Ontario Court of Justice

Date: 2024 03 18 Court File No.: Central West Region 998 21 ST2639

BETWEEN:

HIS MAJESTY THE KING

— AND —

Arkadiusz Buksinski

Before: Justice De Filippis

Heard on: February 16, 2024 Reasons for Sentence released on: March 18, 2024

Counsel: Mr. D. Anger, counsel for the Crown Mr. Scott Reid, counsel for the accused

De Filippis, J.:

Introduction

[1] These reasons address the fitness of sentence for an offender who would have trafficked in dangerous drugs in a custodial facility as well as the impact on that sentence of his misconduct in attempting to game the system.

[2] The offender, along with another man, was charged with possession of fentanyl and crystal methamphetamine for the purpose of trafficking. On June 16, 2021, both men shared a cell at the Niagara Detention Centre. Prison guards found 14.5 grams of fentanyl and 18.7 grams of crystal methamphetamine in the cell. In February 2022, after a two-day trial, I found the offender guilty, and the other man was found not guilty. The reasons are reported at R. v. Buksinski & Mcara, 2022 ONCJ 68.

[3] After being found guilty, I ordered a presentence report. On the date set for sentencing, the offender told me that he had discharged trial counsel and that he had not understood his trial because he needed a Polish interpreter. This is the first time I was aware of this need. I adjourned sentencing to allow the offender to pursue this issue.

[4] After much delay, the offender obtained another legal aid certificate, and retained new counsel. He also obtained special funding for nine hours of interpreter services so that new counsel could communicate with him. The motion for a mistrial based on a violation of the right to an interpreter later included a claim that the offender was ineffectively assisted by trial counsel. The motion, with a Polish interpreter, was heard over three days. Former counsel was cross-examined. The author of a presentence report testified, as did the offender. Written material and audio recordings of the offender in other proceedings were produced.

[5] I dismissed the motion for a mistrial. I found that the claim that the offender needed an interpreter was fraudulent. [1] Similarly, I concluded that his assertion that trial counsel had failed in her duties was contrived. The reasons are reported at R. v. Buksinski, 2024 ONCJ 25.

The Offender

[6] The offender has 50 convictions from the period 1994 to 2021. The following comments are taken from the presentence report:

Appearing before the Court on the charges of Possession for the Purpose of Trafficking (two counts) is 46-year-old Arkadiusz Jerzy Buksinski. The subject is a repeat offender. He pled guilty (sic) to the offences before the court.

The subject immigrated to Canada in 1985 at the age of 11 years old. He was raised by his mother and father and has one biological sister. The subject noted struggles in his childhood stemming from undiagnosed ADHD. He has been historically entrenched in the pro-criminal lifestyle and often associated with pro-criminal others. The subject has two biological children with whom he does not maintain contact, however, he expressed desire to form a relationship with them.

The subject’s highest level of education completed is a high school diploma. He withdrew from school in grade 10 due to difficulties with ADHD symptoms. The subject completed his diploma in custody.

The subject has previous experience gaining meaningful employment. He was employed as a machinist for 10 years. After the subject moved to the outskirts of Belleville Ontario, he was employed at a scrapyard, however, due to struggles with addictions and association with criminal others, there were multiple interruptions to his employment. The subject stated intentions to upgrade his education and seek employment in the field of engineering.

Substance use has been a struggle in the subject’s life since the age of 16 years old. The use of alcohol and marijuana led to the use of cocaine. Ministry records indicate the subject previously acknowledged using cocaine every day for a period of 12 years. The subject completed treatment while in custody, however, upon his release he relapsed. The subject noted his relapse was a result of associating with pro-criminal peers and as a means of self-medication to manage ADHD. He stated he began using crack cocaine until he made the transition to using crystal meth. The subject stated he was using crystal meth up until his current period of incarceration. He indicated alcohol use has not been an issue at the time of and prior to his most recent arrest. The subject attributes substance use as an influencing factor of his criminal actions.

