THURSDAY, MAY 31, 2018

S E N T E N C E

HEBNER, J. – (Orally):

THE COURT: On February 21, 2018, after a trial, I found Mr. Burkoski guilty of possession of fentanyl for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act. In addition, Mr. Burkoski pled guilty to the following offences:

1. Possession of oxycodone, contrary to section 4(1) of the CDSA;

2. Possession of cannabis marijuana, contrary to section 4(1) of the CDSA;

3. Possession of methamphetamine, contrary to section 4(1) of the CDSA;

4. Possession of stolen property, namely; an expandable baton, of a value not exceeding $5,000., which was the property of the Windsor Police Service, contrary to section 354(1) of the Criminal Code of Canada.

These are my reasons for sentencing. In order to arrive at a fit and proper sentence I have had the benefit of reviewing the following:

1. A pre-sentence report prepared by Stacey Ottley, an officer with Windsor Probation and Parole;

2. A letter from the Southwest Detention Centre, dated January 15, 2018, setting out the programs Mr. Burkoski has attended while in custody;

3. A letter from Mr. Burkoski’s neighbours, Pauline and Jerry Small;

4. Sentencing submissions from the Crown and counsel for Mr. Burkoski.

Overview of the Offence: The offences took place in October 2015. Mr. Burkoski was searched incident to arrest and the following items were found on his person and in his vehicle:

Two 100 mcg/h of fentanyl patches in their original packaging;

One half of a 75 mcg/h fentanyl patch in a Ziploc-type baggie;

One fentanyl patch, strength unknown, cut into four pieces and placed inside a one and a half by one and half inch baggie;

The Windsor Police Services expandable baton;

And three bundles of cash totaling $6,620. Canadian and $280. American.

Additional controlled substances were found following the execution of a CDSA warrant on October 29, 2015. More particularly, the following was found at Mr. Burkoski’s residence at 24 Bonita Street, Windsor, Ontario:

Eight Percocet tablets;

A 2 ml liquid fentanyl injection contained in a long cylinder;

63.7 g of cannabis marijuana;

1.7 g of methamphetamine;

Five sealed fentanyl patches of 100 mcg/h;

And two 1.5 x 2.5 inch baggies each containing one half of a 75 mcg/h fentanyl patch.

There were indices of trafficking, all of which are detailed in my reasons for judgment delivered February 21, 2018.

Positions of the Parties: Mr. Pollock, on behalf of the Crown, requests a global sentence of six years. Mr. Pollock points to Mr. Burkoski’s significant criminal record. He submits that the evidence points to a lifestyle of Mr. Burkoski that is supported entirely by trafficking in drugs, including fentanyl. Mr. Pollock submits that Mr. Burkoski is a sophisticated trafficker; he knows how to obtain drugs for sale and he knows how to sell them. Mr. Pollock further points to the dangers of fentanyl and submits that fentanyl is a particular problem in the Windsor area.

Ms. Carroccia, on behalf of Mr. Burkoski, suggests a sentence in the range of 18 months to two years. She points to the guilty plea and submits that Mr. Burkoski did accept some responsibility for his behavior. She points out that Mr. Burkoski has taken advantage of programs while in custody. She also suggests that Mr. Burkoski is a user of drugs who was, at the time, in a relationship with another user of drugs and the indication is therefore that Mr. Burkoski was not selling drugs purely for profit but rather to support his habit.

Circumstances of the Offender: Mr. Burkoski was born on July 7, 1962; he’s currently 55 years of age. Mr. Burkoski’s parents are deceased. He had seven siblings, one of whom has passed away. He shares a close relationship with his surviving siblings. Mr. Burkoski was raised in a low income home and did not have the benefit of advantages that a higher income could provide, such as education. He left school in grade nine.

Mr. Burkoski was previously married and has two children, aged 32 and 33. I gather from the pre-sentence report that he continues to have a positive relationship with his children.

Mr. Burkoski’s most recent relationship was with his co-accused, Tracy Jane MacDonald. He described this relationship as having lasted for four years and as being unhealthy. Both Mr. Burkoski and Ms. MacDonald used and abused illicit substances.

