Court Information

Court: Ontario Court of Justice

Date: August 31, 2020

Court File Nos.:

• Central East - Newmarket – 4911-998-19-07092-00
• 4911-998-19-07093-00
• 4911-998-19-10666-02
• 4911-998-20-00545-00
• 4911-998-20-06407-00
• 4911-998-20-06408-00

Parties

Between:

Her Majesty the Queen

— And —

Daniel Kochanska

Judicial Officer and Counsel

Before: Justice A. A. Ghosh

Heard on: May 26, June 30, and July 23, 2020

Reasons for Sentence

Released on: August 31, 2020

Counsel:

• D. Morlog, counsel for Public Prosecution Service of Canada
• P. Mergler, counsel for the defendant Daniel Kochanska

Overview

[1] Daniel Kochanska pleaded guilty before me to three trafficking-related charges primarily involving well over a dozen ounces of combinations of carfentanil, fentanyl and heroin, contrary to s.5 of the Controlled Drugs and Substances Act (CDSA). His application for bail pending sentence was denied with summary reasons. I provided summary reasons for sentence as well. The COVID-19 public health crisis informed both hearings. I indicated at the time that fulsome reasons were to follow. Here they are.

[2] Mr. Kochanska admitted to trafficking an ounce of fentanyl to an undercover officer during a police investigation dubbed "Project Big Car". Given the ongoing investigation, he was not arrested at the time. Eleven days later, an independent Toronto Drug Squad investigation into Mr. Kochanska resulted in the execution of multiple warrants at locations associated with the offender. Approximately 13 ounces of a carfentanil, fentanyl and heroin mixture and over a kilogram of cocaine were seized. He was released for those charges at the time, but was later arrested after the "Project Big Car" takedown. The offender has a trafficking-related criminal record and a firearms conviction.

[3] These are my final reasons for the denial of bail pending sentence and for sentence.

Facts in Support of the Pleas of Guilt and the Application for Release

i. Project "Big Car" – York Region

[4] York Regional Police began a drug trafficking and criminal negligence investigation upon the overdose death of a woman who had believed she had consumed a small amount of fentanyl with a friend. She had, in fact, consumed a quantity of highly potent carfentanil, allegedly trafficked to the deceased's companion by a man named Jovane Jolly. Mr. Jolly became the primary target of the investigation.

[5] An initial undercover officer (UC) engaged Mr. Jolly in order to purchase a small amount of fentanyl. Given the defendant indicated that he lacked any supply of the drug at the time, they transacted for a small amount of crack cocaine. Mr. Jolly was arrested. He was engaged by a second UC in the holding cell of the police district. They built a relationship in the ensuing weeks, informed by the anticipated trafficking by Mr. Jolly to the UC for quantities of fentanyl.

[6] The UC arranged with Mr. Jolly to purchase an ounce of fentanyl for $3,500. On May 10, 2019, the two met inside the UC's car in Mississauga. Mr. Jolly told the UC that he had brokered the deal through a friend and the supplier would be coming to meet them.

[7] A short time later, Sarah Richer exited a nearby apartment building and entered the rear seat of the UC's car. She told them that the supplier would be arriving soon to complete the deal. A short time later, Mr. Kochanska arrived in his own vehicle and pulled up beside the UC's car. The conversations in the UC's car between the UC, Mr. Jolly and Ms. Richer were recorded pursuant to a single party consent judicial authorization.

[8] Mr. Jolly and Ms. Richer moved to Mr. Kochanska's vehicle and the three spoke privately. Minutes later, Mr. Jolly returned to the UC and confirmed the transaction would go through and counted the UC's money. The UC asked if he could meet the "guy", and he was then inside Mr. Kochanska's vehicle. Mr. Kochanska soon handed the UC a bag containing an ounce of fentanyl in exchange for $3,300. They parted ways.

ii. Peel Region Charges, Seizures and Arrest

[9] The Toronto Drug Squad was also investigating Mr. Kochanska. On May 21st, 2019, Mr. Kochanska was arrested at his apartment unit in Mississauga. This was during the relatively simultaneous execution of search warrants on his residence, vehicle and an associated storage locker where a large quantity of funds and controlled substances was seized, including approximately: 1 kilogram of cocaine, 13 ounces of mixed carfentanil, fentanyl and heroin, almost 2 ounces of a fentanyl and heroin mixture, 7 grams of crack cocaine, and 1 ounce of "crystal meth". He was released on a surety recognizance.