The subject has completed various programming while in custody. He feels he would benefit from additional substance use treatment and programming in relation to relapse prevention. The subject expressed he is remorseful over his past criminal actions and acknowledged his capability and responsibility to avoid further involvement in the criminal justice system.

According to Ministry records the subject’s last period of community supervision expired in 2019 and was noted as unfavourable. Information from the Canadian Police Information Centre shows numerous Fail to Comply with Probation and Fail to Comply with Recognizance convictions on record. Due to the subject’s poor response to community supervision and continued re-offending he does not appear suitable for additional community supervision.

Presentence Custody

[7] Since June 2021, the offender has been in custody pending trial for the offences before me as well as other charges. The total time spent in custody from his arrest to the date of the present sentence submissions is 834 days. [2] As of the date of these reasons, there is an additional 31 days. As such, the presentence custody is 865 days.

[8] The Defence filed these prison records: A Fresh Air Report showing that for 184 days the offender did not have access to the yard; A Lockdown Report showing that for 51 days, the offender was confined to his cell; and a Multiple Inmate Housing Report showing that for 11 days the offender and two others shared a cell designed for two people.

Sentence Credits

[9] A sentence imposed on an offender must consider pretrial detention. This deduction is known as the “Summers credit.” It may also be appropriate to lessen that sentence to account for particularly severe pretrial conditions. This is known as the “Duncan credit.”

[10] In R. v. Marshall, 2021 ONCA 344, the Court of Appeal for Ontario said the following (at paragraphs 51 to 53):

It is also important to appreciate and maintain the clear distinction between the “Summers” credit and the “Duncan” credit. The “Summers” credit is a deduction from what the trial judge determines to be the appropriate sentence for the offence. The “Summers” credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served by virtue of the pretrial incarceration. The “Summers” credit is statutorily capped at 1.5:1. It is wrong to think of the “Summers” credit as a mitigating factor. It would be equally wrong to deny or limit the “Summers” credit because of some aggravating factor, such as the seriousness of the offence: R. v. Colt, 2015 BCCA 190.

The “Duncan” credit is not a deduction from the otherwise appropriate sentence but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

Submissions

[11] The Crown and Defence provided me with caselaw. I have read this helpful material. It is not necessary to refer to all of it in these reasons.

[12] The Defence submits that the appropriate range of sentence is 4 to 6 years in jail, less presentence custody. Counsel argues that the Duncan credit should be reflected by an additional enhancement of 0.5 days. On this basis the relevant presentence custody would be 865 days enhanced at 2:1 (i.e., 1.5 + 0.5); that is 1,730 days or 4 years and 9 months.

[13] The Defence position is anchored in the fact that the offender is an addict who is on a waitlist for treatment once released and because the quantity of drugs in question is relatively low. Counsel clarified that the addiction explains the offender’s criminal record and the quantity of drugs shows why the Crown sentence submission is excessive. Counsel also points out that although the offender has been to the penitentiary in the past, his longest sentence is 27 months (for a robbery).

[14] The Crown argues that the right sentence is 8 years for the fentanyl offence and 3 years concurrent for the methamphetamine one. Counsel points to the significant penalties that courts have imposed with respect to trafficking in fentanyl. In this regard it is highly aggravating that the offender possessed these drugs for the purpose of trafficking at the Niagara Detention Centre. The nature of these drugs is such that their use in a custodial facility puts inmates and staff at risk. The Crown submits that the offender’s criminal history is also aggravating.

The Appropriate Sentence

[15] The principles of sentencing are set out in Part XXIII of the Criminal Code. The cardinal principle is that of proportionality. This means that the severity of a sentence will depend on the seriousness of the offence (and its consequences) as well as the moral blameworthiness of the offender; see R. v. Lacasse, 2015 SCC 64. Personal circumstances are relevant in determining proportionality considering the seriousness of the offence, but they do not alter the seriousness of the offence: see R. v. Schofield, 2019 BCCA 22.

