R v Shivak, 2021 ABQB 72

Court of Queen’s Bench of Alberta Citation: R v Shivak, 2021 ABQB 72 Date: 20210129 Docket: 180262149Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Brady Michael Shivak Accused Restriction on Publication Witness Identity – See the Criminal Code ,

section 486.31 . By Court Order, the identity of HQ1445 must not be disclosed in the course of these proceedings. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Reasons for Sentence of the Honourable Mr. Justice W.N. Renke _______________________________________________________

[1] On October 8, 2020, following trial, I convicted Mr.

Shivak of 7 counts, all concerning conduct that occurred on or aboutMarch 2, 2018 at or near the City of Edmonton, Alberta: • Count 1, trafficking in property, a pick-up truck, of a value exceeding $5,000 knowing that all of that property was obtained by thecommission in Canada of an offence punishable by indictment contrary to s. 355.2 of the Criminal Code • Count 2, without lawful excuse, carrying a restricted firearm, a handgun, in a careless manner contrary to s. 86(1) of the CriminalCode • Count 3, possession of a firearm, a handgun, without being the holder of a license under which he may possess it, contrary to s.91(1) of the Criminal Code • Count 4, possession of a loaded restricted firearm not being the holder of an authorization or licence under which he may possessthe firearm in that place, contrary to s. 95(1)(

a) of the Criminal Code • Count 6, possession of a substance included in

Schedule 1, methamphetamine, for the purpose of trafficking contrary to s. 5(2) ofthe Controlled Drugs and Substances Act • Count 7, possession of a substance included in

Schedule 1, fentanyl, for the purpose of trafficking contrary to s. 5(2) of theControlled Drugs and Substances Act • Count 8, possession of a firearm while he was prohibited from doing so by reason of an order made pursuant to s. 109(3) of theCriminal Code, contrary to s. 117.01 of the Criminal Code.

On the application of the Crown, the conviction on count 3 is conditionally stayed pursuant to R v Kienapple, (SCC),[1975] 1 SCR 729. [2] After dealing with sentencing issues that are not in dispute, I will set out the sentencing positions of the Crown and Defence,briefly describe the general principles, objectives, and factors bearing on Mr. Shivak’s sentencing, briefly review the circumstances ofthe offences, and address Mr. Shivak’s personal factors bearing on sentencing. Then, in light of the foregoing, I will sentence Mr.

Shivakfor the remaining six counts. [3] My sentencing determinations relied on counsel’s submissions, an affidavit sworn by Mr. Shivak, and Mr. Shivak’sstatement pursuant to s. 726. There was no pre-sentence report. I. Issues Not in Dispute [4] The ancillary orders and Mr. Shivak’s pre-trial custody matters are not at issue. A. Ancillary Orders 1. Forfeiture [5] Items seized shall be forfeited to the Crown. 2. Prohibition Order under s. 109 [6] Under s. 109(3) of the Criminal Code Mr. Shivak is prohibited from possessing (

a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosivesubstance for life, and (

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. 3. DNA Order under s. 487.051(3) [7] I make a DNA order under s. 487.051(3) in form 5.04 authorizing the taking of samples of bodily substances from Mr.Shivak as required for the purpose of forensic DNA analysis. B. Time in Custody [8] Mr. Shivak has spent 978 days in pre-trial custody. [9] His period of pre-trial custody shall reduce his sentence in two ways. [10] First, pursuant to s. 719(3.1), credit for Mr.

Shivak’s time in custody should be calculated at one and one-half days for eachday spent in custody, for a total of 1,467 days. [11] Second, the Crown conceded that Mr. Shivak’s conditions of incarceration warranted further mitigation of his sentence. SinceMarch 2020, with the onset of the Covid pandemic, Mr. Shivak has spent significant time in lock-down. He was only able to leave hiscell 15 minutes per day over a 3-month period, and during partial lock-downs, time outside his cell was half of what it was prior to

March 2020. Further, Mr. Shivak has recently been diagnosed with MS. His incarceration has limited, but not prevented, treatment. He has also been subject to the particular stress of potential enhanced susceptibility to Covid because of his MS. Mr. Shivak, as he said, does not want to die in jail. The further mitigation relating to Mr. Shivak’s conditions of incarceration is at least 6 months. See R v Gordey , 2020 ABQB 425 , Gates J at paras 66 and 71. II. Sentencing Positions A.