[10] Mr. Kochanska was arrested without incident upon the execution of a warrant in the first near his home on August 13th, 2019, approximately a month after the primary police takedown of "Project Big Car". He has remained in custody since.

Application for Bail Pending Sentence

Criminal Record and Breaching the Curfew of his Release

[11] Mr. Kochanska has a youth entry from 2010 for breaking and entering, and in 2014 he was convicted of possession of a prohibited firearm and for possessing for the purpose of trafficking of Schedule 2 and 3 substances. In summary, he received a global sentence of 18 months above credit for 14 months of presentence custody for that disposition.

[12] At the time of his arrest, the offender was subject to a recognizance from Peel Region for the May 21st seizures resulting in 6 counts of possession for the purpose of trafficking and 2 counts of possession of proceeds relating to the seized cash and drugs earlier referenced.

[13] In the intervening time before the arrest on August 13th, it is accepted that on August 7th York Regional police observed Mr. Kochanska violate the curfew associated with the release order from Peel.

Proposed Plan of Supervision: Spouse, Mother-in-Law and GPS

i. Jodie Foster – Spouse

[14] Mr. Kochanska's spouse, Jodie Foster, presented as the primary residential surety. She is on social assistance and they planned to reside with their three young children, living in a ground-floor apartment unit. While Ms. Foster had little to monetarily pledge, she would serve as the primary, monitoring, residential surety.

[15] It is noteworthy that thousands of dollars in cash were found in accessible areas of the home and that roughly a kilogram of cocaine was located near a child's car seat in a vehicle routinely driven by Ms. Foster. She also attended the storage locker on multiple occasions where significant amounts of drugs were seized. I find on the balance she knew or was wilfully blind about Mr. Kochanska's drug trafficking.

ii. Charlon Foster – Mother-in-Law and Previous Surety

[16] Mr. Kochanska's mother-in-law, Charlon Foster, pledged $30,000 and committed to phoning regularly and to personally attend the apartment on occasion to confirm compliance with any release order. She works as a transit operator in Peel Region, and part-time as a PSW. Ms. Foster Sr. had sufficient equity to satisfy the pledge. However, Mr. Kochanska violated the terms of his release under her watch.

iii. Recovery Science Corporation – GPS Monitoring

[17] GPS home monitoring employing an ankle bracelet was offered through the well-known Recovery Science Corporation. This was also presented during the original show-cause hearing when Mr. Kochanska's detention was ordered on August 23rd, 2019.

Application for Judicial Release Pending Sentence

[18] Section 523(2) of the Criminal Code permits the trial or sentencing jurist to vacate a detention order and impose a release order upon the detainee showing cause. The presumption of pre-trial release and the right to a reasonable bail is closely tied to the presumption of innocence: R. v. Antic, [2017] 1 S.C.R. 507 (S.C.C.), paras. 1 and 6.

[19] When the presumption of innocence is rebutted, as it is in this case, these primary imperatives become somewhat attenuated in the analysis. However, the mere fact of a plea or finding of guilt, while significant, is not a dispositive factor in the pursuit of pre-sentence release: R. v. Green, [2006] O.J. No. 3240 (O.S.C.J.).

[20] When findings of guilt are entered for serious offences, often the Crown will apply to revoke bail pending sentence: R. v. M.P.L., [2019] O.J. No. 5042 (O.S.C.J.). Here, the court is presented with the opposite scenario, where the already detained offender has admitted guilt to serious offences, yet seeks bail pending a penitentiary sentence. This is not unusual, as often offenders will seek treatment or other legitimate pursuits on bail otherwise unavailable in custody as they brace to serve a custodial sentence.

[21] Mr. Kochanska did not testify, so I decline to speculate as to his motivation to pursue bail in the circumstances. He is not seeking treatment. Counsel characterized the application as the pursuit of a "reprieve" with his family during the COVID-19 public health crisis before his client prepared to serve a substantial custodial term.

