    principles in sentencing drug traffickers. She took into account the
    aggravating considerations that might tend to increase Loors sentence, and the
    mitigating considerations that might tend to reduce it. Finally, she fairly
    reconciled the sentence she imposed on Loor with the sentences for Baks and
    Sinclair.

[32]

In
Lacasse
at para. 12, Wagner J. for the majority wrote that
    proportionality is the cardinal principle that must guide appellate courts in
    considering the fitness of a sentence imposed on an offender. Proportionality
    means that the sentence imposed depends on the gravity of the crime and its
    consequences and on the offenders degree of responsibility or moral blameworthiness.

(b)

Gravity of Loors
    crimes

[33]

Unless used for therapeutic purposes, under proper medical supervision,
    fentanyl is a highly dangerous drug. Its widespread abuse, though recent, has
    quickly become entrenched in our country. Every day in our communities, fentanyl
    abuse claims the lives of Canadians.

[34]

At the sentencing hearing, the Crown filed affidavit evidence from Dr.
    Karen Woodall, a toxicologist at the Centre of Forensic Sciences, as well as
    the transcript of her evidence from another case. The purpose of her evidence
    was to show the dangers of fentanyl abuse and the serious consequences of fentanyl
    trafficking. Dr. Woodall has studied the effects of fentanyl and has
    co-authored two articles on fentanyl abuse  one on the oral abuse of fentanyl patches
    and another on fentanyl-related deaths in Ontario. The following is a summary
    of her evidence.

(i)

Evidence of Karen Woodall

[35]

Fentanyl, like heroin, is an opioid. Opioids are drugs that act on the
    central nervous system to relieve pain. Unlike heroin, which is illegal, fentanyl
    is a prescription drug, which can be obtained legally for therapeutic use.

[36]

Therapeutically, fentanyl is used for the management of moderate to
    severe chronic pain. Patches are an effective way to administer fentanyl
    because they are applied to the skin and provide a patient with continuous pain
    relief for up to three days. But fentanyl is a very powerful drug, according to
    Dr. Woodall, up to 100 times more powerful than morphine and 20 times more
    powerful than heroin. Because it is so potent, fentanyl is only prescribed in a
    patch under strict medical supervision and to those who are opioid tolerant,
    that is to those who have been taking opioids for a long time.

[37]

Because fentanyl is so potent it becomes a very dangerous drug when it
    is not used for therapeutic reasons under medical supervision. Those who have a
    prescription for it and yet abuse it, or those without a prescription who buy a
    patch on the street or borrow one from a friend are at risk of toxicity and
    death.

[38]

The effects of fentanyl are why people abuse it. Fentanyl gives people a
    high, a feeling of well-being, of euphoria. Those who use it for a long time may
    become addicted. But because fentanyl depresses the central nervous system, it can
    slow down the way ones brain functions, decrease ones heart rate, and slow
    down ones breathing. A person who takes enough fentanyl may eventually stop
    breathing and die.

[39]

When abused, fentanyl patches are especially dangerous. People can abuse
    a fentanyl patch in many different ways. They can inject the patch contents
    intravenously, cut up the contents and chew small portions at a time, inhale
    it, smoke it, and even make tea with it. What makes the patch particularly dangerous
    is the medications location within the patch. The medication is in a matrix,
    essentially buried inside the patch. To get the medication out of the patch a
    person has to chop it up or melt it down or heat it up. But then the person
    will not know how much fentanyl has been released. Its potency for an
    individual is thus often unpredictable. And so, Dr. Woodall concludes, a lot of
    deaths have been associated with the abuse of fentanyl patches.

(ii)

The gravity of Loors crimes

[40]

Loor trafficked in 45 patches of fentanyl, as the trial judge found a
    not insignificant amount of this dangerous drug, worth somewhere between $18,000
    and $20,000 on the street in North Bay. In addition, by using a forged
    prescription Loor planned and carried out a fraud on the pharmacy. His crimes
    and their consequences were serious.

