COURT FILE NO.: CR-23-01
DATE: 20240607
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
GIEDRIUS KESMINAS
Defendant
Kester Yeh and Sarah Malik for the Crown
Mitchell Worsoff for Mr. Kesminas
HEARD: Sentencing Submission heard April 9, 2024
REASONS FOR Sentence[^1]
C. BOSWELL J. (Orally)
[1] On February 1, 2024, I convicted Mr. Kesminas of conspiring with a number of other individuals to import 300 kilograms of cocaine into Canada, via Jamaica or the Dominican Republic. Sentencing submissions were made on April 9, 2024. The following are my reasons for the sentence imposed today.
The Circumstances of the Offence
[2] Project Southam was a cross-boarder, multi-jurisdictional police investigation targeting the importation and trafficking of cocaine and other illicit substances in the Greater Toronto Area. It was a wide-ranging investigation targeting multiple individuals. A number of those individuals were under police surveillance, including Adam Luangphasi and Nathan Brown.
[3] Mr. Kesminas met with Mr. Luangphasi and Mr. Brown in a parking lot in Oakville, Ontario on June 16, 2021. Most of their conversation was recorded on a probe installed by the police in Mr. Luangphasi’s vehicle. The discussion involved the importation of 300 kg of cocaine by airplane. Mr. Kesminas was either going to pilot a plane or find someone else to do so. He offered to source out a plane. And he offered advice about where to land in Ontario and what to do if it became necessary to land and offload cargo in an emergency.
The Circumstances of the Offender
[4] Mr. Kesminas is 47 years old. He is married and has two children, ages 23 and 14. He was born in Lithuania and immigrated to Canada in 2005. He has a high school education which he obtained in Lithuania. He has worked steadily since arriving in Canada, in a variety of jobs. At the time of the offence, he was managing a medical clinic and operating the Hamilton Flight Centre. Presently he is self-employed teaching billing to physicians.
[5] The Pre-Sentence Report describes him as a kind and family-oriented individual. He is hard-working and the principal source of income for his immediate family and his elderly parents.
[6] Mr. Kesminas has a criminal record. In 2014 he was convicted of fraud over $5,000. He was sentenced at that time to a suspended sentence with 18 months probation. He was further convicted, in 2014, of failure to comply with a recognizance. He was sentenced to six days in custody, on top of 12 days of pre-sentence custody.
[7] Mr. Kesminas and his spouse, Irena Kesminas, each testified at the sentencing hearing.
[8] Mr. Kesminas testified that ten years ago he was operating a kitchen business. Market forces resulted in the failure of that business. He was unable to complete kitchens that several customers had paid deposits on. He says he paid all of their money back but was nevertheless convicted of fraud.
[9] He further testified about the impact of his bail conditions, which included a curfew from 10:00 p.m. to 6:00 a.m., a prohibition on attending within 2 km of an international border, a prohibition on the consumption of drugs and alcohol, and the requirement to wear a GPS ankle monitor for 20 months. The ankle monitor prevented him, he said, from conducting his business known as “Doctor Source”. Through that business he managed a number of medical practices. He said doctors are sensitive people and he could not expose them to his ankle monitor.
[10] Irena Kesminas testified that she has been her husband’s surety since he was arrested in June 2021. She has experienced no problems with his compliance with his release conditions. She said that they met in high school in 1995 and have been together ever since. They have two sons, ages 14 and 23.
[11] Mrs. Kesminas testified that, should her husband be sent to jail, every aspect of their lives would be impacted. He is the major breadwinner. He makes all the major decisions for the family, including for her mother and his parents, who live nearby.
The Impact of the Offence
[12] Mr. Kesminas was convicted of conspiracy under s. 465(1)(c) of the Criminal Code. Conspiracy is sometimes referred to as an “inchoate” crime, which is a term that generally refers to conduct engaged in with the aim of committing a crime. The conduct is criminalized because of society’s desire to deter individuals from taking steps to commit crimes.
[13] While Mr. Kesminas participated with others in planning to import cocaine into Canada, he did not otherwise participate in the actual importation of cocaine. It would be wrong, however, to view this as a victimless crime. Cocaine is an insidious drug. It is addictive. It ruins lives. And its trade is associated with other criminality, some of it violent.
[14] Cocaine is not indigenous to Canada. If it was not illegally imported into Canada, then our communities would be free of its destructive effects. Those who participate in its importation, including in the planning and/or execution of its importation, have a lot to answer for. They are directly responsible for the misery it engenders.
