R. v. Chapman, 2023 ONCJ 530

DATE : December 5, 2023

ONTARIO COURT OF JUSTICE Toronto

BETWEEN: HIS MAJESTY THE KING — AND — MICHAEL CHAPMAN

For the Crown: G. Elder For the Defendant: M. Leitold Submissions heard: November 7, 2023

REASONS for SENTENCE

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

1On June 8, 2023, Mr. Chapman pleaded guilty before me to approximately 20 counts under the Criminal Code and two counts of possession for the purpose of trafficking under the Controlled Drugs and Substances Act.

2He was in custody at the time, and upon application by Mr. Leitold, I granted Mr. Chapman bail pending the imposition of sentence. Mr. Chapman lost that bail in early September 2023 and was back in custody when submissions were made on November 7, 2023.

3It is agreed by the parties that Mr. Chapman has accumulated a total of 304 days of presentence custody on these matters. It is also conceded that of these 304 days, on approximately 120 of them Mr. Chapman has been subject to administrative lockdown at the Toronto South Detention Centre.

B. THE CIRCUMSTANCES OF THE OFFENCE

4On Sunday, June 20, 2021, at 7:58 A.M, Mr. Chapman, along with another man, attended 1765 Weston Road, in the City of Toronto. They entered the building and forced open the door to the mail room, causing the lock mechanism to break. The two men then began pulling on mailboxes, ultimately damaging numerous mailboxes for various apartments. They attempted to enter an additional four (4) mailboxes but were unable to do so. The accused and his accomplice stole mail and fled the area.

5On Sunday January 16, 2022, at approximately 6:58 PM, Mr. Chapman was operating a 2018 Mercedes Benz bearing Ontario Licence plate CTEC303 in the City of Toronto. Mr. Chapman was driving south on River Street approaching Oak Street. Mr. Chapman encountered slower moving traffic in front of him. Mr. Chapman veered into oncoming traffic and began driving in the oncoming lanes. He continued driving south and made a right turn onto Dundas Street East. Mr. Chapman approached Regent Park Blvd. at a high rate of speed and without indication, made an abrupt left turn onto Regent Park Blvd. causing oncoming traffic to slam on their brakes and honk their horns to avoid colliding with Mr. Chapman’s vehicle.

6Mr. Chapman continued driving south onto Regent Park Blvd. and stopped the vehicle behind a parked vehicle near 50 Regent Park Blvd. Police Constable Zebrowski had maintained visual contact with Mr. Chapman and the vehicle during this time. Police Constable Zebrowski pulled up on the driver’s side of Mr. Chapman’s vehicle and engaged him in conversation. Mr. Chapman only partially lowered his tinted driver's window. His face was fully visible to the officer. Mr. Chapman was advised that he was being investigated for stunt driving. Police Constable Zebrowski exited his scout car. At this point, Mr. Chapman reversed his vehicle a short distance and began driving south and around to the driver’s side of the parked police car. Mr. Chapman mounted the sidewalk in a high-density residential neighborhood. He drove south at a high rate of speed and fled the area.

7Police located the vehicle abandoned near 500 Wellesley Street East. The vehicle had sustained damage to the front driver's side wheel and tire.

8On April 9, 2022, Mr. Chapman was observed driving a motorcycle that had been reported as stolen to TPS. Mr. Chapman was then on an undertaking from January 17, 2022 not to operate a motor vehicle. He was also bound by an "I" Interlock condition. The motorcycle was not equipped with interlock.

9Mr. Chapman was informed he was under arrest. He fled on foot. He was taken into custody. When searched, Mr. Chapman was found to be in possession of a driver’s licence, health card, SIN, and birth certificate in the name of Brian Dunseith and a cheque in the name of Eric Chavez Moran in the amount of $190.

