Court File and Parties

Court File No.: Toronto

Date: 2015-06-19

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Piotr Buczel and Arkadiusz Czeranowski

Before: Justice Fergus O'Donnell

Reasons for Sentence Delivered On: 19 June, 2015

Counsel:

• Mr. F. Schembri and Ms. S. Loosemore for the Crown
• Mr. T. Hicks for the defendant, Piotr Buczel
• Mr. C. Preobrazenski for the defendant, Arkadiusz Czeranowski

Reasons for Sentence

Fergus O'Donnell, J.:

The Criminal Enterprise

[1] Piotr Buczel and Arkadiusz Czeranowski and a few of their friends were often to be found in some of Toronto's most posh neighbourhoods. They had a taste for the finer things in life: expensive electronics, fancy jewellery and high-end, late-model European cars ranked high on their "must-have" lists. Auto manufacturers in Stuttgart and Munich would be flattered to know that their marques were particularly favoured by Mr. Buczel, Mr. Czeranowski and their cronies, although if one owned a Bentley the group would not turn their noses up at that. There were a few problems with this designer lifestyle, however, mostly relating to the fact that the houses they frequented were not their houses and they were not guests (indeed they went to great lengths to make sure that their "hosts" would not be at home) and that the bling, tech and six-figure motor-cars they left with were not theirs either. Rather, their little cadre of bandits was in the business of breaking into homes where high-value items were likely to be found, and making off with small items of significant value including the keys or fobs needed to use their victims' vehicles as both their get-away cars and their stock in trade.

[2] In general terms, this case, dubbed Project Yellowbird by the police, related to a string of residential break and enters in affluent areas of Toronto from late 2013 until the late summer of 2014 when the project was taken down. If you owned a Chevy or a Honda, you had nothing to fear from this organization. This was not a wiretap investigation or a proceeds-of-crime investigation, so it is not feasible on the material before me to determine the precise hierarchy within the organization, or whether or not there even was some undiscovered higher-ranking figure hiding behind the curtain.

[3] The evidence makes it clear that the offenders did their homework. They clearly did research in the neighbourhoods, both to create a list of what alluring cars were to be found at which addresses, and also seemingly to ensure that the houses were vacant when they broke in. While this generally (but not always) avoided homeowners being personally confronted with burglars in their homes, it presumably had a less altruistic motivation, namely that reducing the risk of breaking into an occupied house reduced the likelihood of timely notification of the police and thereby reduced the risk of apprehension. People were at risk of losing their electronics, jewellery, cars and sense of personal security as a result of anything from a few hours' absence from home to an absence of a week or more. In one case, the victims returned home and noticed their other car missing, presuming that their son had taken it, only to find on entering their house that they had been burgled. When the husband went out to secure the car they had just driven home in, he found that it too had been stolen, in the mere minutes since they had returned home.

[4] The material shows that the group was alive to the dangers of detection through the use of mobile-phone tower-location technology: it was typical for their mobile phones to be turned off for a period surrounding break and enters. Their mobile phones were in false names. Stolen cars were concealed in storage lockers and in streets near Mr. Buczel's house. Out-of-province licence plates or forged plates were used on some of the stolen cars. Two of the stolen cars were intercepted in Lithuania.

[5] The group, which comprised at least six principal players, was good at what they did. In Mr. Buczel's sentencing hearing there was a mild difference of opinion between Mr. Schembri for the Crown and Mr. Hicks over whether the group was "sophisticated" (Mr. Schembri's term) or "careful" (Mr. Hicks's term). I suppose that if that linguistic distinction were the issue for me to decide, I would come down on the side of "careful with a side-order of sophistication". Any reader of these reasons can reach their own opinion on that nuanced point. For sentencing purposes, the terminology makes no difference. The group was active, carefully sophisticated, rather ravenous in their appetites and achievements and had arrangements for getting stolen cars out of the country. It was clear that they engaged in surveillance of their targets to make sure that the houses were vacant when they broke in. They stole items of a gob-smacking value; it was not uncommon for their predations to result in losses into the hundreds of thousands of dollars at a single location. On at least one occasion the damage caused by the break and entry amounted to fifteen thousand dollars alone. On occasion the loss was in the area of half a million dollars. There are obviously different losses at different locations arising out of different offences pleaded to by each defendant and while the appropriate sentence for each defendant must be defined by his own particular actions and background, the fact remains that the general character of each of their conduct was similar and their common purpose is a relevant factor in sentencing.