The Governing Principles
[15] The fundamental purpose of sentencing – codified in s. 718 of the Criminal Code – 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: the denunciation of unlawful conduct, deterrence - both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims and the community, and the promotion of a sense of responsibility in offenders and an acknowledgment of the harm done.
[16] The importance of these individual objectives, and how they interact, varies from case to case. In cases involving the importation of a dangerous drug like cocaine, it is clear that there is a need to stress the objectives of denunciation and deterrence. See R. v. Hamilton, [2004] O.J. No. 3252 (Ont. C.A.), at para. 105.
[17] Identifying the principal objectives engaged in any given case is, however, only a first step. The next step is to assess what sentence is necessary to meet those identified objectives. In making that assessment the court is guided by the fundamental principle of proportionality. Section 718.1 of the Criminal Code directs that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[18] Proportionality engages two concepts: censure and restraint. See R. v. Ipeelee, 2012 SCC 13, at para. 37. As LeBel J. observed, a sentence must promote justice for victims and enhance public confidence in the administration of justice. At the same time, it should not exceed what is appropriate in light of the moral blameworthiness of the offender. The restraint principle directs the court to impose the least intrusive sentence and the shortest duration necessary to achieve a just, fit and proportionate sentence. See Hamilton at paras. 95-96.
[19] Inherent in the concept of proportionality is the principle of parity. Imposing sentences proportionate to the gravity of offences and the moral blameworthiness of offenders requires the court, on the one hand, to recognize where there are material differences between different offenders and different offences. On the other hand, any sentence imposed must be similar to those imposed on offenders who have committed similar offences with equivalent moral blameworthiness. See s. 718(2)(b) of the Criminal Code. Parity, in other words, is an expression of proportionality. See R. v. Friesen, 2020 SCC 9, at para. 32.
[20] Parity is a particularly significant principle in play in the sentencing of Mr. Kesminas. He was just one of a significant number of individuals charged in the context of Project Southam. Some others have already been sentenced for the roles they played in the conspiracy to import cocaine into Canada. The parity principle means that the sentence imposed on Mr. Kesminas must be similar to the sentences imposed on others who played similar roles in the conspiracy and who have equivalent moral blameworthiness.
[21] Having said all of that, it is imperative to recognize that sentencing remains a highly individualized exercise. A sentencing court must focus on tailoring the sentence to the gravity of the offence, the moral blameworthiness of the offender and the harm caused by the offences. See R. v. Nur, 2015 SCC 15, at para. 43. In doing so, the sentencing court must pay careful attention to the unique circumstances of the offender and of the offence, with regard to any aggravating and mitigating circumstances present.
The Legal Parameters
[22] Section 465(1)(c) of the Criminal Code provides that a person who is convicted of conspiring with anyone else to commit an indictable offence is liable to the same punishment as someone convicted of committing that indictable offence.
[23] In this instance, the indictable offence is importing cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act. Pursuant to s. 6(3) of that Act, Mr. Kesminas faces a maximum penalty of life in prison. There is no applicable minimum sentence.
