DATE: December 13, 2023 Court File No. 4810 998 20 15003752-00
ONTARIO COURT OF JUSTICE
HIS MAJESTY THE KING
v.
JEROME BOSNJAK
Reasons for Sentence
BEFORE THE HONOURABLE JUSTICE B. BROWN
On December 13 2023, at TORONTO, Ontario
APPEARANCES:
E. Mastrorillo Counsel for the Federal Crown K. Saravanamuttu Counsel for Jerome Bosnjak
After a trial of Mr. Bosnjak and his co-accused Ryan Konigshaus, both Mr. Bosnjak and Mr. Konigshaus have been found guilty of numerous charges for an offence date of July 3rd 2020, including possession for the purpose of trafficking in the following Schedule I drugs: crystal methamphetamine, cocaine, which was after an amendment to that count, Ketamine, which was after an amendment to that count, and Gamma Hydroxybutyrate, also known as GHB, together with possession of proceeds of crime not exceeding $5,000.
The Crown proceeded by indictment on the possession of proceeds count.
Prior to that, on the date scheduled for closing submissions, April 26th, 2022, Mr. Bosnjak failed to attend court for the trial. The Court was advised that he had failed to communicate any instructions to his counsel. He failed to communicate his location to the Court. Counsel for Mr. Bosnjak attended in court and advised that she had recently spoken with the accused and she did not know why he was not in court, nor of his whereabouts. The Court had given defence counsel an opportunity to reach out to him and try to locate him or to determine his whereabouts. The Court issued a bench warrant for his arrest, which remained outstanding for a considerable period of time.
The case was put over for both accused, Mr. Konigshaus and Mr. Bosnjak, for a considerable period of time for judgment.
The Crown brought an application for severance, seeking to have the Court deal with each accused separately in order to proceed in a more expeditious fashion. Although both accused were initially charged separately on informations at the beginning of the trial, all counsel agreed and requested that there be a joint trial of both accused together. That was on consent.
In the end, the Court did not order severance, but scheduled October 13th, 2022 as the date for the Court to render judgment. It was scheduled to proceed by the Zoom platform rather than in person. On that date, the bench warrant for the arrest for Mr. Bosnjak remained outstanding. It had not been executed. Mr. Bosnjak remained at large.
As court commenced, Mr. Bosnjak joined the Zoom platform to receive judgment. He had not turned himself into custody. The Court held that Mr. Bosnjak had not properly attorned to the jurisdiction of the Court with the outstanding bench warrant for his arrest that had not been executed, and with the situation of him remaining at large.
Counsel for Mr. Bosnjak advised the Court that Mr. Bosnjak would turn himself into custody, but that he was some distance away and that he required a few days to turn himself into custody. On the understanding that Mr. Bosnjak would do as undertaken and turn himself into custody, there was no judgment given on that date.
As the months passed, Mr. Bosnjak did not turn himself into custody and the police had not been able to locate him in order to execute the bench warrant for his arrest. Given the lengthy delay and the concern regarding Mr. Konigshaus having to wait, the Court scheduled December 1, 2022 as the date for the Court to render judgment.
Neither Mr. Bosnjak, nor his counsel of record, Ms. Dubin, appeared for this judgment. In lengthy reasons for judgment, the Court found both Mr. Konigshaus and Mr. Bosnjak guilty of the possession for purpose of trafficking in the Schedule I offences, which included possession for the purpose of trafficking in crystal methamphetamine, GHB, Ketamine, and cocaine, together with possession of proceeds of crime.
The case was adjourned to March 30th, 2023 for the Court to impose sentence in relation to Mr. Konigshaus. The Crown also served on Ms. Dubin, counsel of record for Mr. Bosnjak, on February 23rd, 2023, an application to sentence Mr. Bosnjak in absentia. On that date, neither Mr. Bosnjak, nor Ms. Dubin, his defence counsel, appeared in court.
The Crown sent an e-mail on behalf of the Court to Ms. Dubin, who was at that time still defence counsel for Mr. Bosnjak, directing that she appear in court for the matter. The Court also had an e-mail sent to Ms. Dubin later in the day directing Ms. Dubin to appear in court at 2:15 p.m. that day. Ms. Dubin did not appear at that time, but sent various e-mail messages requested to be directed to the Court. Ms. Dubin indicated she would not be in court at that time, but was requesting to be removed from the record.
Crown Counsel made submissions in relation to the application to sentence Mr. Bosnjak in absentia. The Crown advised the Court that there is not just one warrant for Mr. Bosnjak’s arrest that has been issued in this case. There were, at that time, three warrants outstanding for his arrest. The Crown had no information as to the whereabouts of Mr. Bosnjak.
The Court indicated that the Crown would make its submissions on the application on March 30th, and in case counsel for Mr. Bosnjak wished to participate in the application, a transcript of the submissions made on March 30th, 2023 could be provided to defence counsel.
The case was remanded to Tuesday, April 4th, 2023 at the request of Ms. Dubin to be spoken to. Subsequently, Ms. Dubin was removed from the record as counsel from Mr. Bosnjak at her request. This took place following Counsel’s efforts to reach Mr. Bosnjak by serving him with the application to be removed from the record, with all the coordinates for contact for Mr. Bosnjak possessed by Counsel.
Mr. Bosnjak had been told through the materials that the Crown sought to sentence him in absentia.
Subsequently, in the summer of 2023, the Court was advised that Mr. Bosnjak had been arrested on new charges and with failure to appear in the subject charges in this case.
Subsequently, Mr. Bosnjak was released on an order with a surety. He appeared before this Court with his surety on August 29th, 2023. Over various appearances, Mr. Bosnjak retained new defence counsel and he appeared before the Court with his counsel for the matter of sentence.
The Court also ordered a pre-sentence report for Mr. Bosnjak, which is now before the Court, and has been marked as an exhibit. Defence Counsel has also put before the Court two letters in support of Mr. Bosnjak from his sister and from his friend, which are referred to below.
Although the Court had prepared reasons for the Crown’s application to sentence Mr. Bosnjak in absentia, the Court will not release its reasons on that application, as Mr. Bosnjak is now before the Court for the matter of sentence.
This case had been scheduled to proceed on an earlier date, but changed scheduling after Mr. Bosnjak was arrested.
Earlier today, Counsel made submissions regarding sentence. At this point, the Court sets out its reasons related to the imposition of sentence on Mr. Bosnjak.
