Court File and Parties

Court File No.: HAMILTON Info. No. 13-4985 Date: 2016-06-30 Ontario Court of Justice

Between: Her Majesty the Queen — and — Karol Sadowski

Before: Justice P.M.H. Agro

Heard on: October 6, 7, 9, December 4, 8, 2014, June 29, July 9, 10, August 13, September 14, 22, 24, October 2, December 4, 2015, January 27, April 4, May 31, and June 30, 2016

Reasons for Judgment released on: June 30, 2016

Counsel:

• Ms. S. Antoniani for the Crown
• Mr. B. Crothers for the accused Karol Sadowski

Reasons for Sentence

Introduction

[1] Karol Sadowski was convicted at trial of having imported a Schedule VI controlled substance, hypophosphorous acid, contrary to section 6(1) of the Controlled Drugs and Substances Act.

Positions of the Crown and Defence

[2] The Crown is seeking a conditional sentence of 6 months duration or alternatively a 90 day intermittent sentence. The defence submits that the circumstances of the offence and those of the offender would support a discharge with an increased Victim Fine Surcharge in the range of $500 to $1000, as authorized by s. 737(3) of the Criminal Code of Canada.

Circumstances of the Offence

[3] Evidence at trial disclosed that hypophosphorous acid is a precursor to the production of methamphetamine, one litre of the acid producing just under one kilo of methamphetamine.

[4] Legitimate uses include as a reducing agent in chemical synthesis; chemical plating; bleaching, colour stabilization or as a decolouring agent for plastics, polyester fibres and chemicals and in the preparation of hypophosphite salts.[1]

[5] When mislabelled the acid could be harmful to a novice handler. It is highly corrosive causing severe burns to the eyes, skin and respiratory tract and abdominal vomiting and bloody diarrhea if ingested.[2]

[6] The purchase and distribution of the acid is highly regulated. There are restrictions on who may import it, sell or distribute it.[3] Improper disposal of the acid is harmful to the environment.

[7] The substance is known to be manufactured in the U.S., Mexico, Europe, Central and East Asia, including in China.[4]

[8] Those who import the precursors require a special license from the Minister of Health and must designate a "responsible person in charge" and a "senior person in charge" to ensure compliance with regulations and must within 15 days provide the Minister of Health with a declaration setting out full particulars of the shipment.

[9] Those who sell or provide the precursor require a license as well. Any such dealer must document supplies, storage, sale and use of precursors and the responsible person in charge must ensure that the precursor is not diverted to illicit use.

[10] Dealers who sell to a person or entity who is not a licensed dealer must obtain an end use declaration from such user setting out the name and address of the end user, the purpose for which they are acquiring the precursor and other details. Dealers are required to take reasonable steps to verify the identity of the declarant.

[11] Sadowski imported a 20L jug of hypophosphorous acid from China by way of on line purchase order. It was delivered to the address of his best friend and co-accused Tomasz Niewiadomski. That delivery address was used because Sadowski's first order of acid was never received, he thought, because no one was at this home at the time of delivery and he knew his friend's mother was always home. In fact, the first shipment was intercepted by Canada Border Services Agency for analysis.

[12] At trial[5] the Crown tendered insufficient evidence from which I might conclude or infer that Sadowski imported the acid for an illegal purpose, i.e. the manufacture of methamphetamine. This court did find that the purpose of the importation was to use the acid as a high powered cleaner for used tire rims. Sadowski and his co-accused, acquitted at trial, cleaned tire rims for resale as a hobby.

[13] The mens rea for the offence of importing a controlled substance requires knowledge that the substance imported is a controlled substance, though not necessarily knowledge that it is hypphosphorous acid. That knowledge may be inferred where the Crown proves that the accused recklessly or wilfully shut his eyes or refrained from any inquiry about the nature of the substance: R. v. Blondin (1970), 2 C.C.C. (2d) 118, 131-2 (B.C.C.A.), per Robertson J.A.; affirmed [1971] S.C.R. 4 C.C.C. (2d) 566.

[14] As decided in Blondin, what is germane is not an accused's belief about the nature of the substance, rather it is the accused's knowledge (direct or inferred) that the substance is controlled.

[15] In my reasons for judgment, I found it difficult to accept that Sadowski, an educated person with familiarity with computer research, online sales and purchases (including purchases of other imported products[6]) and some knowledge of the storage and handling of acids[7] would not have made some inquiry of the vendor/supplier about the exact nature of the acid cleaner he was purchasing if only for safety purposes as he was seeking an acid stronger than anything he had theretofore used or located in Canada.

