Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Mile Lavcanski
Before: Justice Peter C. West
Heard on: September 12, 2017; November 16, 2017
Reasons for Judgment released on: December 4, 2017
Counsel:
- Mr. I. Greenway, counsel for the Crown
- Mr. S. Yeghoyan, counsel for the defendant, Mile Lavcanski
Reasons for Judgment
Introduction
1On September 12, 2017, Mr. Lavcanski pleaded guilty to the following offences: that on May 26, 2017 he possessed crack cocaine for the purpose of trafficking and he possessed methamphetamine for the purpose of trafficking. On June 21, 2017, he possessed cocaine for the purpose of trafficking; he possessed hydromorphone for the purpose of trafficking and breach of a condition of his recognizance of bail not to possess or consume unlawful drugs.
2After entering his pleas of guilty a Presentence Report (PSR) was ordered. Mr. Lavcanski's bail was cancelled as a result of his June 21, 2017 charges and he was detained in custody after a bail hearing on all charges. He has remained in custody since his arrest.
3The Crown is seeking a three and a half to four year penitentiary sentence less pre-trial custody and the defence is seeking an upper reformatory custodial sentence less pre-trial custody with probation.
Factual Background
4The facts of the case are relatively straight-forward. In May 2017, information was provided by two confidential informants that Mr. Lavcanski was selling illicit substances. During two days of surveillance ten short meetings were observed between individuals and Mr. Lavcanski, which the police officers believed were drug transactions. On the last meeting a vehicle was stopped where the driver had been involved with Mr. Lavcanski's vehicle and found in the centre console was 8 grams of methamphetamine. Mr. Lavcanski had been observed attending a number of residences in Oshawa and Whitby, driving a red Honda Civic, license # ADPZ435. Police obtained search warrants for these residences as well as Mr. Lavcanski's residence at Unit 304, 165 Consumers in Whitby as well as Mr. Lavcanski's red Honda Civic.
5In Mr. Lavcanski's residence were found drug packaging, a glass pipe and scales. Mr. Lavcanski was arrested in his vehicle, the red Honda Civic and 67 grams of crack cocaine, 12 grams of powdered cocaine and 111 grams of methamphetamine were found, together with $2,265.00 in Canadian currency and two digital scales. He was held for bail and he was released on recognizance with terms, one of which was that he was not to possess, use or consume non-medically prescribed drugs or substances.
6In June 2017, police received information Mr. Lavcanski was once again trafficking in illicit substances. Surveillance was commenced on June 21, 2017, he was observed conducting clandestine meetings throughout Durham and York Region. Mr. Lavcanski was observed speaking into a cell phone. He was stopped by police for breaching his bail, namely a condition requiring him to advise police if he purchased a new cell phone and to provide the phone number.
7Upon his arrest and during the search incident to arrest a black satchel was discovered around Mr. Lavcanski's chest under his clothes. Upon opening this satchel the police discovered 22.5 grams of powdered cocaine, 8.56 grams of crystal methamphetamine and 139 pads of hydromorphone (6 mg each), 19.17 grams of marihuana and 11.93 grams of crack cocaine, together with $450.00 in Canadian currency and a digital weigh scale.
8The Crown provided a toxicology report from Ms. Rachelle Wallage, M.S., Forensic Scientist, Toxicology at the Centre for Forensic Sciences. The defence conceded the report could be filed as an agreed statement of facts and declined cross-examination.
Background of the Offender
9Mr. Lavcanski is 35 years of age and has no criminal record. Both of his parents are alive and he has an older brother. He has been involved in longer term relationships with two girlfriends. Prior to these offences, he was living in Oshawa with a girlfriend who had two children, ages eight and five. As a result of the first set of charges Mr. Lavcanski moved back with his parents who were his sureties.
10While living with his girlfriend for the two years prior to being charged, Mr. Lavcanski described to the probation officer being involved in using cocaine and crystal methamphetamine. This girlfriend is currently pregnant with Mr. Lavcanski's child. The PSR suggests there is a possibility this relationship could resume as Mr. Lavcanski believes she is no longer consuming alcohol or illicit substances.
