R. v. Tasevski, 2020 ONSC 3724

Court File and Parties

COURT FILE NO.: CR-18-4233 and CR-19-4629 DATE: 2020-06-16 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – CHIRKO TASEVSKI Defendant

Counsel: Edward Posliff, Agent for the Director of Public Prosecution, and Jayme Lesperance, for the Crown Bobby Russon, for the Defendant

HEARD: December 2, 3, 4, 5, 6, 2019, March 6 and May 22, 2020

Heeney J.:

1The accused is before the court for sentencing on two indictments. The first, CR-18-4233 (“the first indictment”), was the subject of a trial before me in December, 2019. The facts of that case, briefly stated, are that on September 26, 2017, Windsor Police Services officers arrested the accused and executed a Controlled Drugs and Substances Act, (“CDSA”), search warrant at 561 Aylmer Avenue, Windsor, Ontario. As a result of the searches and seizures arising therefrom, as well as surveillance and other evidence, he was convicted on December 6, 2019 of the following counts on the Indictment:

• CDSA s. 5(2) heroin: 176.5 g (6.2 oz)
• CDSA S. 5(2) cocaine: 277.3 g (9.9 oz)
• CDSA s. 5(2) methamphetamine: 107.2 g (3.8 oz)
• CDSA s. 4(1) hydromorphone: 32 x 6 mg. capsules
• CDSA s. 4(1) oxycodone: 32 x 5 mg. capsules

2The matter was adjourned to March 6, 2020 for sentencing. On that date, the accused was arraigned on a new 36-count indictment, CR-19-4629 (“the second indictment”). He pleaded guilty to, and was convicted of, 18 of those 36 counts, which consisted of CDSA offences and Criminal Code offences relating to possession and storage of firearms and ammunition, proceeds of crime, breach of s. 110 orders, and breach of recognizance.

3The facts were read in and acknowledged at the time, but are concisely summarized in the Crown’s written submissions on sentence as follows:

On 11JUN18, Ontario Provincial Police officers arrested TASEVSKI as he left the residence of his father, 1412 Girard Drive, Lakeshore, Ontario, at which he was required to live as a term of his recognizance.

A search of the motor vehicle that TASEVSKI was driving led to the discovery of 49.7 grams of cocaine (Count 34) and 54 grams of methamphetamine (Count 33).

A search of the residence led to the discovery of 178 grams of methamphetamine (Count 1), a 22 calibre high velocity German sport pistol (without a trigger lock) (Count 30), an expandable baton (Count 36), ammunition (Count 32), $24,435 (Can) (Count 5 and 35), $510 (US), and a muzzle suppressor (Count 31).

TASEVSKI did not have an authorization to possess the pistol. He was subject to four (4) weapons prohibition orders (09DEC10, 26JAN11, 05APR12 and 15NOV16) (Counts 6, 9, 12 and 15), and strict bail conditions (remain in residence, no drugs, no cash over $500) Counts 19, 22, 23, 26).

4The summary does not mention count 27, which is careless storage of a restricted firearm, contrary to s. 86(2) of the Code. This relates to the absence of a trigger lock on the pistol.

5The federal Crown seeks a global sentence on the first indictment of 14 years, plus ancillary orders which are not in dispute. On the second indictment, the Federal Crown seeks a sentence of 4 years, consecutive to the sentence imposed on the first, and consecutive to the sentence imposed for the Code offences. He also seeks ancillary orders which are not in dispute.

6The provincial Crown seeks a sentence of 5 years on the Code offences in the second indictment, consecutive to the sentence imposed on the CDSA offences in both indictments. This brings the total sentence sought by both Crowns on both indictments to 23 years in penitentiary, less pre-sentence custody.

7Mr. Russon, for the accused, submits that a fit and proper sentence is 7 years on the first indictment, plus 5.5 years consecutive on the second, for a total of 12.5 years, to be reduced to a global sentence of 9 years based on the totality principle, less pre-sentence custody.