10Sometime between February 11, 2022, and February 13, 2022, Mr. Chapman entered 407 Brock Ave, Toronto and stole the following items:

i) Ontario Drivers Licence bearing the name Brian Andrew Dunseith ii) Ontario Health Card bearing the name Brian Andrew Dunseith iii) Ontario Birth Certificate bearing the name Brian Andrew Dunseith iv) Ontario Social Insurance Number: bearing the name Brian Andrew Dunseith v) Canadian Passport (Expired) bearing the name Brian Andrew Dunseith vi) MSI Computer Monitor serial number: cdcco38230844. vii) MSI Computer Monitor serial number: cccc035240117. viii) Dyson Air Filter serial number: vs4-ca-nja0848a. ix) Dyson Big Ball Vacuum serial number: sd5-ca-mea1289a. x) Dell Computer Tower Model: XPS 8100 serial number: 1549RW1. xi) Dell Computer Tower Model: XPS 8100 serial number: 1557RW1 xii) Vic 20 computer in original box

11Sometime between February 11, 2022, and February 23, 2022, Mr. Chapman applied for and received a Walmart Rewards Mastercard credit card ending in '1414' using the name Brian Dunseith.

12On February 23, 2022, Mr. Chapman attended Avis/Budget Car Rental located at Pearson International Airport and rented a 2021 Volkswagon Golf for $1,242.20 using the name of Brian Dunseith and using the fraudulent credit card.

13On February 24, 2022, Mr. Chapman attended a TD Bank Machine located at 1435 Queen Street West, Toronto and made a cash withdrawal of $1003.50 using the fraudulent credit card.

14On February 24, 2022, Mr. Chapman attended “Mujosh” located at 300 Borough Drive, Scarborough and made a purchase of $145.75 using the fraudulent credit card.

15On February 25, 2022, Mr. Chapman attended the 7/11 Convenience Store located at 883 Dundas St. West, Toronto and made a cash withdrawal of $203.00 from an ABM using the fraudulent credit card. On February 25, 2022, he made a second cash withdrawal of $403.00 from the same ABM.

16On February 25, 2022, Mr. Chapman attended Enterprise Car Rental located at 14 Easton Rd, Brantford and rented a 2021 Ford Explorer for $567.92 using the name of Brian Dunseith and using the fraudulent credit card.

17On February 26, 2022, Mr. Chapman attended One King West Hotel & Residence located at 1 King St W., Toronto and reserved a hotel room for $190.00 using the name of Brian Dunseith and using the fraudulent credit card.

18On April 15, 2022, Officers executed a Criminal Code search warrant at 22 - 59 Roncesvalles Avenue. During the search of the unit Officers located Mr. Chapman and located Mr. Dunseith 's Dyson Air Filter serial number: vs4-ca-nja0848a; Dyson Big Ball Vacuum serial number: sd5-ca-mea1289a; Vic 20 computer in original box and Mr. Dunseith 's Canadian Passport (expired). Officer also located approximately $2000 in Canadian Currency.

19In the winter of 2021/2022, Magdalena Hek spent time at her sister Natalia Hek's house in the presence of Mr. Chapman. Natalia Hek and Mr. Chapman share a child, who resides with Natalia Hek.

20During this time, he used Magdalena Hek’s BMW without her consent and made a duplicate key to the car.

21On March 15, 2022, Mr. Chapman stole Ms. Hek’s BMW from the underground garage at 1 Dean Park Road. She was out of the country at the time.

22On March 27, 2022, Mr. Chapman pumped $104.06 worth of gas from a Petro Canada station and drove off without paying.

23On Apr 3, 2022, Mr. Chapman returned the BMW to the underground parking garage at 1 Dean Park Road and kicked open a locked door to get to the lobby of the building. When Ms. Hek returned from her trip abroad, she concluded that her car had been used while she was away.

24On April 4, 2022, Ms. Hek attended 42 Division to report the incident.

25On April 6th, 2022, in the evening, Magdalena Hek again parked her vehicle in the underground parking lot of 1 Dean Park. On the morning of April 7, 2022, Ms. Hek once again noticed that someone had used her vehicle overnight without her knowledge or consent. Ms. Hek called police.

26On April 15, 2022, 11 Division officers attended Mr. Chapman’s residence at 22 – 59 Roncesvalles Avenue and executed a search warrant. Duplicate keys to Ms. Hek’s BMW were located, along with other motor vehicle keys.

27On April 22, 2022, 42 Division officers executed search warrants at 22 – 59 Roncesvalles Avenue and 18 Coral Cove Crescent (Natalia Hek's dwelling).

28On April 28, 2022, Mr. Chapman entered into a Release Order.

