COURT FILE NO.: CR-20-526-0000
DATE: 18 05 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Kelvin Ramchand, for the Crown
- and -
ANDRZEJ KRAWCZYK
Randall Barrs, for the Defence
Defendant
HEARD: April 7, 2022
REASONS FOR SENTENCE
Bielby J.
Overview
[1] On December 9, 2021, Andrzej Krawczyk, the offender, was convicted of unlawfully attempting to import into Canada cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act. He was also convicted of having in his possession proceeds in the amount of $12,500, knowing that the monies were obtained by the commission of an offence punishable by indictment, contrary to s. 354(1) of the Criminal Code of Canada.
[2] In June 2019, the offender was an aviation mechanic in the employ of SunWing Airlines at the Pearson International Airport in Mississuga. He unknowingly participated in a plan, originated by the Royal Canadian Mounted Police, to import into Canada 1 kilo of a substance, the offender believed to be cocaine, by hiding the package behind a panel in a SunWing plane. The flight originated in Jamaica and ultimately arrived in Canada on June 28, 2019.
[3] Upon its arrival, the offender and an accomplice removed the package from behind the panel and thereafter delivered it to Aymann Helbah who, was, in fact, a police agent and for which the offender was paid $12,500.
[4] The majority of facts which gave rise to the convictions were set out in an Agreed Statement of Facts. Arguments were heard regarding whether the offender believed the package contained cocaine and whether he was the victim of police entrapment.
[5] I found that the offender did have the essential element of knowledge and rejected his evidence that he believed the package was a "dud" or a "fake", used to test the system of importing drugs by hiding them behind panels in an airplane. I ruled that he had the requisite knowledge, by believing the package contained 1 kilogram of cocaine.
[6] Regarding entrapment, I dismissed the claim, and found that it was the offender who first approached the police agent (PA) and made inquiries about drug sources from whom he could purchase and import cocaine utilizing his security access at the airport.
[7] I found that the police had a reasonable suspicion that the offender was involved in criminal activity.
CIRCUMSTANCES OF THE OFFENDER
[8] The offender was born in Poland on November 29, 1978 and is 43 years of age. He is a first time offender.
[9] The offender and his family immigrated to Canada in 1992, and settled in London, Ontario. He has a daughter from a previous marriage with whom he had a close relationship. At the time of the offence, he was residing with his girlfriend in Waterloo, in a house they jointly owned.
[10] The offender is a graduate of the Aviation Technician Course at Centennial College. He commenced working for SunWing in 2014, however has lost that employment as a result of the convictions. Since being charged, the offender has worked in construction, home renovation and has worked as a mechanic.
[11] Exhibit A to the sentencing was a pre-sentence report regarding the offender. It is said that the offender was a devoted father who, normally had not exhibited symptoms of depression, anger or anxiety, but which symptoms he now suffers from, as a result of the charges and his convictions.
[12] The pre-sentence report reflects that he believes he was not involved, "as charged". He did say he regrets the circumstances surrounding the charges and the trial results. The report does not suggest any remorse on the part of the offender but when, at the sentencing hearing, I asked him if he wished to address the court personally, he said that he was sorry for what happened and that he had lost everything.
[13] Counsel for the offender advised the court that as a result of the charges and convictions the offender no longer has a relationship with his daughter. He and his girlfriend have had to sell their home.
IMPACT ON THE COMMUNITY
[14] One of the decisions referenced by the Crown in his sentencing submissions is the Ontario Court of Appeal decision of R. v. Cunningham 1996 1311 (ON CA), [1996] O.J. No. 448, in which the Court stated that range of sentence for a first time offender and courier of 1 kilogram of cocaine, more or less, is 3-5 years in jail.
[15] Regarding societal impact, the court stated that there is an overriding need to protect society from the untold grief and misery occasioned by the illicit use of hard drugs (pg. 8). Cocaine is such a drug and is not indigenous to Canada but rather must be imported from a drug source country.
[16] In R. v. Waldron, 2018 ONSC 3972, para. 17, Woolcombe J. wrote,
There can be no question that the importation of cocaine has a profound and significant impact on a wide community. Cocaine is a destructive, insidious and powerfully addictive substance that causes great devastation and misery to those whose lives it touches; R. v. Naivarte 2011 ONSC 234 (S.C.J.).