[16] I found on Sadowski's own testimony that he was wilfully blind to the fact that the acid he was importing was a controlled substance.

Circumstances of the Offender

[17] Sadowski is 34 years old and without any criminal antecedents.

[18] He is engaged to be married.

[19] His post secondary education includes a B.A. from Wilfred Laurier University and studies at Mohawk College in applied arts and technology and law and security administration. He had been pursuing career opportunities as a Provincial Offences By-Law enforcement officer in both Hamilton and Mississauga before this offence. His last employment in that field was a contract position with the City of Barrie in the period December 2015 to March 2016. That municipality is the only one that does not require a criminal records check.

[20] A reference letter from the manager of By-Law services speaks to his consistently high quality work while in the employ of that city.

[21] Other reference letters of a more personal nature were filed from his mother, sister and fiancé, all of whom speak of his kind and altruistic nature.

[22] At the conclusion of his employment contract in Barrie and while awaiting sentence, Sadowski has performed 104.1 hours of community service at Mission Services of Hamilton in the period 20 April 2016 to 30 May 2016. His responsibilities included unloading trucks and sorting packaging in their Food Services department.

[23] On arrest, Sadowski served three days pending his release on bail in June 2013. Bail conditions restricted his movements and contact with his childhood friend and co-accused Tomasz Niewiadomski, amongst other things. There has been no allegation of breach of bail terms.

Aggravating and Mitigating Circumstances

[24] The Crown argues that the aggravating circumstance in this case is the substance itself because of the inherent dangers that can result from its improper storage, use and disposal and its use as precursor to the illicit manufacture of methamphetamine and abuse of that drug as "crystal meth".

[25] While I have no disagreement with the inherent dangers of hypophosphorous acid as an aggravating circumstance, the Crown failed to establish beyond a reasonable doubt[8] that Sadowski intended to use it for the production of methamphetamine. On the contrary there was ample evidence that this offender's intended use of the acid was for legitimate purposes.

[26] This was a case of wilful blindness to the designation of hypophosphorous acid as a controlled substance.

[27] The mitigating circumstances consist of Sadowski's heretofore prosocial behaviour, including an absence of criminal record, employment in his chosen field with a high quality of work ethic, his commitment and dedication to his family and that of his fiancé, the community service performed while awaiting sentence.

Authorities Referred to by Counsel

[28] The Crown relies on the decision in R. v. Newman 2009 BCSC 522, in support of its submission for a custodial sentence. In that case the offender was convicted of five counts of transporting and selling and possessing a methamphetamine precursor, hydriodic acid, contrary to CDSA Precursor Control Regulations and section 46(a) of the CDSA.

[29] The court imposed a conditional sentence of two years less a day.

[30] That decision is distinguishable on its facts. There are four salient distinctions: There was a total of 35 barrels of the acid transported, valued at $25,000; 12 barrels were delivered to two other persons; the evidence before the court did not find a basis for concluding the acid was to be used for a legitimate purpose; subsequent to the CDSA charges, but before conviction on those charges, the offender was convicted under the Transportation of Dangerous Goods Act, of transporting the hydriodic acid.

[31] The defence relies on multiple decisions wherein non-custodial sentences were imposed for drug offences: R. v. D'Souza, 2015 ONCA 805: on a plea of guilty, a conditional discharge for a first time youthful offender who trafficked in marijuana over the internet; R. v. Chhor and Ly, unreported, 19 July 2013, Durno, J. (S.C.J.): on a plea of guilty and accepting a joint submission, an absolute discharge with an enhanced victim fine surcharge of $7500.[9]; R. v. Defrancesco, unreported, 3 November 2015, McLeod, J. (O.C.J.): on a plea of guilty to online trafficking in marijuana and shatter (cannabis derivative) an absolute discharge for a first offender who also made a $2000 donation to the Princess Margaret Cancer Foundation; R. v. Eng, unreported, 13 November 2015, Hawke, J. (O.C.J.): on a plea of guilty to possession of 3.8 grams of GHB, an absolute discharge and enhanced victim fine surcharge of $1000 for a first offender; R. v. Coombs, unreported, 13 April 2015, McLeod, J. (O.C.J.): on a plea of guilty to trafficking in marijuana, an absolute discharge and an enhanced victim fine surcharge of $4000[10]; R. v. Le, unreported, 10 August 2012, McLeod, J. (O.C.J.): on a plea of guilty to possession of 4.15 lb. of marijuana for the purpose of trafficking, for a first offender an absolute discharge, forfeiture of a Mercedes Benz motor vehicle and an enhanced victim fine surcharge of $6000.

