Court File and Parties

Ontario Court of Justice

Date: 2016-12-13

Court File No.: Brampton 14-10783

Between:

Her Majesty the Queen

— and —

Ms. Lilia Ratmanski & Ms. Milana Muzikante

Before: Justice Patrice F. Band

Reasons for Sentence released on: December 13, 2016

Counsel:

• Mr. R. Lemke — counsel for the Crown
• Mr. M. Simrod — counsel for the defendant Ms. Ratmanski
• Mr. D. Bitter — counsel for the defendant Ms. Muzikante

BAND, J.:

I. INTRODUCTION

[1] These are my reasons for sentence in relation to the criminal and regulatory offences Lilia Ratmanski and Milana Muzikante committed aboard a Cuba-bound Sunwing flight that left Toronto on August 27, 2014.

[2] While in the air, Ms. Ratmanski and Ms. Muzikante secretly consumed Duty Free alcohol they had purchased on the ground. They became intoxicated and belligerent, disturbing both passengers and crew. They also smoked a cigarette in the washroom and discarded the butt in the waste-paper dispenser. This caused the smoke alarm to sound. Flight crew ordered them to return to their seats, where their disruptive behaviour continued. A male passenger then overheard Ms. Ratmanski utter a bomb threat to which Ms. Muzikante responded affirmatively. He told the crew what he had heard. The crew related that information to the captain. At this point, the aircraft was over the Atlantic, but still closer to Toronto than Cuba.

[3] While the captain did not think the threat credible, he decided to turn the aircraft around and return to Pearson International Airport ("Pearson"). He knew that other passengers were concerned, and was worried that Ms. Ratmanski and Ms. Muzikante's behaviour might escalate. The captain decided to return to Pearson rather than to land in the United States in order to reduce costs and minimize inconvenience to other passengers. Upon re-entering Canadian airspace, the plane was joined by two Canadian Forces CF-18 fighter jets, which escorted it to Pearson.

[4] The plane landed safely. No one was injured and no property was damaged. Passengers were given the opportunity to resume their trip several hours later. While the vast majority did so, several were traumatized and declined.

[5] Sunwing claimed it suffered $42,500.00 in financial losses as a result of the incident. These included costs relating to fuel, crew, airport handling fees, maintenance, vouchers and other fees.

II. THE INITIAL CHARGES

[6] Ms. Ratmanski and Ms. Muzikante were originally charged with the following offences:

(a) Uttering a threat to destroy an aircraft, contrary to the Criminal Code (s. 264.1(1)(b));

(b) Mischief - wilfully interfering with the lawful use, enjoyment or operation of property, contrary to the Criminal Code (s. 430(1)(c));

(c) Mischief - wilfully interfering with any person in the lawful use, enjoyment or operation of property, contrary to the Criminal Code (s. 430(1)(d));

(d) Smoking on board an aircraft, contrary to the Canadian Aviation Regulation (s. 602.06(1)); and

(e) Endangering the safety of a Sunwing aircraft in flight between Toronto and Cuba, by communicating between each other information that they would bomb the flight, which information they knew was false, contrary to the Criminal Code (s. 77(g)).

III. THE GUILTY PLEAS

[7] The Crown accepted pleas of guilt to the following offences:

(a) Smoking on board an aircraft, contrary to the Canadian Aviation Regulation (s. 602.06(1)); and

(b) Mischief – wilfully interfering with the lawful use, enjoyment or operation of property, contrary to the Criminal Code (s. 430(1)(c)).

[8] The Canadian Aviation Regulation forms part of the Federal legislative scheme enacted to govern civil aviation in Canada. Smoking aboard an aircraft is a summary conviction offence punishable by a fine not exceeding $5,000.00.

[9] When prosecuted by way of summary procedure, as in this case, the Criminal Code offence of Mischief is punishable by a fine not exceeding $5,000.00, a maximum of six months' imprisonment, or both. However, many sentencing options are available to a sentencing judge in such a case.

IV. THE POSITIONS OF THE PARTIES

A. Smoking on board an airplane (Aviation Regulation)

[10] The Crown and both Defendants agreed that each should be ordered to pay a fine in the amount of $500.00 for the Aviation Regulation offence.