8All counsel agree that pre-sentence custody consists of 11 days, from September 27 to October 6, 2017, plus 709 days from June 12, 2018 to May 22, 2020, for a total of 720 days. In the Federal Crown’s submissions, he calculated the enhanced credit using a ratio of 1.5/1 up to March 6, 2020, but used a ratio of 2/1 thereafter, due to the harsher conditions resulting from the COVID-19 crisis. However, the Code sets a maximum credit at 1.5/1 in s. 719(3.1), and I have no authority to deviate from it: see R. v. Hearns, 2020 ONSC 2365, [2020] O.J. No. 1648 (S.C.J.) at para. 22. I can, however, take the crisis into account in determining the sentence yet to be served, as a “collateral consequence”: supra, at para. 19.

9An additional 25 days have elapsed since sentencing submissions were made on May 22, bringing total pre-sentence custody to 745 days. At 1.5/1, that results in an enhanced credit to the accused of 1,118 days. That amounts to 3 years and 23 days, and will be deducted from the gross sentence once that is determined.

10A pre-sentence report has been prepared and filed, and is acknowledged by the accused to be accurate. The accused was born in Macedonia on January 5, 1955, and moved to Canada with his family at age 11. While adjustment to live in Canada was somewhat difficult, mostly due to his age and language difficulties, he otherwise had a trauma-free childhood, and was close with his parents and sister. He is estranged from his brother.

11He met his first wife in 1975 while visiting in Macedonia, and relocated to California in 1980. They separated after 13 years because his wife was abusive toward their three children and controlling. The accused obtained full custody of the children. He continues to be “close” to them, even though he is unable to cross the border to see them in person. He has 10 grandchildren.

12He met his second wife in California. She was reportedly a drug user, which led to his own experimentation with drugs and ultimate addiction. That marriage ended after 12 years, but he maintains contact with his ex-wife and their son.

13He had a third marriage of brief duration, which effectively ended when he was deported to Canada. He is presently single.

14His mother passed away last year, and his father recently sold his home and moved into assisted living. They have a close relationship. He remains close to his sister, Jagoda Thibert, and plans to reside with her when he is released from custody. However, she reported frustration with his behaviour and frequent incarcerations, at a time when she needed his help to deal with their parents. She confirmed her willingness to have him reside with her in her condo, but stated that if he does not make positive changes and returns to custody, she will cease all contact with him.

15The accused withdrew from school at age 14, and began working. He was employed in a bakery, then successfully operated his own plumbing business for over 20 years, with 13 full-time employees. He also operated a liquor store for 10 years had had rental properties. All of this ended when he was deported, and sold his properties and businesses.

16At present he is retired and collects a government pension. While in custody, he has returned to high school and is working on his diploma. He has plans to open a landscape business in the future.

17With respect to substance abuse, he has been using crystal meth for many years, since his girlfriend at the time encouraged him to try it. He thought it was the “greatest thing ever” and helped his performance at work, and did not recognize that it was leading to an unhealthy addiction. He reported that “jail saved my life” because he can now see the problems that his drug use and lifestyle choices were causing. His reported intention is to remain sober upon his release.

18While the accused was quite cooperative and responsive in his telephone contact with the probation officer who prepared the report, he was somewhat evasive when probed about what led to his criminal behaviour. Certainly nothing in his background provides an explanation for the lengthy criminal record he has accumulated, nor the criminal acts he is about to be sentenced on, other than, inferentially, the need to feed his addiction. While he has demonstrated his ability in the past to earn a legitimate living operating businesses, he has nevertheless chosen, in recent years, to make a career out of being a drug dealer. CRA documents from 2013 to 2017 show very little legitimate income, yet he was found with substantial amounts of cash when he was arrested on both indictments.

19In his comments to the court at the end of sentencing submissions, he read an apology to the court for his actions. He pointed out that he is taking all of the educational programs he can get while in custody, and wants to become an active member of society and repair the damage he has caused.