COVID-19 Public Health Crisis and Impact on Bail and Detention Centres

[22] Three date-stamped versions of essentially the same expert affidavit were submitted, all authored by Dr. Aaron Orkin, a physician, epidemiologist and professor. He did not testify. The Crown ultimately conceded his expertise and the admissibility of the evidence, but resisted that any weight should be afforded the expert opinion. There is a great deal of recent jurisprudence discussing Dr. Orkin's evidence regarding the public health crisis and its real and potential impact on detainees and imprisonment.

[23] Much of the medical evidence of Dr. Orkin is accepted within the public realm and I accept it at face value as it relates to potential risks to parties residing in "congregate living facilities" as he described. For example, no participant to these proceedings disputes the value of entry-screening, social distancing, hygiene, proper cleaning, and the risks of infection to multiple parties confined in limited spaces. However, the evidence is uncontested from federal and provincial facilities that mitigating steps in compliance with public health directives have been in place and that there have been no outbreaks to date involving locations where Mr. Kochanska will be residing.

[24] I accord little to no weight to several aspects of Dr. Orkin's opinion, specifically as it relates to his observation that it is "extremely likely that COVID-19 will arrive in nearly every correctional facility in Canada, and therefore extremely likely that almost all inmates in these settings will be exposed in one way or another."

[25] I find that he has opined, in improperly sweeping terms, a presumption that custodial facilities are incapable of observing public health directives. I am not the first jurist to make such a finding: R. v. Osman, [2020] O.J. No. 1774 (O.S.C.J.), paras. 97-102; R. v. Paramsothy, 2020 ONSC 2314.

[26] An expert is required to provide opinion evidence that is "fair, objective, and non-partisan" (R. v. White Burgess at para. 30). Were it not for the Crown concession regarding the unfettered admissibility of the expert opinion, I may not have permitted Dr. Orkin to provide much of the evidence captured in the various versions of his affidavits as it related to custodial facilities: R. v. White Burgess at para. 32. His evidence on custodial facilities improperly exceeds the bounds of his expertise and experience.

[27] Also, in submitting modifications to three versions of essentially the same expert affidavit, I find Dr. Orkin has embarked on classically impermissible "tailoring" of his evidence to respond to judicial criticism in order to insulate his opinion. These criticisms focused on his conclusory observations, without evidence, regarding the inability of essentially any correctional facility to mitigate risk.

[28] In his initial April 2nd affidavit, Dr. Orkin expressed that he was "offering" himself "as a witness in these proceedings, out of a profound concern that the prison population – including both inmates and staff – and the community at large, are being put at an increasing and unnecessary risk of COVID-19 infection. This risk arises out of the continued detention and incarceration of individuals who do not pose an imminent threat to the community". At the very least, this may illustrate the spectre of bias or partiality.

[29] Dr. Orkin was highly criticized in two bail reviews heard in early April. Justice Christie of our Superior Court in Paramsothy at paras. 36-40, afforded little to no weight to the expert's opinion regarding the perceived realities of a facility's ability to mitigate risk. Dr. Orkin had no knowledge or experience in this area and testified beyond his expertise.

[30] Justice Christie also criticized the expert's opinion of an "extreme likelihood" the virus would strike "nearly every" facility and thus exposing virtually all inmates as "speculative", unduly "bold" and without "sufficient information". I agree with these observations. They were also soon echoed by Justice Allen in R. v. Osman, [2020] O.J. No. 1774 (O.S.C.J.) (paragraphs 97-98).

[31] The impugned passages of the affidavit, along with the doctor's expression of a "profound concern" for the prison population, were then notably excluded, tempered or reframed, minimally in his May 20th affidavit. Along with the substantive concerns regarding his conclusory observations about the correctional setting in the absence of evidence or experience, I have reservations relating to arguably explicit articulations of an agenda to generally reduce the inmate population due to the crisis.

[32] I accept his evidence as an expert in epidemiology and the COVID-19 virus in general. I afford little to no weight regarding his evidence regarding how the virus will impact detention centres or prisons, either generally or specifically. He is uninformed to opine, particularly as it relates to the Central East Correctional Centre (CECC) and the penitentiary, as to the real and prospective impact of the virus. In any event, while I agree I am required to consider the public health crisis in the determination of bail, the defence medical evidence has less cogency in these circumstances.