[11] In his submissions, the Crown advised me that such a fine was consistent with how other similar cases have been dealt with.

B. Mischief to property (Criminal Code)

(i) The Crown's Position

[12] The Crown submitted that the passing of sentence ought to be suspended and that both Defendants should be placed on probation with conditions for a period of 12 months. He also asked for a "stand alone" restitution order in favour of Sunwing in the amount of $30,750.00, to be divided equally between the Defendants. This amount does not include what Sunwing claimed on account of the vouchers it had provided to passengers. This is because vouchers are in the nature of "goodwill." Also, they are not always redeemed. The Crown's decision to subtract them is consistent with the governing case-law.

(ii) The Defendants' Position

[13] While the Defendants agreed that a term of probation with conditions is appropriate, they both requested that it be ordered by way of a Conditional Discharge. Also, while they did not dispute that restitution is warranted, they both pointed to their current financial circumstances and ability to pay.

[14] With the fairness that he has demonstrated in this and other proceedings, the Crown conceded that both positions were within the acceptable sentencing range. However, owing to the need to clearly discourage otherwise law-abiding people from engaging in this kind of behaviour, he argued that his position ought to prevail.

V. IMPACT ON VICTIMS

A. Passengers

[15] While the Crown did not file any victim impact statements, I can easily conclude that the impact on the other passengers included inconvenience, frustration, anxiety and fear. The Defendants' obnoxious and unruly behaviour bothered passengers and crew. Their mention of a bomb likely became known to some of the passengers. Everyone's travel plans were placed in jeopardy for a number of hours. That said, there is no evidence that any passenger was out of pocket.

[16] More importantly, it is well-known that air-travel is a source of anxiety for many. And in a "post-9/11 world," fear and anxiety lie just below the surface for even the most seasoned travellers. Those feelings were certainly ignited among those who heard mention of a bomb.

B. Sunwing

[17] The Crown filed a letter from Sunwing itemizing its losses (Exhibit 3). He was unable to say whether Sunwing carries insurance or self-insures against any of the types of losses claimed. Also, while most of the claimed losses appeared self-explanatory, some were not (or not completely). In particular, I would point to Crew costs, Reserves, Cuba O/T and Rotable Support which total $7,150.00.

[18] Nonetheless, I accept that Sunwing suffered substantial losses.

VI. THE APPLICABLE SENTENCING PRINCIPLES

A. General Principles and Case Law

[19] The Crown argued that the primary sentencing principles at play in this case are general deterrence and denunciation. In support of that position, he did not argue that this type of offence is very common in Canada, or that it is on the rise. Rather, he relied on the far-reaching media attention that this case has garnered. In short, the public needs to know that the courts will treat such behaviour seriously.

[20] The Defendants did not argue that those principles are inapplicable. However, they urged me to consider all the relevant principles that apply to young, first time offenders like the Defendants.

[21] The place to start is s. 718 of the Criminal Code. It reads as follows:

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 following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons 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 to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[22] The latter two place some emphasis on restorative justice principles.

[23] Proportionality is also a fundamental principle of sentencing. A proportionate sentence is one that is individualized to ensure that the punishment reflects the seriousness of the offence and the moral blameworthiness of the offender. In other words, it is one that is deserved.

[24] This is so even where the principles of deterrence and denunciation are of central importance.

[25] The Crown also filed the case of R. v. Campbell from the British Columbia Court of Appeal. He acknowledged that it involved behaviour that was more egregious than the Defendants'. In that case, the offenders were sentenced to a suspended sentence and probation.

[26] An important difference is that in Campbell, the Court found that crew and passenger safety had been directly jeopardized. In particular, the court wrote that the offenders

…placed hundreds of lives in danger. The crew and passengers who had to restrain these men were at direct risk of harm, and the potential for the situation to escalate was forever present.

[27] I accept the Crown's argument that because flight paths are designed to minimize danger, an unexpected deviation from a pre-planned route always increases that danger. I also accept that the risk of fire from disposing of a cigarette - particularly when done secretly - can also endanger passengers and crew.

[28] However, the Defendants in this case did not directly endanger anyone on the plane. The smoke alarm was enough to alert the crew to the danger posed by the cigarette butt and the threat was not taken seriously by the captain.