20In considering the appropriate sentence, the court must consider aggravating and mitigating circumstances. The first is that the accused has a criminal record for prior similar offences. His record begins in 1974 with a conviction for assaulting a police officer, but the next entry is not until 2005. It is noteworthy that he was residing in California for a significant portion of that intervening time. His drug record is as follows:

• 2005: two separate convictions for possession of a Schedule I substance (fines);
• 2007: possession of Schedule I substance for the purpose of trafficking (1 year Conditional Sentence and 1 year probation);
• 2011: possession of Schedule III substance for the purpose of trafficking (6 months and 1 year probation);
• 2012: possession of Schedule I substance for the purpose of trafficking (245 days and 12 months probation);
• 2012: possession of Schedule III substance for the purpose of trafficking (120 days and 12 months probation concurrent).

21He was also convicted of possession of property over $5,000 obtained by crime in 2016, which is the same offence as count 5 on the second indictment. On the same date he was convicted of possession of a firearm or ammunition contrary to a prohibition order, which is the same offence as counts 6, 9, 12 and 15 on the second indictment. And he has one conviction for failing to comply with a recognizance in August, 2005, one more in September, 2005, two more in December, 2005, another in 2006, two in 2007, one in 2010, and two counts of failing to comply with a probation order in 2012. All of this is similar criminal behaviour to counts 19, 22, 23 and 26 on the second indictment.

22The nature and quantities of the drugs are aggravating factors. On the first indictment, the accused was convicted of possession for the purpose of trafficking in heroin, which is widely recognized as an extremely dangerous drug. The evidence disclosed that, at the low end, it had a value of $18,900. The accused was also convicted of the same offence involving cocaine and methamphetamine. While not as serious as heroin, these drugs are still a plague on our society, and cause illness, death, addiction and fuel criminal activity to fund their purchase. At the lowest value for cocaine, the amount found had a value of about $10,800. The methamphetamine, at the lowest end of the range, had a value of about $3,100. The total value of these drugs therefore amounts to $32,800, not counting the smaller quantities found.

23On the second indictment, the accused was in possession, for the purpose of trafficking, of 49.7 g of cocaine, and 232 g of methamphetamine. I was not provided with values for these drugs, but the amount of cocaine involved is less than 1/5 of that found in the accused’s possession on the first indictment. The amount of methamphetamine was slightly more than double the quantity found in his possession on the first indictment.

24It is an aggravating factor that the accused was found in possession of substantial quantities of cash on both occasions. On the first, he had $3,670 and on the second he had $24,435 (CAD) and $510 (US). His house on Aylmer Ave. was being used as a hub for trafficking controlled substances. From this, and from the quantities of drugs involved, it is clear that this was a relatively substantial commercial enterprise, driven by a motive for profit. I would classify the accused as a mid-level drug dealer.

25On the second indictment, it is an aggravating factor that the accused committed these offences while being on bail awaiting trial for similar offences. It is an aggravating factor that he used the home of his 86-year old father as a base for his drug operation, and that he was actively transporting drugs in his vehicle at the time of his arrest.

26The fact that an unlicensed weapon was found at the accused’s home in relation to the second indictment can be considered as an aggravating factor, since drugs and guns are often referred to as a “toxic combination”. However, it has not been established that the gun was actively being used as part of the accused’s drug operation, although it was certainly a tool that was available to him. Indeed, he was arrested while transporting substantial quantities of cocaine and methamphetamine in his vehicle, yet the gun remained at his residence. The provincial Crown also, quite fairly, pointed out that the gun was unloaded, and while there was ammunition also found at the residence, it was located in a separate place and was not readily accessible. In my view, the aggravating impact of the drug/gun combination is substantially reduced.

27In terms of mitigating factors, none were called to my attention regarding the first indictment. As to the second, the accused pleaded guilty and thereby saved the Crown considerable time and expense at trial. While it was not an early plea, it was early enough to allow the reallocation of the trial time set for this case to other matters. It is also a mitigating factor that he apologized to the court at the end of sentencing submissions for the harm he has caused to society, and accepted responsibility for his actions.

