COURT FILE No.: Halton, 09-4027

DATE: 2012·01·24

Citation: R. v. Kaziuk, 2012 ONCJ 34

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Roman Michael KAZIUK (aka Ronald Michael KAZIUK)

Before Justice Lesley M. Baldwin

Sentencing proceedings heard on June 23, 2011; July 20, 2011; August 9, 2011; September 30, 2011; November 17, 2011.

Reasons for Sentence released on January 24, 2012

Arish Khoorshed ........................................................................................................ for the Crown

Sapna Butany, Duty Counsel .......................... for the accused Roman (aka Ronald) Michael Kaziuk

BALDWIN, J.:

Convictions Registered and Other Offences to be Considered on Sentence:

[1] On June 23rd, 2011, I released written Reasons for Judgment finding the offender guilty after trial of two offences as follows:

(1) that on or about the 20th day of January in the year 2009 at the Town of Oakville in the said Region, being a Power of Attorney, he stole a sum of money, the property of Feliksa Kaziuk of a value exceeding five thousand dollars contrary to Section 334 (a) of the Criminal Code;

(2) and further that, by deceit, falsehood or other fraudulent means he defrauded Feliksa Kaziuk of a sum of money exceeding five thousand dollars contrary to Section 380(1) of the Criminal Code.

The first offence has a maximum sentence of 10 years. The second offence has a maximum sentence of 14 years.

[2] At the end of trial, the Crown had also proven beyond a reasonable doubt, a charge of theft by person holding Power of Attorney, contrary to Section 331 of the Criminal Code. This charge was not laid but is an aggravating factor on sentence pursuant to s. 725(1) (c) of the Criminal Code.

[3] The amount of the fraud was $20,000. The offender used the Power of Attorney that his elderly mother had given him and put unauthorized mortgages on her property for his own use.

[4] Section 725 (1) reads as follows:

In determining a sentence, a court

(c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.

[5] Section 724 (1) reads as follows:

In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.

[6] During the course of the trial, the Crown had also proven beyond a reasonable doubt that the offender used the same fraudulent scheme to defraud his lawyer, Mr. Peter McPhie, out of monies on two separate occasions in February of 2009.

Mr. Kaziuk called me and, you know, you have to understand I believed Roman completely, all along, I’ve known him for several years. Roman told me that his mother had died…Roman was clearly shaken and I felt for him and he said, you know my situation Peter. I’m stuck in terms of don’t have, you know, money I need to bury my mother and can you help me out…he had provided me with a copy of her Will so I could see that Roman was sole executor, he’s the sole beneficiary and so had said, you know, obviously I can take care of your loan, you know. I mean I’m the sole executor; sole beneficiary. (Reasons for Judgment @ paragraph 37)

[7] Mr. Peter McPhie lent the offender $20,000 unsecured. He regrets that he did not ask to see a Death Certificate.

[8] Charges were not laid in this additional fraud; however, it is another significant aggravating factor on sentence.

[9] Further, during the course of the trial, the Crown proved beyond a reasonable doubt, that the offender attempted to obstruct justice by influencing his mother’s testimony at trial. Contrary to a court-ordered no-contact provision with Mrs. Kaziuk, she visited him in jail sometime before Christmas in 2010.

[10] As a result of conversations with the offender after the charges were laid, Mrs. Kaziuk appeared fixated on the idea that everyone in her world, except her son Roman, was out to take all her money. (Reasons for Judgment @ paragraph 77)

[11] My full Reasons for Judgment after trial must be read as part of these reasons for sentence.

[12] During the course of the sentencing proceedings on November 17, 2011 (transcript of which is now marked as Exhibit #6 on Sentence), Exhibit 2 was filed and agreed to by the offender as follows:

Information received from counsel for the Office of the Public Trustee and Guardian, establishes that on April 12, 2007 the offender fraudulently used his mother’s Power of Attorney to put a mortgage on her property in the amount of $98,000.00 and on September 18, 2008, the offender fraudulently used his mother’s Power of Attorney to put a mortgage on her property in the amount of $65,000.00. (Transcript of proceedings pages 7,8,9)

[13] Therefore, in determining the sentences to be imposed today, I have also considered the five additional crimes of dishonesty noted above wherein the offender defrauded his mother, defrauded Mr. McPhie, and attempted to obstruct justice.

