His Majesty the King v. Maciej Dymkowski
COURT FILE NO.: CR: 20-79, 22-503 DATE: 2022-12-05 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
J. Little, for the Public Prosecution Service of Canada
- and -
MACIEJ DYMKOWSKI
S. Shaffie, on behalf of the offender
HEARD: October 6, 2022
REASONS FOR SENTENCE
A.J. GOODMAN J.:
[1] On December 23, 2021, after trial, the accused, Macief Dymkowski, (“Dymkowski”) was found guilty of several drug offences including possession of cocaine and fentanyl, for the purpose of trafficking, contrary to the provisions of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). He was acquitted of two firearm offences. The offences are alleged to have occurred on October 15, 2018 in the City of Hamilton.
[2] On October 6, 2022, Dymkowski plead guilty to one count of possession for the purpose of trafficking fentanyl arising from a traffic stop on September 19, 2020. Dymkowski was found in possession of 23.8 grams of fentanyl, 6.7 grams of amphetamine, a variety of Canadian currency and two cell phones. At the time, Dymkowski was in breach of his bail conditions.
[3] The sentencing hearing was adjourned for a myriad of reasons on behalf of the defence.
[4] The Crown seeks a jail sentence of seven years for the drug-related counts after conviction from trial, and four years consecutive for the plea to the fentanyl count, for a total of 11 years in gaol less pre-sentence custody, along with various ancillary orders. The Crown submits that dealing in approximately 94.45 grams of fentanyl along with other illicit drugs, including cocaine, two distinct events, and flagrant breaches of his bail terms warrants serious denunciation and deterrence.
[5] Mr. Shaffie, on behalf of his client, seeks a global sentence of eight years, less pre-sentence custody credit. While it is conceded that the offender is a mid-level trafficker, the defence submits that the range of sentence suggested by the Crown is excessive and is more suited for the commercial trafficker. The defence says that Dymkowski presents with significant mitigating factors, including family support, his drug addictions and his documented efforts to take ownership and address these issues over the past few years. Dymkowski has demonstrated some degree of success. When reduced for the requisite mitigation and other credits, Mr. Shaffie submits that the remaining time to serve is approximately two years. There is essentially no issue with respect to the ancillary orders requested by the Crown.
Circumstances of the offence:
[6] The circumstances of the convictions at trial are outlined in my reasons for judgment: (Citation: R. v. Dymkowski 2021 ONSC 8428). A significant quantity of various illicit drugs were seized, 70.65 grams of fentanyl, 50.72 grams of methamphetamine and 115.4 grams of cocaine. Dymkowski was also convicted of failing to comply with his recognizance.
Circumstances of the offender:
[7] Various character references and an extensive Pre-Sentence report was completed. I have also received information from the various institutions where the offender was housed.
Pre-Sentence Report (PSR):
[8] The author of the PSR writes, inter alia: Dymkowski reported that his formative years were uneventful. He indicated that his parents provided both him with a positive home environment. He reported he enjoys a positive relationship with his parents and that he plans to return to reside with them at their home in the North end of Hamilton upon his release from custody.
[9] Dymkowski remarked that his parents are aware of his criminal history and personal struggles; however, he stated they may not fully appreciate the extent of his addiction and criminal involvement. In part, Dymkowski stated that he did not want to burden his parents with his personal issues. Collateral sources confirm that he has been involved in his children’s lives and he shares a positive rapport and bond with his three daughters ages 17, 10, and 7.
[10] Dymkowski reported he has not had any formal assessment for psychiatric or mood disorders. At the institutional level, he reported he is currently issued medication to treat symptoms associated with anxiety and depression.
[11] Ms. Dymkowski reported that prior to the offender’s addiction spiralling out of control, they enjoyed a normal lifestyle and home life where they both worked full-time, own a home, and raised their family. He was described by his spouse as a “very smart person and a wonderful father”. But she also described him as someone “who got caught up in his addictions”.
