COURT FILE NO.: CR-15-90000493-0000 CR-15-90000501-0000 DATE: 20170612

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – MATTHEW WAWRYKIEWICZ

Counsel: Jason Mitschele and Kevin Ramchand, for the Crown Gregory Lafontaine, for Mr. Wawrykiewicz

HEARD: June 9, 2017

BEFORE: R.F. GOLDSTEIN J.

REASONS FOR SENTENCE

1. Overview

[1] Mr. Wawrykiewicz was charged with multiple drug offences. He applied to have the seized drugs excluded. I dismissed the application. He then did not contest the Crown’s facts. There are two indictments before the Court, one alleging offences on January 29, 2013 and one alleging offences on February 18, 2014.

[2] On the indictment alleging offences on January 29, 2013 (which I will refer to as the first indictment), I convicted him of the following based on an agreement between counsel:

• Count 1: Possession of cocaine for the purpose of trafficking;
• Count 3: Possession of the proceeds of crime.

[3] On the indictment alleging offences on February 18, 2014 (which I will refer to as the second indictment), I convicted him of the following based on an agreement between counsel:

• Count 1: Possession of cocaine for the purpose of trafficking;
• Count 2: Possession of proceeds of crime;
• Count 4: Possession of heroin for the purpose of trafficking;
• Count 6: Possession of marijuana for the purpose of trafficking;
• Count 7: Possession of the proceeds of crime;
• Count 17: Failure to comply with recognizance.

2. The Facts

(a) Circumstances of the offence

[4] Just after midnight on December 30, 2013, police officers attended at the Marriott Hotel at Reading Court in Toronto. They came in response to a request for assistance from the hotel’s management. They entered Room 302 using a key card. They did not have a search warrant. There they found Mr. Wawrykiewicz and his girlfriend, Ms. Poulter. They also found 111.04 grams of cocaine, 58.29 grams of crack cocaine, and just over $7000.00. They arrested Mr. Wawrykiewicz and Ms. Poulter. They also seized two cell phones from Mr. Wawrykiewicz incident to arrest. The police "froze" the hotel room and obtained a warrant to seize the cocaine and to search Mr. Wawrykiewicz's car. They seized 29.76 grams of crack cocaine from that car. The police also seized about $7,000 in cash from the hotel room.

[5] The powder and crack cocaine from the hotel room, as well as the crack cocaine in the car, is the subject matter of Count 1 on the first indictment. The $7000 cash is Count 3 on the first indictment.

[6] Mr. Wawrykiewicz and Ms. Poulter obtained bail. Mr. Wawrykiewicz was required to live at 83 Humbercrest Boulevard in Toronto. At the same time, police officers conducting an unrelated investigation into firearms trafficking obtained search warrants for the two phones that the police had seized. They examined the contents. The formed the view that Mr. Wawrykiewicz was continuing to traffic drugs from a location at 105 The Queensway. They put him under surveillance and observed him and Ms. Poulter coming and going from that address. They also observed what they believed were further drug deals. On February 18, 2014 the police arrested Mr. Wawrykiewicz as he left 105 The Queensway. They found the keys to Apartment 905 on him. They also found a small amount of cocaine, cash, and two more cell phones on him. The cash is the subject matter of Count 2 on the second indictment. They then executed search warrants at 105 The Queensway and 83 Humbercrest. The police seized the following from 105 The Queensway:

• A total 1772.56 grams of powder cocaine with an estimated street value of $141,769 to $177,200.00. The cocaine was found in several places in the apartment, although most was found in a safe;
• 8.55 grams of crack cocaine with an estimated street value of $720-$900;
• 173.21 grams of heroin with an estimated street value of $20,400 to $27,000 (Count 4 on the second indictment);
• 1273 grams of marijuana with an estimated street value of $9000 to $11,250 (Count 6 on the second indictment);
• 4.4 grams of cocaine mixed with Diltiazem, a substance prohibited under the Food and Drug Act;
• a working “stun gun” in a black holster;
• a “brass knuckle” style knife;
• two bullet-proof vests;
• sales receipts for expensive stores, such as Harry Rosen and Holt Renfrew;
• Almost $43,000 in cash (Count 7 on the second indictment); and
• More than 1.8 kilograms of Phenacetin, a common cutting agent, scales, and ziplock bags.