Mr. Burkoski was previously employed at a race track in Windsor from 1979 to 2009. From 2001 to 2009 Mr. Burkoski was also self-employed seasonally in Barrie selling produce. He was then supported by Ontario Disability Support Program until 2014. Prior to his incarceration, Mr. Burkoski’s source of income was Ontario Works.

Mr. Burkoski acknowledges that he struggles with drug addiction. He began consuming marijuana at the age of 16. By the age of 20 he was using cocaine which developed into a crack cocaine addiction. He indicates that he has struggled with an addiction to crystal methamphetamine.

Mr. Burkoski has a talent with billiards. He repaired pool cues in his spare time and has expressed an interest in returning to this line of work after his release from custody. He participates in and gambles in pool tournaments.

The probation officer described Mr. Burkoski as respectful and forthcoming with information for the purpose of her completion of the report. Although Mr. Burkoski accepts some responsibility for the offences he continues to attribute some of the blame onto Ms. MacDonald.

Mr. Burkoski has suffered from periodic depression. He also reports other health conditions, including diabetes, ulcers, high blood pressure and severe foot pain.

At the time of the sentencing hearing counsel agreed that Mr. Burkoski was entitled to a credit of 369 days for pre-sentence custody. Since then Mr. Burkoski has served an additional 49 days which should provide a credit of an additional 74 days for a total of 443 days. As evidenced by correspondence from the Southwest Detention Centre, Mr. Burkoski has attended a number of programs including programs on substance abuse.

Mr. Burkoski has a significant criminal record. The first offence is dated June 26, 1980 when Mr. Burkoski was only 18 years of age. He was convicted of attempted robbery and received a suspended sentence and 12 months’ probation. There is then a hiatus in the record until 2008. In January 2008 Mr. Burkoski was convicted of uttering threats. He again received a suspended sentence and 12 months’ probation. In January 2012 Mr. Burkoski was convicted of break, enter and theft. He received, yet again, a suspended sentence and 12 months’ probation. In 2014 he was convicted of two counts of possession of a Schedule 1 substance and received a sentence of 25 days. In November 2014 he was convicted of break and enter with intent and possession of a Schedule 1 substance. He received a conditional sentence of 120 days and 24 months’ probation. In 2016 there are further convictions under the CDSA. Counsel for the Crown acknowledges that these convictions took place after the offences with which this Court is dealing and, accordingly, cannot be considered on sentencing.

Counsel for Mr. Burkoski advises that Mr. Burkoski intends to live alone on his release. He is willing to accept treatment for his addictions.

Analysis of the Law: The fundamental principle of sentencing is set out in section 718.1 of the Criminal Code, namely; “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Additional principles contained in section 718.2 include in subsection (b), “A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”

The CDSA, section 10(1) reads; “Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and maintenance of a just, peaceful and safe society while encouraging rehabilitation and treatment in appropriate circumstances of offenders and acknowledging the harm done to victims and to the community.”

Constable Campbell gave expert evidence on illicit fentanyl use and trafficking. His evidence is summarized in my reasons for judgment delivered February 21, 2018. Fentanyl is a very serious problem when sold on the street. It is one of the most powerful pain medications available. It is one hundred times more powerful than morphine. It is a blight on any community in which it is sold on the street. In Windsor, particularly, it is a real problem and poses a serious risk to the population and to young people in particular. The sentence in this case must reflect the danger of fentanyl and the danger that Mr. Burkoski posed to the community as being a person in possession of fentanyl for the purpose of trafficking.

Although I am directed by the Criminal Code to impose a sentence similar to sentences previously imposed in similar cases, there is no range set by the Court of Appeal for trafficking in fentanyl. I can only review and consider those cases that counsel helpfully provided to me during the sentencing hearing.