[14] However, this is not the first time that this offender has been convicted of defrauding his mother.

[15] As Constable Jeff Springstead told Mrs. Kaziuk during her statement to police on these matters, “I’m going to try and find Roman again and charge him.” (Video-taped interview with Mrs. Kaziuk on September 17, 2009, Transcript p. 37)

[16] As will be discussed below, the effects of this repeated criminal activity have devastated his mother.

Circumstances of Feliksa Kaziuk:

[17] The victim is the mother of the offender. She was 86 years of age at the time of the current offences and her report to police. She was 88 years of age when she testified at this trial.

[18] Mrs. Kaziuk was born in Poland and immigrated to Canada after the second-world war.

[19] Mrs. Kaziuk and her husband John were hard working people. They accumulated some wealth through pure physical labour and real estate purchases.

[20] The offender, born June 28, 1954, is her only child. He was adopted.

[21] Mrs. Kaziuk’s husband died 11 years ago.

[22] At the time of her husband’s death, Mrs. Kaziuk lived in one of two condos that she owned mortgage-free in Oakville. She also owned a residence in Miami that was mortgage-free.

[23] According to the statement she provided to police dated September 17, 2009 (Exhibit 1), she had significant monies in her bank account (over one million dollars); she had a car and credit cards.

[24] Due to the actions of the offender, she no longer has a car, because he took it. She has no money in her bank account because he took it. She has no credit cards because he took them.

[25] As of September 12, 2011, Mrs. Kaziuk was evicted from her Oakville condo because of the fraudulent mortgages put on her properties without her consent or knowledge. The banks have seized her condominium units.

[26] She has lost everything. Mrs. Kaziuk now resides in the Lighthouse shelter in Oakville – a residence for homeless people run by the Salvation Army.

Victim Impact:

Testimony of Detective Constable Traci Smith:

[27] During the sentencing proceedings heard September 30, 2011, HRPS Officer Smith provided what can only be described as heart-wrenching testimony which I have summarized. (Transcript of proceedings is now marked as Exhibit 7)

[28] On September 26, 2011, she attended the Lighthouse shelter and spoke to Mrs. Kaziuk.

[29] The shelter has an open concept sitting area and an open concept dining room which operates cafeteria style.

[30] Staff are on duty 24 hours a day; usually two staff.

[31] Bordering the common area of the television, there is one telephone that is shared amongst all the residents, a board room, and then behind that area is the sleeping area for women.

[32] There is a door that prevents the residents from entering the sleeping area from 10:00 a.m. to 8:00 p.m.

[33] In the sleeping area, there is a shared washroom and shower facility.

[34] The residents have very small rooms to themselves that they can lock only at night.

[35] The residents are allowed two small bags of personal items. The bags would be no bigger than a kitchen-catcher type garbage bag.

[36] The officer did not see any other elderly people at the shelter.

[37] The average age of the other residents appeared to be 40.

[38] The shelter is not designed to house people in their eighties.

[39] The residents appeared unkempt in appearance and consistent with persons who have addiction issues.

[40] Ironically, the Officer recognized a male she had arrested one week previously for break, enter and theft and possession of stolen property.

[41] Mrs. Kaziuk is a type 2 diabetic. The menu at the shelter does not take into consideration any special dietary needs. Mrs. Kaziuk is not given an option as to what to eat at the shelter.

[42] Mrs. Kaziuk was suffering from the flu and was on medication.

[43] When the Officer asked Mrs. Kaziuk if she wanted to attend the sentencing hearing, she broke down into tears. She stated that she just could not. It was too stressful and her fear was that it would give her a heart attack.

[44] There is a bit of a language barrier with Mrs. Kaziuk (her first language is Polish) and she has a hearing deficit in her left ear. She requires a hearing aid and the hearing aid is not doing its proper job.