The Facts
A) Circumstances of the Offence
Mr. Jerome Bosnjak and Mr. Ryan Konigshaus were charged in two separate Informations with a series of offences on July 3rd, 2020, the day of the execution of a search warrant upon an apartment where various drugs were seized. Mr. Bosnjak was charged with possession for the purpose of trafficking crystal methamphetamine, cocaine, Ketamine, GHB, and possession of proceeds of crime not exceeding $5,000. The Crown proceeded by indictment on the possession of proceeds count.
The defendants each elected trial in this court. As indicated earlier, Counsel sought and agreed to a joint trial for Mr. Bosnjak and Mr. Konigshaus related to the similar allegations and evidence for both parties. The allegations relate to an offence date of July 3rd, 2020, when a search warrant was executed at Apartment 308 at 317 Sherbourne Street in Toronto. There was evidence that at least one male was connected to the apartment. There was a shoe rack which had at least nine pairs of shoes, which appeared to be men’s shoes, which were clean and orderly. There was also clothing hanging in the closet area, which appeared to be male clothing.
The target of the investigation and search warrant was Jerome Bosnjak, date of birth February 25th, 1977, and he was not present at the time of the execution of the search warrant.
Mr. Jerome, also known as Jeremy, Bosnjak was named as the tenant in the lease agreement for the apartment where the search warrant was executed. A wallet was located in the search near the foot of the bed. This was the bed at the far right corner of the apartment next to the wall for the bathroom area. This was described as Mr. Bosnjak’s wallet, as it contained an Ontario birth certificate of Jerome Bosnjak, date of birth February 25th, 1977, together with a photo of a man, woman, and two young children.
Mr. Bosnjak’s wallet was in a backpack on the floor near the foot of the bed. This was the only bed in the apartment.
Jerome Bosnjak filed an application in March 2020, which was a few months prior to the search warrant, to be a tenant for Apartment 308 at 317 Sherbourne. He looked at the apartment and he was given an application to fill out to put his name, phone number, previous place of employment, et cetera, on the application form. He provided, was to provide that application to the representative of the landlord. He became a tenant for the apartment in April 2020. He paid for first and last month’s rent by giving the woman, who was the landlord’s representative, $2,200, which she gave to the landlord. She provided Mr. Bosnjak with a receipt dated April 5th, 2020, which was marked an exhibit. It should have stated that it was rent for the month of April 2020 and the last month of March 2021.
After Mr. Bosnjak paid his money for rent, the representative of the landlord saw Mr. Bosnjak in the apartment maybe five or six times, until he was forced to leave the building. She had given him the tenancy contract to sign, which he was to return to her. He told her that he had no time to read the contract or that he possibly misplaced it, but nonetheless he did not return the signed tenancy contract to her. The rent was to be paid to West Side Stories Limited. The landlord for this company is Michael Kalimin. Mr. Michael Kalimin testified that he is the property owner and manager, president of West Side Stories Limited. He oversees property management, including approving individuals and rental applications and preparing leases. He reviewed the application for Jerome Bosnjak stating a phone number, date of birth, address of 565 Sherbourne Street, Apartment 1809, and a name of the current landlord with the first name Kenneth, and his phone number. The landlord checked and determined that this was a valid address for Mr. Bosnjak and the employment information and references. The Court does not know what employment information that was. He also did a credit check for Mr. Bosnjak.
Mr. Kalimin testified that a tenant, Matthew Campbell, had referred Mr. Bosnjak. That tenant asked whether Mr. Bosnjak was going to be getting the apartment. Mr. Kalimin testified that Mr. Jeremy Bosnjak was the tenant, that Mr. Kalimin received the cash of $2,200 from his representative Marta for the first and last month, and then after that, he received three payments by Interac transfer for April 30th, May 31 and June 30th. In evidence, there were e-mails from the Interac e-transfers from Jerome Bosnjak to West Side Stories for $1,100 on April 30th with the message “Rent” for May 31 for $1,150, and on June 30th for $1,150.
Mr. Kalimin also indicated that approximately a week and a half or two weeks after the execution of the search warrant at the apartment by the police, Mr. Kalimin was contacted by Mr. Jerome Bosnjak in a telephone call. Mr. Bosnjak was at that time not able to get into his apartment and the landlord arranged for new keys to be made available to him in order for him to get into this apartment, which was the location of the search warrant.
The Superintendent of the building gave him the key. A week or two after that, Mr. Bosnjak called to say he was vacating the apartment. There was no further rent received by the landlord for July 2020.
The Court found that Jerome Bosnjak was the tenant for the apartment where the search warrant was executed. When the officers breached the apartment at 317 Sherbourne Street, Apartment 308, on July 3rd, 2020 to execute the search warrant, they found Ryan Konigshaus laying on the floor at the far end of the apartment, on the left of a series of camping chairs made to look like a couch. Mr. Bosnjak was not in the apartment at the time.
The interior of the apartment was found to be quite cluttered in appearance. Officers located a box, which was partially opened. It was jam packed with crystal methamphetamine in a bag, a quantity of Canadian cash rolled in rubber bands, digital scale, empty baggies (which were very small, used for packaging and sale in the small quantity of drugs that were empty and appeared to be new), a digital scale and possibly a small bag of crack cocaine inside a bigger Ziploc bag.
There was crystal methamphetamine, cash, scales and baggies in a box near folding chairs and a blue water bottle of GHB on a glass coffee table. All of these items were in the apartment.
Within the apartment, officers located and seized six samples of methamphetamine, which were tested as that drug and totaled 41.31 grams. Two samples of cocaine totaling 2.89 grams were also found in the apartment. MDMA weighing 0.94 grams was found in the apartment together with 5.35 grams of Ketamine and two containers of GHB, which totaled 1,159.99 grams.
Relative to the issue of possession, potentially for the purpose of trafficking, officers located a digital scale in a box on the folding couch in the main living area, together with drug packaging, which were baggies and a sum of $784.15 Canadian currency. There were packets of money which were $20 bills rolled up and loose $20 and $50 bills seen in the apartment.
There was a box that contained a quantity of crystal methamphetamine and potentially cocaine and packaging found on a small couch in the main living area. There was also a safe inside the storage area under a small couch, which was found in the apartment. The items were in a half-open silk box, red, and they were in plain view.
A box of empty glass vials with screw-on lids was found inside the kitchen near the door. There was a second digital scale also seized. One was called an Infinity scale and the other was a W-scale.