In R. v. Loor, 2017 ONCA 969, Mr. Loor was a low-level member of a small drug trafficking ring dealing in fentanyl. He used a forged prescription to obtain 45 patches of fentanyl, all of the highest strength, 100 mcg/h. At trial Mr. Loor was found guilty of three counts of using a forged document and three counts of trafficking in fentanyl. He was sentenced to six years in jail. His sentence was upheld on appeal. In its reasons for decision, the Court of Appeal relied on expert evidence dealing with fentanyl and pointed to the dangers inherent in the abuse of fentanyl patches at paragraph 39 and I quote;

“When abused fentanyl patches are especially dangerous. People can abuse a fentanyl 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 will not know how much fentanyl has been released. Its potency for an individual is often unpredictable. And so Dr. Woodall concludes a lot of deaths have been associated with the abuse of fentanyl patches.”

The Court of Appeal declined to establish a sentencing range for fentanyl trafficking. The Court of Appeal did say, “I think it is fair to say that generally offenders, even first offenders, who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.”

As compared to this case, Mr. Burkoski was in possession of much less fentanyl. He had seven patches still intact. He had, approximately, two to three additional fentanyl patches cut into pieces.

In R. v. Shevalier, Mr. Shevalier was sentenced to eight years and his co-accused, a Ms. Clark, sentenced to four years following a trial where they were both convicted of possession for the purpose of trafficking of 28.12 grams of fentanyl and other drugs. Mr. Shevalier had a significant related record and Ms. Clark had no record. In his sentencing decision, Justice Epstein of the Ontario Court of Justice said;

“It must be made abundantly clear that Canadian society will not tolerate the illicit trafficking in such a dangerous substance. The proper response must be sentences of sufficient length to act as a deterrent to those who would seek to profit from the misery of others and to reflect the abhorrence of the Canadian community toward such conduct.”

The offences before Justice Epstein were committed in March 2016. Justice Epstein noted that the extent of the danger fentanyl poses was not fully recognized in March 2016. I note that the offences with which Mr. Burkoski was convicted took place in October 2015. I make the same observation here.

In R. v. Vezina, 2017 ONCJ 775, the accused pled guilty to possession for the purpose of trafficking in methamphetamine, heroin, fentanyl and marijuana. He was also in possession of a loaded prohibited firearm and ammunition. The fentanyl seized was a blend of heroin, fentanyl and cutting agents and weighed 204.49 grams. At the time of the arrest the accused was bound by two weapons prohibition orders issued under section 109 of the Criminal Code. Mr. Vezina was sentenced to nine years, nine months on the count of possession of fentanyl for the purpose of trafficking. There were significant aggravating factors in that case that do not apply in the case at hand, particularly the presence of the loaded handgun and the amount of fentanyl seized.

In R. v. Gignac, January 22, 2018 (OCJ), the accused, a youthful first time offender just 20 years of age was sentenced to three years for possession of three 100 mcg/h fentanyl patches, four years for possession of 66 fentanyl capsules, ten months for one fentanyl pill and seven years for 109.4 grams of fentanyl powder for the purpose of trafficking, all concurrent. On a separate information she was sentenced to five years for 130 fentanyl capsules, concurrent. In that case, the accused did not have a criminal record.

In R. v. Joumas, 2018 ONSC 317, the accused was barely 18 years old at the time of the offence. He pled guilty to possession of 139 fentanyl pills for the purpose of trafficking. He was sentenced to four years of incarceration with credit for time served, slightly reduced such that the sentence could be served in a provincial institution.

In R. v. Klammer, 2016 ONSC 4038, the accused was found guilty following a trial of trafficking in fentanyl. He had sold six patches of fentanyl, each of 100 mcg/h strength to an undercover officer. He was sentenced to 33 months. I note that this sentence was imposed before the Court of Appeal decision in R. v. Loor was released.

In R. v. Lu, 2016 ONCA 479, the accused was convicted of possession for the purpose of trafficking in relation to four boxes of fentanyl patches. He was sentenced to two and a half years in prison. He appealed his conviction and his sentence. In considering the sentence appeal the Court of Appeal said;

“Fentanyl is one of the most highly addictive and dangerous drugs. It is illegally obtained exactly in this way, through the misapprehension of legally dispensed prescriptions. In general deterrence and denunciation are paramount factors.”

The growing body of sentencing cases for fentanyl trafficking demonstrate a wide range of jail terms from upper reformatory to mid-level penitentiary sentences. The varied sentences are based on multiple factors including the quantity of fentanyl at issue and the record of the accused. Just a few of these cases are discussed above. However, in every case there is a recognition of the dangers of fentanyl and an expression that the sentence must reflect these dangers.