The First Indictment

28I now turn to a consideration of the specific counts on the indictments, beginning with the first.

29Count 1 is possession of heroin for the purpose of trafficking, and is clearly the most serious count on the indictment. Possession of a Schedule I substance for the purpose of trafficking is subject to a maximum sentence of imprisonment for life. For serious offences such as this, denunciation and deterrence are the main purposes of sentencing.

30The federal Crown submits that the appropriate range of sentence for this offence is 6 to 8 years, and defence counsel does not disagree. This range is supported by authorities referred to by counsel, which need not be referred to since it is not in dispute. Where they part company is that the federal Crown went on to point out that the range of sentence for possession for the purpose of trafficking of this quantity of cocaine was 4 to 6 years, as was the range of sentence for the quantity of methamphetamine involved. This led to the final submission by the Crown that the global sentence on the first indictment should be 14 years. The only way one could arrive at that figure would be to impose the sentences consecutively rather than concurrently.

31In my view, that approach is not appropriate. While different drugs are involved, we are really dealing with one act of possession of Schedule I controlled substances, which were all found in the same place at the same time. If someone has 200 g of methamphetamine for sale along with 200 g of cocaine, it cannot be said that it is twice as serious as having 400 g of just one drug or the other. In my view, the fair approach is to start with the range of sentence for the most serious drug, and consider the other Schedule I substances as an aggravating factor which notionally increases the quantity involved, so as to move the accused to the higher end of the range, and then impose concurrent sentences for the other substances.

32The Ontario Court of Appeal, in R. v. DiBenedetto, 2016 ONCA 116 confirmed a range of sentence of 6 to 12 years for offences involving trafficking of between 0.5 and 1 kg. of heroin. In the case at bar, the total weight of the Schedule I substances is 561 g. Thus, even if all of the drugs found were heroin, it would barely be within this range. In my view, the submission of the federal Crown for 14 years is far too high.

33Defence counsel submits that the sentence on count 1 should be 7 years, and that the sentences on counts 2 and 3 should be 3 years each, concurrent. The sentences for simple possession, counts 4 and 5, he submits should be 2 months each, concurrent.

34I generally agree with that approach, although in my view 7 years does not adequately reflect the aggravating factor of possessing two other Schedule I substances, in relatively substantial quantities insofar as the cocaine was concerned. A sentence at the top end of the agreed-upon range is appropriate. Accordingly, the sentence on the first indictment is as follows: count 1 – 8 years; count 2 – 4 years concurrent; count 3 – 3 years concurrent; counts 4 and 5 – 2 months each concurrent.

35This sentence will be subject to a consideration of the totality principle, later in these reasons.

The Second Indictment

36Moving to the second indictment, the CDSA counts are count 1 (178 g of methamphetamine found at his residence), count 33 (54 g of methamphetamine found in his car) and count 34 (49.7 g of cocaine, found in his car).

37The federal Crown submits that the appropriate sentence on these three counts is a global sentence of 4 years. Defence counsel submits that the appropriate sentence is 3 years on count 1, and 18 months concurrent on each of counts 33 and 34.

38In my view, the sentence proposed by the defence does not give adequate recognition to the significant aggravating factor that these offences were committed while the accused was on bail awaiting trial for similar offences. I agree with the federal Crown that a sentence of 4 years on count 1 is fit and proper. This sentence will be consecutive to the sentence imposed on the first indictment. The sentences on counts 33 and 34 will be 2 years each, concurrent to the sentence imposed on count 1.

39I now move to the Code counts.

40As already noted, the provincial Crown seeks a global sentence on these counts of 5 years, consecutive to the sentence for the CDSA counts on the second indictment and consecutive to the sentence on the first indictment.

41The count-by-count position of the parties is as follows.