Also located on top of a smaller coffee table was a blue water bottle in the open, which appeared to contain a quantity of GHB. Also in the open, there was a quantity of tin foil consistent with the flaps found containing drugs and additional glass pipes in the open. There was also on that table a green pencil case pouch with a zipper closing on it, which appeared to contain powder cocaine and crystal methamphetamine in a clear plastic container, together with drug paraphernalia, which was crystal methamphetamine pipes with the glass bulb on the end, which were seized. The pouch had been closed; the officer unzipped it to see the contents.
In the main area was a black satchel on the floor near the bed containing a small quantity of cash, drug paraphernalia and tinfoil flaps, which when unfolded, appear to contain small quantities of crystal methamphetamine inside. An officer could not recall if that had been closed or had been open to reveal the contents.
On the larger coffee table was an eyeglass case that appeared to be painted with an owl face, which contained two baggies which appeared to be crystal methamphetamine and more of the tin foil which when unfolded, appeared to contain crystal methamphetamine. It also contained a cylindrical glass pipe. An officer believed that this case was initially closed.
There was a small couch in the living area with a top that could be lifted off for storage. Inside this area was clothing and a plastic bin containing a bunch of pills and packaging consistent with drug activity. This was not the black folding camping chair. Inside this area was a small safe that was empty.
There was an overnight bag near the television, quite close to the door of the apartment, which appeared to contain another water bottle which was pink, similar to the blue water bottle on the coffee table, which contained GHB. This bag was open.
There was drug paraphernalia, papers and clothing scattered on the bed in the apartment. Seized in the search were many dime-style plastic bags used to package drugs for sale. Nearby, just on the other side of the wall to the kitchen was the box of empty screw-cap vials, which were on the other side of the wall even with the folding chairs. In front, that is between where Mr. Konigshaus was located in the front door, were pills and packaging and various identifications, a safe near a small couch, a coffee table on top of which was the green pouch containing powder cocaine and crystal methamphetamine, an eyeglass case with baggies of crystal methamphetamine in a black satchel containing tin foil flaps with drugs. Also on the coffee table were flaps of drugs wrapped in tin foil in a small metal box.
The drugs were found primarily in the main living section of what was a large room bachelor apartment. The Court found that it was reasonable to infer that Mr. Bosnjak was in joint - with Mr. Konigshaus - possession of the controlled substances and cash in this apartment, which was Mr. Bosnjak’s apartment, potentially being guarded by Mr. Konigshaus. There was no other reasonable inference.
It was also reasonable to infer that Mr. Bosnjak was in constructive possession of the contents of the apartment (drugs and cash and equipment for measuring and packaging drugs) in his apartment, given that he had a key to the apartment. And Mr. Konigshaus was in the apartment and in actual possession of the contents of the apartment.
The Court was of the view and found that a reasonable inference is that Mr. Bosnjak rented the apartment to store the drugs and money in this case. He clearly had an interest in getting in the apartment after the search warrant was executed when he called the building representatives as the lock had been changed. It is reasonable to infer Mr. Bosnjak wanted to get his property back out of the apartment. There is no evidence that he had sublet the apartment to another person, nor is there any evidence or absence of evidence to suggest he had in any way abandoned the apartment. Clearly, he had items he wanted in the apartment, and he had left important items of identification.
The Court noted in Reasons for Judgment that in this case, the inference is that the tenant on the lease, Mr. Bosnjak, with power and control over the apartment, could constructively possess the items inside the apartment in the de facto personal possession of Mr. Konigshaus, when Mr. Konigshaus was alone in the apartment with the items. In that way, both Mr. Konigshaus and Mr. Bosnjak possessed the items jointly, with Mr. Bosnjak being in constructive possession of the items in the apartment he leased, even though he was not physically present at the time of the execution of the search warrant. And Mr. Konigshaus was in actual physical or personal possession of those items at that time.
The Court found in the end that the only reasonable inference is that Mr. Bosnjak was the tenant for the apartment, that he had rented it and paid for the apartment, April 30th, May 31 and June 30th of 2020. He was to pay for the hydro for the apartment separate apart from the lease.
As noted in the Court of Appeal judgement in R. v. Emes, [2001] OJ 2469, a reasonable inference can be made that a person occupies a place where important personal documents are left. In this case, the wallet containing Mr. Bosnjak’s birth certificate, social insurance number, credit cards and a photo of Mr. Bosnjak and his family were all located in a wallet left in the apartment. This was a residential apartment. It is a fair and reasonable inference that Mr. Bosnjak was an occupant of the apartment with a significant measure of control over the apartment.
Further, it is to be noted that after the search warrant was executed by the police and the locks were changed as indicated above, Mr. Bosnjak called the property manager to advise that he was unable to gain access to “his” apartment because the lock had been changed. He was given new keys to his apartment. Later, he called the property manager to advise that “he” would be vacating the apartment. There was no indication in his communications with the property manager that he ever indicated that he did not occupy the apartment, nor that the items inside the apartment were not his items.
The Court considered R. v. Villaroman, 2016 SCC 33 , [2016] 1 SCR 1000, applying it to the evidence and absence of evidence, applying logic and experience, and whether there are other plausible theories or reasonable possibilities not on speculation that are inconsistent with guilt. It is also to be noted that the Crown does not need to disprove every possible conjecture that might be consistent with innocence.
In this case, logic and experience would lead the Court to find, and the Court so found that as the tenant for the apartment named in a one-year lease beginning April of 2020 and running until March of 2021, that Mr. Bosnjak would have been given the keys to the apartment to get in or to lock the apartment. It is reasonable to assume he controlled access to the residential apartment by people and items coming into the apartment.
There is also evidence of his occupancy in the apartment, consisting of a wallet found at the foot of the bed in the main living space containing his birth certificate, a photograph of what appeared to me be Mr. Bosnjak with a female person and two children, his social insurance card and credit cards.
Considering all of the above and the presence of those important items of identification and credit cards, this Court found that it was reasonable to assume that it was indicative of his occupancy and continued attachment with the apartment. One would not expect a person to leave important items in the apartment if they did not occupy the apartment.
It is also reasonable to assume that if Mr. Bosnjak was paying rent for the apartment, which he was, that he was using the apartment. One would not expect a person to pay for an apartment and have their personal property in the apartment if they were not using the apartment. See R. v. Emes, [2001] OJ 2469, paragraphs 7, 8 and 9.
Further, the actions of Mr. Bosnjak after the execution of the search warrant, as noted above, were indicative of his ongoing control and desire to access his contents in the apartment.