Charges Against Mr. Buczel

[6] Mr. Buczel pleaded guilty to six charges, namely:

a. A residential break and enter and theft at 191 Parkview Avenue in Toronto on 10 May, 2014;

b. A residential break and enter and theft at 505 Douglas Avenue in Toronto on 24 May, 2014;

c. A residential break and enter and theft at 218 Riverside Drive in Toronto on 5 July, 2014;

d. Conspiracy to steal motor vehicles between 20 December, 2013 and 28 August, 2014;

e. Possession of property obtained by crime over five thousand dollars in Oakville between 20 December, 2013 and 28 August, 2014;

f. Possession of property obtained by crime over five thousand dollars in Burlington on 12 July, 2014.

[7] The charges that Mr. Buczel pleaded to and the facts he admitted for the purposes of sentencing included the following, which were set out in an agreed statement of facts filed on the plea. I do not propose to replicate the agreed statement of facts here, but only to touch on certain parts of it. The thirteen-page agreed statement of facts for Mr. Buczel was an exhibit on his sentencing.

[8] Mr. Buczel effectively served as the equivalent of "patient zero" for the purposes of the police investigation once they identified the start of a string of similar break and enters and started comparing notes. Analysis of his mobile phone records showed a pattern of no phone activity for a period surrounding various break and enters, but with calls to or from other conspirators' mobile phones before and/or after the crimes. The Toronto Police Service investigation appeared to link Mr. Buczel to a break and enter on 23 December, 2013, during the December ice-storm power outage, in which an Audi S4 and a Porsche Carrera were stolen from 289 Kingsdale Avenue, along with over forty thousand dollars worth of jewellery. The keys for a BMW135 were also taken, but it was left behind, perhaps for lack of a spare driver. The stolen Audi was later used by the co-accused, Mr. Niezurawski to attend various break and enters. The total loss in that case was $275,000 and fifteen months later the homeowner wrote that, "my kids and family still haven't gotten over the trauma of the home invasion". This was obviously not a "home invasion" in the classical sense, but the impact of the offence is the relevant issue.

[9] An early January, 2014 break and enter on McKee Avenue occurred while the owner was on holiday. A 2014 Audi S8 and a 2013 Audi Q5 were stolen. Also stolen were 4,500 rounds of ammunition for handguns and long-guns. Fortunately the thieves did not find the homeowner's actual gun collection. If those 4,500 rounds of ammunition were placed in the hands of criminals, that would be a substantial concern for public safety. The total loss in this case exceeded $200,000. The Audi Q5 and the Porsche Carrera were shipped to Lithuania where they were eventually recovered.

[10] Upon concluding that Mr. Buczel was a key figure in the burglary ring, the police checked the area around his home in February, 2014. A black 2013 Audi S4 that had been stolen from the area of Yonge Street and Highway 401 was found parked nearby with false, laminated plates matching a similar Audi. Checks of the phone records and surveillance led the police to Mr. Harasiuk and Mr. Niezurawski. In a seven month period, Mr. Buczel's mobile phone was used either to call Mr. Harasiuk's number or was called by it almost three thousand times. There were eighty-five contacts between Mr. Buczel and co-accused Mr. Boczkowski and, in a six week period starting at the end of May, 2014 there were one-hundred-and-thirty-six contacts between Mr. Buczel's mobile phone and Mr. Czeranowski's.

[11] In terms of the offences charged against Mr. Buczel, a three-man team (two for entry, one to drive) entered 12 Hilldowntree Road in Etobicoke on 10 May, 2014. Mr. Czeranowski was undisguised and was caught on video committing that offence in which a Bentley Continental Super Sport GT was stolen, along with jewellery. The stolen property in that case came in just under $500,000, plus about $15,000 in damage and, the homeowner wrote: "as a result of the entry the ....... family no longer feel safe in the neighbourhood and are selling their home." Half way across Toronto, that same night, in a count to which Mr. Buczel pleaded guilty, a break and enter at 191 Parkview netted the group a 2012 Audi S5, along with $40,000 in cash and jewellery. The estimated total damages and loss at Parkview were $500,000.

[12] Mr. Buczel also pleaded guilty to breaking and entering 505 Douglas Avenue on 24 May, 2014. A brick was used to smash a back door and jewellery and a laptop were stolen.

[13] Mr. Buczel's break and entry into 218 Riverside Drive on 9 July, 2014, along with Harasiuk and Niezurawski, resulted in the loss of a 2012 Range Rover, along with jewellery, purses, luggage, electronics, cash and watches, with a total value of $250,000.

[14] Three days later, Mr. Buczel was pulled over for a traffic violation in Burlington. He was driving a black Lexus SUV but was unable to provide a driver's licence or any ownership documents. Inquiries showed that Mr. Buczel's licence had been suspended for unpaid child support.[1] Upon his arrest for driving under suspension, a search of the car netted a bag full of burglary tools and unseasonable balaclavas. The VIN on the Lexus did not match the plates, which were actually from Buczel's common-law wife's Lexus SUV. When Halton officers attended the registered address for the Lexus in Toronto, they discovered that there had been a break-in and the Lexus had been stolen as much as a week earlier.