11Mr. Lavcanski is three credits short for completing high school. He completed a 12 week drywall course and then apprenticed for the drywall company his father has been employed with for 20 years. He has completed his apprenticeship and has one test remaining to obtain his Red Seal certification. Once he writes this test and rejoins his union, he expects to be rehired by the company he apprenticed with.
12Mr. Lavcanski admitted to having a problem with excessive consumption of alcohol on weekends when he was employed. He was consuming alcohol daily after he left his factory job for approximately a year. He stopped drinking while waiting for surgery in respect of his foot that he injured and during the time he was working towards his apprenticeship as a drywall installer.
13Mr. Lavcanski began using marihuana while in grade 9. After high school he began working at a factory and he was smoking 3-4 joints a week. When he left the factory his alcohol consumption increased and he began to use cocaine. He used cocaine for four years and in the latter part of that period of time he preferred crack cocaine. In the two years leading up to his arrest he was addicted to crystal methamphetamine and was using it daily. In the months prior to first being arrested he advised the probation officer he was using OxyContin and Hydromorphone.
14It was the opinion of the probation officer that Mr. Lavcanski was honest and forthright in his admissions concerning his drug use but in terms of insight into the underlying problems which led to his addiction, it was the probation officer's opinion Mr. Lavcanski was in denial and engaged in minimization and rationalization. The probation officer saw community supervision as being useful to assist Mr. Lavcanski in addressing these underlying issues.
15Mr. Lavcanski has been in custody since his arrest on June 21, 2017 and spent a short time in custody before his initial release in May 2017. As of December 4, 2017, he has spent 166 days in pre-trial custody.
Mitigating and Aggravating Circumstances
16Mr. Lavcanski is a somewhat youthful first offender with no criminal record or any previous involvement with the police. He entered pleas of guilty to serious possession for the purpose of trafficking offences in the following illicit substances: cocaine, crack cocaine, methamphetamine and hydromorphone. His guilty plea is a reflection of his remorse and an acceptance of responsibility on his part for his conduct. Mr. Lavcanski also expressed remorse and regret for his actions to the probation officer and in Court, which I find to be sincere. These are mitigating circumstances to be considered in determining an appropriate sentence. Additionally, his guilty plea has reduced the court time and the cost required to deal with this matter.
17Mr. Lavcanski advised the probation officer he has abused alcohol and marihuana since high school. He described using other illicit substances, cocaine (both powdered and crack) and crystal methamphetamine for a number of years. He told the probation officer he was using crystal meth in the two years prior to his arrest on a daily basis. He began using oxycontin and hydromorphone as well in the months prior to being arrested. Mr. Lavcanski has attended counselling with the addictions counsellor, Ms. Kelly Kyle, at Central East Correctional Centre, see letter, dated October 13, 2017, Exhibit 3a and was involved in the eight week Hope Behind Bars Program. He has also completed the substance abuse workbooks for crack cocaine, crystal meth and hydromorphone. He advised the probation officer he has been attending Alcoholics Anonymous while in custody and believes he has gone through the withdrawal process while in custody. He has not been prescribed methadone or suboxone.
18Mr. Lavcanski has expressed his intention and goal to stop using illicit substances and live a productive life upon his release from custody. Ms. Kyle expressed her opinion that "Mr. Lavcanski is working hard to learn and apply the necessary skills to abstain from substance use." It is my view this is a mitigating circumstance to be considered in determining the appropriate sentence. I will discuss this in greater detail later in my reasons.
19Mr. Lavcanski has been employed since leaving high school in a factory job, which resulted in an injury to his foot, which prevented him from working for two years. After his injury healed Mr. Lavcanski completed a 12 week drywall installation program and began working for the company his father has worked for the past 20 years. He completed his apprenticeship hours and needs to pay his outstanding union dues and complete one government test before being re-admitted to the union, see letter from Ms. Nicole Andrade, Membership Department, International Union of Painters and Allied Trades, Local 1891, Exhibit 3b. It is Mr. Lavcanski's intention to return to this employment upon being released from custody.