The Positions of the Parties
[24] The Crown seeks a penitentiary sentence in the range of 15-16 years. In support of that range, Crown counsel cited a number of cases including:
(a) R. v. Duncan, 2016 ONSC 1319, where Code J. imposed a sentence of 12 years on Mr. Duncan, a cargo handler at Pearson International Airport, who a jury convicted of participating in the importation of 30 kg of cocaine. He reduced the sentence by one year as a result of delays in bringing the case to trial. Mr. Duncan was a 43-year-old first offender (34 at the time of the offence). Code J. identified the range of sentence applicable to leaders of a cocaine importation conspiracy as 12-19 years. He found that Mr. Duncan was a participant in the conspiracy but not a leader;
(b) R. v. Brown, [2008] O.J. No. 2825 (S.C.J.) is one of the cases cited by Code J. in Duncan for the purpose of establishing the 12-19 year range. Mr. Brown as at the top of a conspiracy to import 25 to 30 kg of cocaine. He was a 45-year-old first offender. Belleghem J. sentenced him to 12 years imprisonment, reduced to 10 years after credit was applied for pre-sentence custody;
(c) R. v. Buttazzoni, 2019 ONCA 645, where a 17-year sentence imposed on the offender for conspiring to import 112 kg of cocaine was reduced, on appeal, to 15 years;
(d) R. v. Chan, 2015 BCSC 418, where the offender was convicted of conspiring to import 147 kg of cocaine, 25 kg of which belonged to him. He was 44 years old and was, at the time of his conviction, already serving a 12-year sentence for conspiracy and possession of a scheduled substance for the purpose of trafficking. He was found to be reasonably high up in the conspiracy. A 10-year sentence was imposed, consecutive to the sentence Mr. Chan was already serving, which had another 5 years and 8 months to go. The gross sentence was therefore 15 years and 8 months, which was reduced to 12 years and 8 months based on the totality principle;
(e) R. v. Malanca (2007), 2007 ONCA 859, 88 O.R. (3d) 570 (Ont. C.A.), where the offender – a youthful, first-time offender – was convicted of conspiracy to import cocaine and importing 270 kg of cocaine. The cocaine was flown to a regional airport in Simcoe County from Jamaica. The trial judge sentenced the offender to life imprisonment. The sentence was reduced to 19 years on appeal;
(f) R. v. Niemi, [2008] O.J. No. 5830 (S.C.J.), affirmed, 2012 ONCA 133. Mr. Niemi was convicted of importing 593 kg of cocaine and 37 kg of hashish, which he piloted into the Lake Simcoe Regional Airport. He was a co-accused of Mr. Malanca. He was a 39-year-old, first-time offender. A sentence of 14 years imposed by the trial judge was upheld by the Court of Appeal;
(g) R. v. Lawson, [2005] O.J. No. 1484 (Ont. C.A.), where an 8-year sentence was imposed on the offender for conspiring to import cocaine into Canada by boat. It is unclear how much cocaine was involved. It was described only as a “large quantity”. The offender was described as an “active participant” in the conspiracy, but not a principal;
(h) R. v. Ruddy, 2021 ONCA 490, where a 10-year sentence for conspiring to import cocaine and breach of trust was imposed on a 37-year-old, first time offender, and upheld by the Court of Appeal. The convictions were the result of guilty pleas. The offender had abused his position as a Canada Border Service Agency officer to aid in the conspiracy, which was considered a serious aggravating factor. The amount of cocaine involved appears to have been roughly 5.5 kg; and
(i) R. v. Grant-Stewart, 2022 ONCA 801, where a sentence of 9 years, imposed on the offender on conviction for importing 48 kg cocaine and possessing it for the purpose of trafficking, was upheld by the Court of Appeal.
[25] Crown counsel accepts that Mr. Kesminas was not the top principal involved in the importation scheme but submits that he was instrumental in trying to come up with a means to make the scheme feasible. It must be remembered, the Crown says, that the scheme was to import a very substantial amount of cocaine – in the range of 300 to 500 kilograms. Mr. Kesminas remarked to a co-conspirator that he considered that amount to be “not much”.
[26] Defence counsel urged the court to impose a sentence considerably lower than that sought by the Crown. In his submission, each of the cases cited by the Crown is distinguishable in one way or another. Duncan and Ruddy, for instance, both involved significant breaches of trust.
[27] The most distinguishing factor, however, the defence says, is Mr. Kesminas’ limited involvement in the conspiracy. It consisted of one, relatively brief, conversation. He was not central to the operation. He was not proactive. He did not direct others. What role he would ultimately play in the importation, if any, was not clear. There was no evidence that he was otherwise involved in the drug trade, unlike some of the alleged co-conspirators. Moreover, he was arrested very shortly after this single conversation. He never had the opportunity of abandonment.
[28] Defence counsel also urged the court to give serious consideration to the issue of parity. Other parties convicted of similar offences in the course of Project Southam have received sentences substantially below that being sought against Mr. Kesminas. In comparison, the sentence sought here is neither fair nor proportionate in the defence submission.
Discussion
[29] The cases cited by the Crown make it apparent that the range of sentence applicable to offenders convicted of conspiring to import large amounts of cocaine into Canada is roughly 10 to 19 years. Code J. identified the range as 12-19 years in Duncan. The Court of Appeal appears to have tacitly approved of that range in Ruddy and perhaps signalled that the low end of the range was 10 years, given that they accepted that the 10-year sentence imposed on Mr. Ruddy was within the applicable range.
[30] Ranges are, of course, helpful, but appellate courts have repeatedly cautioned that they are only guidelines. They are not to be applied rigidly. Given the highly individualized nature of the sentencing process, there will always be cases that fall outside of the usual range – either above or below.