[15] At the time of his arrest in Halton, Mr. Buczel had a notebook that contained a list of nineteen addresses (and matching cars) that had not yet been broken into, as well as four addresses where break-ins had already taken place. At one of those addresses a 2010 Bentley Continental Super Sport had been stolen (This was one of two Bentley Continental Super Sports stolen by the group). At the other address, 33 Glenview Boulevard, the owner awoke to hear a bang and her brother in law yelling. The house had been broken into, using a brick to smash the side door frame and her brother in law's keys for his Audi S6 were gone, but the suspects fled without the car.

[16] A search warrant was executed at Mr. Buczel's home on the project takedown. Among the items seized were fifteen cellular phones, nine iPads and nine lap-top computers, with a particular affinity for Apple products.

Charges Against Mr. Czeranowski

[17] Mr. Czeranowski pleaded guilty to seven charges, namely:

a. Conspiracy to break and enter between 20 December, 2013 and 28 August, 2014;

b. A residential break and enter and theft at 191 Parkview Avenue in Toronto on 10 May, 2014;

c. A residential break and enter and theft at 215 Glenayr Road in Toronto on 9 August, 2014;

d. A residential break and enter and theft at 38 Glenarden Road in Toronto on 10 August, 2014;

e. A residential break and enter and theft at 60 The Kingsway in Toronto on 7 June, 2014;

f. A residential break and enter and theft at 12 Hilldowntree Road in Toronto on 10 May, 2014;

g. A residential break and enter and theft at 21 Rosedale Heights Drive in Toronto on 16 August, 2014.

[18] The charges that Mr. Czeranowski pleaded to and the facts he admitted for the purposes of sentencing included the following, which were set out in his agreed statement of facts. Again, I do not propose to replicate the agreed statement of facts here, but only to touch on certain parts of it. The eight-page agreed statement of facts for Mr. Czeranowski was an exhibit on his sentencing.

[19] The facts relating to the Hilldowntree Road break-in and theft of the Bentley Continental are set out above, as are the details of the Parkview Avenue burglary and theft the same day.

[20] About a month after those break-ins, Mr. Czeranowski and Mr. Niezurawski pried open the back door of 60 The Kingsway and stole jewellery, handbags, alcohol and a 2012 Mercedes ML35 SUV. That SUV was recovered from a storage locker on takedown.

[21] Surveillance and phone call analysis demonstrated a connection between Mr. Czeranowski and his co-accused Niezurawski and Boczkowski. Analysis of the GPS tracking history on the stolen Audi S4 being used by Mr. Niezurawski linked it to four burglaries over the weekend of 9-10 August, 2014. In the statement of facts, Mr. Czeranowski admits that he was one of the burglars at 38 Glenarden Road, 185 Coldstream Avenue (a "mere" $10,000 in loss), 215 Glenayr Road and 44 Alexandra Wood (about $5,000 loss and damage) in Toronto that weekend. Along with other items, a 2013 Mercedes MG3 and a 2014 Audi RS7 were stolen. The RS7 from Glenayr Road was recovered in a shipping container when the project was taken down at the end of August. The homeowner from Glenayr Road described $18,000 in property damage, plus $50,000 in unrecovered property covered by insurance and $30,000 in unrecovered property that was not paid for by insurance. It is important to note that while a few of the offences were less remunerative to the burglars than others, the psychological impact would not necessarily vary much. Also the fact that much of this property was covered by insurance is irrelevant. The eventual recover of some of the property is not worth much if any credit to the offenders as that was entirely contrary to their plan. The credit for the recover goes to diligent work on the part of the police officers.

[22] The following weekend, the police noticed that a stolen Mercedes AMG on which they had installed a covert tracking device had moved from its storage locker. When police located the stolen SUV, they found it closely following an Audi R8 Spider convertible and an Audi S4 station wagon, being driven by Niezurawski, Boczkowski and Czeranowski respectively. The two Audis had been stolen that evening from 21 Rosedale Heights Drive and they were then hidden at airport hotels with their Ontario licence plates removed and Michigan and Oklahoma plates affixed. Later that same evening the Mercedes SUV was placed at the scene of another break-in at 42 Alexandra Woods Drive, where keys for a 2008 Infiniti were stolen.

[23] Tracking of the stolen Mercedes also placed it at the scene of four other burglaries from 15-16 August, 2014. Jewellery, cash and electronics were taken from one of those locations. A 2012 Mercedes SUV was stolen at another and it was recovered on take-down at a storage locker rented by Myhalov Antonov, the co-conspirator who had shipped two of the previously stolen vehicles to Europe. Mr. Czeranowski admits his involvement in those burglaries.