[7] Much of the cocaine, the stun gun, and Mr. Wawrykiewicz’s identification were found in a safe at The Queensway.

[8] The police seized the following from 83 Humbercrest Blvd:

• More cutting agent;
• 13.67 grams of powder cocaine.

[9] The powder and crack cocaine from The Queensway, as well as the powder cocaine from Humbercrest, and the small amount of cocaine on Mr. Wawrykiewicz when he was arrested, is the subject matter of Count 1 on the second indictment.

[10] Mr. Wawrykiewicz again received bail. The police arrested him again on April 14 2014. They charged him with firearms trafficking. That was connected to the investigation where the police obtained warrants to examine his phones. Mr. Wawrykiewicz was detained but released on bail after 30 days in custody. Those charges were ultimately withdrawn. He remained on bail until February 14, 2017. He was arrested at that time in relation to further drug offences. I revoked his bail on the charges before me shortly after that. He remains in custody.

(b) Circumstances of the offender

[11] Mr. Wawrykiewicz is currently 31 years old. According to Mr. Lafontaine, his father raised him. He has a close relationship with his father and his father’s wife. He graduated from high school. The information about his employment history is sketchy. There is no documentation at all regarding his employment since he graduated from high school. According to Mr. Lafontaine he has worked as a labourer at a bakery and loading trucks. Apparently he has some construction skills. According to Mr. Lafontaine, Mr. Wawrykiewicz inherited 83 Humbercrest from his grandfather. While he was on bail he renovated it. When he inherited the property it was appraised in 2014 at $500,000.00. After Mr. Wawrykiewicz renovated it he sold it for $1.8 million, thus yielding a substantial profit. Mr. Wawrykiewicz provided no documents or other evidence to support this contention, but I am prepared to take him at his word on the point. There is no other evidence of employment, post-secondary education, or community involvement, or family relationships or friendships.

(c) Impact on the community

[12] Trafficking in significant amounts of drugs remains a serious problem in our community. Mr. Mitschele, Crown counsel, submitted material regarding the increase in heroin overdose deaths in Ontario and the effects of opioid abuse. He points to a report by the Medical Officer of Health showing that between 2004 and 2013 there was an increase in overdose deaths in the City of Toronto by 41%. The Ontario Drug Policy Research Network also pointed to a shocking increase in opioid deaths between 1991 and 2015.

3. Positions of the Crown and Defense

[13] Mr. Mitschele argues that Mr. Wawrykiewicz should be sentenced to 9-10 years in the penitentiary. The amount of cocaine alone is well above the 5-8 years set out for one pound of cocaine in R. v. Bryan, 2011 ONCA 273. The amount of heroin should attract a sentence of 6-8 years. The 9-10 year sentence is based on the principle of totality.

[14] Mr. Lafontaine argues that Mr. Wawrykiewicz should be sentenced in the range of 6-7 years in totality. He points to the fact that Mr. Wawrykiewicz is a relatively young man. He is also a first offender.

4. Case Law

[15] Mr. Mitschele relied principally on R. v. Bryan, supra, in respect of the cocaine trafficking. In that case, the Court of Appeal indicated that an appropriate sentence for slightly more than a pound of cocaine was 5-8 years.

[16] In R. v. On, [1996] O.J. No. 4771 (Gen.Div.) the accused was found guilty after a jury trial of one count of conspiracy to traffic heroin and one count of trafficking approximately 116 grams of heroin to an undercover officer over a period of about four months. Crossland J. sentenced him to 12 years on the conspiracy count and 8 years on the trafficking count. The Court of Appeal reduced the conspiracy sentence to ten years but did not disturb the 8-year sentence: R. v. On, [1998] O.J. NO. 2236 (C.A.).