As it relates to the issue, whether the drugs located in the apartment during the execution of the search warrant were possessed for the purpose of trafficking, the Court considered all of the evidence as to the location of the drugs in the apartment and how they were kept. The Court also considered the evidence of scales and items suitable for packaging and drug paraphernalia.
As indicated, the items found consisted of two digital scales, drug packaging, a safe, a box of empty glass vials with screw-on lids.
The Court also considered the evidence of the expert witness, Detective Constable Farhan Khan, with respect to whether drugs were possessed for the purpose of trafficking. In that regard, the Court considered the presence of the various drugs and quantities and the overall consideration of whether the drugs were possessed for the purpose of trafficking. In the end, the Court found that they were possessed for the purpose of trafficking.
The drugs that were observed during the search warrant consisted of 41.31 grams of methamphetamine, 2.89 grams of cocaine, .94 grams of MDMA, 5.35 grams of Ketamine, and 1,159.99 grams of GHB.
B) Circumstances of the Offender
Recently, following a lengthy period of time following which Mr. Bosnjak had absconded when he appeared before the Court with Counsel, the Court ordered a pre-sentence report. That has been prepared and admitted to be accurate and is now before the Court as an exhibit. The Court has reviewed it very carefully. Mr. Jerome Bosnjak has a date of birth of February 25, 1977, making him currently 46 years of age. He is not a youthful offender. He is separated and he has no dependents. He is not Indigenous.
He has a prior criminal record. He has convictions starting in 2009 for driving over 80, for which he was given a fine and a driving prohibition for 12 months. He was, on April 28th, 2008, found guilty of uttering threats contrary to section 733.1(1) of the Criminal Code in Brampton. He was sentenced to probation for a term of one year, beginning on April 28th, 2008. He was convicted and sentenced for fail to comply with a probation order December 17th, 2009. Following that in 2012, on November 22nd, he was found guilty and sentenced for driving while his ability was impaired, for which he was given a jail sentence of 30 days intermittent, probation, and a driving prohibition order.
Accordingly, it is evident that Mr. Bosnjak has had a jail sentence in the past, although the convictions were for unrelated types of offences and the sentence was not lengthy. There was also a notable gap in the record from 2012 until the current time.
The pre-sentence report is very helpful in terms of its review of Mr. Bosnjak’s background. He had a good childhood with a close-knit family unit, according to Mr. Bosnjak, which according to his sister’s letter, seems to have continued to be the situation.
Mr. Bosnjak indicated he had happy memories from his childhood and that he came from a caring home with no forms of abuse and no violence in his family. Although he related a bout of scarlet fever when he was eight years old, it appears that he does not have any medical issues.
The author of the pre-sentence report indicates that he is in good physical health and he does not have mental health concerns or issues. He had counselling for impaired driving. He indicates that he has no issues that need to be resolved and he just chooses to do these things, which the Court understands to refer to the offences.
That is an important consideration with respect to sentence, as it reflects the volitional decision to sell drugs to make money.
His sister, Amanda Kyle, who also wrote a letter of support Mr. Bosnjak related that she had not seen her brother since last March due to court charges and monitoring. She also noted that she has had to pull away from him at different times due to his lifestyle and the choices he has made. She stated that Mr. Bosnjak has lost his way in life and believes he needs to be reunited with his family.
This lifestyle was also related by his former wife, Nancy Pereira, who met Mr. Bosnjak when they were both in high school 30 years ago. They were married in 1999 and separated in 2017, which was three years before the subject offences. They have no children, although they remain close friends, Ms. Pereira indicated that Mr. Bosnjak’s partying lifestyle with drugs and alcohol contributed to the demise of their marriage. Mr. Bosnjak appears from his comments to agree with her comments. It is unclear as to whether Mr. Bosnjak’s sister and former wife are aware of the circumstances of the subject offences.
More recently, Mr. Bosnjak has been in a relationship with his girlfriend for the previous four years, which would include the date of the subject offences. The Court has no information from her. Attempts to contact her by the author of the pre-sentence report were unsuccessful. His girlfriend’s father is Mr. David Janes and he is the surety for Mr. Bosnjak.
When Mr. Bosnjak and his sister were teenagers, their father travelled a lot for work. At some point, their mother left to travel with their father and left his sister, Ms. Kyle, in charge of her younger brother, Mr. Bosnjak. She was only 16 years old at the time. It was during this time that Mr. Bosnjak started using alcohol and drugs and it was indicated that he could become violent when under the influence.
Defence counsel in court made a submission that Mr. Bosnjak would have felt abandoned as a teenager when his father was away from work, and later when his mother joined his father for those work trips. However, there is nothing in the pre-sentence report that would suggest that situation. It appears from the pre-sentence report that Mr. Bosnjak enjoyed socializing and did not like high school.
He spoke highly of his family and his family life and his good upbringing. Mr. Bosnjak stopped attending school when he was in grade 10, indicating he was interested in socializing rather than attending class.
He has work experience as a carpenter, indicating he was taught by his ex-brother-in-law in 1999 and that he is also self-taught. He indicated he was previously a member of the Carpenters Union. He indicated that he has worked for two companies doing carpentry for a total of 10 years, although within the period of 2002 to 2017. So it would seem that there was a gap between the two positions. He does not appear to have worked in the last six years.
Mr. Bosnjak indicated he first started using alcohol in grade 9 and that he was a heavy drinker up until five years ago. He stated that he also started to use marijuana in grade 9, that he smoked a lot of that, and yet it led him to using cocaine for the first time in 1999. He also indicated that he used cocaine up until five years ago.
The Court would note that this would mean that he was not using cocaine, nor was he a heavy drinker of alcohol at the time of the subject offences. He described himself as one who used alcohol and cocaine hand in hand and that he was a partier.
Regarding substance abuse and addictions, he related that he has no issues or problems that need to be addressed or resolved. He did state to the author of the pre-sentence report that he used methamphetamine two months ago.
Mr. Bosnjak indicated that he should have turned himself into custody and not waste the Court’s time. He admitted to selling drugs here and there but stated that he sees it as a service that has a demand. He understands it is not legal, but he treated it as a business. There does not appear to be any remorse whatsoever either indicated in the pre-sentence report or in any material before this Court emanating from Mr. Bosnjak.