[24] As part of the plea negotiations the Crown did not require either of these defendants to plead guilty to any criminal organization offence.

Background of the Defendants

[25] Mr. Buczel is 39 years old. He has been a Canadian citizen for ten years. He has no criminal record. He hopes to obtain work through connections in the construction industry. Mr. Buczel was originally arrested in mid-July, 2014 when he was pulled over in Burlington for a traffic violation in the wee hours of the morning while driving one of the stolen cars, onto which he had placed his common-law wife's licence plate. He was also in possession of a bag full of burglary tools and two balaclavas, which are not typically required for a southern Ontario summer. He spent five days in custody on the charges in Halton. He has been in custody since the project was taken down on 28 August, 2014. In total he has three hundred real days of pre-sentence custody.

[26] An issue arose with respect to the amount of credit to be given for Mr. Buczel's pre-sentence custody. The issue relates to s. 719 (3.1) of the Criminal Code, which purports to limit the amount of credit a defendant can receive for pre-sentence custody in certain cases, in particular where the person was either detained because of his record of previous convictions under s. 515 (9.1) or was detained due to a breach of a previous release in accordance with s. 524 of the Criminal Code. The issue arises because Mr. Buczel was arrested in Burlington in mid-July, 2014 in the middle of the Toronto investigation and was found to be in possession of the stolen Lexus motor vehicle and burglary tools. As noted above, he spent five days in custody on those charges before being released. He was then charged with the Project Yellowbird offences at the end of August, 2014. The Project Yellowbird charges were thus laid while Mr. Buczel was on release for the Burlington charges.

[27] Mr. Hicks raised with me the concern over whether or not Mr. Buczel would be entitled to the "presumptive" 1.5:1 credit that most defendants receive for pre-sentence custody, or if he would be limited to 1:1 for the period after his August arrest. I was told that part of the reason for detention was the Milton charges. It was urged upon me that such an application of s. 719 (3.1) would be unfair insofar as Mr. Buczel has primarily pleaded guilty to offences that occurred before his Burlington arrest. Only the ongoing offences of conspiracy and possession of stolen property encompassed a period after the Burlington charges. Mr. Schembri, for the Crown took no position and was content to leave the matter in my hands.

[28] At the time the matter was argued, I raised the question of whether or not there had been a recent decision by Justice Wein in relation to the constitutional validity of s. 719 (3.1) in the bail revocation or s. 524 context. That provision had already been the object of the Court of Appeal's attention in R. v. Safarzadeh-Markhali, 2014 ONCA 627, which had found that s. 719 (3.1) was unconstitutional insofar as it purported to deny enhanced credit where a detention order was based on a person's previous criminal record. The Court of Appeal, however, had left undecided the issue of whether the denial of enhanced credit for people who had been detained pursuant to s. 524 was constitutional. As it turns out, that gap in jurisprudence had indeed been filled in by Justice Wein in the Superior Court of Justice in R. v. Dinardo, 2015 ONSC 1804, in which she declared that the denial of enhanced credit for pre-sentence custody to defendants detained under s. 524(4) was of no force and effect as it violates s. 7 of the Charter of Rights and Freedoms and does not constitute a reasonable limit under s. 1 of the Charter. While the issue of the equities of applying the provision to Mr. Buczel in his unique circumstances would have been an interesting one, it is moot insofar as the decision of Wein, J. is both persuasive and dispositive of the issue.

[29] Accordingly, I am of the view that Mr. Buczel is entitled to credit for his pre-sentence custody at a rate of 1.5:1, which amounts to a credit of 450 days to be applied to whatever is a fit sentence for him.

[30] Mr. Czeranowski will be 40 years old in two days. He served in the Canadian Forces between 2003 and 2006, after which he worked in construction and installing floors. Unlike Mr. Buczel, Mr. Czeranowski has a significant criminal record. This is a relevant and non-trivial aggravating factor on sentence. Between 1996 and 2007, Mr. Czeranowski accumulated a total of eighteen criminal convictions, typically in clusters with a three or four year gap between each cluster. He has convictions for break-and-enter in 2000 and then in May, 2007 in Hamilton (attempt) and in June, 2007 in Milton. On the 2000 conviction he received a year in jail on top of three months of pre-sentence custody, the equivalent of an eighteen month sentence applying the arithmetic of that time. The 2007 attempt break and enter earned Mr. Czeranowski one day in jail on top of thirty days of pre-sentence custody. The Milton break and enter in June, 2007 resulted in a sentence of six months on top of another six months pre-sentence custody, again the effective equivalent of eighteen months.[2] Mr. Czeranowski also has June, 2007 convictions for two counts of flight from police and dangerous operation, plus a variety of property offences and failure to comply/failure to attend convictions over the years. He has been in custody since the project was taken down on 28 August, 2014. In total he has 295 real days of pre-sentence custody.