[33] There is no credible evidence that Dr. Orkin has ever assessed CECC, the penitentiary, or Mr. Kochanska and any associated risk factors presented by the virus. There has been a single, effectively contained case well over a month ago at CECC and certainly no evidence of a minor outbreak to date, nor at the penitentiary for that matter. I will elaborate shortly on the otherwise healthy, 26-year-old offender.

Secondary Grounds

[34] It is trite law that the secondary ground speaks to whether the defendant poses a substantial likelihood to reoffend if released into the community: R. v. Morales, [1992] 3 S.C.R. 711; s. 515(10)(b) of the Criminal Code.

[35] It cannot be questioned that Mr. Kochanska is an entrenched commercial drug trafficker. His related criminal record and the two recent trafficking-related pleas of guilt involving significant quantities of dangerous controlled substances are confirmatory. It is of some concern that Mr. Kochanska and Ms. Foster live in a ground floor unit and anyone can access their unit through the balcony gate from the building exterior. Although Ms. Foster receives a child tax credit to supplement social assistance, she is financially strapped with three children.

[36] It is accepted by Recovery Science that in high rise buildings, if the internet router goes down or is shut off, the GPS activates to maintain monitoring. In a multi-unit high rise building, the GPS can only confirm that the bracelet is in the building. It cannot isolate the location of the bracelet to the residential unit itself. This scenario would permit the subject to essentially roam parts of the building, undetected.

[37] Even if the relative locational precision offered by the internet router is engaged in the multi-unit high rise scenario, it was conceded that the coverage zone with a router must exceed the bounds of the unit itself. This also permits the subject to leave the unit, albeit within a more confined proximity. I agree with the intimation that this is a perfect storm for the offender to continue to traffic in controlled substances to either financially assist himself or his family before he begins a lengthy penitentiary sentence.

[38] Mr. Kochanska has been recently subject to distinct and proximate arrests for trafficking related offences for carfentanil and other of our most insidious drugs. He has a related record for trafficking-related offences. Not only has Mr. Kochanska failed to show cause on the secondary grounds, I find there is a very high likelihood that he would continue to traffic in controlled substances if released pending sentence.

Tertiary Grounds

[39] The tertiary ground centres on whether detention is necessary to maintaining the public confidence in the administration of justice in the determination of pre-trial release, considering the prospect of a lengthy term of imprisonment and the strength, gravity and circumstances of the offence: s.515(10)(c).

[40] While the onus to show cause for release remains on Mr. Kochanska, I must carefully consider the current public health crisis, and the cogency of the affidavits of the expert epidemiologist tendered on consent.

[41] I am governed in this application notably by the more recent Supreme Court guidance setting out the analytic framework for the determination of the tertiary grounds identified in s.515(10)(c): R. v. Antic; R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328. As this is a reverse onus matter, the ladder principle outlined in Antic is inapplicable or less central: R. v. Sakhiyar, 2018 ONSC 5767, 2018 OJ No 4999 (O.S.C.J.).

[42] I have considered all of the recent bail review and Court of Appeal decisions assessing the impact of the current public health crisis on the judicial interim release analysis.

[43] One noteworthy principle from this body of emerging jurisprudence that resonates is that the public health crisis, as it impacts the inmate population, cannot come at the blind expense of public safety and the public's confidence in the administration of justice. This is an ounce level cocaine, fentanyl and carfentanil case. For reasons earlier referenced, I accord limited cogency to the evidence of Dr. Orkin as submitted in affidavits addressing arguably refinements to an overarching opinion: The public health crisis causes grave danger to inmates necessitating the general reduction in the inmate population. The opinion is general and not specific to this case.

[44] I have uncontested evidence of the steps and procedures the provincial and federal government has in place for custodial settings during the public health crisis. It supports that there are no current concerns regarding the prospect of an outbreak. The current numbers support this.

[45] I have assessed the limitations of the plan of release. I have considered the rebutted presumption of innocence reflecting facts supporting possession for trafficking in large amounts of fentanyl, carfentanil, cocaine, and other of our society's more insidious controlled substances. I have considered the related record involving firearms and trafficking related offences. I find Mr. Kochanska's detention must be maintained on both the secondary and tertiary grounds.