Counts 5 and 35: possession of proceeds of crime over $5,000

42The Crown seeks a sentence of 4 to 6 months, concurrent to the firearm counts. The defence seeks a sentence of 3 months, concurrent to count 1 (possession of methamphetamine for the purpose of trafficking). In my view, a concurrent sentence is appropriate, because the money that was seized is part and parcel of the drug trafficking operation, and can be seen as one collective offence. There is no nexus to the firearm counts.

43Accordingly, the sentence on each of counts 5 and 35 is 3 months, concurrent to the sentence imposed on count 1 on the second indictment.

Count 30: possession of a firearm without a license, s. 91(1)

44This is the most serious firearm offence, so I will deal with it first, instead of following a numerical order. The provincial Crown seeks a sentence of 3 years. Defence counsel submits that a sentence of 18 months is appropriate.

45The firearm in question was not loaded, was not in a place where it was accessible to any member of the public. It at the accused’s residence and not with him in his car where he was arrested, and ammunition, although present in the house, was in a place not readily accessible from where the gun was found. I have already found that it has not been established that it was being actively used as part of the accused’s drug trafficking business, given that he was out in his car, with drugs in the vehicle for ready sale, but had left the gun at home. This falls, therefore, at the lower to middle end of the range for such offences.

46However, I am of the view that the sentence for this offence should be consecutive to the sentence imposed on the CDSA counts. The drug offences and the firearm offences constitute “invasions of different legally protected interests” and should therefore attract consecutive sentences: see R. v. Sadikov, 2015 ONSC 4447, at para. 41.

47In Sadikov (supra at para. 8), Thorburn J. (as she then was) noted that the range of sentence for possession of a loaded restricted firearm, under s. 95(1), was 3 to 6 years. The provincial Crown is, therefore, seeking a sentence that is within the range of an offence under s. 95(1), which is a more serious offence than one under s. 91(1): see R. v. Kennedy, 2016 MBCA 5 at para. 29.

48It is noteworthy that the maximum punishment for an offence under s. 95(1) is 10 years while the maximum punishment for an offence under s. 91(1) is only 5 years. It is also noteworthy that the sentence of three years asked for by the Crown is the same as the mandatory minimum for the more serious offence under s. 95(1), before that provision was ruled to be unconstitutional.

49Counsel have provided me with very few authorities to assist in establishing the appropriate range for the offence of possession of an unloaded weapon without a license under s. 91(1). The provincial Crown does cite R. v Beckles, [2008] OJ No 2757 (Ont. Sup. Ct.), where the accused was sentenced to 3 years for possession of a weapon without a license. However, that weapon was found in his vehicle, and therefore represented a danger to the public at large, which is a significant distinguishing feature.

50The case of R. v. Hunter, 2016 BCCA 94 provides some guidance. There, a drug dealer was found in possession of a loaded gun. His conviction under s. 95(1) was overturned on appeal because the trial judge’s conclusion that the accused knew the weapon was loaded was not sustainable. The appeal court then imposed a sentence of 26.7 months for the offence of possession of a weapon without a license.

51In the case at bar, my view is that a sentence of 2 years on Count 30 is appropriate, considering the mitigating circumstances I have referred to, as well as the guilty plea.

Counts 6, 9, 12 and 15: possession of firearm contrary to prohibition order, s. 117.01(1)

52The provincial Crown seeks a sentence of 12 to 18 months on each count, concurrent to each other, but consecutive to the sentence imposed on count 30.

53I agree that the sentence for breach of a firearm prohibition should be consecutive: see R. v. Claros, 2019 ONCA 626 at para. 51. However, because it was one act of possession that breached four separate prohibition orders, as opposed to four separate acts of possession, the sentences should be concurrent to each other.

54Defence counsel submits that a sentence of 12 months, consecutive, is appropriate. Since this is within the range proposed by the Crown, counsel are essentially in agreement. The accused is sentenced on counts 6, 9, 12 and 15 to one year on each count, concurrent to each other, but consecutive to the sentence imposed on count 30.

Counts 19, 22, 23 and 26: various breaches of bail recognizance

55The provincial Crown seeks a sentence of 9 to 12 months on each count, concurrent to each other but consecutive to the sentence imposed on count 30. Defence counsel asks for a sentence of 6 months on each count, concurrent to each other and concurrent to the other sentences imposed on the second indictment.