29On the night/early morning of July 10, 2022, into July 11, 2022, Mr. Chapman attended near 18 Coral Cove Crescent, Toronto. At the time Magdalena Hek was staying overnight at the house with her sister, and her vehicle, the BMW 4-door sedan, was parked on the driveway of that residence. As he had done before, Mr. Chapman attended the residence overnight to leave things for Natalia Hek. On this night, upon noticing Magdalena Hek’s BMW parked on the driveway, he let the air out of the front-passenger-side tire.

30Later that day, Mr. Chapman sent messages to Natalia Hek advising her of his visit to her house and that he had let the air out of a tire of Magdalena's vehicle. Mr. Chapman made references to the fact that Magdalena's prior complaints to police had gotten him arrested and charged, and that this recent act was small payback.

31Mr. Chapman was on a release from July 14, 2022, with house arrest and other conditions.

32He and Natalia Hek were in an intimate relationship that recently ended and have a child in common. The victim in this incident, Timothy Campbell is a friend of Natalia Hek.

33On September 5, 2022, Mr. Chapman went to 18 Coral Cove Crescent with the intention of visiting the child. He insisted on taking the child for a walk and when Ms. Hek disagreed, they got into an argument. Mr. Campbell tried to intervene. The accused brandished an object and pointed at both victims threatening to kill them both. The victims were afraid this was a weapon, but the nature of the object is uncertain.

34He then drove away in his vehicle. Police arrived and received information that the vehicle was reported stolen in Peel Region.

35On Sept 6, 2022, officers located Mr. Chapman near 1294 Bloor Street West, Toronto where he was arrested. During the search incident to arrest officers found him to be in possession of Schedule 1 substances for the purpose of trafficking: 35.55 grams of cocaine and 105.66 grams of methamphetamine.

36On Tuesday, January 17, 2023, at approximately 3:30 pm, Natalia Hek received a call from Mr. Chapman stating that he would be coming to the address because he wanted to see their child, Lucas. He contacted her several times from his known phone number of 437-882-5887.

37At approximately 8:54 pm, she heard noise outside her house and called police. Once officers attended, Mr. Chapman was found in the backyard of the house.

38On December 22, 2022, Recovery Science Corporation (RSC) advised police that they had received a notification of a "strap tamper" at 0725hrs and contacted police shortly afterwards.

39Officers attended Mr. Chapman’s address located at 543 Craven Road and spoke to his surety, Alexis. She advised that she last saw Mr. Chapman at approximately 0230hrs in the morning when they went to sleep and was not sure when the accused left the house. Officers checked the surrounding area for Mr. Chapman with no results but located the ankle monitor and a pair of scissors in a recycling bin in the laneway between 277 Ashdale Avenue and 1438 Gerrard Street East. Mr. Chapman was not located at the time of the police radio call.

40On January 7th, 2023, officers conducted a neighbourhood canvass in relation to the original charges of case # 22-1724991. Officers reviewed video footage and Mr. Chapman was seen at 18 Coral Cove Crescent in breach of his release order.

41On January 17, 2023, Mr. Chapman was located and arrested on an unrelated matter. He was transported to 32 Division where he was held for a show cause hearing.

42On January 24, 2023, Mr. Chapman was housed in Segregation D Cell 5 at the TSDC. He was the only occupant in the cell. He damaged a fire sprinkler causing the fire alarm to be activated and emergency response. Water poured out and into the cell. Damage is estimated at $1000. The cell was out of use until repaired.

43On September 10, 2023, at approximately 2:08 am Mr. Chapman was at his home at 22 Coral Cove Crescent, in the City to Toronto. He was subject to house arrest and live GPS monitoring. RSC is the live GPS monitoring company. An agent for RSC called police to report that Mr. Chapman was no longer on his property. He returned to the property at 2:25 am. He left the property without his surety and was not experiencing a medical emergency.

44When Mr. Chapman left the property, an agent for RSC called him. He is required to answer the telephone promptly for calls from RSC. He hung up on the agent several times and did not fulfill the demand to upload a video of himself outside with his surety.

45Police spoke with Mr. Chapman’s spouse, Ms. Hek. Ms. Hek said that she fell asleep herself and did not wake up until around 1030 on September 10, 2023. Throughout the night, her phone was on airplane mode, and she could not see if there were any missed calls. At 1224 hours on September 10, she received a call from Mr. Chapman which she did not answer. At 1359 after police attended Mr. Chapman's address and spoke to him, she received another phone call from him asking her to go along with his story. He wanted her to tell police that she had stepped out with him last night in an Uber to his friend Dorian's home to drop him off. Ms. Hek said that she would not go along with this story. He begged and pleaded with her to do so. He was subsequently arrested.