20The nature of the illicit substances possessed by Mr. Lavcanski for the purpose of trafficking are extremely serious Schedule 1 substances. Hydromorphone is more than 3 to 8 times more powerful than morphine, and is a synthetic heroin substitute. It has been described as heroin's equivalent and should be treated identically. Heroin is one of the, if not the most insidious of controlled substances. It is extremely potent and highly addictive. Opioid deaths in this province are on the rise and in 2016, according to Ms. Rachelle Wallage's opinion letter, Exhibit 1, hydromorphone was involved in 22.5% of opioid deaths, second to fentanyl. The seriousness of heroin was discussed in R. v. Sidhu, [2009] O.J. No. 325 (C.A.), where the Court of Appeal described heroin as the worst of the hard drugs:
11 The trial judge in the instant case questioned that proposition but was prepared, in the end, to assume "that heroin is a marginally more dangerous drug than cocaine", thereby warranting "a marginal increase" in the range of sentences identified for cocaine importation (para. 70).
12 The trial judge's characterization of heroin as "marginally" more dangerous than cocaine finds no support in the record, nor in the existing case law. Time and again, this court and the Supreme Court of Canada have made it clear that heroin is the most pernicious of the hard drugs - it is the most addictive, the most destructive and the most dangerous. Heroin trafficking has been described as a "despicable" crime and one that "tears at the very fabric of our society": see Pushpanathan v. Canada, [1998] 1 S.C.R. 982 at para. 79; R. v. Nguyen (1996), 92 O.A.C. 200 at para. 9; R. v. Sherman, [2001] O.J. No. 5008 (S.C.) at para. 18; aff'd (2004), 183 O.A.C. 198; and R. v. Osei, [2002] O.J. No. 5601 (S.C.) at para. 7, aff'd [2004] O.J. No. 65.
13 The trial judge's treatment of heroin as only "marginally" more dangerous than cocaine led him into error in assessing the appropriate range of sentence for first offender couriers who import large amounts of high grade heroin for personal gain. Specifically, we respectfully disagree with the trial judge's conclusion that the sentencing range for such individuals should only be "marginally" higher than the range of sentences (six to eight years, per Cunningham) for first offender couriers who import large amounts of cocaine for personal gain.
(See also R. v. Farizeh, [1994] O.J. No. 2624 (C.A.), at para. 5; R. v. Turner, [2003] O.J. No. 685 (C.A.))
21Although the most serious drug is hydromorphone, the other drugs, namely, cocaine, crack cocaine and crystal methamphetamine are also considered to be hard drugs and are considered to be highly addictive. Consequently, the nature of the drugs found in Mr. Lavcanski's possession for the purpose of trafficking is an aggravating circumstance.
22The quantities of illicit substances discovered are significant: on May 26, 2017: 2.36 ounces of crack cocaine, 0.4 ounces of powdered cocaine and 3.9 ounces of methamphetamine and on June 21, 2017: 0.79 ounces of powdered cocaine, 0.4 ounces of crack cocaine and 29.4 ounces of hydromorphone (139 six mg pads). This is an aggravating circumstance. The variety of different illicit substances is also an aggravating circumstance to be considered in determining the appropriate sentence.
23A further aggravating circumstance is the fact Mr. Lavcanski was released on a recognizance after his arrest on May 26, 2017 and in less than a month he was arrested with quantities of powdered and crack cocaine and a significant quantity of hydromorphone. In my view this is a serious aggravating circumstance.
The Appropriate Sentence
24The purpose of sentencing is set out in s. 718 to 718.2 of the Criminal Code. I am of the view it is important to indicate what this section sets out and the sections that follow because I believe this is where the applicable principles of sentencing are defined for criminal cases.
25Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:
(a) Denounce the unlawful conduct;
(b) Deter the offender, and others, from committing such an offence;
(c) Separate the offender from society, where necessary;
(d) Assist in the rehabilitation of the offender;
(e) Provide reparation for harm done to "victims", or the community; and
(f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the "victims" and the community.
26The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."
27Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. This section also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.
28The purpose of sentencing under the Controlled Drugs and Substances Act is set out in s. 10 of that legislation. Section 10 reads as follows:
Purpose of sentencing
s. 10 (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.
29Section 10(2) sets out a number of relevant aggravating factors, none of which appear to be present in this current matter. It is of note that section 10(1) includes as a purpose of sentencing the encouragement of rehabilitation and treatment of the offender in appropriate circumstances.