B. Conditional Discharges

[29] A Conditional Discharge is available for this and other offences that have no minimum punishment and are not punishable by imprisonment of 14 years or life. The question is whether it is both in the offender's interest and not contrary to the public interest.

[30] The Crown did not argue that a Conditional Discharge is contrary to the Defendants' interests. His focus was on the public interest.

[31] In R. v. To, a decision of the Superior Court in this jurisdiction, Justice Durno summarized the relevant considerations. Conditional Discharges are not reserved for "trivial matters" and are not necessarily less deterrent than a suspended sentence. They may also be appropriate where the offender has acted out of character, where a criminal record may interfere with future employment and where a significant amount of time has passed since the offence during which the offender has been law-abiding.

C. The Law of Restitution in Criminal Proceedings

[32] A restitution order in criminal proceedings is not a substitute for civil proceedings. Where it is made, it forms part of the sentence. It must be included in the consideration of the totality of the punishment. It should be made with restraint and caution, and should not be oppressive or ruinous for the offender. The amount ordered need not reflect the entire loss, and the offender's ability to pay – both present and future – must be considered. A restitution order should not be made when the loss is not easily ascertainable.

[33] In a case like this, a realistic restitution order can promote sentencing principles by emphasizing the sanction imposed on the offenders and by holding them responsible to the victim.

D. Immigration Consequences

[34] Immigration consequences such as the risk of deportation can permit a court to order a sentence that is at the lower end of the applicable range so long as the sentence remains proportionate.

E. Stigma of Public Embarrassment and Humiliation

[35] Where an offender has suffered public embarrassment and humiliation as a result of his or her offence, this stigma can be considered in the sentencing process.

VII. CHARACTERIZATION OF THE OFFENCES

A. The Behaviour

[36] The offences in this case are serious. The Defendants' behaviour was not a mere annoyance or inconvenience. It increased the danger faced by the passengers and crew to some extent. It also caused the airline to suffer substantial losses.

[37] The Defendants drank the Duty Free alcohol they brought on board, smoked in the washroom and ignored the crew's initial commands. By doing so, they repeatedly violated policies that are in place for the safety of the passengers and crew. This adds to the seriousness of their conduct.

B. The Consumption of Alcohol

[38] The Crown argued that the fact that the Defendants willingly drank alcohol to the point of intoxication increases their moral blameworthiness. However, as he also pointed out, the effects of alcohol are doubled once a flight reaches altitudes of 8,000 feet, as was the case here. Quite fairly, he conceded that this fact was not common knowledge at the time. This diminishes the Defendants' moral blameworthiness.

[39] Also, unlike Campbell (above), there is no evidence that they began drinking before boarding.

C. The CF-18s

[40] The fact that CF-18s were deployed to escort the plane back to Pearson is a sensational aspect of this case that featured in various media accounts. It has to be acknowledged. But what to make of it in the sentencing context?

[41] The Crown advised me that in this "post-9/11 world," this will almost always happen once there is mention of a bomb. But he did not explain why this measure was taken in this case, when the pilot did not believe that the threat was credible. In these circumstances, I would treat the armed forces' response as a neutral factor.

[42] All told, the offences as committed by these Defendants were less serious than those in Campbell, and these Defendants are also less morally blameworthy.

VIII. CIRCUMSTANCES OF THE DEFENDANTS

A. Ms. Ratmanski

[43] Ms. Ratmanski is a young woman who has been working at an appliance repair company, where she is described as a valued, trusted and reliable employee. She has been studying to become a nurse and her transcripts show that her grades are good.

[44] She is currently carrying approximately $30,000.00 in student debt. She has no dependants.

[45] She has attended substance abuse meetings and it would appear that she does not have an on-going alcohol addiction.

[46] A woman she met at nursing school, who is now employed as a nurse, wrote a letter saying that the offences were out of character. She also believes that Ms. Ratmanski will make an excellent nurse and role model.

[47] Since January 2016, Ms. Ratmanski performed over 100 hours of community service at the Russian-Canadian Educational and Recreational Centre, where she became a "highly respected volunteer and contributor."

[48] While the charges were outstanding, Ms. Ratmanski's mother became ill and died in the Ukraine. Due to the conditions of her release, Ms. Ratmanski was unable to travel in time to see her mother before she died or to attend to the funeral arrangements in that country.