Mr. Bosnjak’s surety, Mr. David Janes, has known Mr. Bosnjak for three to four years, which would mean since 2020 or 2019. It is unclear as to whether he knew Mr. Bosnjak at the time of the subject offences. One interpretation of years would suggests he did know him then. Mr. Bosnjak is not currently employed and he is supported by Ontario Works. He has contributed to groceries and rent for the surety, Mr. Janes. He also apparently helped the surety with his property. The surety has stated that he would not mind if Mr. Bosnjak continued to live with him. Mr. Bosnjak stated to the author of the PSR that he would like to get back into doing carpentry.
The defence has filed a letter of support from David Cameron. He is a friend of Mr. Bosnjak. He has known Mr. Bosnjak since 2018. This was approximately two years before the offence dates. Mr. Cameron relates the fact that he personally went through an incident which he indicated caused him PTSD. He does not specify what that incident was; however, he indicated in the letter filed with the Court that Mr. Bosnjak provided support to him. They became friends. The Court would note that Mr. Bosnjak has not told Mr. Cameron the facts related to the offences before the Court. The letter essentially sets out the circumstances of their friendship and the support Mr. Bosnjak has given to him.
The defence also filed a letter from Mr. Bosnjak’s sister, Amanda Kyle. She was also interviewed for the pre-sentence report. She indicates that she is close to her brother, Mr. Bosnjak, and that he has helped her and her husband in their home renovations and that he is supportive of her children. She referred in the letter to the fact that their father has been diagnosed with ANCA Vascularitis, and that she feels that Mr. Bosnjak has taken this news very hard, as he could not be there for his father. The PSR quotes information from Ms. Kyle that their father, however, is at home from the hospital and receiving treatments at his home.
Legal Parameters
Mr. Bosnjak has been found guilty of multiple counts of possession for the purpose of trafficking in Schedule I offences. For each of those offences he is subject to a maximum of life imprisonment, pursuant to section 5(2) and 5(3)(a) of the Controlled Drugs and Substances Act. He has also been found guilty of possession of proceeds of crime under $5,000, section 354(1) of the Criminal Code for which the Crown proceeded by indictment. Pursuant to section 355(b)(1) of the Criminal Code, he is liable to a term of imprisonment not exceeding two years on that count.
Positions of Crown and Defence on Sentence
The Crown is seeking a sentence of four years imprisonment together with the forfeiture order for the cash and drug related paraphernalia seized, pursuant to section 462.37 of the Criminal Code, a mandatory weapons prohibition order for 10 years, pursuant to section 109 of the Criminal Code, and an order for the taking of DNA samples pursuant to section 487.051(3)(b) of the Criminal Code for the secondary designated offences of possession for the purpose of trafficking. The Court would note that it has very recently been advised a few minutes ago that there are pre-sentence custody days that will also be taken into account on sentence.
The defence seeks a sentence of three years’ incarceration and takes no issue with the ancillary orders requested by the Crown. Although counsel did not make submissions, both counsel have indicated - firstly, the Crown takes no position on victim fine surcharge and the defence has asked that it be waived for the accused.
Review of Case Law
The Crown has put before the Court a Sentencing Chart for offences of trafficking in methamphetamine. This shows the range of sentence from 18 months incarceration, generally, to five years in jail. The Court would note this is a chart. The Court does not, in looking at this chart, recognize that there is any kind of sentencing range, which is a straitjacket in Ontario or Canada for these offences.
The sentencing cases referred to by the Crown - and if the transcript is ordered later, I can provide the citations - include:
R. v. Shevalier, 2017 ONCJ 7247, where there were 22.11 grams of methamphetamines and five years’ incarceration was given to Shevalier and 18 months for Clark; R. v. Boardman, 2016 ONSC 4379, which involved 27.99 grams - again, these are all methamphetamine - for which a five-year sentence was imposed, although there were substance use issues and physical health concerns and a related record; R. v. Prestula, 2018 ONSC 4214, 35.5 grams, for which there was a sentence of 2.5 years concurrent. However, in that situation there was an early guilty plea and a rehabilitation prospect.
The Court also considers R. v. Musa, 2022 ONSC 3734, where there was 39 grams for which a four year concurrent sentence was imposed for a youthful 20-year-old offender for his first penitentiary sentence. The Court notes an important distinguishing feature in that case was that there was a loaded firearm and there was not one in the case at bar.
In R. v. Gagnon, 2017 ONSC 7470, it involved 43.76 grams and the sentence was 19 months concurrent, but there were rehabilitative efforts that were made in that case.
In R. v. Falk, 2020 ONCJ 233, there was a substance of 47.9 grams and a sentence of 12 months. However, in that case it is important to note there was a guilty plea and that there were substance use issues and rehabilitative efforts. The Court stated otherwise, it would have been a sentence in the 16 to 18 month range if it was not during COVID.
The Crown has submitted that it is an aggravating factor that Mr. Bosnjak absconded in the midst of the trial prior to judgment and sentence. There is no charge of failure to appear before the Court, which is before this Court, but the fact that Mr. Bosnjak intentionally chose not to abide by his terms of release and attend court is a factor that the Court considers somewhat aggravating, given that it resulted in a delay of proceedings not only for Mr. Bosnjak, but also for the co-accused, Mr. Konigshaus.
Mr. Bosnjak does have a prior criminal record as indicated above. A prior criminal record is not an aggravating factor, but rather one bearing on the analysis of the need for specific deterrence and rehabilitation prospects. He was sentenced to a period of incarceration on one of the offences in the past. The record is for unrelated offences and there has been a gap from 2012 to the current date.
There are very few mitigating circumstances in the case at bar. There is the fact that Mr. Bosnjak and the co-accused agreed to an Agreed Statement of Facts, which saved the Crown the need to call some witnesses, in what turned out to be a lengthy trial.
Mr. Bosnjak is not a youthful offender. It appears that he committed the subject offences for commercial gain as he was not addicted to cocaine or any of the other subject drugs at the time of the offence. There are also no indications of remorse whatsoever.
Sentencing Principles Analysis
The Court bears in mind the guiding comments of the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64 , [2015] S.C.J. No. 64. In that judgment, the Court stated that sentencing ranges are primarily guidelines, not hard and fast rules. Even if an appellate court has established a range, it may be that a fact pattern may arise which is sufficiently dissimilar to past decisions that the range must be expanded. 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. They should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case. Accordingly, a sentencing range is not a straitjacket to the exercise of discretion of a sentencing judge. Each crime is committed in unique circumstances by an offender with the unique profile. Everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case. Sentencing ranges must in all cases remain only one tool among others that are intended to aid trial judges in their work.