[45] Mrs. Kaziuk takes the hearing aid out of her ear and removes the battery from it to save the battery life because she cannot get hearing aid batteries due to a lack of transportation. Also, the expense of the batteries is of concern to her.

[46] The Officer went to a clinic the next day, where Mrs. Kaziuk had advised that the batteries were cheaper, and purchased for her a four-pack of batteries. It cost 5 dollars.

[47] Mrs. Kaziuk insisted on paying the Officer back the 5 dollars as a matter of pride.

[48] Some of Mrs. Kaziuk’s clothing has been stolen at the shelter. When the Officer offered to intervene and recover the clothing, Mrs. Kaziuk’s response was that the person who stole them must have needed her clothes more than she does – so please leave it alone.

[49] Mrs. Kaziuk made a statement to the Officer and asked that she not talk about it.

[50] Due to the import of that statement, the Officer testified that, although she was not involved in the initial case and does not have the facts of the initial case, Mrs. Kaziuk told her that sometime between her son going into custody and the alleged frauds that have occurred, Mrs. Kaziuk’s son asked her to take him to Poland where the family owns real estate or some sort of property, so that he did not have to go through judicial proceedings in Canada.

[51] The Officer testified that through, primarily, the efforts of Detective Constable Springstead, the Office of the Public Guardian and Trustee is now finally involved with Mrs. Kaziuk. A Salvation Army service has been involved in someone being appointed as a Power of Attorney for financial matters. An elderly support service called “Links” is now involved and a recommendation has been made that the “Community Care and Access Centre” also become involved in Mrs. Kaziuk’s care.

Circumstances of the Offender:

[52] A pre-sentence report was prepared in this matter dated June 21, 2011. I re-ordered it due to deficiencies in content and another report dated July 14, 2011 was prepared. An Addendum to that report was filed dated July 19, 2011. All reports are filed as exhibits on sentence. (Exhibits 3, 4, 5)

[53] The offender was born June 28, 1954 and is 57 years of age.

[54] According to the offender, he was born in Hamilton and adopted at 4 years of age.

[55] John and Feliksa Kaziuk adopted him from the CCAS and he was their only child.

[56] John Kaziuk passed away in 1999.

[57] Mrs. Kaziuk’s circumstances are noted above.

[58] The offender stated that he enjoyed a great relationship with his adoptive parents and that he was treated as a normal son by the only parents he knew.

[59] The offender admitted to committing various actions of fraud in the past. He explained that he committed fraud out of “financial misfortunes and an ongoing state of depression. He stated that on every occasion he opted to face the consequences of his illegal actions if and when they arose. He stated that he admits his shortcomings when it comes to handling finances, and explains a lot of the criminal acts in his past were never to hurt anyone but to help with financial obligations of his business, overhead and maintenance of properties his father left behind.” (PSR dated June 21, 2011 p. 8)

[60] The offender repeated that “in the past he has only committed small acts of fraud and expressed that he has never openly hurt anyone with his actions… (he) describes himself as an honest hard working man who can admit when he is wrong and states that his behaviour at times was justified given that he was trying to accomplish it for a good cause.” (PSR p. 10)

[61] “The offender stated that he does not take responsibility for the offence brought before the court.” (PSR p. 11)

[62] The author of the first report noted that the offender does not have extended family support.

[63] Most of the offender’s education, employment and marital background contained in the report was not independently verified and is of little assistance in this sentencing.

[64] The second PSR dated July 14, 2011, also had nothing to confirm the offender’s reports about his education, employment or failed marriages. In this report, it is noted that the offender’s cousin, George Lewinowicz, and his mother Mrs. Kaziuk, stated that gambling may be an issue of concern for the offender. (PSR #2 – p. 6)

[65] The probation officer states as follows:

The offender presented as anxious during the interview. His conversation jumped from one issue to another and it was difficult to keep him on target with questions asked. He spoke at length regarding the offence presently before the court, however, greatly minimized the extent and history of manipulation of his mother’s finances.