[12] Dymkowski reported that he first began to take pain medication at the age of 15. This was the result of an injury he sustained after falling from a 55 foot height which resulted in injury to both his legs. He reported he was in a cast for five months. In order to manage the pain associated with the accident and subsequent surgery, he reported he was prescribed Percocet and Dilaudid, which he took as prescribed for approximately two months. Dymkowski explained that the prescription was not renewed after two months. He stated he did not recall the reasons for this prescription not being refilled but his use of crystal methamphetamine began shortly after.
[13] Dymkowski stated that he had not attended any type of educational, outpatient or residential treatment program to address his addiction until recently as part of a release order. He did add that he has been prescribed methadone as another means to address his addiction. Dymkowski’s spouse financed the residential treatment in the Barry’s Bay area.
[14] The probation officer noted that the PSR was undertaken via telephone due to the restrictions imposed at the jail in response to the pandemic and Omicron variant. Dymkowski answered all questions posed to him and was cooperative with the interview process. In relation to the charges before the Court, Dymkowski stated he regretted his actions.
[15] It has been confirmed by collateral sources that Dymkowski benefitted from residential treatment. Further, to Dymkowski’s credit, he appears to have some insight into his cycle of addiction and the negative impact this addiction has had on himself and others. Dymkowski stated he recognized that his actions were not only hurting himself but were also affecting his children. He remarked that he has very few positive supports in the community at this time and this was confirmed by collateral sources.
[16] Dymkowski possesses a criminal record which commenced in October 2014. Since then, it appears that Dymkowski’s criminality has continued unabated. Dymkowski stated his criminality stems from a long-term addiction to illicit substances and his involvement in criminality to support his habit. Collateral sources confirmed Dymkowski’s drug addiction and that this addiction has had a negative impact in all areas of Dymkowski’s life. Ms. Dymkowski stated that Dymkowski will continue to have her ongoing support if he continues to be actively involved in his recovery.
[17] Based on the information gathered, Dymkowski appears to have a lengthy history of drug addiction. He has attempted to address this addiction via methadone and most recently through a completion of a residential treatment program. Dymkowski vocalized his intent to achieve sobriety and secure employment upon his release from custody.
[18] Various character references were filed in support of the offender. Jessica Dymkowski writes that she has known the offender since 2004. We met and started dating until we married in August 2006. We have had 3 children together. Matt is loved and missed everyday by his family and he is a good father and has had many great years with his children. His ability to provide as a father definitely had some struggles when he was too far into addiction and during this time, he tried to keep connected with his children. While together, Matt kept a stable job for many years. He is extremely skilled within many different trades. He always took responsibility for repairs and maintenance even when we weren’t together. He always made sure I had a safe vehicle, doing all the work himself. He is a quick learner, and can watch someone and then do it himself. He is full of ambition and competence and driven when he sets his mind to something. I have been witness to years of Matt working full time and overtime, maintaining a home, caring for his older parents and trying to find his way in life. Matt grew up with parents that knew English as a second language and were working overtime to try and get by as newcomers to Canada. Though we have had so many hurdles and obstacles in life to overcome, I want nothing but success and good health for Matt. He has my never-ending support to finally overcome and stay strong in the fight with addiction and mental health.
[19] Jessica Goakery writes that the court take into consideration his plight with substance abuse and the impact his incarceration has had on his four children. Maciej was a doting father to our shared child Ava since birth. He regularly took our daughter for his weekly access visits, without fail. Some years later, Maciej began having issues with pain resulting from an accident he had as a child. He was prescribed opioid pain medication to treat his ailment and from there his issues with substance abuse began. This was the springboard that led him into his long term issues with substance abuse and subsequent conflict with the law.
[20] Tricia Bakken is a Registered Social Worker who worked with Dymkowski. Matthew was at the center for more than 30 days. He spent at least 30 days in residential treatment and several weeks as an “outpatient”, returning to the center several times a week for psychoeducation and support. During his time at OMARR, Matthew worked fairly diligently to address his addiction. The unfortunate thing for Matthew was that funding was short and he was unable to continue to pay for treatment, so treatment was ceased, as OMARR is a private, pay for service, center.