[17] The leading case in heroin trafficking in this province is arguably R. v. Shahnawaz (2000), 51 O.R. (3d) 29 (C.A.). In that case, the offender sold 650 grams of heroin to an undercover police officer. The Court of Appeal stated that the appropriate range of sentence for trafficking in that amount is 9 to 12 years. The trial judge imposed a 17-month sentence. The Court found that that sentence was well below the range, and imposed a 6-year sentence after taking into account time spent in custody and on conditional sentence.

[18] Mr. Mitschele also points to R. v. Ramos, 2014 ONSC 6822. In that case, a jury convicted Ramos and Oyegoke of trafficking 478.3 grams of 53% pure heroin to a police agent for $30,000.00. My colleague Spies J. conducted an extensive analysis of the case law where an offender traffics heroin in the half-kilogram range. She found that the range established by the Court of Appeal is 8 to 12 years. She ultimately sentenced each of Ramos and Oyegoke to 8 years.

[19] R. v. Eyo, [2012] O.J. No. 5226 (Sup.Ct.), is a sentencing decision of my colleague B. O’Marra J. In that case Eyo was found guilty by a jury of possession for the purpose of trafficking of 114.44 grams of heroin, along with other drugs – specifically marijuana and MDMA. Eyo had a criminal record, including two previous convictions for possession of a Schedule 1 substance for the purpose of trafficking. O’Marra J. concluded, after a review of the cases, that a sentencing range of 6-8 years was appropriate. He noted that Eyo was “more than just a street level dealer”. He was not an addict and was motivated by greed. He sentenced Eyo to 7 years imprisonment with credit for time served.

[20] Mr. Lafontaine relies on R. v. Cavuoti, [1990] O.J. No. 17 (C.A.). Cavuoti was arrested with the keys to a rental car containing five pounds of cocaine. The trial judge found him guilty of possession for the purpose of trafficking. The Court of Appeal upheld a six-year sentence. He was a first offender and there was evidence he was not a major player.

[21] In R. v. Dass, [2008] O.J. No. 1161 (Sup.Ct.). Dass was convicted of possession for the purpose of trafficking of a total of 23 grams of cocaine and crack cocaine. He was also convicted of possession of a firearm in a safe, as well as ammunition. Mr. Dass did the same thing that Mr. Wawrykiewicz did: he only contested the constitutionality of the search, and when that application was dismissed he pleaded guilty. He had a short, aged record. He was working full-time as a truck driver. My colleague Clark J. sentenced him to three years on the most serious firearms offence, and six months concurrent on the drug charge. Given the much smaller amount of cocaine, and the fact that the offender had a full-time productive job, Dass is obviously entirely distinguishable from this case.

[22] In R. v. Kerr, [2001] O.J. No. 5085 (C.A.) the offender pleaded guilty to trafficking in small amounts of heroin to an undercover officer and careless storage of a firearm. Kerr had a very serious addiction problem. His physician, who had been treating the addiction, testified that he had made excellent progress while on bail. Abella J.A. for the Court of Appeal (as she then was) found that the sentencing judge made an error by failing to give serious consideration to a conditional sentence. The Court converted the custodial sentence into a conditional sentence.

5. Mitigating and Aggravating Factors

[23] The aggravating factors in this case are obvious. The first seizure in the hotel room was of a very significant quantity of cocaine. The police seized well over 100 grams of powder cocaine, and almost sixty grams – more than two ounces – of crack cocaine. The police also seized almost 30 grams of crack cocaine – more than an ounce – from Mr. Wawrykiewicz’s car.

[24] The second offences, involving significantly larger quantities of drugs in two locations, were committed while Mr. Wawrykiewicz was on bail for the first offences. That is also extremely aggravating. The extremely large amounts of drugs seized at The Queensway and Humbercrest location is also very aggravating. The police seized more than 1.7 kilograms of powder cocaine and more than 8 grams of crack cocaine. The police also seized over 173 grams of heroin – more than 6 ounces.