[31] There is no issue with respect to the credit to be given for Mr. Czeranowski's pre-sentence custody. Applying the 1.5:1 ratio, he is entitled to credit for 443 days off whatever is a fit sentence for him.

Sentencing Principles and Objectives

[32] The Criminal Code defines the objectives of sentencing, which include deterring both the specific defendant and others in society from committing offences, denouncing the offender's conduct as repugnant to society, providing reparations for harm done and ensuring that the offender is rehabilitated into society, since almost every offender will ultimately be released. These objectives of sentencing are at times hard to reconcile with one another. The Criminal Code also provides that I should use incarceration only when required and only to the extent required.

Mitigating Factors

[33] There are some mitigating factors here. The most significant is the guilty pleas entered by both defendants. I am prepared to treat them as "early" guilty pleas, because in the context of a case of this magnitude the volume of disclosure and the understandable delays in getting all of it to the defence counsel, it took several months before the defendants' lawyers were in a position to advise them meaningfully of their precise jeopardy and of their options. For the same reason, it took some time for the Crown to offer a sentencing position and for the parties to be able to reach meaningful agreements on the facts being admitted. Counsel would certainly be nervous about counselling a resolution before substantial disclosure was in hand. I suppose it would be open to a defendant to enter guilty pleas without substantial disclosure, which would be one of the purest manifestations of remorse imaginable, but I am satisfied that these pleas, entered before the preliminary inquiry began, were "early" pleas for the purpose of mitigation of sentence. It is clear that both Mr. Buczel and Mr. Czeranowski have been inclined to plead guilty for at least several months; it is simply the mechanics of it that have taken time.[3]

[34] This is an important consideration on sentence and may distinguish these two defendants from others who may either resolve their charges later in the proceedings or may be found guilty after trial. It has long been recognized that a guilty plea is an important consideration on sentence. Canadian courts have tended to shy away from assigning percentage or fractional reductions to a guilty plea, but there is English authority to suggest that a reduction in the range of one-third is generally appropriate. No precise mathematical reduction is appropriate because there are guilty pleas and there are guilty pleas. The bank-robber who pleads guilty after being taken down by the Emergency Task Force just outside the bank with a bag of money in one hand and a loaded hand-gun in the other and the proof of whose guilt would be as swift as it was certain, might deserve a relatively modest reduction in recognition of his guilty plea. At the other end of the equation, if a defendant pleads guilty despite having viable Charter of Rights arguments and despite the Crown's case on the merits being uncertain, frees vulnerable witnesses from having to testify and saves large amounts of court time that can then be devoted to ensuring other defendants, including those in custody awaiting trial, have access to a speedier trial, that defendant is entitled to particular consideration on sentencing because his plea not only provides practical benefits to the Crown but also reflects genuine remorse, which is a key factor in rehabilitation.

[35] In terms of these two defendants, I rank the value of the plea in the upper-middle of the range. I think it can fairly be said that the Crown had a powerful case against them at least in relation to a significant number of the charges if not all of the charges laid against them. Convictions on a significant number of charges would have been almost certain, including almost certain convictions for participation in a criminal organization if the Crown had pushed that point. At the same time, each of these defendants has done what lay in their power to save the state a significant amount of court time for the preliminary inquiry and trial of the group. They have also stepped forward first.

[36] I also note that Mr. Buczel has no previous criminal record, which is a significant distinction from Mr. Czeranowski who has a significant but somewhat dated record for precisely the same type of offences involved in this case. That distinction must weigh in with the other distinctions for and against each defendant in determining what their sentences should be relative to one another.

Nature and Seriousness of the Offences

[37] The nature of the offences also merits consideration. Whether this was "careful" or "sophisticated", it was certainly far more than the run of the mill burglary case. The degree of organization and the number of participants make this criminal cabal a much greater threat to the public than the average burglar. One of the reasons for the law of conspiracy is the concern that a group effort to commit crime is more dangerous because it is more likely to succeed than an individual effort and more likely to inflict social harm. The same reasoning must inform a sentencing position. Here there were various people helping commit the offences. The facts show a general pattern of two defendants doing the actual break and enter and fleeing with the house contents and the vehicles, after being dropped off by a third defendant who stood six while they were inside. There was a network of storage lockers and arrangements via Mr. Antonov to ship some of the stolen cars overseas. No individual acting alone could have inflicted this amount of harm in such a time period.