[21] She goes on to write that Matthew has several positive factors going for him. He is intelligent, a hard worker, and pleasant to talk to. He also had a solid support system through his parents and his (ex) wife Jessica and their children. These supports played a vital role for Matthew and I believe that they help provide some much needed stability in Matthew’s life as he struggles with addiction. I do truly believe that Matthew would do well to further treatment for these issues.
[22] A letter was filed to confirm enrollment of Maciej Dymkowski in outpatient addiction services. He was admitted to Ottawa Maberly Addiction Rehabilitation Residence (OMARR) as an inpatient for substance abuse treatment on July 22nd, 2019 and successfully completed a 30-Day program on August 21st, 2019.
Case Law:
[23] I have been provided with cases from both counsel on the issue of the appropriate sentence to be imposed. Although the law is clear that each case turns on its own specific facts, a careful review of these cases, to the extent I can find similarities to the case before me, does assist me in determining what an appropriate range is for the sentence to be imposed. As some of the cases relied upon by counsel are distinguishable on the facts or the circumstances of the particular offender, my intention is to briefly set out those cases that are somewhat similar to the issues in the case at bar.
[24] R v. Loor, 2017 ONCA 69- The offender was a participant in a sophisticated drug trafficking ring with no prior criminal record. Sentenced to six years.
[25] R v. Disher, 2020 ONCA 710, – This case involved 42.6 grams of fentanyl and carfentanyl, with the offender having an extensive criminal record spanning 15 years including prior offences for trafficking. On appeal, the original 12 year sentence reduced to eight years.
[26] R v. Sidhu, 2019 ONCA 880,- Trafficking 89 grams of fentanyl with a prior related record. Sidhu returned to trafficking shortly after released from custody on parole. Many aggravating factors. He was sentenced to eight years.
[27] R v. Lynch, 2022 ONCA 109,- Trafficking 1 kg. of cocaine, 149 grams of MDMA and 41.37 grams of fentanyl. Six separate transactions. The four year sentence appealed by the Crown. Lynch was a mid level trafficker and the Ontario Court of Appeal substituted a six year sentence
[28] R v. Cada, 2022 O.J. No. 3436,- 140 grams of fentanyl with Gladue principles as a mitigating factor. The court imposed a seven year sentence.
[29] R v. Jolly, 2022 O.J. No. 10, - a case involving 170 grams of fentanyl. The offender had a limited criminal record. Nine years in jail was imposed.
General Principles:
[30] The court is guided by the principles of sentencing as set out in ss. 718 to 718.2 of the Criminal Code.
[31] As directed by s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that reflect enumerated objectives. Those objectives include denunciation of the unlawful conduct, deterrence and rehabilitation. It is also important to impose a sentence that promotes a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community.
[32] Section 10 of the CDSA states: 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 the 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.
[33] Section 718.2 of the Criminal Code addresses the principles of totality, parity and the principle of restraint among other factors. Section 718.2 also addresses specific aggravating and mitigating factors that shall be taken into consideration based on certain enumerated principles.
[34] The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The circumstances of the offence and of the offender must be analyzed to identify the aggravating and the mitigating factors.
Aggravating factors:
[35] The aggravating factors in this case include the nature of the drugs, their quantity, two distinct events and, most significantly, the flagrant breaches of bail release orders when committing these offences. Dymkowski was on house arrest and other strict conditions, which were all but ignored while dealing in fentanyl. I accept Mr. Little’s comments about the nature of these breaches as a serious aggravating factor.
[36] The offender’s criminal record includes: the 2014 possession of a scheduled substance: a fine of $500; 2016 possession of a scheduled substance x 2: suspended sentence and probation; June 2019: forcible entry and possession of breaking instruments: presentence custody of 45 days as well as a fail to comply with probation order: 15 days of presentence custody. I note that his record comprises of non-violent offences, and no prior drug trafficking convictions.