[25] Mr. Wawrykiewicz did not plead guilty to any of the offences. That said, he did not contest his guilt. His defence was conducted in a way that only raised a Charter motion. The Charter motion was not frivolous. There were triable Charter issues: I found a violation and admitted the evidence under s. 24(2). While Mr. Wawrykiewicz is not entitled to the mitigation that would flow from a guilty plea and the taking of responsibility, he is entitled to some mitigation from the efficient manner in which the case was defended. Other than that, as well as his youth and lack of a criminal record, it is difficult to see many other mitigating factors.

6. Principles of Sentencing

[26] The principles of sentencing are set out in s 718.2 of the Criminal Code. The key principles in cases of large-scale commercial drug trafficking are general and specific deterrence. Obviously rehabilitation plays a role, but given the significant amounts here – which indicate large-scale professional drug trafficking – rehabilitation plays less of a role.

7. Ancillary Orders

[27] There will be a s. 109 order in this case.

[28] Drug trafficking is a secondary designated DNA offence. Ordinarily I would be reluctant to order that a sample of DNA be taken for the databank where there is no evidence that an offender commits the type of crimes that could be solved by the use of DNA. The law enforcement priorities are slight in that situation and do not outweigh the intrusion into a person’s zone of privacy. This case, however, is different. The offences involve professional drug dealing at a high level. Furthermore, the existence of the bullet-proof vests, the brass knuckles, and the stun gun suggest a more robust type of criminality than one usually finds in the average drug dealer. In this case, I find that the law enforcement purpose outweighs the offender’s privacy interests. There will be a DNA order.

8. Final Decision

[29] I find that Mr. Wawrykiewicz is a large-scale professional commercial drug dealer. A court does not need expert evidence to come to that common-sense conclusion. The large quantity of drugs, the large amounts of cash, the weapons, the personal protective equipment, the lack of any other significant employment, and the continued drug activity in the face of outstanding charges are all indicators that Mr. Wawrykiewicz makes his living from drug trafficking. And a lucrative living it is – he was partying at the Marriott Hotel, he was using a condominium as a work location in addition to his home, and he was shopping at expensive stores such as Holt Renfrew and Harry Rosen.

[30] His lifestyle and drug dealing could not have been financed by the sale of 83 Humbercrest. He sold that house while on bail. Furthermore, he was not doing his shopping at Holt Renfrew and Harry Rosen with the money he earned loading trucks after graduating from high school.

[31] Mr. Mitschele argues for the Crown that Mr. Wawrykiewicz was trafficking at the kilogram level. The police seized empty packaging consistent and with kilogram level trafficking from the Queensway location. He also points to the very large amount of cash seized by the police.

[32] Mr. Lafontaine argues that the packaging is much more consistent with someone who purchased cocaine at the kilogram level and sold it at the ounce level. That is because the kilogram packaging was empty.

[33] I tend to agree with Mr. Lafontaine that it is likely that Mr. Wawrykiewicz was purchasing one-kilogram bricks of cocaine. The presence of the empty bags and the large amount of cutting agent suggest that he was purchasing and then “stepping” on the cocaine to re-sell, perhaps at something less than the kilogram level. That said, I do not think that it matters that Mr. Wawrykiewicz was buying kilograms of cocaine or selling kilograms. It is obvious he was operating at a high level – perhaps not the highest level where multiple bricks are imported and sold, but nowhere near the street level. If he was dealing ounces of cocaine, he was dealing multiple ounces. As I have said, the key point for sentencing is that Mr. Wawrykiewicz is a high-level professional drug dealer who makes his living from it.

[34] To make matters worse, Mr. Wawrykiewicz was doing more than dabbling in another drug – he possessed over 117 grams of heroin for the purpose of trafficking. While that may not be at the same level as a kilogram cocaine dealer, it certainly indicates trafficking at a fairly high level in heroin – the most serious and deadly of all illegal drugs.