[16] The Supreme Court of Canada has considered sentencing principles relating to fentanyl trafficking. Justice Moldaver, in his concurring reasons, concluded that “over the past few decades”, “society’s awareness of the true gravity of trafficking in such drugs has grown to the point that we are reminded, on a daily basis, of the death, destruction, and havoc it causes in communities across Canada.” Justice Moldaver concluded that an “upward departure” from the current range of sentences for fentanyl trafficking is needed. See R. v. Parranto, 2021 SCC 46, paras 84 – 101.

[17] In R. v. Ribble, 2019 ONCJ 640, my former colleague, Justice Agro, considered the appropriate sentence for an offender found guilty, after trial, of possession of 15.91 grams of fentanyl/heroin and 11.02 grams of fentanyl with caffeine as well as firearm offences. The sentence imposed for the fentanyl was 8 years in custody. An appeal by the offender was recently dismissed. See R. v. Ribble, 2021 ONCA 897.

[18] Justice Agro’s reasons for sentence included the following:

[40] I accept the testimony of Tracey Ribble that her son is a long term addict and I have some empathy for the circumstances that has plagued their family for three generations.

[41] However, other evidence before me on the Charter application, and Ribble’s criminal record, support my finding he has been a long term dealer in multiple drugs as well. His first offences for trafficking and possession for the purpose of trafficking in drugs were in 2007 as a youth. By age 29, he was described by police as a mid level dealer.

[42] While his personal background may explain his introduction to and initial drug use, his continued use of illicit substances was a lifestyle choice on his part. His addiction is not a lawful excuse for immersing himself in the drug subculture and becoming a not so minor part of the supply and demand continuum.

[46] I find there was an element of greed to Ribble’s trafficking in drugs and ascribe only minimal weight to the mitigating circumstance of his addiction.

[49] As noted by Nelson, J. in the 2014 decision of Medeiros-Sousa, the Ontario Court of Appeal mandated that barring exceptional circumstances, trafficking in heroin, even for a first offender will result in a penitentiary sentence [1]. It was also noted in that judgement that fentanyl is 10 to 20 times stronger than heroin and misuse of even one patch of fentanyl can cause death [2]. And similarly, that one tablet of hydromorphone, a synthetic drug similar to heroin with similar potency, can be fatal when taken by a person with no tolerance to the drug [3].

[51] The dangers of fentanyl patches were described at trial and referred to in the appeal decision by Laskin, J.A., in Loor, at paragraph 39:

When abused, fentanyl patches are especially dangerous. People can abuse a patch in many different ways. They can inject the patch contents intravenously, cut up the contents and chew small portions at a time, inhale it, smoke it, and even make tea with it. What makes the patch particularly dangerous is the medication’s location within the patch. The medication is in a matrix, essentially buried inside the patch. To get the medication out of the patch, a person has to chop it up or melt it down or heat it up. But then the person does not know how much fentanyl has been released. Its potency for an individual is thus often unpredictable. And so, Dr. Woodall concludes, a lot of deaths have been associated with the abuse of fentanyl patches.

[53] In Hamilton, I see fentanyl abuse regularly identified as underlying many of the offences committed in this jurisdiction; possession of fentanyl charges have increased in plea court and fentanyl users are the new norm in drug treatment court. Sadly, our detention centre is notorious for drug overdoses, including fentanyl.

[19] As the decisions cited above show, possession for the purpose of trafficking in fentanyl is extremely serious. This troubling fact should not obscure the harm caused by crystal methamphetamine. While the latter drug does not come close to the overdoses and deaths caused by fentanyl, this stimulant results in erratic and unpredictable behaviour. That the offender would traffic in both drugs in the stressful environment of a detention centre posed great risk to inmates and staff. That the offender has 50 prior convictions is also highly aggravating. That said, unlike Mr. Ribble, he does not have prior convictions for drug trafficking and there is no evidence before me that, like Mr. Ribble, he is a long-term, mid-level dealer.

[20] With these principles and factors in mind, I consider the range of sentence for the fentanyl count to be 6-8 years and for the methamphetamine count, 2-3 years consecutive. Having regard to the principle of totality, I conclude that the appropriate sentence is 7 years for possession for the purpose of trafficking in fentanyl and 3 years concurrent for possession for the purpose of trafficking in methamphetamine. In applying the Duncan credit, I would reduce the sentence for the fentanyl count by 6 months, such that the total sentence is 6.5 years, less presentence custody.