Mitigating factors:
[37] Dymkowski cannot be penalized for insisting on his right to a trial, as he is fully entitled to his day in court. While it is not an aggravating factor, he does not gain the benefit of the mitigation of a guilty plea. However, the offender did achieve success in a finding of not guilty with regards to the Criminal Code weapons possession charges. Thus, it can be asserted that there was some utility of running a trial, as all of the weapons counts were dismissed.
[38] Dymkowski also gains the benefit of some mitigation in relation to his plea of guilty to the most recent fentanyl charge. In his comments to the court, he has expressed remorse for his conduct.
[39] Dymkowski has the backing and support of some family members, ex-spouse and friends and has presented favourable character references. I note his background and recent efforts at addressing his serious addictions that have been present throughout his entire life.
[40] Dymkowski has completed several sessions while incarcerated awaiting disposition: Educational Sessions on Substance Use, Anger Management, Managing Stress, Understanding Feelings and Changing Habits
[41] Overall, the tone of the PSR is positive. Again, much is referenced to the fact that Dymkowski has been actively dealing with underlying issues regarding his drug abuse. I accept that he has some insight into his addictions and related conduct. There is some demonstration of remorse. I have evidence about his overall positive prospects for rehabilitation.
Pre-sentence detention:
[42] For the purpose of sentencing, the offender provided an affidavit and documentation related to the various custodial institutions where he was housed over the past several years.
[43] In his affidavit, Dymkowski asserts, inter alia, “that prior to my arrest on October 15th, 2018, I had never been in custody for longer than a day. At the time, I was suffering from an extreme substance abuse problem which I had been doing my best to hide from everyone I knew and loved. At that time in my life I was living with my mother and father in Hamilton. I had lost my family, my daughters, my job, and my house. I was severely depressed and unable to tackle the root of my addiction. After my arrest, I was ordered detained at a bail hearing until my release on a strict house arrest bail following a bail review on July 19, 2019. The bail order required my elderly parents to pledge $100,000 of their retirement money. I was required to live with them in a small town called Barry’s Bay 5 hours away from Hamilton. Living under house arrest in Barry’s Bay was extremely difficult. I was not allowed to leave the house without my sureties. I was not allowed to have a cell phone or any digital device. Although I love my parents, they are very old and my mother has mobility issues so they rarely wanted to leave the house. I couldn’t engage in exercise or other activities outside of my parents’ capabilities. I didn’t know anyone in Barry’s Bay. I also have difficulty reading, so occupying my mind and distracting myself from symptoms of my addiction was difficult. It was the first time in my life that I actually acknowledged that I had a real problem. I was desperate for help and didn’t even realize it. I had become so used to hiding my addiction and managing it on my own. But eventually I relapsed. We could not afford the [counselling] service anymore. It cost $10,000 a month plus tax.”