Likewise, the offender glossed over his history of fraud related offences. He stated simply that he was “not good with money” however, his engagement in defrauding friends, acquaintances, businesses, financial institutions and family suggests that he is a larcenous individual who has no boundaries as to who he will victimize or regard for the devastation he causes. (PSR, p. 6)

[66] The offender’s cousin, George Lewinowicz, stated that “the offender has always engaged in financial crimes to support himself… (he) will take financial advantage of anyone.” (PSR, p. 6)

[67] The offender’s cousin, Mark Krol, stated that the offender is “a bad man who will take financial advantage of anyone.” (PSR, p. 6)

[68] Mrs. Kaziuk expressed “disappointment that her son by deception took control of her finances and expressed bewilderment over what he could have done with what she estimated was over two million dollars.” (PSR, p. 7)

[69] The offender denied having any addiction issues or seeking any form of counselling in the past.

[70] According to Mrs. Kaziuk’s statement to Detective Constable Springstead, the offender has been married three times and all the wives have thrown him out. She makes reference to the offender having engaged in fraudulent activity in these relationships as well. (Transcript p. 10)

[71] The second PSR concludes as follows:

Roman Kaziuk is a fifty seven year old offender appearing before the court once again convicted of theft over $5,000.00 and fraud over $5,000.00. The offender’s criminal history for fraud related matters spans all of his adult life. The offender expressed no remorse during the interview and suggested that his Mother was totally aware and content with his taking her funds for his own purposes.

It would appear the offender’s childhood was stable. He was raised by caring and supportive parents who provided him with an abundance of physical and emotional support. His Mother continues to have great faith in her son and his future, despite his grievous breach of trust. The offender’s life to date has been rife with losses of relationships and instability in employment and living arrangements due to his financial mismanagement and criminal activity. According to the information he has provided, as well as collateral sources and his criminal record, it is apparent that he has lived a life of crime and entitlement, manipulating most relationships for financial profit.

Given the offender’s history of fraud related offences, sense of entitlement to use others’ resources as his own, extent of victimization and lack of response to therapeutic and punitive sentencing, he remains at very high risk of re-offending.” (PSR, p. 7)

Criminal Record:

[72] The offender now has a total of 69 convictions for crimes of dishonesty, which include:

Uttering Forged Documents;

False Pretences;

Fraud Over;

Possession of Instruments for Forgery;

Theft Over;

Fraudulent Use of Credit Card Data;

Larceny.

[73] In addition to the 62 convictions for crimes of dishonesty alone set out in the first PSR, the Addendum to the second PSR states that the offender was arrested in Colorado on February 25, 1989, by Mesa County Sherriff’s Office for Larceny. He was convicted on an unknown date, however, it is noted that he was received at a Colorado state prison to serve his sentence for Larceny. He was then arrested on March 19, 1997, for parole violation.

[74] The offender was arrested on February 16, 1993 by the Orlando Police for Larceny. A warrant was issued for his failure to attend court on this matter. On January 6, 1998, he was convicted of Larceny and sentenced to 88 days in jail, plus restitution of $1,926.00.

[75] The offender was arrested on October 11, 1996, by Pharr Police in Texas for theft of property under $20,000. He was sentenced on January 3, 1997, to 5 years jail followed by 5 years probation.

[76] On October 13, 2011, the offender was sentenced by The Honourable Mr. Justice Brian Stead of the Ontario Court of Justice presiding in Halton, to sentences totalling 4 years jail. (Transcript of Reasons for Sentence marked as Exhibit 8)

[77] The offender was found guilty following a trial on a charge of fraud over $5,000 and uttering a forged document by placing an authorized certified cheque stamp on a cheque. The offender duped the victim out of $22,000 by means of a bogus plan to purchase a bus jointly with the victim. He gave a forged cheque for $11,000 to the victim in an attempt to delay the matter. The offences occurred in May of 2009. (Note: The offender’s statement to this Court during these sentencing submissions was that this fraud was merely “a business transaction.” Transcript dated November 17, 2011 p. 11)

[78] On October 13, 2011, the offender pled guilty to one count of fraud in excess of $5,000 which occurred in June of 2010, wherein he purchased a new motor vehicle by means of a forged certified cheque in a sum in excess of $20,000, and some four days later sold the motor vehicle to an unsuspecting dealer in Ottawa for $12,000.