Crown Position [ 12 ] The Crown organized the counts into three groups – count 1 concerning trafficking in the stolen pick-up truck, counts 2, 4, and 8 relating to possession of the firearm, and counts 6 and 7, concerning trafficking in methamphetamine and fentanyl. [ 13 ] For count 1, the Crown urged a sentence of 1 year imprisonment, consecutive to other counts. [ 14 ] For counts 2, 4, and 8, the Crown urged a sentence of 4 ½ years total, being 6 months for count 2, 4 ½ years for count 4, and 1 year for count 8, with each of those sentences being mutually concurrent, but all running consecutive to other counts. [ 15 ] For counts 6 and 7, the Crown urged a sentence of 11 years, consecutive to other counts.

Count 6 attracted a sentence of 4 years imprisonment, concurrent with a sentence of 11 years imprisonment for count 7. [ 16 ] The combined sentences would total 16 ½ years imprisonment. [ 17 ] The Crown proposed that a reduction be recognized for totality purposes, taking the net sentence to 12 to 14 years. [ 18 ] From the period of imprisonment set, as indicated, the time served at the 1.5 ratio plus the additional mitigating amount would be deducted. [ 19 ] The lengthiest period of imprisonment, 11 years for the drug trafficking, was based on the Crown’s contention that the trafficking should be characterized as “wholesale” trafficking not merely as commercial trafficking.

It therefore attracted a starting point of 9 years. [ 20 ] Mr. Shivak has a related record. There is no mitigation from a guilty plea. In the Crown’s submission, there were no other mitigating factors. B. Defence Position [ 21 ] The Defence accepted the “three group” approach to the counts. [ 22 ] The Defence accepted the 1 year consecutive sentence for count 1. [ 23 ] The Defence differed with the Crown in two ways respecting the firearms counts. [ 24 ] First, the Defence submitted that the fit sentence for the firearms counts was, altogether, 3 years, particularly because Mr.

Shivak has no record of convictions for firearms offences. [ 25 ] Second, the Defence contended that the sentences for the firearms counts should run concurrent to the trafficking sentences. [ 26 ] The Defence contended that the fit sentence for the trafficking counts was 5 years. [ 27 ] The Defence accepted that the trafficking was commercial but argued that it was not wholesale trafficking. [ 28 ] The Defence did not propose a totality reduction. [ 29 ] The Defence argued that Mr. Shivak did present significant mitigating factors, engaging rehabilitation as a penal objective. Mr.

Shivak’s statement supported the Defence contention. III. Sentencing Principles, Objectives, and Factors [ 30 ] By way of brief overview of the sentencing framework, s. 718 of the Criminal Code provides that sentences for offences are “to protect society and to contribute … 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 … objectives [listed in s. 718 ].” The objectives set out in s. 718 are as follows: (

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. [ 31 ] A “just sanction” is a proportionate sanction. Proportionality is the fundamental principle of sentencing: R v Hajar , 2016 ABCA 222 at para 136 ; R v Hamlyn , 2016 ABCA 127 at para 7 ; R v Safarzadeh-Markhali , 2016 SCC 14 at paras 70-71 . A proportionate sentence is “just” because the punishment “fits” the crime. The punishment must be neither excessive nor inadequate.

Proportionality ensures that the punishment is what the offender “deserves.” Proportionality has two dimensions, captured in s. 718.1 of the Criminal Code : A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 32 ] The “gravity of the offence” concerns what the offender did wrong: R v Arcand , 2010 ABCA 363 at para 57 . The “degree of responsibility” concerns the moral culpability of the offender in committing the offence.