(c)

Loors degree of
    responsibility and moral blameworthiness

(i)

Loors role

[41]

Loor was 39 years old when he committed these offences. He must accept a
    fair measure of responsibility for his role. Although he was a low-level member
    of Goudreaus trafficking ring, his role was necessary to the successful
    operation of the scheme. He and the others that went to the pharmacies were
    needed to obtain the fentanyl patches. And in carrying out his role he must
    accept responsibility for deceiving the IDA Pharmacy and two of its pharmacists.
    He was unable to prove that he was an addict trafficker, which might have
    served to reduce his moral blameworthiness.

(ii)

Aggravating and mitigating considerations

[42]

The trial judge properly took into account and weighed the aggravating
    and mitigating considerations that tended to increase and reduce Loors
    sentence.

[43]

The aggravating considerations included:

·

Loor had a previous criminal record, including a conviction for
    trafficking;

·

He trafficked 45 patches of the highest strength, 100 micrograms
    per hour;

·

He trafficked a highly dangerous drug; and

·

He deceived a pharmacy and two of its pharmacists.

[44]

The mitigating considerations included:

·

Loor
    had a gap in his criminal record, and no convictions for nearly five years
    before these offences;

·

He
    did not profit much from his trafficking;

·

He had strong family support and has young children;

·

He had done significant volunteer work at the Jane/Finch
    Community and Family Centre; and

·

He showed good behaviour while in custody.

(iii)

The sentences for Baks and Sinclair

[45]

Baks and Sinclair were higher-ups in the trafficking ring. Each played a
    key role in the scheme. Baks trafficked 900 fentanyl patches, 20 times more than
    did Loor. Sinclair likely trafficked a similar amount. After pleading guilty
    Baks was initially sentenced to nine years on a joint submission, but on
    appeal, her sentence was reduced to six years, the same as Loors sentence: see
R. v. Baks
, 2015 ONCA 560. Sinclair, too, was initially sentenced to
    nine years after pleading guilty, but on appeal his sentence was reduced to
    eight years: see
R. v. Sinclair
, 2016 ONCA 683. Yet there is no
    inconsistency in the sentences imposed by this court on Baks and Sinclair and
    the sentence imposed by the trial judge on Loor. Each of them is understandable.

[46]

This court reduced Baks sentence from nine years to six years because
    of a powerful set of mitigating considerations (in addition to her guilty
    plea):

·

She was a young person with no previous record, and no indication
    of any previous criminal activity;

·

She had excellent prospects for rehabilitation;

·

She acted at the instigation of and under pressure from Sinclair,
    with whom she had a romantic relationship; and

·

Most important, early on she fully cooperated with the polices
    investigation and then gave a statement and testified against both Sinclair and
    Goudreau.

[47]

This court reduced Sinclairs sentence from nine years to eight years
    because two of the mitigating considerations that reduced Baks sentence also applied
    to his sentence:

·

He had excellent prospects for rehabilitation; and

·

He testified against Goudreau.

[48]

None of these mitigating considerations that reduced the sentences for
    Baks and Sinclair apply to Loor. A six year sentence for Loor is not
    demonstrably unfit or out of line with the sentences imposed on Baks and
    Sinclair.

(d)

Conclusion

[49]

Loor has failed to demonstrate that his sentence was unfit or reflected
    any error in principle. The Crown invited us to establish a range for fentanyl
    trafficking, while acknowledging that sentencing is a highly individualized
    exercise and that the relevant considerations affecting a sentence will vary
    from individual to individual: see
Lacasse
at para. 58.

[50]

Few fentanyl trafficking cases have reached this court. It is thus
    perhaps too early in our jurisprudence to establish a range. But I think it
    fair to say that generally, offenders  even first offenders  who traffic significant
    amounts of fentanyl should expect to receive significant penitentiary sentences.

[51]

Although I would grant leave to appeal sentence, I would dismiss Loors
    sentence appeal.

Released: J.L. September 8, 2017

John Laskin J.A.

I agree. Janet Simmons J.A.

I agree. G. Pardu J.A.