[17] I share and echo such sentiments.
Legal Parameters:
[18] Cocaine is a Schedule I drug as defined in the Controlled Drugs and Substances Act. Section 6(1) of the Act makes the importation of a schedule I drug into Canada an offence.
[19] S. 6(3) reads:
Every person who contravenes sections (1) or (2)
(a) if the subject matter of the offence is a substance included in Schedule I in an amount that is not more than one kilogram…is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment for a term of one year if
(i) the offence is committed for the purposes of trafficking,
(ii) the person, while committing the offence, abused a position of trust or authority, or
(iii) the person had access to an area that is restricted to authorized person and used that access to commit the offence;
[20] In this matter, the offender has run afoul of all three s. 6(3) subsections.
[21] Regarding the second offence, Section 354(1) of the Criminal Code of Canada reads:
Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from
(a) the commission in Canada of an offence punishable by indictment…
SUBMISSIONS OF THE CROWN AND DEFENCE
[22] The Crown seeks a sentence of a 7-8 years in jail along with a 10 year weapon prohibition further to s. 109 of the Code, an order the offender provided a DNA sample and a disposition order.
[23] The Crown acknowledges the offender was in pre-trial custody for one week following his arrest.
[24] The Crown in submissions started with relying on the Cunningham range of sentence (3-5 years) for a first time offender, acting as a courier and importing cocaine.
[25] It was submitted however that the offender's role was much more than a simple courier. The offender was part of a plan that would take advantage of his employment, and security clearance at the airport which provided him an opportunity to enter planes and remove packages of drugs, hidden behind panels in the plane. The offender provided expertise as to what panels ought to be utilized and provided photographs of plane interiors and the panels. He provided forms that are used by Canadian Boarder Service Agency (CBSA) inspectors and what they would look for.
[26] The Crown submitted that the actions of the offender represents an abuse of his position of trust and/or authority.
[27] The Crown submitted therefore that the penalty for importing should attract a sentence of incarceration above the Cunningham range. A number of cases were provided and I will reference these authorities below.
[28] It is submitted by the Crown that there are no extenuating or exceptional circumstances that would trigger the considerations found in R. v. Sharma, 2020 ONCA 478.
[29] Counsel for the offender submitted that the sentence sought by the Crown was extremely excessive and, relying on the decision in Sharma, argues consideration can be given to a conditional sentence.
[30] Regardless, in the alternative, counsel submits that any custodial sentence should be at the bottom of any range, and ought to be one that does not require penitentiary time.
[31] Counsel for the offender asks this court to take into consideration the drug conviction is for an attempt to import cocaine and that, in fact, there was no cocaine in the package. Those circumstances, it is said, distinguish this case from all of the Crown authorities. It is conceded however, that simply because the charge alleges an attempt, the court can impose a sentence as if the offence was committed.
[32] The court is also asked to take into consideration that the offender was not charged with breach of trust or conspiracy to import cocaine.
[33] Counsel for the offender seemed to suggest that perhaps more of the fault lied with the co-accused, Gianni Ballestrin. and submits that the offender's perceived eagerness was nothing more than puffery. On this point I disagree. The evidence reflects that the offender was an eager participant and was acting in his own financial self-interest.
[34] Counsel also addressed the impact the convictions have already had on the offender. The offender lost not only his lucrative job but lost his house, his career as an aircraft mechanic as well as his relationship with his daughter and his girlfriend.
[35] Counsel for the offender asks the court to also take into account that the offender has been the subject of bail conditions since his arrest and has not been charged with any breaches. Counsel also asks the court to take into consideration the higher health risk from the Covid-19 virus if the offender is incarcerated. However, no evidence is submitted as to the continued extent of the risk for person incarcerated.
CASE LAW
[36] As did the Crown in his submissions, I start with the Cunningham case, supra, in which it was said, as noted above, that the sentence range for first time couriers of cocaine is 3 – 5 years, more or less, in custody. At para. 21 it was said,
Sympathetic though we are to the plight of many couriers, such concerns must give way to the need to protect society from the untold grief and misery occasioned by the illicit use of hard drugs.