[46] There is clearly a substantial likelihood of further offending by a confirmed and repeated drug trafficker for the reasons referenced. The public confidence in the administration of justice would be dramatically undermined by the following: a very strong Crown case, buttressed by a judicially authorized recording and a proximate transaction; a grave offence involving large quantities of the most dangerous drugs known to society; and the presumption that Mr. Kochanska, by his own counsel's sound submission, is potentially facing a decade in custody.

[47] The application for release pending sentencing was thus denied.

Sentencing

Circumstances of the Offender

[48] Mr. Kochanska is now 26 years old, with a wife and three young children. Several character letters from friends and family were submitted on his behalf. His common-law partner describes him as a loving, responsible family man. He is deeply invested in his children and is highly active in their lives. As an illustration of his commitment to his family, he is the step-father of one of the three and has treated the boy as if he were his own son. This child's father was murdered. Mr. Kochanska's spouse also finds him to be a loving, caring spouse who works hard and is community-oriented.

[49] These observations are reinforced by the character letter submitted by the offender's mother-in-law, who similarly describes Mr. Kochanska as a loving, hard-working and committed family man. A friend similarly describes the offender as helpful, loyal and lives in service of his family and of others. A teacher of one of Mr. Kochanska's children observed the healthy, loving dynamic he shares with his wife and children and his demonstrated sense of responsibility to them.

[50] The offender has recently held positions with a trucking company and as a pizza delivery person. He also dealt drugs. He received positive reference letters from his employers and these positions apparently remain for him upon his release from custody.

[51] When invited to address the court, Mr. Kochanska read from a statement he had prepared. He became emotional when discussing the prospect of being away from the family, notably his children, that he loves. He blames himself for his predicament and is relieved that he was mostly able to keep his criminality away from his homelife.

[52] He expressed his commitment to never engage in criminal activity again. He intends to actively pursue programming in the federal system to prepare him for his integration into a law-abiding existence. He has short term goals to work upon his release while holding longer-term entrepreneurial aspirations. Mr. Kochanska appeared realistic about his prospects. He implored me to give him a chance to turn his life around.

Crown Expert Evidence Led

[53] The Crown led uncontested expert evidence from Dr. Karen Woodall and a police drug expert from the York Region Police Service (YRPS). Carfentanil is a uniquely dangerous drug. The amount of this substance involved here separates this case from much of the jurisprudence submitted by Mr. Kochanska's counsel. It is enough to observe that the opioid crisis has been a deadly scourge in communities across the country, including York Region. The submitted and uncontested impact statement from YRPS is confirmatory.

[54] While the countless deaths resulting from fentanyl overdoses are well-established in the public sphere and our jurisprudence, carfentanil is more dangerous. It is not approved for human consumption and is often used to tranquilize large animals. Consumption in humans of even small amounts of this drug often results in death, as illustrated by the precipitating overdose that started this investigation. Mr. Kochanska held several ounces of a mixture of this drug for trafficking.

Analysis

Applicable Principles of Sentencing

[55] The objectives of sentencing are codified in section 718 of the Criminal Code. I agree with both counsel that Mr. Kochanska can generously be described as a middle to high level commercial drug dealer, trafficking minimally in ounces of fentanyl, carfentanil, cocaine and other of our most dangerous controlled substances. It is well-established that the principles of denunciation, specific and general deterrence must be the paramount sentencing principles for such offenders. Indeed, it is agreed by the Crown and defence that their respective ranges of proposed sentences engage a decade in the penitentiary. He will be separated from society for some time.

[56] Despite the related criminal record for commercial trafficking in controlled substances, some restraint must be observed. The sentence cannot be unduly crushing. Given his youth, work history and an otherwise young and intact family, the youthful Mr. Kochanska's rehabilitation and eventual reintegration into the community must be factored in as well.

[57] Section 718.1 directs that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I must also apply the principle of parity codified in section 718.2(b). Given the multiple and distinct trafficking-related incidents engaged, the principle of totality will be considered as well.