[44] Dymkowski goes on to discuss his conditions of incarceration, specifically since September 2020. “The cell I was assigned to in Hamilton Wentworth Detention Centre is very small. It has a bunkbed and a steel toilet. On many days there were three of us assigned to one cell. This meant that one of us – usually me – would sleep on the ground on a mattress. I cannot climb the bunkbed because of my leg injury. In September 2020, because of COVID, we were regularly locked down and placed on what they called “single cell rotations”. On other days, they confined us right after dinner, meaning we spent around 17 hours confined in our cell to the next morning. Our bed sheets got changed every 3-4 weeks and got filthy during that period of time. I’ve never once received a blanket exchange throughout my time at HWDC. For many months, there was no yard time. Access to the showers was difficult because we could not predict when or under what terms we would be locked down. On top of all this, Barton is unsanitary. Part from the stench of my inmates’ feces, they don’t give us supplies to clean the toilet or the floor. To clean the floors we use soap from canteen (sic), or shampoo with ripped up towels. All of this made me depressed. Eventually I saw a psychiatrist at the jail. One of the positive aspects of my time at Barton is that the psychiatrist diagnosed me with depression, anxiety and ADHD. Another positive side of my experience in Hamilton is that I achieved sobriety. Being locked up and thinking constantly about how terrible my life had become has forced me to endure the withdrawal and remember the lessons I learned in rehab. I was transferred to CNCC. At CNCC they follow a similar schedule, except that we got to eat our meals at communal picnic tables which was nice. I was at CNCC for approximately four or five months. The majority of my time at CNCC was spent under one form of lockdown or another. There was a lot of violence at CNCC on the ranges due to pent-up anger related to the lockdowns. At CNCC, they cut the medications I was prescribed in half. After a brief stay back at HWDC, I was sent to Toronto East Detention Centre. During my time there, we were locked down regularly, mostly after dinner or lunch. There are a lot of gang dynamics at Toronto East, which was new to me. I saw many acts of horrifying violence there, including two men getting stomped out and one man getting stabbed in the chest. At the East, I constantly feared for my safety. I felt helpless and out of place. I always stood with my back against the wall watching everything. Other inmates, from Toronto, always lurked around and asked what gang I was affiliated with. I was subject to many degrading Level II searches there. During a Level II search, multiple guards will come to your cell unannounced. They make you strip down and they then handcuff you and walk you down to a scanner, looking for weapons or contraband. They were not targeting me because this happened to everyone, but I had never experienced anything like this before. Nurses, similarly, would always tell me to put my fingers in my mouth to prove that I took my medications for ADHD, depression and anxiety. They refused to give me a glove even when I complained about the unsanitary conditions. These small acts were incredibly degrading. At Toronto East Detention Centre, I was sent to the “hole” for five or six days because guards found a brew in my cell. I was never disciplined for any violence or weapons. The hole is a filthy place. It has two artificial lights that stay on 24 hours a day. I could see mould everywhere. I was not allowed out at all for that time. I got one phone call per day through a hatch which I had to take while kneeling. On the fourth day I was finally able to take a shower. In the hole, I developed a very serious bacterial infection. I had extremely high fever, blisters all over my face and major swelling. My temperature raised to 41.7 degrees; my head swelled to a massive size. I was taken to the hospital where I stayed for five days. I was prescribed antibiotics before being sent back to the hole at Toronto East. I begged the sergeant not to punish me anymore, but I was told that their medical unit was under construction so there was nowhere else to put me. I spent another 3 days there. I use a special medication now, including an anti-fungal cream which I apply every day. I still get cold sores on my face, and red dots and bumps on my body. I developed these issues because of my time at Toronto East.”
[45] In addition to the offender’s affidavit, there were extensive records filed by the defence. This includes a letter from the Ministry of Solicitor General Correctional Services dated May 24, 2022 along with OTIS -Shared Cell and Bed Assignments spreadsheet. Some of the information includes references to dates of confinement, lock downs due to COVID or other reasons, minimal or no yard time, lack of showers, double or triple bunking and the like.
Analysis:
[46] In R. v. Parranto, 2021 SCC 46, Moldaver J. for the concurring minority stated at paras. 87 and 88:
The dangers posed by trafficking hard drugs such as heroin and cocaine have long been recognized in Canada. Over the past few decades however 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…Trafficking in such substances causes both direct and indirect harms to society.
[47] While Moldaver J. is referencing large-scale commercial trafficking operations in fentanyl, (which is not the case here), I observe that at para. 96 of Parranto, he refers to the fact that “beyond its mere potential to cause harm however, fentanyl has had and continues to have, a real and deadly impact on the lives of Canadians.” Indeed, trafficking in fentanyl has been described as a national crisis reflective of the increasing understanding of the gravity of the harm it causes.
[48] I am mindful that the conclusions in Parrento may be distinguishable by virtue of the large scale operation in that case, and may not necessarily apply to street level trafficking or those who are motivated by a need to support their own addictions. While recognizing that this case involves significant quantities of fentanyl, it cannot be termed as a commercial enterprise. However, the general principles arising from the case including the statement that fentanyl has changed the landscape of substance abuse in Canada.