C. THE CIRCUMSTANCES OF THE OFFENDER

46Mr. Chapman is now 32 years old. He has a criminal record which includes convictions for impaired driving, break and enter and two counts of failing to comply with court orders.

47He was brought up by his mother, his father having left the family when he was an infant. He had a very close relationship with his mother who died during the summer of 2023. His early schooling was difficult. He attended a special school because of an ADHD diagnosis. He says he was physically and sexually abused at that school, although it is unclear by whom.

48He quit high school before finishing. He drifted until age 25 when he opened a business which ran into difficulty during the Covid pandemic. As a result, Mr. Chapman began using, and ultimately became addicted to crystal meth, cocaine, and alcohol. He had a serious car accident in 2021, further exacerbating his addiction problem.

49After his arrest and detention Mr. Chapman took several steps to turn his life around. He completed high school with excellent marks and, after securing bail pending sentence after his guilty plea, he diligently embarked on addiction treatment, which, it would appear has been successful. He was continuing to participate in this therapy until his most recent arrest and loss of bail. He has been abstinent for approximately 11 months.

50He has the strong support of his spouse, Ms. Hek. They have a son together named Lucas. Ms. Hek has written a letter outlining how Mr. Chapman has changed since his stint at drug rehab and how committed he is to being a good father to Lucas, who himself has benefited tremendously from Mr. Chapman’s turnaround. Mr. Chapman has obtained an offer of employment.

D. THE POSITIONS OF THE PARTIES

51Mr. Elder argues for a total sentence of two years less a day on the Criminal Code charges and a consecutive term of two years on the drug charges, less Summers credit for presentence custody and some further credit for lockdowns. He further argues for a 2-year driving probation order to follow. He also seeks a DNA order, and a lifetime prohibition pursuant to s.109.

52Mr. Leitold argues that once credit for presentence custody has been calculated, it is appropriate to suspend the passing of sentence and impose probation. Alternatively, should a further sentence be imposed, it should be a sentence served in the community. He does not contest the ancillary orders sought by the Crown.

E. THE PRINCIPLES OF SENTENCING

53The principles of sentencing are set out in Part XXIII of the Criminal Code.

54According to 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 "just sanctions" that have one or more of the following objectives, namely: (a) to denounce unlawful conduct; (b) to deter the offender and others from committing offences; (c) to separate offenders from society where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.

55Further, according to s. 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

56Section 718.2 of the Code also dictates that, in imposing sentence, the court must also apply a number of principles including the following:

• A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
• All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

57When it comes to the trafficking in dangerous drugs, the primary aim in sentencing is denunciation and general deterrence. This type of offence is more likely to be influenced by a general deterrent effect as it ordinarily requires some degree of planning. R v. Maric [2019] O.J. No. 2757 (S.C.J.); R v. Duncan 2016 ONSC 1319 , [2016] O.J. No. 1013 (SCJ); R v. Pastukhov [2019] O.J. No. 6273 (O.C.J.); R v. Tello 2018 ONSC 2259 , [2018] O.J. No. 2201 (S.C.J.) aff’d [2023] O.J. No. 2274 (C.A.)

F. THE AGGRAVATING CIRCUMSTANCES

58Mr. Chapman’s criminal record is aggravating. He has committed similar offences in the relatively recent past.

59Mr. Chapman’s offences have caused significant emotional and financial pain to Mr. Dunseith, the victim of his property crimes.

60The drugs Mr. Chapman possessed for the purpose of trafficking are dangerous to the community. The amounts he possessed were significant.

G. THE MITIGATING CIRCUMSTANCES

61Mr. Chapman’s guilty plea has saved the state the enormous expense of one or several trials. He has saved many witnesses the inconvenience of testifying. Even though his plea was not particularly early, it is nonetheless an indication of remorse. He told the court how sorry he is, and I accept that.

62I also accept that Mr. Chapman’s crimes were, to some degree fueled by his addiction. I am also impressed with the steps he has taken to confront his addictions.