Sentencing Jurisprudence

[58] Both trial and appellate decisions have supported lengthy penitentiary sentences for trafficking-related offences involving carfentanil, fentanyl, cocaine and heroin – the quantities matter. I have considered all of the sentencing jurisprudence submitted by both counsel. While there are several sentencing decisions and appellate decisions from other provinces, I remain primarily guided by the appellate sentencing guidance from our Court of Appeal: R. v. Brewster (appeals by Yu, Tang, Mai and Saccoccia), [2019] OJ No 6098, 2019 ONCA 942, 449 CRR (2d) 72, 383 CCC (3d) 260, 2019 CarswellOnt 19770; R. v. Loor, 2017 ONCA 696, [2017] O.J. No. 4628; R. v. Baks, 2015 ONCA 560, [2015] O.J. No. 3996; R. v. Sidhu, 2019 ONCA 880.

[59] Not surprisingly, both highly prepared counsel were unable to submit decisions meaningfully analogous to Mr. Kochanska's circumstances. As is often observed, sentencing is a highly individualized process. I did find the decision in R. v. Imeson; 2019 ONCJ 245 fairly resonant, but I must address the unique facts before me.

Mitigating Factors

[60] The offender has pleaded guilty and through counsel has expressed an interest to do so early in the proceedings. While he is a repeat offender of commercial drug trafficking, he is relatively young at 26 and has a chance to rebuild his life with his family while still at a formative stage of life.

[61] Mr. Kochanska has demonstrated prosocial behaviour. He has a great deal of family support and has been highly engaged in the raising of his three sons. He has also been able to maintain legitimate employment with a trucking company and in pizza delivery.

Aggravating Factors

[62] Mr. Kochanska has a related criminal record:

• 2010: Break and Enter (YCJA) – 12 months probation. More significantly, in
• 2014: he was found guilty of possession of a loaded prohibited firearm; possession for the purpose of trafficking (x2: Schedules 2 and 3) – global sentence of 18 months custody (above 14 months credit for presentence custody)

[63] The nature and quantities of the drugs: Carfentanil, fentanyl, heroin, cocaine and "crystal meth" are among the most dangerous drugs in society. They have resulted in countless overdose deaths. The offender held large quantities of each of these drugs.

[64] Purely commercial trafficker: Mr. Kochanska traffics in these highly dangerous drugs only for profit. He has no addiction concerns at all. Given the quantities seized, it is apparent that he sells these drugs at relatively large amounts only to be resold.

Calculation for Presentence Credit

Conventional Presentence Credit

[65] It is agreed that Mr. Kochanska has been in custody for 354 actual days. Applying 1.5-1 credit, as permitted by s.719(3.1) and the principles outlined in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, he will receive initial credit for 531 days, just shy of 18 months.

"Duncan" Credit for Detention under Harsh Conditions

[66] Lockdowns during pretrial detention – In certain circumstances, particularly harsh conditions during pretrial detention, often involving lockdowns, can result in mitigation above the 1.5 to 1 days as limited by s.719(3.1). Where there is no evidence regarding the adverse impact of the harsh conditions on the detainee, it may be appropriate to accord no further mitigation: R. v. Duncan 2016 ONCA 754, [2016] O.J. No. 5255 (Ont.C.A.).

[67] While there is some minor disagreement between the detention centre and Mr. Kochanska regarding the number of lockdown days, I am willing to give the offender the benefit of the doubt and accept his counsel's submission of a middle ground of 90 days of actual lockdowns. Materials from the Correctional Centre and an affidavit were filed. None were tested in cross-examination, and some of the information conflicts.

[68] The issue now becomes what further credit, if any, for these lockdowns is warranted. I must consider the impact these conditions have had on the offender. The defence submitted on consent an affidavit from Mr. Kochanska regarding the impact visited upon him by the lockdowns.

[69] During the lockdowns, the offender's primary expressed impact was his restricted ability to see his wife and, less frequently, his children. His wife would ordinarily attend twice a month. Mr. Kochanska also mentioned that the lockdowns resulted in denied access to phones and showers.

[70] I am not persuaded that this collection of effects on the offender by the lockdowns at CECC warrants unduly heightened credit, as at least one decision involving the dire conditions at the Toronto South Detention Centre appeared to warrant. However, I am also dissuaded by the Crown submission that no additional credit should be afforded beyond the mere 90 days. Mr. Kochanska will be credited for 100 days for time spent under lockdown at CECC.

COVID-19 Pre-Sentence Credit

[71] Mr. Kochanska additionally applies for further credit for being detained at CECC during the public health crisis, commencing on March 16th. His affidavit supports that he has been stressed at the prospect of contracting the virus, particularly on the occasional days he has had to share a cell. There have been fights and physical proximity to others.