[38] I also note, that in terms of dollar value, the amounts involved here outstrip the takings on a "typical" break and enter by orders of magnitude. That must be a significant factor on sentence.

Sentencing Positions

[39] The Crown takes the position that both Mr. Buczel and Mr. Czeranowski should receive sentences of five years. The Crown says that while the details of their offences and backgrounds do vary, those differences more or less balance out. Both Mr. Hicks for Mr. Buczel and Mr. Preobrazenski for Mr. Czeranowski argue that a more appropriate sentence in all the circumstances is lower. Mr. Preobrazenski suggests that the appropriate range is 3-5 years, with five being a bit high and three being on the very low end. Mr. Hicks argues that three-and-a-half to four years is the appropriate sentence range for Mr. Buczel.

[40] The Crown characterizes the various principal defendants as follows. Mr. Czeranowski comes into the conspiracy around May, 2014 and remains involved until August. His provable involvement is only as a break and enter participant. The Crown says that Mr. Buczel should be seen differently as he was involved earlier, his phone records show the greatest involvement on his part (supporting the inference that he was somewhat of a focal point or ring-master) and perhaps the second largest amount of stolen property was seized from Mr. Buczel's residence. The phone call records obtained by the police show Mr. Buczel's calls in the hundreds and thousands. The Crown says that the co-accused Harasiuk was also involved early on and the co-accused Niezurawski was involved for the longest period of time.

[41] Mr. Preobrazenski says that his client, Mr. Czeranowski was in "the basement", the lowest of these offenders. The telephone records, he says, suggest that Mr. Czeranowski was in contact only with Mr. Buczel and not with the other defendants. He does, of course, have the significant, related record that Mr. Buczel lacks. Mr. Hicks, for his part, also points out that Mr. Buczel lacks the previous record that Mr. Czeranowski has. He also concedes that Mr. Buczel's possession of the records, i.e. the list of addresses and cars, some that had been broken into and others that were on the group's "to do" list, places him in a mid-level position in the organization and says that, all things considered, he and Mr. Czeranowski may be more or less a draw on sentence.

[42] There is no clear evidence of how each defendant benefited from the offences relative to the other defendants. It is inescapably clear, however, that this was a for profit enterprise: Mr. Buczel and Mr. Czeranowski were in the business of breaking into people's homes and stealing their valuables. Stolen cars would be concealed in storage lockers or on streets or in hotel parking lots, sometimes with out-of-province plates attached to them. Cases of multiple residential break-ins are not unheard of, but the offenders in those cases are most commonly drug addicts engaging in unsophisticated break-ins of relatively low value in order to support their addiction. Mr. Buczel and Mr. Czeranowski were operating on an entirely different plane. A single car stolen by them would typically be worth in the range of six figures. One house lost $200,000 in value from two cars alone. One does not often see burglaries where the loss comes to half a million dollars.

Sentencing Authority and the Sanctity of the Home

[43] There was a paucity of sentencing authority presented to me. All three counsel explained that they had been unable to find any authority with facts even remotely similar to this case. Since these are all property offences, Mr. Hicks said he considered presenting fraud sentences as a potential guide, but thought better of it given the role of the home in these offences. I think that was a sound decision. It has been said in our legal system since at least the beginning of the seventeenth century that a person's home is their castle; however humble it may be, even the forces of the state have no right to enter it without proper authority. That principle actually dates back to Roman times. The sanctity of a person's home underlies both our current constitutional protections and a person's right to use force to repel robbers. The sanctity of a person's home is reflected in the maximum sentence available under the Criminal Code for breaking and entering a dwelling house compared to the maximum sentence for breaking and entering other places. I have said earlier that I thought it was prudent of Mr. Hicks to refrain from using fraud sentencing cases as a reference point in this case. Both are obviously property offences and both can involve large sums of money. It is also undoubtedly true that some fraud offences, whether by the nature of the fraud or the particular vulnerability of the victim, will call out for particular repudiation in sentencing. However, it is a general reality of sentencing that the maximum penalty for fraud does not come close to the maximum penalty for a residential break and enter, and for good reason. While a break and enter to a home may, from the offender's perspective be just about material things, it is hardly likely to be so for the victim. Quite apart from the fact that an item fenced for a fraction of its value may have immeasurable emotional, familial or personal significance to a victim, a person's home should be the place in which she feels most safe. It is for this reason that the law treats domestic violence as an aggravated form of assault. A person's psychological sense of the home as a sanctuary and a safe zone may for years be taken for granted and even run entirely in the subconscious, until that sense is shattered by a break and enter there. The psychological consequences of a break and enter may linger long after doors have been mended, cars replaced and insurance claims resolved. No particular evidence of that is required, but such evidence is to be had in the present case. For one of the families, what they describe as the "trauma" of the break and enter, for them and their children, lingered long after the event. For another family, the break and enter made them feel so unsafe, in one of Toronto's richer neighbourhoods, that they felt they had to sell their house and move. In my experience, neither of these is an uncommon reaction and neither is at all unforeseeable.