[49] Of course, the principles of proportionality and totality ought not be lost in the analysis of this offence and circumstances of the offender.
[50] That being said, there is no doubt that society recognizes the impact of fentanyl on the community. Deterrence and denunciation are paramount considerations as there is a need for a response by the courts for increased sentences for fentanyl-related crimes.
[51] Having reviewed the nature of the offence and the quantity of drugs, including fentanyl, in conjunction with the prevailing jurisprudence and while the defence position is not far outside of the range, I prefer the Crown’s requested range of sentence.
[52] In my opinion, the jurisprudence provides support for the Crown’s position. I am entitled to take judicial notice of the insidious impact of fentanyl in the community. In this case, there were two instances of possession for the purpose of trafficking in fentanyl. The Crown’s position reflects the general range or level of sentence suggested by the Supreme Court of Canada and various appellate courts to offenders who traffic significant amounts of fentanyl at the street level. There is no doubt in my mind that such a sentence for the amounts of drugs seized in this case, along with the underlying facts related to the flagrant disregard and fundamental breach of bail terms in order to commit these offences, ought to attract a significant penitentiary sentence.
[53] While I would not hesitate to impose the Crown’s suggested total sentence of 11 years for these two distinct, albeit related offences, I have considered the overall mitigating factors as mentioned earlier, including the fact that the defence conceded the case at trial, absent the Charter challenges. Hence, I am persuaded to reduce the sentence being sought by the Crown to reflect those considerations.
[54] In relation to the Duncan or so-called COVID credit, as a mitigating factor in the overall global sentence, and as directed by the Court of Appeal in R. v. Marshall, 2021 ONCA 341, I am prepared to provide a reduction in the overall sentence to reflect the harsh jail conditions endured by the offender during the pandemic.
[55] In my consideration of the robust evidence adduced at this sentencing hearing, including the jail records, Dymkowski’s affidavit and Mr. Shaffie’s able submissions, I am prepared to provide an enhanced Duncan credit, over and above the range I generally allow for this mitigating factor. In this case, the mitigation of sentence is equivalent to 20 months.
Disposition:
[56] I impose a s. 109 Weapons prohibition order for life. The offender will provide a DNA sample pursuant to s. 487.051 of the Criminal Code. A forfeiture order is granted.
[57] With respect to Indictment 20-79, the counts related to the possession for the purpose of trafficking in cocaine, possession for the purpose in trafficking in fentanyl and methamphetamine, the sentence to be imposed is five and a half years. An additional six months consecutive is levied for the failure to comply with a recognizance. With regards to Indictment 22-503, and the plea to one count of possession for the purpose of trafficking in fentanyl, the sentence is three years consecutive. The global sentence is nine years.
[58] In my consideration of the evidence adduced at this sentencing hearing, and applying the specific Duncan mitigating factors, the nine year sentence is reduced by 20 months.
[59] While I am reticent to consider any further credit for the house arrest terms, based on the flagrant breach of bail conditions, I am persuaded by Mr. Shaffie to afford some recognition for the strict bail terms. This moderate amount equates to 2.5 months of Downes credit for the approximate 14 months of release on bail.
[60] The offender has a total of 1054 days of pre-sentence custody. With the usual Summers credit at 1.5:1, that is the equivalent of 1581 days, or 52.5 months.
[61] Therefore the net disposition is as follows: Mr. Dymkowski is sentenced to serve 33 months ( 2 years and 9 months) in a federal penitentiary.
[62] The victim surcharge is waived.
A.J. Goodman J.
Date: December 5, 2022
COURT FILE NO.: CR: 20-79, 22-503
DATE: 2022-12-05
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
MACIEJ DYMKOWSKI
REASONS FOR SENTENCE
A. J. GOODMAN J.
Released: December 5, 2022