30Given the nature, variety and quantity of the illicit substances in Mr. Lavcanski's possession, the sentencing principles of denunciation and deterrence are certainly paramount sentencing principles to be considered in determining an appropriate sentence.
31As indicated Mr. Lavcanski is a somewhat youthful first offender who has never been in trouble with the law. Consequently, rehabilitation and restraint, particularly where the accused is a youthful first offender, must not be discounted or ignored and general deterrence and denunciation should not be over-emphasized. In R. v. Batisse, 2009 ONCA 114 , [2009] O.J. No. 452, at paras. 32 to 34, the Ontario Court of Appeal held:
…the appellant was a first offender. As such, the restraint principle requires that a sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at p. 545.
…the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 207 O.A.C. 226, at para. 5:
[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.
In serious cases and cases involving violence, rehabilitation alone is not the determinative factor - general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in [R. v. Dubinsky, [2005] O.J. No. 862, 2005), it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.
32I was provided with numerous cases by the Crown and defence counsel addressing the range of sentences imposed for possession for the purpose of trafficking in cocaine, crack cocaine, crystal methamphetamine, hydromorphone and heroin. The range of sentence is from that of a suspended sentence with probation, although certainly not a regular occurrence and only where exceptional circumstances are found to exist, to sentences involving custodial sentences in the reformatory or penitentiary. In addition, I have conducted my own research of sentencing cases involving possession for the purpose of trafficking in hydromorphone, cocaine, methamphetamine and heroin.
33It is important to note however, that no two cases are exactly alike, and as emphasized by Chief Justice Lamer in R. v. M. (C.A.), [1996] 1 S.C.R. 500, at paragraph 92:
Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.
34The Supreme Court of Canada and the Ontario Court of Appeal have held in a number of cases that trafficking or possession for the purpose of trafficking in substances, such as heroin or hydromorphone or fentanyl, even for small amounts by first offenders, will "attract" or "call" for "penitentiary sentence unless exceptional circumstances exist" (see Farizeh, supra, at para. 5 and Turner, supra, at para. 3)
35The matter of sentencing ranges was addressed by the Ontario Court of Appeal in R. v. Jacko 2010 ONCA 452 , [2010] O.J. No. 2583, where at paragraph 90, the court held:
Sentencing 'ranges' ...are not immovable or immutable. They are and represent guidelines, of greater or lesser utility depending upon the breadth of the range. Individual cases may fall within or outside the range. To consider a range of sentence as creating a de facto minimum sentence misses the point, ignores the fundamental principle of proportionality... Individual circumstances matter.
See also R. v. D.D., [2002] O.J. No. 1061 (C.A.), where Moldaver J. (as he then was) said the following, at para. 33: "[S]entencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases."
36This issue has been revisited by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64 , [2015] 3 S.C.R. 1089, at paragraphs 57 to 58 and 60 to 61, where the Court held:
Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered 'averages', let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case...
There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject:
A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. (R. v. Nasogaluak, 2010 SCC 6 , [2010] S.C.J. No. 6, at para. 44.)
In other words, sentencing ranges are primarily guidelines, and not hard and fast rules. (Emphasis added)
37As discussed above the fundamental principle of sentencing is that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Supreme Court in Lacasse was clearly indicating a sentence can be imposed that is outside an established range of sentence as long as it is in accordance with the principles and objectives of sentencing. Sentencing is a "highly individualized exercise" and "determining a proportionate sentence is a delicate task." (Lacasse, at para. 13). In some cases the facts and circumstances will be such that a sentence outside the usual range will be appropriate.
38In R. v. Voong, 2015 BCCA 285 , [2015] B.C.J. No. 1335 (C.A.), the British Columbia Court of Appeal addressed what is meant by the phrase "exceptional circumstances:"
Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSO sentences are not available. Thus, it will be the rare case where the standard of exceptional circumstances is met.