56In my view, where a criminal act is committed while a person is on bail, some additional punishment must be imposed for that breach. Otherwise, the accused is being treated as if he were not on bail at all, and the terms of bail would cease to have any meaning. As already noted in Sadikov (supra), this constitutes an invasion of a different legally protected interest, which is the willful breach of a court order.

57The accused is sentenced to 6 months on each of counts 19, 22, 23 and 26, to be served concurrently to each other, but consecutively to the sentence imposed on count 30.

Counts 27, 31, 32, and 36 (careless storage of firearm, possession of prohibited device, possession of ammunition when prohibited and possession of expandable baton)

58The Crown proposes the following sentences on these remaining counts, to be served concurrently to the sentence imposed on count 30:

• Count 27: section 86(2) careless storage of firearm (no trigger lock) – 6 months;
• Count 31: section 92(2) possession of prohibited device (muzzle suppressor) – 6 months;
• Count 32: section 92(2) possession of ammunition when prohibited – 3 months;
• Count 36: section 91(2) possession of a weapon (expandable baton) – 6 months.

59Defence counsel concurs in this submission, making it a joint submission. I find it to be appropriate in all the circumstances, and I will accede to it. The accused is sentenced on Counts 27, 31, 32 and 36 as outlined above.

Collateral Consequences

60Both counsel agree that the fact that the accused will be serving his term in prison while the COVID-19 pandemic rages on is a factor that may be taken into account in passing sentence, as a “collateral consequence”. Moldaver J., speaking for the majority in R. v. Suter, 2018 SCC 34, discussed this concept at paras. 47-8:

There is no rigid formula for taking collateral consequences into account. They may flow from the length of sentence, or from the conviction itself: see R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739 (S.C.C.), at para. 11; R. v. Bunn (1997), 118 Man. R. (2d) 300 (Man. C.A.), at para. 23; R. v. Bunn, 2000 SCC 9, [2000] 1 S.C.R. 183 (S.C.C.) (”Bunn (SCC)”), at para. 23; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289 (S.C.C.). In his text The Law of Sentencing (2001), Professor Allan Manson notes that they may also flow from the very act of committing the offence:

As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation.

[Emphasis added; p. 136.]

I agree with Professor Manson’s observation, much as it constitutes an incremental extension of this Court’s characterization of collateral consequences in Pham. In my view, a collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender.

Though collateral consequences are not necessarily “aggravating” or “mitigating” factors under s. 718.2 (a) of the Criminal Code— as they do not relate to the gravity of the offence or the level of responsibility of the offender — they nevertheless speak to the “personal circumstances of the offender” (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2(b) of the Criminal Code. The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer “like” the others, rendering a given sentence unfit.

61The Court, however, adds the following caveat at para. 56:

I agree with the Court of Appeal that the fundamental principle of proportionality must prevail in every case — collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.

62Returning to the case at bar, Crown counsel made the following concession in their written submissions on sentence:

Defence does not need to tender evidence to demonstrate the following points: During the pandemic it is likely that inmate movement within the custodial facility will be limited as much as operationally feasible, access to non-professional visitors will be restricted, and programming may be limited or unavailable. Where these factors are known to exist in the jurisdiction, prosecutors should acknowledge them without requiring evidence and should recognize that they lead to hardship that may be relevant to the imposition of sentence.

63Defence counsel filed an Affidavit from Dr. Aaron Orkin, a specialist in Public Health and Preventative Medicine sworn April 7, 2020. It describes the general nature of the pandemic and the measures that are necessary to contain it, such as social distancing. He states that practicing social distancing in a “congregate living facility” such as a prison is simply not possible. Outbreaks in such tight places are near-impossible to control once they occur, which makes prevention a top priority.