[37] The accused in the case, R. v. Ruddy, 2021 ONCA 490, had been a CBSA officer and was involved in a plan to ship multiple kilos of cocaine into Canada. 8.5 kilos of cocaine were discovered on an Air Jamaican flight. He pleaded guilty to one count of conspiracy to import cocaine and one count of breach of trust.
[38] The accused was of Metis decent, married and a first time offender. Regardless, the accused was sentenced by the trial judge to 10 years in prison. The trial judge ruled that the accused's role as a CBSA officer significantly increased his moral culpability (para. 8).
[39] The Ontario Court of Appeal described the offences as, grave and any sentence had to consider the sentencing principles of denunciation and deterrence as paramount. The Court of Appeal ruled that the sentence imposed was within the range of sentences for such a crime. It was not demonstrably unfit. The offence was described as an egregious breach of trust which was said to be a serious aggravating factor (paras. 10 & 11)
[40] R. v. Duncan, 2016 ONSC 1319 is a decision of M.A. Code J. in which the accused was convicted of conspiracy to import and importing cocaine after the police seized 30 kilos. The accused, an airplane cargo handler, was described as a family man and a first time offender.
[41] The following were said to be aggravating factors:
(1) cocaine was a hard addictive harmful drug which was not indigenous to Canada;
(2) the large quantity of cocaine seized;
(3) the conspiracy was ongoing for some period of time and the act of importing was not limited to one occasion which was frustrated by the police. Planning and preparation were required; and
(4) the crime involved a breach of trust of an airline employees who were granted security clearance and who had access to "air side" of the airport where imported goods first arrived, prior to inspection.
[42] The following were said to be mitigating factors:
(1) the accused was a first time offender;
(2) the accused was said to be of exemplary character; and
(3) the accused did not breach any of his bail conditions.
[43] Code J. reviewed the cases which established sentencing ranges for importing drugs into Canada (para.32) and determined that a fit sentence in the matter before him was 12 years imprisonment. From para. 40, I quote,
Airport workers with security clearance and access to the air side of the airport, such as the accused, are particularly attractive to drug importers. The successful corruption of airport workers, who accept money in return for breaching the trust imposed in them by virtue of their positions, significantly increase the moral culpability of the offender beyond that of a "mere courier" who poses as a tourist and boards an airplane. In addition, this kind of offence represents a threat, to the airport and border security, matters in which there is a high public interest, because it sends the message that an important Canadian institution is open to bribery and corruption. For these reasons the accused must be sentence in a range above 6-8 years, the Cunningham range, for multiple kilos courier.
[44] In R. v. Boyce, 2016 ONSC 1118, the accused was convicted of importing 356 grams of cocaine and was sentenced to 35 months (less credits). The sentencing appeal was dismissed. The court noted the accused's role was greater than a mere courier, and that the accused was a key and essential participant in a scheme to import. The scheme was said to be carefully thought out although not overly sophisticated (para. 36).
[45] As noted above, counsel for the offender in the matter before me, is asking the court to consider a conditional sentence, or at least a custodial sentence of no more than 2 years less a day. Counsel relies on R. v. Sharma, 2020 ONCA 478 in which a young indigenous woman pleaded guilty to importing 2 kilos of cocaine into Canada and was sentenced at trial to 18 months in jail. Ms. Sharma appealed arguing that ss.,742.1(c) and 742.1(e)(ii) of the Code breached her Charter Rights and improperly denied her the sentencing option of a conditional sentence.
[46] The Court of Appeal struck down the subsections in issue and ruled that a conditional sentence of 2 years less a day, ought to have been imposed. It is to be noted that the Sharma decision has very distinctive facts and focuses on the plight of Aboriginal persons and their overrepresentation in the criminal justice system and the systemic discrimination they face within the criminal justice system.
Mitigating and Aggravating Factors
[47] I consider the following to be mitigating factors:
(1) The offender did not have a criminal record;
(2) While the offender did not plead guilty, the trial was expedited by an agreed statement of facts upon which the convictions were based, subject to the arguments regarding knowledge and entrapment;
(3) The offender was at all times gainfully employed and was a family man;
(4) The offender did not breach any of his bail terms; and
(5) The pre-sentence report was positive, for the most part.
