COURT FILE NO.: 19-67
DATE: 2021/09/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Daniel Riasyk
Defendant
Alex Simard, counsel for the Crown
Neah Chugh, counsel for the Defendant
HEARD: February 12, 2021
REASONS FOR SENTENCE
Lafrance-Cardinal, J.
[1] On February 12, 2021 Daniel Riasyk pled guilty that between April 2017 and May of 2018, he:
did steal money totaling in excess of five thousand ($5,000.00) dollars from Ivan Riasyk, contrary to s. 334 of the Criminal Code.
did by a false pretence with intent to defraud obtained from Ivan Riasyk money of a value exceeding ($5,000.00) five thousand dollars, contrary to s. 362(1)(a) of the Criminal Code.
The facts
[2] Mr. Riazyk, shy of 44 years of age is the son of Ivan Riasyk who lives in a Senior citizen facility since January of 2013. He suffers from dementia. In March of 2013, Mr. Riasyk Sr. was found to be incapable of managing his affairs and the Power of Attorney for property and personal care dated November 26, 1997 was activated. Mr. Daniel Riasyk was the named Power of Attorney. Mr. Riasyk Sr. was in receipt of $3300 monthly in pension income and the accused had sold his father’s home in 2017 for which he had received $ 195,493.68.
[3] The director of care at the lodge was concerned as she had not received payment for Mr. Ivan Riasyk’s care for the last two months. The director communicated with Mr. Riasyk Sr’s daughter Julianna. Juliana attended the credit union and spoke to the manager. He advised her that there was $1.00 left in the account and that he felt the accused was abusing his rights as Power of Attorney. The account was frozen preventing Daniel Riasyk from withdrawing any further money.
[4] Police investigation found that between April 1st, 2017 and May 29th, 2018 in bank account #150938, account in the name of Ivan Riasyk.
- $ 32,311.77 was removed in cash withdrawal.
- $ 106,760.75 was removed in cash withdrawal.
- $ 29,642.74 in email money transfers (Mr. Riasyk Jr.’s bank account).
- $ 54,417.85 to Daniel Riasyk’s credit cards.
- $ 28,200.85 in point of sale purchases.
- $ 511.40 in service charges.
[5] For a grand total of $ 219,533.53 taken from Ivan Riasyk’s account for the personal benefit of Daniel Riasyk.
[6] None of the money has been recovered.
Circumstances of the offender
[7] Mr. Riasyk is days shy of his 44th birthday. The pre-sentence report indicates that he is in receipt of social assistance. He is the father of two children, ages 12 and 11 whom he sees regularly. The report indicates that he lives on approximately $850/month but has managed to accumulate debt in an amount over $55, 000.
[8] The pre-sentence report indicates that the accused had a serious drug problem, addicted to opiates and crack cocaine. He has nothing to show for the money he stole from his father’s account. The money served to fuel his drug addiction. He had a good job at Costco in the meat department, job he had for approximately 10 years. He was fired in 2018 because of his unreliability and poor work performance. He has not worked since. Not only did Mr. Riasyk spend all of his father’s money, he also cashed in his pension plan and spent all of the money he received from the sale of the matrimonial home following the separation from the mother of his children.
[9] Mr. Riasyk attended many rehab centers. His first attempt to sobriety was in November 2016, the file was closed in April 2017 as he had not reported for more than one month. His file was reopened in June 2017 only to be closed shortly thereafter for non-attendance, same for another attempt in November 2017. In January 2018, he was accepted in the Suboxone Substitution Program, his cooperation was sporadic, he failed to show for many appointments with no excuses given. There was another detoxication stay in May 2019.
[10] In August of 2019, facing the charges before the court, he did attend a rehab center in Elliott Lake. He left after 2 ½ weeks of a 4-week program apparently because of conflicts with another resident.
[11] He is now continuing his participation in the Suboxone Substitution program. His dose and the frequency has been reduced over time. He is cooperating, he is attending for appointments and does follow instructions. He has also been prescribed an antidepressant, an antipsychotic drug and Paxil.
[12] His addiction commenced with a prescription of Tylenol #3, which contained codeine, following an injury at work. He abused that medication. He was offered a tablet of oxycodone to which he became immediately addicted. He would take 5 to 10 tablets per day, he would also crush them for a more powerful effect. When abstaining from opiates he would find solace with crack and cocaine.
[13] He has been able to cease his opiate consumption and his evidence is that he has been sober of all drugs for approximately 2 years save and except for the 4mg of buprenorphine which he takes every day.
[14] Unfortunately, Mr. Riasyk seems to have lost all motivation to become a member of the work force. He has continued to neglect his financial obligations. He has not participated in any meetings or counselling to assist him in maintaining sobriety. He is isolated, he does not participate in any recreational or social activities. He is presenting some signs of depression. He presents as being vulnerable and fragile which could lead him back into substance abuse. He will need some psychological treatments especially since the writer of the report states that there is lack of motivation and a nonchalant attitude on his part. The writer states:
“He does not seem willing to make the necessary effort to take control of his life but prefers to run away and avoid the issues. Since his situation will not improve by itself, he needs to become proactive. He can count on the support of his mother and his ex-wife, to a certain extent, but he also needs to make an effort himself. He should rally his efforts and show some independence.”