In 2010, the Supreme Court of Canada noted in R. v. Nasogaluak, 2010 SCC 6 , [2010] 1 SCR 206, at paragraph 43 that:
No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case.
Sentencing is highly individualized. See R. v. Suter, 2018 SCC 34 . As the Court stated in paragraph 4:
4A delicate balancing of the various sentencing principles and objectives is called for, in line with the overriding principle that a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (section 718.1 of the Criminal Code).
Accordingly, there will be cases where the particular circumstances of the offence and/or the offender call for a sentence that falls outside of the normal sentencing range. This is one such case.
In 2021, the Supreme Court of Canada in R. v. Parranto, 2021 SCC 46 , [2021] SCJ No. 46, in the majority judgement at paragraph 10, indicated that “proportionality is the organizing principle” for the Court in imposing a fair, fit and principled sentence. Proportionality is the “fundamental principle.” Sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender and the unique circumstances of each case. Parity and individualization are important as secondary principles. The demands of proportionality must be calibrated by reference to the sentences imposed in other cases. Individualization is central to the assessment of proportionality and that it demands consideration of the individual circumstances of each offender is set out in paragraph 12.
The Court specifically notes that this was the only case referred to by the defence for the purpose of sentence. The defence focused on paragraphs 36 and 37 of the judgment, which refers to the principle that the “starting points or ranges are not binding” on a sentencing judge, but are “tools and not straitjackets.”
Further in 2023, in the context of a constitutional challenge to the mandatory minimum sentencing provisions in the Criminal Code, the Supreme Court of Canada in R. v. Hilback, 2023 SCC 3 , commented upon sentencing principles in paragraph 128. The Court stated:
128First, the Court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code, including the fundamental principle of sentencing under section 718.1: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” In assessing an offence’s gravity, courts may consider the consequences of the offender’s actions on victims and public safety, the harm caused by the offence, and, in some cases, the offender’s motivations (R. v. Hills, 2023 SCC 2 , at paragraph 58). In assessing the degree of responsibility of the offender, the Court should gauge “the essential substantive elements of the offence including the offence’s mens rea, the offender’s conduct in the commission of the offence, the offender’s motive for committing the offence, and aspects of the offender’s background that increase or decrease the offender’s individual responsibility for the crime, including the offender’s personal circumstances and mental capacity” (R. v. Hills, 2023 SCC 2 , at para. 58, citing R. v. Hamilton (2004), 72 O.R. (ed) 1 (C.A.) R. v. Boudreault, 2018 SCC 58 , and R. v. Ipeelee, 2012 SCC 13 ).
The principle of proportionality is also codified in the Criminal Code which states that:
The sentence imposed by the Court must be proportionate to the gravity of the offence and the degree of responsibility of the offender. See section 718.1 of the Criminal Code.
Further, the Court bears in mind that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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 objectives of:
(a) denunciation; (b) deterrence, both generally and specifically for the offender; (c) separation of the offenders from society where necessary; (d) rehabilitation; (e) to provide reparation for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community.
See section 718 of the Criminal Code.
The Court bears in mind any applicable sentencing principles as set out in section 718.2 of the Criminal Code, and as well the principles of parity, totality and judicial restraint, in considering a sentence of deprivation of liberty or imprisonment as set out in section 718.2(b) through (e) of the Criminal Code.
The emphasis of the Court in considering these various objectives depends on the nature of the offence and the circumstances of an offender.
The primary principles in this case are denunciation and deterrence for cases of this nature. The Court is also mindful of the principle of parity. The Court considers the degree of responsibility of Mr. Bosnjak. In particular, the Court considers the personal circumstances of Mr. Konigshaus and whether they are different than those for Mr. Bosnjak, as considered in R. v. Pham, 2013 SCC 15 , at paragraph 9, and section 718.2(b) of the Criminal Code.
Mr. Konigshaus is in a different category as an offender, as noted below, and he has not been sentenced on the subject charges.
In this case there was a trial. The fact that the defendant entered a plea of not guilty and a trial follows is not an aggravating factor. A guilty plea saving the need for witnesses to testify at trial can be a mitigating factor. The absence of a guilty plea is neutral. The Court of Appeal for Ontario noted in R. v. Kakekagamick, [2006] O.J. No. 3346 (C.A.), that the “failure to accept responsibility for his actions weighs against affording him significant consideration by way of mitigation.
Pursuant to sections 5(2) and (3)(a) of the Controlled Drugs and Substances Act, the maximum punishment for the offences of possession for the purpose of trafficking in Schedule I drugs is life imprisonment. Schedule I and II drugs include those considered by the courts to be the most serious. For instance, heroin and cocaine are listed in Schedule I. As set out, the maximum punishment for trafficking or possession for the purpose of trafficking is life imprisonment for those offences and those drugs. Other drugs listed in Schedule I include methamphetamine, oxycodone and morphine. Numerous cases have dealt with sentencing in relation to cocaine and heroin.
Courts have renewed emphasis on deterrent sentences for drug trafficking related offences. Courts are eminently aware of the dangers posed to society by drug crime and the importance of deterrent sentences for drug traffickers. In R. v. Smith, 34 C.C.C. (3d) 97 (S.C.C.), Chief Justice Lamer noted:
Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts...Such persons, with few exceptions should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude.
The Supreme Court of Canada further considered drug offences in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982. In that case, Justice Cory wrote of the social and economic costs of illicit drug use and stated, at pages 1039 to 1040:
The costs to society of drug abuse and trafficking in illicit drugs are at least significant if not staggering. They include direct costs such as health care and law enforcement, and indirect costs of lost productivity.
In Canada, the total cost to society of substance abuse has been estimated to be $18.45 billion annually (Canadian Centre on Substance Abuse, the Costs of Substance Abuse in Canada: Highlights (1996), at p. 2. Of this amount, the cost flowing from illicit drugs is $1.4 billion (McKenzie & Single). In 1992 there were 732 deaths, 7,095 hospitalizations and 58,571 hospital days in Canada attributed to illicit drugs. Mortality from illicit drugs is less than for alcohol and tobacco, but tends to involve younger victims (Costs of substance Abuse in Canada, supra, at p. 6).
These significant and often tragic consequences serve to emphasize that the harm caused by trafficking in illicit drugs is very properly a matter of grave concern in Canada, as it is throughout the world.
The Court would note that quote was some 25 years ago. And there is no doubt this Court would indicate, having seen drug cases in my court over the last 20 years, that the situation has become worse.