64Responding material filed by the Crown indicates that Ontario has been doing fairly well in controlling the pandemic in its prisons, and has only had one outbreak, at Grand Valley Institution for Women. The accused will, of course, be serving his sentence in a federal institution. Testing in those federal facilities in Ontario had not yet, as of May 22, produced a positive test, although that does not mean that an outbreak might not occur in the future. I am advised that prisoner transfers of Ontario prisoners to federal institutions outside of this province is currently not allowed.

65There is no evidence of any specific impact on the accused as a result of the pandemic, except to observe that he is now 65 years of age and is, therefore, within the segment of the population most at risk of serious consequences or death if they become infected. It is obvious, though, that prison conditions will be more harsh, freedom of movement will be more restricted, and access to visitors and programming will be limited as a result of these collateral circumstances. No fault is attributed to the state for any of this. They are doing the best they can under the circumstances.

66Once a vaccine is developed, things will undoubtedly improve, but it is uncertain when that may happen, or even if. Sometimes a vaccine is never discovered, such as with HIV-AIDS, where a vaccine has yet to be developed despite 30 years of effort. Most current estimates indicate that a vaccine may be 12 to 18 months away, although some are more optimistic.

67In my view, some credit should be given to the accused to reflect the fact that this collateral consequence of his incarceration, during a pandemic, will make his sentence harsher and more restrictive than it would have been without the pandemic. Without claiming to have any scientific formula for calculating such a credit, it should have some relationship to the anticipated duration of these circumstances. In the exercise of my discretion, I will reduce the accused’s sentence by one year to give effect to this consideration. Such a reduction is modest, given the length of the sentence the accused is facing, and will not reduce the sentence to the point where it becomes disproportionate to the gravity of the offences or the moral blameworthiness of the accused.

Totality

68Section 718.2 (c) of the Code provides as follows:

A court that imposes a sentence shall also take into consideration the following principles:

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

69Chief Justice Lamer, speaking for the court in R. v. M.(C.A.), 1996 SCC 230, described the totality principle at para. 42:

In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the “totality principle”. The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D. A. Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56:

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is “just and appropriate”.

Clayton Ruby articulates the principle in the following terms in his treatise, Sentencing, supra, at pp. 44-45:

The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate “just and appropriate”. A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender “a crushing sentence” not in keeping with his record and prospects.

70As described by the Manitoba Court of Appeal in R. v. Taylor (2010), 2010 MBCA 103, 263 C.C.C. (3d) 307 (Man. C.A.), where consecutive sentences are imposed, my task is to determine a fit sentence for each offence, then total them and give that total sentence a “last look” in accordance with the totality principle.

71The sentences that I have determined to be fit for each sentence are summarized as follows:

First Indictment:

• Count 1: 8 years;
• Count 2: 4 years concurrent;
• Count 3: 3 years concurrent;
• Counts 4 and 5: 2 months each concurrent;
• Net sentence on First Indictment: 8 years

Second Indictment:

• Count 1: 4 years;
• Counts 5 and 35: 3 months each, concurrent to Count 1;
• Counts 33 and 34: 2 years each, concurrent to Count 1;
• Count 30: 2 years;
• Counts 6, 9, 12 and 15: 1 year on each count, concurrent to each other but consecutive to Count 30;
• Counts 19, 22, 23 and 26: 6 months on each count, concurrent to each other but consecutive to Count 30;
• Counts 27, 31, and 36: 6 months on each count, concurrent;
• Count 32: 3 months concurrent;
• Net sentence on Second Indictment: 7.5 years

Total net sentence: 15.5 years Less reduction for collateral consequences: 1 year Net sentence before consideration of Totality: 14.5 years

72In discussing whether this aggregate sentence is fit and just, both Crowns rely heavily on R. v. Wawrykiewicz, 2017 ONSC 3527, R. v. Wawrykiewicz, 2018 ONCJ 199 and R. v. Wawrykiewicz, 2020 ONCA 269. That accused was tried on two indictments in the Superior Court for possession of heroin, cocaine and marijuana for the purpose of trafficking, and possession of proceeds of crime. He received a global sentence of 10 years. He was tried on a third information in the Ontario Court of Justice on three counts of possession of cocaine for the purpose of trafficking, and one count of possession of methamphetamine for the purpose of trafficking, and a number of Code offences including careless storage of ammunition, possession of proceeds of crime and breach of recognizance.