Victim Impact Statement
[15] There are no victim impact statements filed. His sibling, who would have ultimately also benefited from the fruits of their father’s lifetime of hard work did not file anything. Of course, Mr. Riasyk Sr. suffers from dementia and is unaware of these proceedings. Many would say that at least he was spared the grief of knowing his son had breached his trust.
The law
[16] Section 718 of the Criminal Code sets out the objectives of the principle of sentencing.
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[17] Section 718.2 dictates that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.
[18] The mitigating factors in this case are as follows:
The plea of guilt, acknowledging wrongdoing and taking ownership for his fraudulent actions between 2017 and 2018. The plea was taken over the phone in a “pandemic” where court resources were and still are limited. The plea of guilt has saved the court some 10 days of court time.
Mr. Riasyk has no criminal record, it is his first encounter with the law.
[19] The aggravating factors are as follows:
Mr. Riasyk has depleted all of his father’s hard-earned retirement money to fuel his drug addiction.
It is a serious breach of trust, he was named Power of Attorney for property and personal care of his father. It was an abuse of a vulnerable person as set out in s. 718.04 of the Criminal Code. Not only was Mr. Riasyk elderly but he also suffered from dementia. His medical condition made it such that he could not manage his personal financial affairs.
Mr. Riasyk has no remorse, he rationalizes his actions and he justifies them. He indicates that his sister has received more than him in the past. He justifies himself by saying he would have inherited the money in any event. He downplays his moral blameworthiness by saying he did not kill anyone that it is only money. It leads me to believe that under the same circumstances he would do it again.
[20] Section 718.04 of the Criminal Code indicates that in sentencing someone who has abused a vulnerable person, the court must give primary consideration to the objectives of denunciation and deterrence of the conduct. Not only must this type of crime, a breach of trust against a vulnerable person be denounced but the punishment must deter others in like situations, to commit such a crime.
[21] Both Crown and Defence are asking me to consider a joint position on sentence. They believe that taking into consideration the nature of the offence and the circumstances of this particular offender, that a jail sentence of 8 months jail on s. 334(a) and a conditional jail sentence of 16 months on s. 362 followed by 3 years probation would serve the interest of justice. It would also denounce and deter others from committing the same crimes.
[22] I have two competent counsel and I am prepared to accept the proposed joint position.
[23] Mr. Riasyk if you could stand please.
[24] On s. 334 of the Criminal Code, theft over $5000. I sentence you to a period of imprisonment of eight months.
[25] On s. 362(1)(a) committing the offence of theft under false pretences, I sentence you to a conditional jail sentence of 16 months. This conditional jail sentence will be consecutive to the jail sentence served. The terms of your conditional jail sentence are as follows:
− The statutory terms: keep the peace be of good behaviour, report to your supervisor when requested to do so, reside at an address approved of by your supervisor. Permission is given for you to serve your sentence in Gatineau, Québec. As soon as you are released from custody, you are to report to your Supervisor within 2 working days.
− Be subject to true house arrest for the first 8 months of your sentence. You will only be allowed out of your home for medical appointments, medical emergencies for you and or your children and for 4 hours on Saturdays between the hours of 12 and 4 p.m. for personal errands. You will be allowed to babysit your children on a specific schedule that needs to be approved by your supervisor. You will be permitted to attend for counselling and NA or AA meetings, again on a schedule pre-approved of by your supervisor and provide proof of attendance. You will also be permitted to work on a schedule approved of by your supervisor.
− You are to attend for counselling as organized by your supervisor.
− You will pay $200/month in restitution to Yvan Riasyk c/o Glen Stor Dun Lodge Long term care or to Juliana Riasyk.
− You will be subject to operation door knock.
− Following the 8 months of true house arrest you will be subject to a curfew from 10 p.m. to 6 a.m. for the 8 months remaining.
[26] Both offences will be followed by 3 years probation. The terms of your probation are as follows:
− Keep the peace and be of good behavior.
− Report to your probation officer as requested.
− Reside at an address approved of by your probation officer.
− Attend for counselling as directed by your probation and provide proof of attendance.
− Pay $200/month of restitution.
[27] There will be a stand-alone restitution order of $219,533.53. Any amounts paid pursuant to the terms of the conditional jail sentence or the probation order will be applied against the said amount.
The Honourable Justice Johanne Lafrance-Cardinal
Released: September 10, 2021
COURT FILE NO.: 19-67
DATE: 2021/09/10
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Daniel Riasyk
REASONS FOR Sentence
The Honourable Justice Johanne Lafrance-Cardinal
Released: September 10, 2021