[48] The following are aggravating factors, and in that regard, I rely on R. v. Duncan, as set out above:
(1) cocaine is a hard and addictive drug which is not indigenous to Canada;
(2) the offences were the result of conspiracy with others to hide cocaine on a plane and thereby import it into Canada. It required planning and preparation; and
(3) The crimes involved a breach of trust of the offender who was an airline employee who took advantage as someone who had security clearance for the "air side" of the airport.
[49] While it is true that the offender was not charged with conspiracy and/or breach of trust, the facts include elements of a conspiracy and a breach of trust by utilizing his airport security clearance to participate in a plan to import cocaine. In otherwards, he took advantage of the trust placed in him. Certainly, it can be said that the offender's moral culpability is significantly greater than that of a mere courier.
PRINCIPLES OF SENTENCING
[50] In considering a fit sentence I have had regard to ss. 718, 718.1 and 718.2. of the Criminal Code of Canada. In crimes involving the importation of cocaine the principles of denunciation and deterrence are paramount. Regarding specific deterrence, I take note of the facts that the offender has lost his career, his house and his relationship with his daughter. The offender and his girlfriend are no longer living together.
[51] Regarding general deterrence, it must be known that persons who utilize their security clearances, to facilitate the importation of cocaine, will face significant penalty.
REASONS and RULING
[52] I recognize that in fact, no cocaine was imported into Canada. The package did not contain cocaine but rather, contained an inert substance. Nor, as stated above, was the offender charged with conspiracy and/or breach of trust. Nevertheless, the intent and attempt was to import cocaine on a scale that went beyond the one isolated effort to import cocaine.
[53] If the offender, as a courier, had attempted to import a kilo of cocaine the range of sentence, as noted above, assuming no extenuating or exceptional circumstances, for a first time offender, is 3-5 years. It was said at para. 40 in the Duncan case that the sentence range for an airport worker who utilizes his or her security clearance to import cocaine must be above the sentencing range for a courier. I note however, that the Duncan case involved the importation of 30 kilos of actual cocaine.
[54] There were no extenuating or exceptional circumstances which in any way would suggest a sentence below the accepted range of sentence.
[55] In my findings of fact regarding the issue of entrapment, I found that it was the offender who initially approached the PA regarding the importing of cocaine. He wanted to be hooked up with drug sources and would use his security access to the airport and airplanes to transport the drug. In other words, it was the offender who wanted to use his employment to his financial advantage by importing cocaine.
[56] To say the least, as noted above, the offender's moral culpability is much more than that of a courier. The offender breached the trust between he and his employer and conspired with others to facilitate the importation of cocaine. The offender was involved in the planning of the offences which planning continued over a number of months. The offender was, in fact, frustrated with the passage of time leading up to the commission of the offences. As noted, the fact that the offender was not charged with breach of trust or conspiracy does not negate the fact of increased moral blameworthiness.
[57] A penitentiary term of imprisonment is required. Had the package actually contained cocaine, the length of sentence would be longer than the sentence I will impose and would be within in the range of sentence suggested by the Crown.
[58] Regarding the conviction for attempting to import cocaine, had the offender been no more than a first time courier, I would have sentenced him to 3.5 years in custody. However, after taking into account the increased moral blameworthiness of the offender I sentence the offender to five years in jail, less one month credit for one week of pre-trial custody and for abiding by his terms of bail, without breach, for a net sentence of 4 years and 11 months.
[59] Regarding the remaining count of have possession of proceeds for a crime, I sentence the offender to one year in jail, to be served concurrently.
Ancillary Orders:
[60] Further to s. 109 of the Code, the offender is prohibited for life from possessing restricted and prohibited weapons and all other weapons for 10 years.
[61] The offender is to supply a sample of his DNA.
[62] A Disposition Order shall issue.
__________________________ Bielby J.
Released: May 18, 2022
COURT FILE NO.: CR-20-526-0000
DATE: 18 05 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
ANDRZEJ KRAWCZYK
REASONS FOR SENTENCE
Bielby J.
Released: May 18, 2022