COURT FILE AND PARTIES
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN:
HER MAJESTY THE QUEEN, Applicant
- AND -
YULIK RAFILOVICH, Defendant
BEFORE: CROLL J
COUNSEL: J. Mischele, for the Crown
G. Lafontaine, for the Defendant
HEARD: Sentence Submissions October 2, 2013
Reasons delivered orally on November 25, 2013
Introduction
Mr. Rafilovich, before I pass sentence, is there anything you would like to say?
Yulik Rafilovich has pled guilty to five counts:
Possession of a counterfeit mark, namely a fraudulent Human Resources and Skills Development Canada Social Insurance Number card in the name of BORIS ZILBERMAN, contrary to s. 376(2) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”);
Possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”); and
Possession of property exceeding $5,000, knowing that it was obtained or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment, contrary to s. 354(1)(a) of the Code and did thereby commit an offence contrary to s. 355(a) of the Code.
These three offences all occurred on May 21, 2008.
Possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the CDSA; and
Possession of property exceeding $5,000, knowing that it was obtained or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment, contrary to s. 354(1)(a) of the Code and did thereby commit an offence contrary to s. 355(a) of the Code.
These last two offences occurred on July 12, 2009.
Agreed Facts
The agreed facts are summarized as follows:
May 21, 2008 Charges
May 21, 2008 Charges
On Wednesday, May 21, 2008, the Guns and Gangs Task Force of the Toronto Police Service were surveilling Mr. Rafilovich and saw what they believed to be several hand to hand drug transactions. Throughout this time Mr. Rafilovich was driving a red Nissan and, at various times, his then co-accused Ms. Lyudmyla Martynovych was in the car with him. As a result of surveillance and source information, a search warrant was applied for at 210 Victoria Street, unit 4305 in Toronto, at what was believed to be Mr. Rafilovich’s residence. Police stopped the red Nissan at 9:35 p.m., arrested Mr. Rafilovich and Ms. Martynovych, who was also in the car, and searched the car. Three cell phones were found on the driver’s seat and a glasses case was found on the centre console. That case contained 14 small baggies of cocaine totaling 11.33 grams. The police also found $2,000 in various denominations in Mr. Rafilovich’s fanny pack.
The search warrant was executed at 210 Victoria Street, unit 4305 shortly thereafter. That search led to the following seizures:
I. A vacuum-sealed bag, approximately 12 by 12 with a four by four or six by six amount of cocaine inside of it, under the bed in the only bedroom in the apartment. The cocaine weighed 497.9 grams.
II. In the living room: a cash counting machine by the couch, and a vacuum sealer under a chair.
III. Inside a kitchen drawer: 2 scales covered in white powder, medium-sized Ziploc bags with white powder on them, a yellow knife, a white spoon, 3 small dime bags with white powder in them, 12 pills with a logo of a transformer on them, and a white container with Canadian and US money in it.
The amounts of the drugs located the kitchen were as follows: 12 ecstasy pills and 24.61 grams of powder cocaine.
$21,955.88 in various denominations was found on the top bracket of the oven.
Other items were located, such as clothing; documents including papers showing that Mr. Rafilovich co-owns the condominium with his mother, Mila Ridout; and photos belonging to both Mr. Rafilovich and Ms. Martynovych. As well, insurance documents for the red Nissan were found together with documents showing that it belonged to Ms. Martynovych. In addition, a false Social Insurance Number card in the name of Boris Zilberman was located. Mr. Rafilovich also had a driver’s license in the name of Boris Zilberman but showing a photograph of Mr. Rafilovich.
The total amount of cocaine found in 2008 was 533.84 grams. According to the expert report prepared for this prosecution, the amount of cocaine, stated in the report as 525.84 grams, had a total street value between $42,000 and $52,500 (valued at $80 to $100 per gram) and a total wholesale bulk value between $15,000 and $17,000 (valued at $30,000 to $35,000 per kilogram).
The total Canadian cash seized was $23,990.51.
July 12, 2009 Charges
July 12, 2009 Charges
The police were again surveilling Mr. Rafilovich in July 2009 and they arrested him just outside of 30 Hillsboro Avenue in Toronto on July 11, 2009. He was found in possession of about $2,000 and a key to unit 1203 at 30 Hillsboro Avenue. The police obtained a warrant for that apartment and executed it around midnight on July 12, into July 13, 2009. When officers entered the apartment, Ms. Martynovych was sitting in the living room watching TV and they arrested her.
The search of this apartment led to the following seizures:
I. four cell phones and documents with Mr. Rafilovich’s name on them from the living room;
II. “dime bags”;
III. an agreement of purchase and sale for a condominium with Ms. Martynovych listed as the purchaser from a bedside table in the only bedroom in the apartment;
IV. approximately $2,000 from a dresser drawer in the same bedroom;
V. two keys from on top of a fridge in the kitchen;
VI. approximately $13,000 cash hidden in two oatmeal boxes in a cupboard beside the fridge, and from a “white bucket” nearby;
VII. 27 grams of cocaine inside a “kettle chip” bag on a shelf in the kitchen;
VIII. documents naming Mr. Rafilovich as the tenant of 30 Hillsboro Avenue, unit 1203. At this time, Mr. Rafilovich was on a recognizance to reside at a different address.
The total cash seized was $17,140 Canadian and $100 US.
When combined with the 2008 seizure, the total cash seized amounts to $41,130.51 Canadian and $651 US.
In 2009, Greg Lafontaine, counsel for Mr. Rafilovich, brought an application pursuant to s. 462.34 of the Code and obtained all the seized funds to pay his legal fees.
Positions of the Parties
The Crown seeks a custodial sentence of four years in addition to the six months of pretrial custody served, with credit being given on a two-for-one basis, for an effective sentence of five years. The Crown also seeks forfeiture of Mr. Rafilovich’s interest in the condominium at 210 Victoria Street, unit 4305, which he owns jointly with his mother, Mila Ridout. The Crown does not seek forfeiture of the interest in the property held by Ms. Ridout. As well, the Crown seeks a fine in lieu of forfeiture of the legal fees that were paid to Mr. Lafontaine.
The defence submits that a sentence as low as probation should be considered, or in the alternative, that Mr. Rafilovich should receive a sentence that can be served in the community, or at the lowest end of the penitentiary range. While the defence concedes the forfeiture of Mr. Rafilovich’s interest in the condominium, there is an issue as to the portion of the equity to be seized. The defence contests the fine in lieu of forfeiture with respect to the legal fees that were paid.
[Text continues exactly as in the source decision through the final paragraphs.]
CROLL J.
Date: November 25, 2013