Application of the Case Law and the Sentencing Principles to this Case: The aggravating circumstances include:

1. Mr. Burkoski had a previous criminal record, including convictions for possession of Schedule 1 substances;

2. Mr. Burkoski was in possession of a highly dangerous drug for the purpose of trafficking;

3. The quantity of cash found on Mr. Burkoski’s person is an indication that he recently had some profitable transactions in his drug trade;

4. The many indices of trafficking, including the presence of the digital scale, the presence of “dime-size” re-sealable baggies and the presence of slips of paper containing Mr. Burkoski’s telephone number indicate that Mr. Burkoski was in the business of selling drugs; that was simply his way of life;

5. The presence of the expandable police baton in Mr. Burkoski’s vehicle was also consistent with an established business of drug trafficking. The evidence of Constable Campbell was that drug traffickers often carry a weapon to protect themselves, their product and their proceeds of sale.

The mitigating factors include:

1. Mr. Burkoski had a gap in his criminal record between 1980 and 2008 and then again between 2008 and 2012;

2. Mr. Burkoski appears to have significant family support;

3. Mr. Burkoski has shown good behaviour while in custody and has attended a significant number of programs designed to address his lifestyle;

4. Mr. Burkoski has had the support of his neighbours.

Mr. Burkoski was in the business of selling drugs. All of the indices of trafficking found on his person and in his home can only lead the Court to the conclusion that Mr. Burkoski was a seasoned drug dealer. He was in possession of fentanyl patches cut and packaged ready for sale, he had a weapon at the ready in his vehicle in order to protect himself during drug deals. He made arrangements to advertise his craft by preparing slips of paper with his phone number. The prescription bottles found in his residence in the names of third parties indicates that Mr. Burkoski obtained his drugs for sale by prescription diversion.

The sentence to be imposed on Mr. Burkoski must reflect these circumstances. It must reflect the Court of Appeal’s direction that, in cases such as this, denunciation and deterrence are paramount factors.

At the same time, as compared to cases where sentences of five years or more were imposed, Mr. Burkoski had significantly less fentanyl in his possession. The sentence to be imposed must reflect this difference.

In my view, an appropriate sentence is a global sentence of four years or 48 months. I reach that conclusion taking into account all of the factors outlined above along with the paramount sentencing factors in cases involving fentanyl of denunciation and deterrence. A sentence of 48 months will sufficiently recognize the dangers that fentanyl poses to our community without crippling Mr. Burkoski’s rehabilitation efforts.

Disposition: For the foregoing reasons, on the charge of possession of fentanyl for the purpose of trafficking, count one, I sentence Mr. Burkoski to four years’ incarceration. If at all possible, Mr. Burkoski should serve his sentence at a facility where treatment for drug abuse is available.

On each of the other convictions the sentence is six months’ in jail all concurrent with count one.

Mr. Burkoski shall be given a credit of 443 days or 14.75 months for pre-trial time served, leaving 33.25 months left to serve.

I will hear from counsel on any requests for ancillary orders.

FORM 2

Certificate of Transcript

Evidence Act, subsection 5(2)

I, Mary Brown, certify that this document is a true and accurate transcript of the recording of R. v. BURKOSKI in the Superior Court of Justice held at 245 Windsor Avenue, Windsor, Ontario, taken from Recording #091731/18, which has been certified in Form 1.

July 23, 2018 Mary Brown

Date Mary Brown,

Court Reporter.

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

CHARLES MICHAEL BURKOSKI

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE SUPERIOR COURT MADAM JUSTICE P. HEBNER,

on May 31, 2018, at WINDSOR, Ontario

APPEARANCES:

M. Carroccia Counsel for the Applicant

R. Pollock Counsel for the Respondent

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

REASONS FOR SENTENCE – Page 1

Transcript Ordered: May 31, 2018

Transcript Completed: Sent for judge’s approval May 11, 2018

Ordering Party Notified: Rec’d approval July 3/18,

notified July 4/18