H. THE MOST RELEVANT PRECEDENTS

63It is a well settled principle of criminal law that similar sentences should be imposed on similar offenders for similar offences in similar circumstances. Criminal Code, s. 718.2 (b); R. v. Lacasse, 2015 SCC 64 at para 2.

64That parity principle notwithstanding, sentencing is fundamentally an individualized process.

65As concerns the drug offences, the jurisprudence clearly suggests the imposition a penitentiary sentence. R. v. Graham, 2017 ONCA 245; R. v. Ticzon, 2018 ONCA 198.

66As concerns the Criminal Code offences, despite the absence of personal injury, they are serious. The driving was outrageous and the identity theft and associated fraudulent behaviour were brazen and enduring, bringing significant suffering to Mr. Dunseith. The threats to Ms. M. Hek and Mr. Campbell were no doubt extremely frightening. A mid-range reformatory sentence is called for.

I. ANALYSIS

67Applying the principles of sentencing to Mr. Chapman’s circumstances and the crimes he has committed, I believe that a sentence of 11 months concurrent is called for on the Criminal Code offences. A consecutive notional sentence of 28 months is called for on the drug charges.

68From these 28 months I deduct 4 months as credit for lockdowns while in custody. I deduct a further 456 days, or 15 months as Summers credit for presentence custody. The net sentence to be served consecutively on the drug charges is 9 months.

69The net total sentence is 20 months.

J. IS A CONDITIONAL SENTENCE APPROPRIATE

70Mr. Elder concedes that pursuant to recent legislation, a conditional sentence is a legal and available sentence for all the offences that Mr. Chapman pleaded guilty to.

71Section 742.1 sets out the conditions allowing for the imposition of a conditional sentence. There remain five (5) prerequisites for the imposition of a conditional sentence:

• The offender must be convicted of an offence that is not specifically excluded.
• The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment.
• The court must impose a sentence of imprisonment that is less than two years.
• The safety of the community would not be endangered by the offender serving the sentence in the community.
• The conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Code.

72The offences here in question are not specifically excluded from the imposition of a conditional sentence, nor do they attract a minimum sentence.

73I believe that a sentence of imprisonment of less than two years is appropriate.

74Mr. Chapman has no history of violence and has been well-behaved since the commission of the offence. I find that he presents a low risk of re-offending, and I am thus satisfied that service of the sentence in the community would not endanger the safety of the community.

75The final test I must apply to the circumstances of this case poses the greatest challenge. The offences are serious, involving dangerous drugs and a wide variety of criminal offences. These aspects of the case militate in favour of a custodial sentence. On the other hand, Mr. Chapman is only 32 years-old, pleaded guilty, has a job to go to and is a committed romantic partner and a committed father to a young son. These aspects of the case militate in favour of a non-custodial sentence.

76I believe that the principle of restraint, as articulated in s. 718.2, along with the Court of Appeal’s direction in Stein and Priest dictates the imposition of a non-custodial sentence and I am satisfied that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. Even though a conditional sentence does not involve incarceration, it can nonetheless be sufficiently strict that it satisfies all the objectives of sentencing in this case, including denunciation and deterrence, while also satisfying the need to demonstrate restraint: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 at paras. 21-22, 36, 41, 102, 127.

77I am troubled by Mr. Chapman’s most recent failure to comply with his house arrest, but I believe that he appreciates that a breach of his conditional sentence order will result in him being incarcerated for the duration of that sentence.

K. CONCLUSION

78The details of the sentence are as follows:

1. 11 months on each Criminal Code offence, concurrent to each other.
2. Considering lockdowns and time served, 9 months on the two drug charges concurrent to each other but consecutive to the Criminal Code offences.
3. The 20-month sentence will be served in the community. The first 10 months will involve a strict house arrest except for employment and counselling. The balance of the sentence will involve a 6 pm to 5 am curfew.
4. The conditional sentence will be followed by 12 months of reporting probation with the usual statutory terms and non-contact clauses for all complainants, except Ms. N. Hek, who may provide the probation officer with orally revocable written consent to contact with Mr. Chapman. Mr. Chapman will take counselling as directed by the probation officer.
5. A D.N.A. order will issue as well as a s. 109 order for life.
6. A two-year driving prohibition is also imposed.