73Mindful of the totality principle, the trial judge on the third case imposed a total sentence of six years, to be served in addition to the ten-year sentence already imposed on the first two indictments. That case was appealed and, at para. 62 of 2020 ONCA 269, the Court of Appeal determined that the sentence was not demonstrably unfit.

74The Crown submits that this case sets a benchmark, so to speak, as to what constitutes a fit and proper sentence in cases of multiple convictions for drug offences covering multiple indictments. Both cases involve the commission of offences while on release pending trial for earlier offences of the same kind. The Crown points out that the accused in the case at bar was in possession of a firearm, which makes it more serious than Wawrykiewicz. However, Mr. Wawrykiewicz was found in possession of 107 rounds of ammunition, the only purpose of which is to be used with a firearm, so I do not find that difference to be compelling.

75Defence counsel argues that Wawrykiewicz is distinguishable and that Mr. Wawrykiewicz and the accused are not similar offenders. Mr. Tasevski has been convicted on two separate indictments, of 6 counts of possession for the purpose of trafficking a total of 842.7 grams of Schedule I substances. The most serious offence he has been convicted of is possessing 176.5 grams of heroin. Across the course of two indictments, Mr. Tasevski was found with under $30,000.00.

76Conversely, Mr. Wawrykiewicz was convicted on two separate indictments and one information, of 6 counts of possession for the purpose of trafficking a total of 3,130.36 grams of Schedule I substances. Possessing 173 grams of heroin for the purpose of trafficking was the most serious offence that he was convicted of. Across the course of the three proceedings, Mr. Wawrykiewicz was found with over $150,000.00.

77I agree with defence counsel. Mr. Wawrykiewicz possessed almost 4 times as much Schedule 1 controlled substances for the purpose of trafficking, and was found with roughly 5 times as much money that was generated from the drug trade. He was clearly in a different league than Mr. Tasevski, and I do not find the sentence he received to be of great assistance.

78In applying the totality principle, one of the considerations is whether the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved. In this case, the most serious offence attracted a sentence of 8 years. A sentence of 14.5 years is close to double that amount, and can therefore be said to be substantially above it.

79The accused is now 65 years of age. A sentence of 14.5 years, even after a credit for pre-sentence custody, will consume a significant portion of his remaining years. He has been diligently pursuing an education while incarcerated with a view to being a productive citizen upon his release. I am of the view that a sentence of 14.5 years, at this stage of his life, would constitute a crushing sentence.

80Based on the totality principle, I have concluded that a fit and proper global sentence, for all counts on both indictments, is 12 years in prison. From that must be deducted the credit for pre-sentence custody of 3 years and 23 days, which leads to a net sentence of 8 years and 342 days.

81The following ancillary orders will also go, on consent, on the first indictment:

• Lifetime section 109 weapons prohibition;
• Secondary DNA order in respect to Counts 1, 2 and 3;
• Forfeiture Order for the following: (a) LG phone (b) Moto phone (c) $3670 (d) $120 (e) 4 digital scales (f) packaging

82The following ancillary orders will go, on consent, on the second indictment:

• DNA and lifetime section 109 prohibition orders in respect to the CDSA offences;
• Forfeiture Order for the following: (a) Sport pistol (b) Ammunition and magazines (c) $24,435 (Can) (d) $510 (US) (e) 20 Indian rupee (f) 3 cell phones/2 with sim cards (g) 2 scales (h) 30 grams marihuana (i) Crack pipe (j) Packaging materials (k) Muzzle suppressor (l) Baton

83Once sentencing is completed, the remaining counts on the second indictment will be withdrawn at the request of the Crown.

T. A. Heeney J.

Released: June 16, 2020