[44] The same concern is noted in the comments of the British Columbia Court of Appeal in R. v. Arsenault, 1999 BCCA 578, where that court stated, at para. 7:

It sometimes seems to be lost sight of that a break and enter of residential property is a very serious offence from the point of view of the victims of that offence. It can in some circumstances have a shattering effect upon people but, short of those extreme cases, it is a significant invasion of their privacy and of their sense of having a refuge that is immune from intrusion.

When the state unlawfully violates the integrity of a criminal defendant's home, the courts are routinely expected to denounce and remedy that conduct. That denunciation should be equally loud and clear when offenders violate the sanctity of victims' homes. Sauce for the goose is sauce for the gander.

[45] I think it also bears noting that, while break and enter offences do not typically involve physical violence against the victims, that risk is always present. These offenders certainly appear to have gone to some lengths to ensure that nobody was at home when they broke into the houses, which is to their credit. However, as was seen in relation to 33 Glenview Boulevard, once one sets upon breaking into people's houses, no amount of carefulness or sophistication can guarantee that things will go as planned. However stressful it may be to return home to find a ransacked home, it is all the more stressful for the break-in to happen when one is home and the burglar thereby sets in motion a chain of events the outcome of which cannot necessarily be predicted.

Deterrence and Denunciation

[46] It seems inescapable to me that both specific and general deterrence must loom large in the determination of sentence here. I believe that that is reflected in the range of sentences urged on me by all counsel, who are not that far apart in their positions. Specific deterrence is obviously a particular concern for Mr. Czeranowski, who has been down this very path twice before, received significant reformatory sentences for it, and chose, for reasons that are unknown, to throw the dice and risk apprehension and punishment yet again. However, I think specific deterrence must necessarily be a major factor even for a first offender such as Mr. Buczel. There was nothing spontaneous or isolated or out of character in these offences. If the offences were out of character for Mr. Buczel when the first was committed, they were very much in character before long. Both defendants chose to make repeatedly breaking into other people's houses and stealing very high value property their chosen employment. Sometimes it was more than one burglary and theft in an evening, sometimes several in a weekend. This was Burglary, Incorporated.

[47] General deterrence is also a major concern in cases like this. In the range of "property" offences, the public must know that the seriousness of residential break and enters as defined by Parliament in the maximum sentence of life imprisonment will be reflected in how seriously the courts take such offences. Denunciation is also an important consideration for offences of this number and magnitude.

[48] I am also satisfied that a penitentiary sentence is definitely called for in order to create a sense of responsibility in Mr. Buczel and Mr. Czeranowski. Any sentence below the range proposed by counsel would run the risk of creating in them a sense of the penalty being merely a cost of doing business. I am confident that a sentence in the range proposed would not be crushing or excessive, not even for a first offender like Mr. Buczel in all of the circumstances of this case.

Determination of Sentence

[49] The obvious question, then, is where in the range the sentences should fall. In very general terms, the Crown says five years and the defence says something more like four. I do not think that it can be said that either position is unreasonable. Sentencing is not arithmetic; there is no such thing as a single "right" sentence, although there can certainly be a wrong sentence.

[50] I shall start with Mr. Buczel. Having regard to factors such as his "early" plea and the fact that he is a first offender, I incline towards the view that a sentence of four years before the application of pre-sentence custody credit would be appropriate for Mr. Buczel. Even on these facts, with an early plea a sentence of five years for a first offender would start to give me pause. As I have said, there are factors that distinguish Mr. Buczel from Mr. Czeranowski, including the fact that Mr. Buczel appears to be very much a focal point of the organization in light of the telephone call volume and his connection to multiple other players, his long-term involvement in the scheme compared to Mr. Czeranowski and the very large volume of property found at his residence compared to what I am told is a trivial amount at Mr. Czeranowski's. I stress that I am not saying that Mr. Czeranowski is "Mr. Big". He may be or he may not be. This organization could be more cooperative than hierarchical for all I know. In the absence of wiretap or undercover evidence it will typically be hard to reach any such conclusions in a case like this. What is clear is that he was a central, highly active, long-term participant in a relentless pattern of serious offences and his shopping list of houses and high-end cars made it clear that there was no end in sight short of a police takedown date.

[51] Mr. Buczel has 300 days of actual pre-sentence custody, which entitles him to credit for 450 days. The information shall note that credit and that in addition to that time he is sentenced to two years and two-hundred and eighty days in the penitentiary. I invite Mr. Hicks and Ms. Loosemore to check my arithmetic.