[31] Where any particular sentence is situated within or around a range generally turns on an assessment of the prevailing aggravating and mitigating circumstances of the case.
[32] Aggravating circumstances here include:
(a) The amount of cocaine involved is substantial, to say the least. RCMP Corporal Rodney MacIntyre testified as an expert in cocaine trafficking at trial. He said that, if sold at the kilogram level, a kilogram of cocaine would sell for between $36,000 and $50,000 in the Greater Toronto Area. Accordingly, 300 kg would be valued at between $10,800,000 and $15,000,000; and
(b) Cocaine is, as I have noted, a dangerous and insidious drug. Three hundred kilograms of it would contribute to a great deal of misery in communities across the GTA.
[33] Mitigating circumstances include:
(a) Mr. Kesminas played a minor role in the conspiracy. He was not a principal or leader. The evidence includes only one conversation he had with two of the principal parties to the conspiracy. Though I found that he knew what the conspiracy was and that he agreed to participate in it, his involvement was at a very early stage and was very limited;
(b) Mr. Kesminas is a family man with a wife and two sons, who he supports. He has the support of his family; and
(c) He has been subject to an interim release order and has demonstrated full compliance with it. It contained a number of conditions that significantly impacted on Mr. Kesminas’ liberty.
[34] Given the aggravating and mitigating circumstances, and in particular, the limited role that Mr. Kesminas played in the conspiracy, I would situate his sentence at the bottom of the applicable range of 10-19 years. Having said that, I must still consider the principle of parity.
[35] Mr. Kesminas was part of a five-person indictment along with Hans Lauro, Adam Luangphasi, Alexander Le, and Silvino DaSilva. The trials of Mr. Kesminas and Mr. Lauro were severed from the rest by order of Fraser J. on September 12, 2023. On November 16, 2023, the charges were stayed against Mr. DaSilva.
[36] Mr. Luangphasi and Mr. Le proceeded to trial before Fraser J. On February 23, 2024, Mr. Le was convicted of conspiracy to traffic cocaine between December 16, 2020 and May 11, 2021 as well as conspiracy to import 40 kg cocaine between May 19, 2021 and July 7, 2021. Mr. Luangphasi was convicted of those same two offences, plus conspiracy to import 300 kg of cocaine (the same conspiracy which led to Mr. Kesminas’ conviction).
[37] Mr. Luanghphasi and Mr. Le have not yet been sentenced. Crown counsel advises that they will be seeking a 19-year sentence against Mr. Luangphasi. I am not clear on what their proposal will be in terms of Mr. Le’s sentence.
[38] Mr. Lauro entered guilty pleas on February 27, 2024 before Charney J. to conspiracy to traffic cocaine, conspiracy to import cocaine (with Mr. Kesminas), mortgage fraud and trafficking in cocaine. I understood Crown counsel to have indicated that Mr. Lauro was sentenced to 6.5 years, including five years for introducing Mr. Kesminas to Mr. Luangphasi. Having reviewed the indictments involving Mr. Lauro, however, it appears that Mr. Lauro has not yet been sentenced. I expect that the Crown’s submission reflects the sentence being sought.
[39] There were a significant number of other individuals charged as a result of the Project Southam investigation. Several others have been convicted of various offences. They include:
• Jefferson Diaz Parra, who entered a guilty plea on January 9, 2023 to conspiring to traffic cocaine, producing cocaine, and mischief (using a cellular device with intent to wipe data). Mr. Diaz Parra was a first-time offender who agreed that he had received cocaine dissolved in carpets imported from Colombia. He extracted 1.7 kg of cocaine from one of those carpets. A global sentence of four years was imposed on a joint submission;
• Owen Vogleson, who entered a guilty plea on October 10, 2023 to one count of conspiring to import 36-60 kg of cocaine. This was a different conspiracy than the one Mr. Kesminas was involved in but there appears to have been some overlap between conspirators. Imposition of sentence has been delayed, apparently because of certain health issues faced by Mr. Vogleson. Crown counsel advised that they will be presenting a joint submission of 5 years and 9 months to the court;
• Adrian Butler, who was found guilty on December 12, 2023 of conspiring to traffic cocaine, producing cocaine, assault, and possession of fentanyl for the purpose of trafficking. He is scheduled to be sentenced on August 6, 2024; and
• Nathan Brown and Basil Dixon, who were found guilty on May 24, 2024 of conspiring to import cocaine. I believe this to be the same conspiracy Mr. Kesminas was involved in. A date has not yet been fixed for sentencing. Crown counsel advised that he will be seeking a similar sentence to the one sought for Mr. Kesminas. In my view, however, each of these individuals was significantly more involved in the conspiracy than was Mr. Kesminas.
