Convictions for drug charges, particularly drug trafficking offences, can often result in jail time. When seeking leave to appeal a conviction or sentence, an applicant may request bail. However, enforceability and public interest are principles in criminal law that are given high weight and consideration in any application. In these circumstances, the burden is on the applicant to show that, among other things, their detention is not necessary for the public interest.
This issue was recently illustrated in a decision from the Ontario Court of Appeal, where a man’s application for bail while awaiting leave to the Supreme Court of Canada was denied despite his evidence of ongoing health issues.
Pharmacist trafficked fentanyl using fraudulent prescriptions
In R. v. Shaheen, the applicant, Mr. Shaheen, was a pharmacist who owned three pharmacies in Ottawa. Between 2013 to 2014, the applicant was found guilty of using fraudulent prescriptions to traffic over 5,000 patches of fentanyl. This scheme left significant discrepancies in patches being unaccounted for in inventory. To cover this up, the applicant staged a fake robbery of his pharmacy with his co-conspirator and later put in an insurance claim for the value of the fentanyl, which was allegedly stolen.
In 2018, the applicant was sentenced to 14 years in prison. In October 2019, the applicant appealed both his conviction and sentence, submitting that the trial judge erred in dismissing his Charter applications and assessing the evidence adduced at trial. Further, the applicant claimed that the trial judge did not give appropriate weight to the mitigating factors and failed to apply the principle of restraint.
Sentence reduced by Court of Appeal due to applicant’s health issues
The Court of Appeal dismissed the applicant’s appeal of his conviction. Justice Tulloch stated that the trial judge’s findings, including those regarding the applicant’s lack of credibility, were owed deference. As a result, the Court found no error in the conviction.
Concerning the appeal of the applicant’s sentence, the Court agreed with the trial judge’s assessment of the applicant’s personal circumstances and that the principles of deterrence and denunciation were paramount in this matter. However, the trial judge failed to consider and apply the principle of restraint concerning the sentence.
The applicant was a first-time offender who was 47 years old and suffered from a progressively deteriorating kidney disease, among other health issues. The applicant successfully appealed his sentence, and the Court reduced the sentence to 12 years in prison.
Applicant requested bail pending further appeal to Supreme Court
In the applicant’s most recent court proceedings before the Ontario Court of Appeal, he requested bail while awaiting leave to the Supreme Court of Canada. The applicant submitted that his kidney disease constituted exceptional circumstances, which should favour his release from custody. The motion judge acknowledged that the applicant had been ill for years. In addition to kidney disease, which resulted in a transplant in 2012, the applicant also suffered from heart problems and underwent an angioplasty. In 2022, the applicant contracted COVID-19 and was hospitalized.
Under section 679(3) of the Criminal Code, the Court noted that to be successful on appeal, the applicant must still establish that:
- The appeal is not frivolous;
- He will surrender into custody when required; and
- Detention is not necessary for the public interest.
Public interest involved in danger of putting fentanyl into the community: Court of Appeal
While the Court of Appeal was satisfied that the applicant would comply with the bail conditions, the Crown contended that the application was frivolous and that detention was necessary for the public interest. The applicant submitted that his application was not frivolous as the Court did not deal with his Charter application. However, the motion judge found that the trial judge did consider each step of the proceedings and determined that the delay was not unreasonable; therefore, the Charter application was dismissed.
Public interest is based on preserving public confidence, which requires weighing the interests of reviewability (a lower standard) and enforceability (a higher standard). In its analysis, the Court found that by trafficking such a large quantity of fentanyl, the applicant put a dangerous drug on the street and endangered the public. The motion judge emphasized the dangerous and addictive qualities of fentanyl, noting that it has a devastating impact on individuals, families and communities.
The Court found that the applicant failed to show that detention was unnecessary for the public interest.
Court of Appeal denied bail pending SCC appeal, given public interest considerations
After balancing the high interest in enforceability with the low interest of reviewability, the Court of Appeal dismissed the applicant’s request for bail as he failed to establish the requirements under section 679(3) of the Criminal Code. It found that the applicant’s health issues did not override the interest of enforceability.
However, the Court concluded the application by reiterating that the applicant’s health conditions were considered in sentencing. The Court highlighted that correctional facilities owe a statutory duty of care to individuals in their care. Therefore, the applicant’s health issues would be managed by the facility.
Contact the Criminal Defence Lawyers at Hicks Adams for Trusted Advice on Defending and Appealing Drug Charges
The criminal defence lawyers at Hicks Adams are one of the leading criminal law firms in the country. Our lawyers utilize their experience and resources to defend individuals against drug charges, regardless of the severity. Throughout the process, we work to protect your Charter and constitutional rights. Conveniently located in downtown Toronto, our firm assists clients throughout Ontario before all levels of Court, including appeals. Contact us online or call 975-1700 (toll-free at 1-877-975-1700) to schedule a consultation.