[35] Mr. Lafontaine also argues that very large amounts of drugs found at The Queensway and Humbercrest indicate that Mr. Wawrykiewicz likely had a leftover stash of drugs after the first arrest. I should not, therefore, look at this seizure as indicative of continued drug trafficking in the face of court orders, but rather as one transaction.

[36] I suppose that is a dilemma for a professional drug dealer where the police have found some, but not all of his or her inventory, he is released on bail, and he needs to liquidate it. The inventory is vulnerable to attempts by the competition to rob it. Mr. Wawrykiewicz likely had the weapons and personal protective equipment to guard it. In fact, I do so find beyond a reasonable doubt. Mr. Wawrykiewicz must have also had quite a lot of money tied up in that inventory. He may well have purchased the cocaine on consignment, which could have meant serious trouble with people other than law enforcement in the future. There is no evidence one way or the other, and I must not speculate about it. That said, it is not exactly the kind of dilemma that generates any sympathy. I do not agree that I should look at the second drug seizure as part of one transaction. I find that continuing to commit further serious drug offences while on bail is a serious aggravating factor. I note as well that Mr. Wawrykiewicz finds himself in custody again on another set of drug charges, although I am mindful that he enjoys the presumption of innocence on that offence. I am also mindful of Mr. Lafontaine’s comments that he appears not to be a major player in that offence.

[37] Drug addiction and related issues of mental health, poverty, homelessness, unemployment and public health are social policy issues that affect marginalized members of our community. They are deserving of sympathy and assistance. Large-scale professional drug dealers are the people who prey on those marginalized people. They are less deserving of sympathy. They are more deserving of punishment.

[38] I find that the sentencing range for possession of 117 grams of heroin is 6-8 years. I also find that the sentencing range for possession of about 1.8 kilograms of cocaine begins at least at 8 years. All told, if I were to impose consecutive sentences at the lower end of the two ranges the total sentence would be 14 years. Mr. Lafontaine argues and Mr. Mitschele very fairly concedes, that such a sentence would offend the principle of totality for a first offender who is still only 31 years old. I agree.

[39] In imposing sentence I take into account the fact that Mr. Wawrykiewicz is relatively youthful and has no record, which informs the principle of rehabilitation, notwithstanding his sketchy history of legitimate employment. I also take into account the very significant amounts of very serious drugs, the fact that Mr. Wawrykiewicz was on bail, and the presence of the weapons (the stun gun and brass knuckles) as well as the bullet proof vests.

[40] Mr. Wawrykiewicz is sentenced to a global sentence of ten years in the penitentiary. On the first indictment, he will be sentenced as follows:

[41] On the first indictment:

• Count 1: 1 year;
• Count 3: 6 months, concurrent to Count 1 on the first indictment.

[42] On the second indictment:

• Count 1: Four years;
• Count 2: 1 year;
• Count 4: 5 years; consecutive to Count 1 (on the second indictment)
• Count 6: 2 years;
• Count 7: 2 years;
• Count 17: 1 month.

[43] All sentences on the second indictment are to run consecutive to the first indictment and concurrent with each other, except Count 4, which as I have mentioned is consecutive to Count 1 on the second indictment.

[44] Mr. Wawrykiewicz has spent a total of 135 days in pre-sentence custody. He will be credited at 1.5:1. He will therefore receive a credit of 203 days (rounded up). He also spent 30 days in custody on the firearms trafficking charge. Those charges were withdrawn. I am prepared to give him some credit for that custody, given that the charges were related to the events in this case. I propose giving him credit at 1:1, which means he will be credited with another 30 days.

[45] Mr. Wawrykiewicz also spent 14 months on a strict house arrest. I agree that pursuant to the principles in R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.) that he is entitled to credit. I would grant him 90 days of credit. Mr. Wawrykiewicz also spent 14 months on a 10 pm to 6 am curfew. I would not grant him any credit for that time. Accordingly, he will be credited with a total of 353 days. For simplicity, that time will be credited against Count 4 (the possession of heroin for the purposes of trafficking) on the second indictment.

R.F. Goldstein J. Released: June 12, 2017