[40] I am troubled by the notion of imposing a 15- to 16-year sentence against Mr. Kesminas when the Crown has made, or will make, joint submissions for sentences of 5 ¾ to 6 ½ years for Mr. Vogleson and Mr. Lauro.
[41] I am somewhat hamstrung because I do not know all of the facts and circumstances surrounding the proposed resolutions with respect to Messrs. Vogelson and Lauro. That said, from the evidence tendered in Mr. Kesminas’ trial, and from the counts Mr. Lauro entered guilty pleas to, he was, in my view, far more substantially entrenched in criminality than Mr. Kesminas was. The same is true, in my view, of Mr. Vogleson. The wiretap transcripts I reviewed support the conclusion that he played a more significant role in the scheme to import cocaine than did Mr. Kesminas. I understand that he entered a plea to conspiracy to import 36-60 kg of cocaine, which is less than that involved in the conspiracy Mr. Kesminas was convicted of being involved in. That said, 36-60 kg is still a substantial amount of cocaine.
[42] Mr. Kesminas had one recorded discussion with Mr. Luangphasi. I was satisfied that he agreed to participate in the scheme and that he engaged in a certain level of planning with Messrs. Luangphasi and Brown. But the planning was clearly at the preliminary stages. Mr. Kesminas’ involvement never got beyond that.
[43] Parity is a principle of fairness. See R. v. Downes, 2015 ONCA 674 at para. 10. It does not require that that all co-accused receive the same sentence, or even that they be treated similarly for sentencing purposes. See R. v. Courtney, 2012 ONCA 478 at para. 4. As LeBel J. explained in Ipeelee, at paras. 78-79, “similarity” is sometimes an elusive concept. No two offenders, he said, “will come before the court with the same background and experiences, having committed the same crime in the exact same circumstances.” What is important is that any disparity in sentences imposed on co-accused be justified.
[44] I recognize, of course, that Mr. Vogelson and Mr. Lauro each entered guilty pleas. There is generally significant mitigation associated with a guilty plea. Beyond that mitigating factor, it is difficult, on the record before me, to understand why Mr. Kesminas’ sentence should be substantially higher than the sentences imposed in those cases.
[45] Scheming to import 300 kg of cocaine is a serious offence. There is no doubt about that. The jurisprudence is clear that a conviction for conspiring to import that amount of cocaine into Canada attracts a significant penitentiary sentence. But given Mr. Kesminas’ limited role and the sentences imposed, or to be imposed, on some others arguably more deeply involved in the same or another similar scheme, my view is that a fit and just sentence for Mr. Kesminas is 8 years imprisonment, subject to mitigation for the impact of his pre-sentence bail conditions.
[46] Mr. Kesminas testified at the sentencing hearing that he has been subject to restrictive release conditions since his arrest in June 2021. He was required to wear an ankle monitor for the first 20 months of his release. The Crown subsequently agreed to remove that condition. The presence of the ankle monitor affected his ability to earn an income. He has also been subjected to a curfew that requires him to be in his home from 10:00 p.m. to 6:00 a.m. He has not been permitted to leave Ontario, or to come within 2 km of an international border.
[47] In R. v. Downes, [2006] O.J. No. 555, the Court of Appeal held that time spent under stringent bail conditions may be taken into account as a relevant mitigating circumstance on sentence. The extent to which pre-trial release conditions mitigate a sentence is in the discretion of the trial judge. There is no formula that must be followed.
[48] I appreciate that bail is not jail. Moreover, Mr. Kesminas has been able to continue to reside in his own home with his family. His release terms are not at the high end of stringent. That said, he has been subject to significant restraints on his liberty, including wearing an ankle bracelet for almost two years and being subject to a daily curfew for the past three years. His business interests and income have been significantly impacted as well.
[49] Taking into account the mitigating circumstances of Mr. Kesminas’ pre-sentence release conditions, I fix his sentence at 7 ½ years.
C. Boswell J.
Released: June 7, 2024
[^1]: This written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral and written versions, it is this official written Ruling that is to be relied upon.