It is important to note the qualities of the other Schedule I drugs to truly appreciate the nature of the substances and severity of offences relating to trafficking and possession for the purpose of trafficking in these substances. As indicated, this case involves a quantity in excess of 40 grams of methamphetamine as one of the drugs that were found. As courts have indicated over the years, methamphetamine is highly addictive.
In R. v. Holt, 4 C.C.C. (3d) 32 (OntCA); affd 4 C.C.C. (3d) 32n, the Court referred to R. v. Ward, [1980] 56 C.C.C. (2d) 15 at p. 18. In that judgment, Justice Martin, speaking for the Court, recognized methamphetamine as one of the more dangerous drugs, stating:
The principle has been clearly expressed by this Court on many occasions and by other appellate Courts in Canada that, save in exceptional circumstances, a custodial sentence is required to be imposed following a conviction for trafficking in the more dangerous drugs, of which methamphetamine is one. We are of the view that there were, at the time of sentencing, no exceptional circumstances which justified a departure from that principle in the present case, having regard to the nature of the drug, the quantity involved and the obvious commercial nature of the transaction. The fact that the offender had, during the interval between the commission of the offence and his trial, rid himself of his drug dependency, was a mitigating circumstance but not an exceptional circumstance, nor was the fact that he was at the time of sentence gainfully employed, an exceptional circumstance, although it was a factor which was entitled due weight.
Over the years, methamphetamine has been moved from the less serious Schedule III to the more serious Schedule I of the Controlled Drugs and Substances Act, this Court would note. As a result, the offence is now subject to the more serious punishment of life imprisonment. This has reflected Parliament’s view that methamphetamine is even more serious than was recognized by the Court of Appeal in Holt and Ward, when the maximum was only 10 years imprisonment.
As noted by Justice Ian MacDonnell in R. v. Villanueva, 2007 ONCJ 87 , 46 C.R. (6th) 129 (O.C.J.), considering methamphetamine:
Prior to 1997, trafficking in methamphetamine was a hybrid offence under the Food and Drugs Act, punishable in proceedings by way of indictment by a maximum penalty of ten years imprisonment. When the Controlled Drugs and Substances Act came into force in 1997, methamphetamine was listed as a Schedule III substance, and therefore the punishment for trafficking remained the same as it was under the Food and Drugs Act. On August 10 2005, however, methamphetamine was moved to Schedule I. Both heroin and cocaine are Schedule I substances. Trafficking in a Schedule I substance is an indictable offence punishable by imprisonment for life.
The appellate courts have often spoken about the principles related to trafficking and trafficking related offences. As it relates to cocaine, and the Court would know in this case, it was 2.89 grams. In R. v. Bajada, [2003] O.J. No. 721 (C.A.) the Court of Appeal noted, quoting from Clayton Ruby’s Sentencing textbook:
Cocaine used to be regarded by the courts as a drug which is somewhat more serious than marijuana but less serious than heroin. However, due to the existence of crack cocaine and intravenous cocaine users, this attitude seems to be changing. More recent sentences for cocaine seem on par with those imposed for heroin possession or trafficking.
In R. v. Hamilton and Mason, 186 C.C.C. (3d) 129 (O.C.A.) the Ontario Court of Appeal at paragraphs 104 to 113 noted that the immense direct and indirect social and economic harm done throughout the Canadian community by cocaine is well known.
That case also cited the case of Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998), 160 D.L.R. 4th 193 (SCC) at pp. 235 – 37 per Cory, J. in dissent on another issue and in R. v. Smith (1987), 34 CCC 3d 97 at 123-24. Which is refd to above.
In 2005, by Federal Regulation, Ketamine, which is a drug in this case from which there was seized 5.35 grams, was moved by Federal Regulations to Schedule I of the Controlled Drugs and Substances Act to reflect the nature of the drug and concerns associated with its use based on its dangerousness. It should be considered similar to other Schedule I drugs, such as heroin, cocaine and methamphetamine.
It was noted by the Supreme Court of Canada in R. v. Pearson, 77 C.C.C. (3d) 124:
Drugs are responsible for 70 to 80 percent of prison terms: crimes resulting from the application of narcotics legislation (possession and trafficking); crimes committed under the influence of alcohol or other drugs (rape, violence and homicide); crimes committed to obtain drugs (theft and prostitution).
In the context of its consideration of the bail provisions related to trafficking in narcotics, the Supreme Court noted:
Most offences are not committed systematically. By contrast, trafficking in narcotics occurs systematically, usually within a highly sophisticated commercial setting. It is often a business and a way of life. It is highly lucrative, creating huge incentives for an offender to continue criminal behaviour.
The Court would note Mr. Bosnjak was engaged in that behaviour.
The Court also notes that GHB is also a Schedule I drug. In this case, the Crown has relied on R. v. Shevalier to explain differential treatment of two offenders. The Court also notes that the Court of Appeal for Ontario approved of the differential treatment of the offenders and their sentences in Shevalier, as noted in R. v. Disher, 2020 ONCA 710 at paragraphs 36 and 62.
While this Court has not sentenced Mr. Konigshaus for the charges for which he has been found guilty in this case, there is no doubt that his circumstances as an offender are very unlike those of Mr. Bosnjak. For instance, he is a first offender who has a drug dependency. He is interested in rehabilitation and he has made efforts in that regard.
Mr. Konigshaus also has a very serious physical health ailment, including a diagnosis for HIV and other serious medical conditions, which will no doubt have a serious impact on his life expectancy. He is working with community supports and has found stable housing. He has also had stable employment in the past.
He is cooperating in the preparation of a PSR, which outlined in greater detail his circumstances as an offender. He also agreed to an Agreed Statement of Fact for the trial.
There is no doubt that given the different circumstances of Mr. Bosnjak and Mr. Konigshaus and their conduct prior to sentence, there is a rational basis this Court would find to impose very different sentences for each of them for the same offences. See R. v. Pham and R. v. Shevalier, and other cases noted therein.
The principle of judicial restraint is a principle for the Court to consider. The Court considers the oft-quoted case of Regina v. Priest. However, the range of sentence in this case is for one of incarceration. The Crown proposed that the appropriate range would be between 16 months and 5 years. The Crown has submitted that the appropriate sentence for Mr. Bosnjak would be one of four years in the penitentiary. The Court has also referred to the aggravating circumstances on which the Crown relies on making that submission.