[72] While I accept the general anxiety associated with the prospect of an outbreak at any detention centre at this time, the evidence does not objectively support any heightened concern to date.

[73] I am mindful of proportionality. I accept and will observe Justice Pringle's analysis in R. v. O.K., 2020 ONCJ 189. From March 16 to date (July 23), Mr. Kochanska will be credited an additional 0.5 day for each day he was detained at CECC during the public health crisis: His actual days served during the crisis amount, rounded up, to 130 days. He will receive additional credit for 65 days.

Prospective Credit for COVID-19 during a Custodial Sentence

[74] I have considered the recent decision of R. v. Hearns, 2020 ONSC 2365, [2020] O.J. No. 1648 and R. v. Yzerman, [2020] O.J. No. 1933, suggesting that during the public health crisis and its psychological and potentially physical impact on those serving additional custody during sentencing, that some further mitigation may be warranted. I have determined an additional reduction of 6 months prospectively from sentence is warranted.

[75] While on the surface this may appear to be relatively exceptional credit, I am mindful of the substance of the offender's lockdown-affidavit and that Mr. Kochanska will likely have to be relocated multiple times as he moves from the provincial to the federal system. This will add to his already admitted anxiety and risk. There is no apparent end in sight to the health crisis. He is going to serve a lengthy penitentiary sentence. I am erring on considering restraint and proportionality in according otherwise exceptional, and likely excessive in quantum, post-sentence reduction due to the crisis.

Discussion and Conclusion

[76] As evidenced by the positions of both counsel, there is little room in the sentencing jurisprudence for anything other than a lengthy, deterrent penitentiary sentence for Mr. Kochanska. As defence counsel appropriately made clear in his submissions, the fit sentence in his view may trend toward the upper end of the 8-10 year range he has submitted.

[77] Mr. Kochanska has previously been sentenced to a lengthy custodial term for possessing a loaded prohibited firearm and for trafficking in Schedules 2 and 3 controlled substances. Not only was he undeterred by that disposition, but he escalated his commercial trafficking endeavours to involve several of the most serious Schedule 1 drugs in society.

[78] He has been an active, commercially-driven profiteer of the opioid crisis that has taken the lives of countless Canadians, and indeed people around the world. Again, the possession of significant amounts of carfentanil in particular, a uniquely dangerous drug, distinguishes these facts from the majority of the appellate and sentencing jurisprudence submitted by both counsel.

[79] It bears repeating that Mr. Kochanska acknowledged possessing the following for trafficking: 13 ounces of mixed carfentanil and heroin; over 1 kilogram of cocaine; almost 2 ounces of mixed fentanyl and heroin; well over an ounce of crystal methamphetamine; over $16,000 of proceeds of crime.

[80] It is not for me to characterize Mr. Kochanska as either a wholesale or middle to high level trafficker. Irrespective of how he is described, the drugs and their respective quantities attributed to him speak to the high degree of moral culpability. But for the mitigating and contextual factors referenced, informed by the current public health crisis, the Crown position of 14 years would otherwise have been appropriate.

[81] I have determined for the reasons indicated that the fit sentence is a global one of 12 years, less the referenced credit for presentence custody, harsh custodial conditions and their impact, and the associated impact of COVID-19 (both pre and post sentence).

[82] The sentence is as follows:

Sentencing Order

i. Count #10 from May 21 (carfentanil and heroin): 11.5 years (4,195 days)

• a. Less credit for presentence custody – actual 354 days (credit for 531 days)
• b. Less "Duncan" credit for lockdowns – 90 days (credit for 100 days)
• c. Less "COVID-19" credit – 132 real days since March 13 (66 days credit)
• d. REMAINING DAYS TO BE SERVED: 3,498 days

The remaining counts are to be served concurrently to count #10, with no credit;

ii. Count #4: May 21 (fentanyl/heroin) – 9 years (or 3,285 days);

iii. Count #5: May 10 (fentanyl) – 7 years (or 2,555 days);

iv. S.109 weapons prohibition on all counts for life;

v. DNA, secondary designated and unopposed, for all 3 counts.

Released: August 31, 2020

Signed: Justice A.A. Ghosh