B. Ms. Muzikante

[49] Ms. Muzikante is a young woman who has been working as a service representative since April 2015 for a company that sees her as a "particularly valuable" employee who is "highly commended for her professionalism." She earns $15 per hour. She is single and has no dependants.

[50] Like Ms. Ratmanski, she has also been studying to become a nurse and her grades are strong.

[51] Ms. Muzikante has performed 100 hours of community service at the Jewish Russian Community Centre of Ontario. She is described as a "valuable member" of that community who gave of her time "with enthusiasm and great responsibility." She intends to continue contributing to that organization.

[52] Ms. Muzikante is a foreign national who came to Canada on a student permit nine years ago. Currently, she is in Canada under the authority of a work permit. She filed a legal opinion indicating that a Suspended Sentence in this case would render her "inadmissible" in Canada. This means that she would stand to be deported. Deportation operates as a lifetime bar to re-enter Canada.

[53] Her closest family members live here: her mother, brother and grandfather. Her brother was born in Canada and her grandfather is a Canadian citizen.

[54] Both Defendants have invested significantly in their nursing studies and hope to enter that profession in the future. Both believe, reasonably in my view, that a criminal record will adversely affect their chances of joining the profession.

[55] This case received substantial, nationwide exposure in the print media as well as on the internet. Some of the photographs that were selected and posted on-line tended to portray both Defendants as vapid "party girls."

[56] Neither has a prior criminal record.

IX. AGGRAVATING AND MITIGATING FACTORS

[57] I have already discussed the aggravating factors in the "Characterization of the Offences" section, above.

[58] The mitigating factors with respect to both Defendants are the following:

(a) They pleaded guilty, and accepted responsibility for their conduct. This saved the state considerable expense and the witnesses further inconvenience and, in some cases, travel.

(b) They both showed genuine remorse for their actions.

(c) While not "youthful," they are both young.

(d) They do not have a prior criminal record and are of prior good character.

(e) They are valued employees in their workplaces.

(f) They have support in the community.

(g) They have performed a substantial amount of community service.

(h) They have been stigmatized in the media.

(i) They have been law-abiding for the 27 months since the offences took place.

(j) They are both excellent candidates for rehabilitation.

(k) They are on a "no-fly list" with Sunwing. It is reasonable to believe that their offending will cause them difficulties should they decide to travel by air in the future.

(l) It is reasonable to believe that a criminal record may affect their ability to pursue a career in their chosen profession.

[59] A criminal record will cause Ms. Muzikante to be the subject of a deportation order.

X. CONCLUSION

[60] Having considered the seriousness of the offences, the moral blameworthiness of the Defendants, the aggravating and mitigating factors, I am of the view that a criminal record is not necessary to send the message to other law-abiding people that conduct like the Defendants engaged in will not be tolerated.

[61] The principles of general deterrence and denunciation are important. But they have been addressed to a great extent already. The Defendants' conduct has put their ability to work in their chosen field in question. They have been stigmatized by their portrayal in the media. That incomplete image will endure for the foreseeable future.

[62] Having seen a more complete picture of the Defendants, I am satisfied that their actions were out of character.

[63] These circumstances invite a sentence that also fosters their rehabilitation and compels them to make reparations for the harm they did.

[64] In addition to a fine, a fit sentence in this matter will involve a period of probation as well as a significant, but realistic, restitution order. These will assist them in their rehabilitation and will hold them directly accountable for their actions. When viewed in their totality, these sanctions will also serve to deter other like-minded travellers.

[65] While the potential immigration consequences for Ms. Muzikante could have been an important factor in a different case, they did little work in this one. A conditional discharge is the fit and proportionate disposition for both Defendants in all the circumstances.

[66] As a result, both Defendants will be ordered to pay a fine of $500.00 on the charge under the Aviation Regulation.

[67] On the Criminal Code charge of Mischief, both will be discharged conditionally and placed on probation for a period of 12 months. During that period, they will perform an additional 100 hours of community service and take such counselling as may be directed concerning alcohol abuse.

[68] In addition, each Defendant will be ordered to pay restitution to Sunwing in the amount of $7,500.00.

Released: December 13, 2016

Justice Patrice F. Band