[79] Justice Stead found that both offences were obviously planned and deliberate and were separate in time by approximately one year.

[80] Justice Stead applied all of the offender’s pre-trial custody in the sentences he imposed that day.

[81] The sentences to be imposed today will be the offender’s 70th and 71st sentence for crimes of dishonesty.

Offender’s Statement to the Court during Sentencing Proceedings:

[82] As required by s. 726 of the CCC, the offender was asked if he had anything to say before I determined the sentence to be imposed.

[83] On November 17, 2011, he spoke at length and said things including the following:

Mom went through a lot. I went through a lot…since my Mom’s been evicted…nobody has done anything (to help her)…I’m asking for help to help my mother…to help me somehow…somebody that could help me… (Transcript of November 17, 2011 pp. 16, 21, 22)

Mitigating Factors on Sentence:

[84] None.

Aggravating Factors on Sentence:

[85] This is a despicable breach of trust fraud as the offender was, at the time, the Power of Attorney to the victim.

[86] The victim was his elderly Mother who was extremely vulnerable to him as her only child.

[87] During the trial, it was evident that Mrs. Kaziuk has suffered cognitive, hearing and sight decline.

[88] It was apparent that she was suffering physically and emotionally during her trial testimony.

[89] She is homeless due to the offender’s actions. He has wiped her out financially and broken her heart. He has gone so far as to lie about her death to extract fraudulent money out of a lawyer after he committed the crimes I am sentencing him on here.

[90] The offender has an enormous record for related offences and he is in the worst offender category.

[91] Prior jail terms spent in the penitentiary have not deterred him.

[92] Additional offences have been proven at this hearing and are to be considered in the imposition of sentence as noted above.

[93] There is no chance of restitution.

[94] Rehabilitation is not possible.

[95] I do not need a psychiatric report to conclude that this offender has the characteristics of a psychopath.[^1] This offender is incapable of feeling empathy and has no conscience. He has devastated everyone around him all his life.

[96] Mr. Kaziuk would rip-off the wings of all the angels in heaven and sell them to the devil for his own gain if he could.

Position of Counsel:

[97] The Crown seeks a total sentence in the range of 3 to 4 years, consecutive to the sentence the offender is currently serving. The Crown’s written submissions filed with the Court are attached to the Information.

[98] The Crown submits that this Court has to consider the totality principle in the imposition of sentence.

[99] The Crown referred to the following breach of trust fraud cases in their submissions regarding the range of sentence: R. v. Bogart 2002 CanLII 41073 (ON CA), [2002] O.J. No. 3039 (OCA); R. v. Dobis (2002) 2002 CanLII 32815 (ON CA), 163 C.C.C. (3d) 259 (OCA); R. v. Drakes 2009 ONCA 560, [2009] O.J. No. 2886 (OCA); leave to appeal denied [2009] S.C.C.A. 381 (SCC); R. v. Montemurro [1984] O.J. No. 631 (SCJ); R. v. Villanueva [1999] O.J. No. 4939 (OCA); R. v. Goertzen 2004 BCCA 639, [2004] B.C.J. No. 2802 (BCCA); R. v. Therien [2010] O.J. No. 407 (OCA); R. v. Dorsey 1999 CanLII 3759 (ON CA), [1999] O.J. No. 2957 (OCA); R. v. Gallagher 2008 ONCA 252, [2008] O.J. No. 1271 (OCA).

[100] Although of some assistance to the Court, none of these cases deal with the same or even similar circumstances that I have to factor in here. Obviously, corporate type frauds (OHIP, Banks, Businesses, Customers) cannot compare to one’s Mother.

[101] Not even the notorious fraudster Bernie Madoff [^2] was guilty of destroying his own mother as Mr. Kaziuk has repeatedly done.