[32] These cases are also distinguishable on their facts: first and foremost, each of the accused entered a plea of guilty for which substantial credit was given as an acceptance of responsibility and expression of remorse; secondly, the substance involved in all cases but one was marijuana, a substance regarded as much less pernicious than a precursor to methamphetamine and certainly less inherently dangerous than the highly toxic hypophosphorous acid.

Purposes and Principles of Sentencing

[33] The purposes and principles of sentencing are set out in sections 718, 718.1 and 718.2 of the Criminal Code.

[34] Had the Crown been able to satisfy me that the intended use for the hypophosphorous acid was the manufacture of methamphetamine I would not hesitate in imposing a custodial sentence to address not only deterrence but also the principles of denunciation and the protection of society.

[35] That not being the case, I find the most important principle in the circumstances of this case to be deterrence, both general and specific as I am satisfied that Sadowski is not a danger to the public at large and he is a good candidate for rehabilitation.

[36] I acknowledge the mitigating circumstances and in particular Sadowski's previous good behaviour, his compliance with bail terms for three years while this matter made its way through the court and my finding that the controlled substance was imported for a lawful though unlicensed use.

[37] With these factors in mind and the principles set out in ss. 718.2 (d) and (c) which mandate less restrictive sanctions where appropriate and consideration for all available sanctions other than imprisonment that are reasonable in the circumstances, I have concluded that a custodial sentence is not necessary to meet the purposes and principles of sentencing.

[38] The remaining available options are some form of discharge or a suspended sentence and probation.

[39] A suspended sentence and probation would result in a conviction that would restrict Sadowski's employment opportunities in his chosen field. A discharge would alleviate that problem as well as any issues for international travel. Certainly a discharge would be in Sadowski's best interest.

[40] Nor do I find a discharge, on conditions, to be contrary to the public interest. While Sadowski does not require the scrupulous supervision of a probation officer, a conditional discharge will meet the public interest of ensuring that he does not reoffend.

[41] An enhanced victim fine surcharge, to be paid on counsel's undertaking within thirty days of today's date will address the principle of denunciation as well as deterrence and make some reparation to society for the expense of this trial.

[42] For these reasons, Sadowski is discharged conditionally on the following terms:

• You will be on probation for a period of 16 months
• You will keep the peace and be of good behaviour
• Appear before the court when required to do so
• Notify the court or your probation officer in advance of any change in your name or address and promptly notify the court of any change of employment or occupation
• Report to your probation officer within two business days of today's date and thereafter as required by your probation officer
• Your reporting condition ends after the completion of all community service hours required by this order
• Remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or your probation officer
• Abstain from the purchase, possession and consumption of drugs and controlled substances, including precursors, unless in accordance with a valid medical prescription or license in your own name for that drug or controlled substance
• Do not acquire or possess any drug paraphernalia or production equipment, including but not limited to synthetic drug production equipment
• Abstain from acquiring or possessing any weapons as defined in the Criminal Code
• Seek, find and maintain suitable employment or self-employment
• Do not associate with anyone known to you to have a criminal or youth record except immediate family members or through incidental contact in fulfillment of the terms of this order
• Perform 150 hours of community service as arranged by your probation officer; hours are to be completed at a rate and on a schedule approved by your probation officer

[43] The victim fine surcharge is fixed at $1000, to be paid on counsel's undertaking within 30 days of this date.

[44] An order prohibiting the offender's possession of firearms will issue pursuant to s. 109(2)(a) for 10 years and pursuant to s. 109(2)(b) for life.

Released: June 30, 2016

Signed: "Justice P.H.M. Agro"

Footnotes

[1] exhibit 14

[2] ibid

[3] Controlled Drugs and Substances Act, S.C. 1996, c. 19, Precursor Control Regulations SOR 2002/359

[4] ibid

[5] reasons for judgment delivered 27 January 2016

[6] transcript of proceedings, 10 July 2014, p. 14, I. 18-24.

[7] ibid. p. 23, I. 28-30.

[8] R. v. Gardiner, [1982] 2 S.C.R. 368

[9] while the transcript of the oral judgment referred to the plea, a triable issue regarding possession and possible Charter issues, there were no other particulars or reasons set out.

[10] the Crown was not seeking a custodial sentence in that case.