The Offender's Misconduct and the Summers Credit

[21] As previously noted, the offender was charged with the offences on June 16, 2021. His trial was heard 8 months later, in February 2022. Reasons for judgement were delivered on in late February. Sentence was adjourned for 2 months, to April 11, for the preparation of a presentence report. This is the date on which the offender discharged trial counsel. The matter was adjourned repeatedly until new counsel was obtained and the motion for mistrial perfected and heard. The hearing of the motion took three days.

[22] As of the date of these reasons, it has been 33 months since the offender was arrested. Most of this time, 23 months, was taken up by the motion to declare a mistrial. I have found this motion to be based upon deceit. The Crown argues that the offender should not be given credit for this delay. The Defence opposes this and, in any event, points out that, notwithstanding my conclusion that the interpreter claim was fraudulent, the unsuccessful ineffective assistance of counsel claim had merit. I do not accept this.

[23] As set out in my earlier reasons, I do not doubt that motion counsel acted in good faith on instructions from his client. I found that the services provided by trial counsel were not ineffective. I concluded that the offender was happy with the services provided by trial counsel until he was found guilty. His subsequent assertions to the contrary were contrived. In other words, the entire motion for a mistrial was grounded in dishonesty for the purpose of frustrating or impeding the trial to avoid the consequences of the guilty verdict.

[24] I consider it appropriate to account for the offender’s misconduct in the application of the Summers credit for the 22-month delay in sentencing from April 11, 2022, when he discharged counsel until the present sentence submissions were heard on February 16, 2024. That I have the power to do so is clear. Section 719 of the Criminal Code contains the following subsections:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody.

[25] The Court of Appeal for Ontario had this to say in R. v. J.W., 2023 ONCA 552 (leave to appeal to the SCC granted on February 15, 2024):

[22] The decision of whether and how much credit to award an offender for pre-sentence custody is highly discretionary. There is no automatic entitlement to enhanced credit for pre-sentence custody. The onus of establishing entitlement to credit for pre-sentence custody, and any enhancement of that credit, is on the offender.

[26] A defendant is not to be punished for exercising legal rights – whatever the result may be. However, a defendant’s due process rights do not include, as in the case before me, advancing fraudulent and contrived claims for the impermissible purpose of avoiding the consequences of a guilty verdict. In this regard, I note that the attempt to game the system did not only cause most of the delay in this matter, but it also consumed resources that would otherwise have been available to other defendants.

[27] The offender’s presentence custody for the period from arrest on June 16, 2021, until the original sentence hearing date on April 11, 2022 (298 days) as well as the time I have had this decision under reserve (31 days) amounts to 329 days and will be credited at 1.5:1, for an effective presentence custody of 496 days. The remaining 536 days – the period in which the offender attempted to game the system – will not be enhanced and is credited at 1:1. Accordingly the total presentence custody to be considered amounts to 1032 days, or 2 years and 10 months. This will be deducted from the sentence I have otherwise determined to be appropriate.

Result

[28] For the offence of possession for the purpose of trafficking, the sentence is 6 years and 6 months, less presentence custody in the amount of 2 years and 10 months. Accordingly, the offender will serve an additional 3 years and 8 months. For the offence of possession for the purpose of trafficking in methamphetamine the sentence is 3 years, to be served concurrently.

[29] There are two ancillary orders: DNA and s.109 (for life.

Released: March 18, 2018 Signed: Justice J. De Filippis

[1] I am compelled to note that at the present sentence hearing, when I asked the offender if he had anything to say, his statement was accompanied by an attempt to relitigate the motion for a mistrial by reference to disclosure materials. In so doing, he spoke in Polish in reading from the – English language – written material.

[2] The calculation of presentence custody was complicated because some of it was allocated to other sentences. The calculation was explained by Defence counsel during submissions and was not challenged by the Crown.