[52] I have considered Mr. Schembri's position that while Mr. Buczel and Mr. Czeranowski come to sentencing with different characteristics, it all balances out and results in an identical sentence being fair for each of them. I disagree. I do agree that Mr. Czeranowski's shorter involvement, less central role and the fact he did not have the treasure trove of ill-gotten loot that Mr. Buczel had all serve to distinguish him in a favourable way from Mr. Buczel. But, for all its relative brevity, Mr. Czeranowski's involvement was nonetheless substantial. The ultimate question is whether or not the factors demonstrating Mr. Buczel's more central and more enduring role balance out against Mr. Czeranowski's previous record. While Mr. Czeranowski's lesser role and duration of involvement are major factors, they simply cannot entirely counterbalance his significant and related criminal record. This is the third time Mr. Czeranowski appears for sentencing on break and enter offences; it is far more than his third sentencing of any type. It is fair to say that there is a seven year gap between his last sentencing date and the date of these offences, but that simply mitigates the record somewhat, it does not come close to neutering it. The simple fact is that as a 25 year old and as a 32 year old Mr. Czeranowski was convicted of break and enter charges and received effective sentences of a year or more each time. As a 39 year old at the time of these offences, he appears to have learnt nothing. He knew what consequences awaited him and he took the risk. Imposing exactly the same sentence on him as on the first offender Mr. Buczel would be inequitable. I am of the view that even taking account of the other, more favourable, factors in Mr. Czeranowski's case, overall a fit sentence for him is 4 ½ years.

[53] Mr. Czeranowski has served 295 days in pre-sentence custody, which is the equivalent of 443 days at a ratio of 1.5:1. Applying that credit, Mr. Czeranowski is sentenced to an additional three years and 104 days in the penitentiary. I invite Mr. Walker and Ms. Loosemore to check my arithmetic.

Significance of Early Guilty Pleas

[54] I stress that Mr. Buczel's and Mr. Czeranowski's early guilty pleas, before a word of evidence had been called at a preliminary inquiry, were significant mitigating factors on the sentences I imposed. In pleading guilty, they did all in their power to avoid the use of significant court and prosecution resources and it is important for the integrity of the criminal justice system that a genuine distinction be drawn in sentencing for those who have made a meaningful and early expression of remorse.

Victim Surcharge and DNA Order

[55] All of the offences pleaded to took place after the changes to the victim surcharge on 23 October, 2013. All of the charges proceeded by way of indictment. In light of my reasoning in R. v. Novielli, 2015 ONCJ 192, which I for some reason find persuasive, and the decision of the Superior Court of Justice in R. v. Tinker et al., 2015 ONSC 2284, by which I am bound, I consider the victim surcharge amendments of 2013 to be constitutionally valid. Accordingly, Mr. Buczel is required to pay a victim surcharge totalling $1,200 and Mr. Czeranowski is required to pay a victim surcharge of $1,400. The presumptive period for payment of those amounts is sixty days, which is obviously insufficient in light of the fact that both defendants will be in custody for much more than sixty days. I would be willing to hear from either counsel if they wish to advance now, rather than sixty days hence, an application to extend the time for payment.

[56] Breaking and entering into a dwelling house is a primary designated offence for purposes of a defendant providing a DNA sample. No argument was made to me that the making of a DNA order in these circumstances would be grossly disproportionate in the meaning of s. 487.051(2) of the Criminal Code. Accordingly, I order that both Mr. Buczel and Mr. Czeranowski provide samples of their DNA for inclusion in the DNA data bank. I note from his criminal record that Mr. Czeranowski appears to have already provided a sample. If the existence of that sample is confirmed by the officers, no further physical sample will be required.

Forfeiture

[57] The Crown has sought forfeiture of property seized. I shall hear further submissions on the precise details of that request, including whether or not any other person may have a claim on any of the property sought to be forfeited.

Delivered: 19 June, 2015

Footnotes

[1] Both Mr. Buczel and Mr. Czeranowski were suspended drivers. Mr. Czeranowski's criminal record shows a ten year driving suspension imposed in 2007.

[2] Criminal records are sometimes ambiguous when reciting pre-sentence custody, i.e. unclear as to whether the amount of pre-sentence custody noted is before or after it has been bulked up by a 1.5:1 or 2:1 (or other) factor to account for the loss of remission etc. Any such ambiguity is incapable of affecting the overall relevance of Mr. Czeranowski's previous record for present sentencing purposes.

[3] Indeed, at one of the earlier judicial pre-trials, of which there were a few, Mr. Preobrazenski declared that the defendants were "good soldiers" who would "do the right thing" and his prediction proved correct.