39The defence is not submitting a non-custodial sentence is appropriate in Mr. Lavcanski's case. Mr. Yeghoyan argues an upper reformatory sentence is the appropriate sentence when dealing with a somewhat youthful first offender despite the seriousness of the drugs involved. As I have discussed above, in a case involving an offender who is a first offender and an addict who is selling drugs in order to support his own addiction, the principles of rehabilitation and restraint must also be considered in determining an appropriate sentence. Mr. Lavcanski has been in custody since his breach in June 2017. He has completed everything available to him at the Central East Correctional Centre to assist in overcoming his addiction to illicit substances. This is confirmed by the Addictions Counselor, Ms. Kyle and is also reflected in the PSR. Mr. Lavcanski is motivated to overcome his addiction.
40Although deterrence and denunciation are important they must not exclude consideration of rehabilitation, particularly in the case of a first offender, who will receive a custodial sentence. In R. v. Borde, [2003] O.J. No. 354 (C.A.), at para. 36, the Ontario Court of Appeal held where a youthful offender is to be sentenced to a first penitentiary sentence it should not be determined solely on basis of general deterrence and denunciation, rather the sentencing court should proceed on the basis that the shortest possible sentence will achieve the relevant objectives. Mr. Borde had a lengthy youth record, which reflect serious charges and sentences. Here Mr. Lavcanski has no youth court record or a criminal record.
41Rehabilitation is an important objective of sentencing when dealing with a somewhat youthful first offender. See section 718(d) of the Criminal Code. Also, as referred to above, section 10 of the Controlled Drugs and Substances Act includes the objective of encouraging rehabilitation. As noted in Regina v. C.N.H., [2002] O.J. No. 4918 (C.A.), at paragraph 31 by Justice Rosenberg:
...the importance of s. 10 is to encourage courts to recognize the particular problem that in many cases persons convicted of drug offences are themselves victims of the drug culture and dependent upon drugs as addicts or users.
42In Regina v. Lacasse, supra, at paragraph 4 the court stated:
One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.
43The Crown did not lead any evidence as to the value of the illicit substances in Mr. Lavcanski's possession. There was no evidence as to how long he had been engaged in trafficking these substances or exactly what role or position he held in the drug trafficking he was involved in. As I have indicated, the quantities and varieties of illicit substances in Mr. Lavcanski's possession for the purpose of trafficking certainly reflect the seriousness of his conduct. It is particularly aggravating that shortly after he was first released on a recognizance of bail he continued to possess illicit substances for the purpose of trafficking and possessed hydromorphone, a significantly more pernicious hard drug. Yet the Ontario Court of Appeal in two of their decisions, which expressly emphasized that trafficking in even small amounts of heroin or hydromorphone "will attract penitentiary time" (see Turner and Barham), a penitentiary sentence for the underlying heroin trafficking offence was not the outcome, even prior to the reduction of credit for time spent in pre-sentence custody. In my view this indicates that "attracting" penitentiary time does not equate to "mandating" penitentiary time. In other words, trafficking in even small amounts of heroin or hydromorphone must be dealt with very seriously by our courts, but there is no effective mandatory minimum sentence of 2 years for trafficking in heroin.
44Mr. Lavcanski has served 166 days in pre-trial custody as of December 4, 2017. He is entitled to pre-trial credit on a 1.5 to 1.0 basis of 249 days. It is my view the Crown's position of a penitentiary sentence of 3 ½ to 4 years does not take into consideration the fact Mr. Lavcanski is a first offender, somewhat youthful, who is also an addict, whose addiction to illicit substances caused him to lose his employment as a drywall installer and caused him to turn to trafficking drugs to support his habit. The Crown's position also ignores the fact that Mr. Lavcanski is currently very motivated to continue to be drug free and to re-enter the workforce by completing his final test and paying his outstanding union dues. In my view Mr. Lavcanski's continued rehabilitation will most effectively provide protection to the public from his trafficking activities.
45On balance, considering the totality of the aggravating and mitigating circumstances surrounding the commission of these offences and the circumstances surrounding Mr. Lavcanski, the appropriate sentence, considering the principle of totality before giving credit for pre-trial custody, is a sentence of two years less one day. The remaining sentence therefore is one year and 115 days (364 - 249). This custodial sentence will be followed by a three year period of probation with conditions.
46There will also be a s. 109 weapon's prohibition order for 10 years and a DNA order pursuant to s. 487.04, as a secondary designated offence. There will also be a forfeiture order made respecting anything seized by the police.
Released: December 4, 2017
Signed: Justice Peter C. West