The defence submits that the appropriate sentence for this case is one of three years in the penitentiary and seems to be basing that submission largely upon the fact that the Crown position for sentencing for Mr. Konigshaus, who was an offender which is entirely differently situated than Mr. Bosnjak, is one in the range of two years. The Court would note as is stated above, that this defence seeks a sentence of three years, relying upon R. v. Parranto, 2021 SCC 46 , in particular, paragraphs 36 and 37.
The fact that Mr. Bosnjak entered a plea of not guilty and a trial followed is not aggravating. A guilty plea would have saved witnesses the need to testify and can be mitigating factor. Where there is no guilty plea as indicated, it is a neutral factor, following R. v. Kakekagamick.
The Court would find that a penitentiary sentence is warranted in this case for Mr. Bosnjak. That would make him ineligible for consideration of a conditional sentence. The Court would note that even if the sentence for him was eligible for conditional sentence, the Court would not impose one, given his long-standing conduct of absconding during the trial and not returning to the jurisdiction when he promised to do so.
The Court will not consider a conditional sentence in relation to Mr. Bosnjak.
Denunciation and deterrence called out for a term of incarceration from Mr. Bosnjak that cannot be met by reformatory range sentence nor a conditional sentence. See R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, R. v. Wismayer, 33 O.R. (3d) 225 (C.A.) R. v. Killam, [1999] O.J. NO. 4289 (C.A.) R. v. MacGregor, 2008 ONCA 709 .
This case has a number of features which make it one which is more serious than some of the cases at the lower end of the range submitted by the Crown. For instance, there are five Schedule I drugs that form the basis of the charges; the largest quantities of which are the methamphetamine and GHB. Nonetheless, there were also the substances of Ketamine and cocaine. At the time of the offences, Mr. Bosnjak was neither addicted nor dependent on any of the substances that were seized in the search warrant at his apartment.
The Court makes that finding based upon the only evidence on that point, which is in the pre-sentence report. The pre-sentence report refers to a prior addiction to alcohol and cocaine which ended before the period of the offences before the Court. It also appears that on occasion Mr. Bosnjak has taken methamphetamine, but that also appears to be a situation subsequent to the offence date.
It is quite clear and the Court finds, based upon the statements of Mr. Bosnjak to the author of the PSR, that he was in the business of selling drugs for making money. He said he had no intention of hurting anyone. He was not an addict. There was no indication that any of the drugs were being taken by him to support an addiction. At the time of the PSR, he stated that he has no issues that needed to be resolved and that he just chooses to do these things. That is an aggravating factor.
The Court also finds that there is an absolute and complete lack of remorse in this case. Although Mr. Bosnjak expresses remorse for wasting the Court’s time, which refers to the lengthy period of time over which he absconded from the trial and delayed the trial process, there is no acknowledgement of responsibility or remorse for the actual offences.
He appears to appreciate that the business he engaged in was wrong. In the pre-sentence report, the author quotes him as saying that he understand that it is not legal, but he treated it as a business.
I hearken back to the comments of the appellate courts talking about how the appellate courts should deal with people who possess drugs for trafficking, and do so only to make money, given the nature of harm that is caused by those drugs.
The Court has considered very carefully the defence position of a sentence of three years’ incarceration for these offences, but finds that a sentence in that range would not properly address the unique circumstances of this case and this offender.
Bearing in mind all of the circumstances of these offences and the circumstances of Mr. Bosnjak, the Court finds that considering totality and the other principles for sentence, including parity, including the primary principles of denunciation and deterrence, bearing in mind restraint and totality, including the fact that there has been a gap in the criminal record, and that Mr. Bosnjak has never been sentenced to a lengthy reformatory or penitentiary sentence in the past, that the facts of this offence, given Mr. Bosnjak’s situation as an offender, given the quantities and mix of Schedule I drugs and the facts relating to the offence call out for a sentence of four years’ incarceration as being an appropriate sentence.
The Court imposes that as a global sentence. However, taking away the period of pre-sentence custody from that particular period of time.
As a result on the P for P in methamphetamine, Mr. Clerk, there will be a sentence imposed of 4 years less 9 days enhanced pre-sentence custody, which will result in a sentence of 3 years and 356 days incarceration on the P for P methamphetamine.
There will be similar concurrent sentences on the P for P offences of cocaine, Ketamine and GHB.
On the possession of proceeds of crime, there will be a concurrent sentence of 30 days.
There will also be ancillary orders imposed. There will be a section 109 mandatory weapons prohibition order for 10 years. There will be a DNA sample order. The DNA will be taken for the secondary designated offences of the possession for the purpose of trafficking offences. The Court has imposed that in light of the position of the defence on the ancillary orders and taking into account the criteria in section 487.051(3) of the Criminal Code.
The Court also considers the case law with respect to making a secondary designated DNA order offence.
There will also be an order for forfeiture, which is on consent. The Court has been advised that the defence is agreeable to the terms of the forfeiture order, which have been provided to the Court. I would indicate, however, that the Court has changed the style of cause for the forfeiture order. Madam Crown, you had put both parties’ names here. I am only going to deal with Mr. Bosnjak’s sentencing today, and I know defence counsel has this as well. So I have taken off Ryan Konigshaus’ name. But given that this is on consent, there will be forfeiture of $784.15, the cell phone, the drug paraphernalia, the Ontario health cards, and the Ontario driver’s licence that are listed. And however, there will be a return of the wallet to Mr. Bosnjak.
Now, Mr. Clerk, I have signed that forfeiture order.
In light of the fact that Mr. Bosnjak has not working for the last number of years, I am not sure what he has been doing, although I am told that he is collecting Ontario Works, the victim fine surcharge will be waived.
That is the order imposed by the Court. Do you have any questions?
MR. SARAVANAMUTTU: No, Your Honour, thank you.
THE COURT: Thank you. Good luck.
E N D O F E X C E R P T O F P R O C E D I N G S
Certificate of Transcript
FORM 3
Certificate of Transcript Evidence Act, S.S. 5(2)
I, Yvon Schneider-Rodgers, certify that this document is a true and accurate transcript of the recording of His Majesty the King v. Jerome Bosnjak, in the Ontario Court of Justice, held on December 13, 2023, 10 Armoury, TORONTO, Ontario, taken from Recording No. 4810_702_20231213_094811__6_BROWNBE.dcr, which has been certified in Form 1.
Date: January 15, 2024
Yvon Schneider-Rodgers Authorized Court Transcriptionist # 2662973942 Schneider.Rodgers@gmail.com CertifiedCourtTranscripts@gmail.com (905)808-5008 Signed in the Province of Ontario, Canada
A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.