[102] In jail, this offender will be better off physically than his own Mother. He will be sheltered, fed regularly, and kept warm.

[103] The offender was assisted by senior duty counsel on the final day of the sentencing hearing.

[104] The offender has discharged two lawyers during the course of the proceedings before this Court.

[105] Duty counsel submitted that a sentence in the range proposed by the Crown be ordered and that the sentence be concurrent to the sentence he is currently serving.

Other Sentencing Factors:

[106] I have applied the relevant sentencing factors as contained in the Criminal Code, namely: s. 718

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(Note: Subsections (d) (e) (f) have no application in this case)

Section 718.1:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2:

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

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

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

[107] The totality principle requires a sentencing Judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence does not exceed the overall culpability of the offender - (R. v. M. (C.A.) 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269.

[108] The court is to determine if there is a nexus between the offences in determining if the sentence should be consecutive or concurrent.

[109] The court should not impose an excessively long sentence that would crush out the chance of rehabilitation. In this case, rehabilitation is not possible.

[110] The Crown has placed too much emphasis on the totality principle in their recommended range of sentence, given that rehabilitation is not possible.

[111] The Crown has not factored in all the other offences that have been proven beyond a reasonable doubt during these proceedings in their recommended range of sentence.

Sentence Order:

[112] Given the gravity of the offences committed here, the blameworthiness of this offender, and the need to protect the community, I have determined that the maximum sentence of 10 years is the fit sentence on the conviction for Theft over $5,000. That sentence will be served consecutively to the sentence that the offender is currently serving.

[113] With respect to the conviction for Fraud over $5,000, given the nexus between offences, I have determined that a concurrent sentence of 10 years is the fit sentence.

[114] The victim fine surcharges are waived.

[115] Pursuant to s. 743.21, there will be an order prohibiting contact with Feliksa Kaziuk, George and Margaret Lewinowicz and Mark Krol.

Judgment Distribution:

[116] I request that the Crown Attorney assist in having this judgment distributed to the following persons and agencies:

Mrs. Feliksa Kaziuk;

Office of the Public Trustee and Guardian, and any other agencies that are assisting with Mrs. Kaziuk’s care;

HRPS Officers Jeff Springstead and Traci Smith;

HRPS Chief Gary Crowell for his recognition of the compassionate and dedicated work of Officers Springstead and Smith in this case;

Mr. Peter McPhie.

[117] The Court expresses gratitude to all counsel who participated in the trial and sentencing proceedings. (Mr. Arish Khoorshed; Mr. Peter Craniotis; Mr. Ted Graham; Ms. Sapna Butany).

Released: January 24, 2012 ___________________________

Signed: “Justice Lesley M. Baldwin”

Appendix – Exhibit List on Sentence

#1 – Feliksa Kaziuk’s statement to Officer Springstead dated September 17, 2009 (Transcript and DVD)

#2 – Documents from the OPGT proving other fraudulent activity

#3 - 1st PSR dated June 21, 2011

#4 – 2nd PSR dated July 14, 2011

#5 – Addendum to PSR dated July 19, 2011

#6 – Transcript of Sentencing Hearing on November 17, 2011

#7 – Transcript of Sentencing Hearing on September 30, 2011

#8 – Transcript of Sentences imposed by Justice Stead on October 13, 2011

[^1]: Canada’s expert on psychopathy is Dr. Bob Hare. As a result of his prolific scientific work over 35 years, we now understand that the great majority of psychopaths are not violent criminals and never will be. Hundreds of thousands of psychopaths work and prey among us. Those that offend criminally leave a path of destruction and pain without a single pang of conscience. They are beyond rehabilitation because they do not fear punishment as they are not deterred by it. Psychopaths have no capacity for empathy. They present as glib, superficially charming, callous, remorseless and with a grandiose sense of self-worth. Psychopaths are superb liars. They are manipulative, irresponsible, parasitic and audacious.

[^2]: Bernie Madoff was a financial advisor who pled guilty in 2009 to defrauding investors of 18 billion dollars in a Ponzi scheme in the United States. He was sentenced to 150 years.