That is, the “gravity” aspect focuses on the act and its consequences or on what was done and the “responsibility” aspect focuses on the actor, how the act was done, why the act was done, and by whom the act was done. [ 33 ] As s. 718.2(

a) directs, the assessment of the gravity of the offence and the degree of responsibility of the offender is informed by “any relevant aggravating or mitigating circumstances relating to the offence or the offender.” [ 34 ] Some pre-offence and post-offence factors considered in sentencing do not relate or do not relate directly to the offender’s degree of responsibility in committing the offence, but may nonetheless be relevant to the offender’s blameworthiness or to the objectives appropriate to the offender’s sentence or both. Pre-offence factors include an offender’s criminal record.

Post-offence factors include steps taken for rehabilitation and remorse. [ 35 ] A just sanction must be proportional, regardless of the objective or objectives served by the sanction. [ 36 ] Since the particular factors bearing on the gravity of the offence and degree of responsibility of the offender and on the sentencing objective or objectives that should be emphasized in sentencing will vary with particular offences and particular offenders, sentencing is individualized. [ 37 ] A sentencing judge must also take into account that (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders …. [ 38 ] On the issue of concurrent as opposed to consecutive sentences, s. 718.3(4)(

b) provides as follows:

(4) The court that sentences an accused shall consider directing (

b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively, including when (

i) the offences do not arise out of the same event or series of events .... IV. Circumstances of the Offences [ 39 ] In my reasons for conviction I provided a lengthy assessment of the evidence and facts relating to the offences, reported at 2020 ABQB 606 (Trial Decision). I rely on those reasons. In brief: [ 40 ] On March 2, 2018, Mr. Shivak was arrested near the Walmart on Stony Plain Road in Edmonton for trafficking in a stolen vehicle, a pickup truck.

He drove the truck to what he expected would be a meeting with a prospective purchaser of the vehicle but what turned out to be a meeting with a group of police officers. That Mr. Shivak committed this offence was clear. [ 41 ] Before his arrest, Mr. Shivak had dropped off a passenger at the Walmart. The passenger, Winter Alger, was also arrested.

She was wearing a backpack found to contain (among other things) • a stolen Beretta pistol, with a fully loaded magazine • 16.75 grams of fentanyl plus 7.8 grams of a heroin/fentanyl mixture • 4 gg of cocaine • 7.64 gg of methamphetamine • a digital scale with residue of fentanyl and other controlled substances • a black notebook containing four pages of score sheets.

[ 42 ] The fentanyl was in a commercial quantity. An expert testified that the price per gram of fentanyl, on the street, was (at the low end) about $280. The price could be as high as $400 per gram. At $280 per gram, the value of the fentanyl (plus the mixture) would be $6,874. I found that the quantity of methamphetamine in the backpack supported a finding of trafficking. [ 43 ] Mr. Shivak had a cellphone in his possession when he was arrested. The cellphone was subsequently searched under a search warrant and the contents of the cellphone were extracted. I declined to exclude the extracted records.

The records contained a substantial quantity of information concerning Mr. Shivak’s involvement with the trafficking of the stolen truck and with his involvement in drug trafficking. [ 44 ] On the basis of all the evidence, I found that Mr. Shivak possessed the relevant contents of the backpack and that he possessed those contents for the purposes of trafficking in the fentanyl and methamphetamine. Since the handgun was one of the items that I found that Mr. Shivak possessed, he was also responsible for committing the firearms offences. V. Pre- and Post-Offence Factors Applying to All the Offences A.

Evidence of Uncharged Offences [ 45 ] Evidence of uncharged offences relevant to the application of sentencing principles or objectives is, if the facts are established beyond a reasonable doubt, properly considered in sentencing. See R v Angelillo , 2006 SCC 55 , Charron J at paras 27, 30, 32. Elements of the evidence extracted from Mr. Shivak’s cellphone may be admissible in sentencing on this basis. B. No Guilty Plea [ 46 ] There is no mitigation from a guilty plea. Mr. Shivak was entitled to a trial, as was his constitutional right and certainly exercising that right is no aggravating factor. C.

Criminal Record [ 47 ] Mr. Shivak’s criminal record is relatively short, compared to many other offenders’ records.

Some offences have little bearing on his current charges: 2005 fail to appear, fail to attend court – 1 day each charge 2005 dangerous operation of a motor vehicle – 3 months and driving prohibition flight – 1 month consecutive fail to attend court, fail to comply with recognizance - $100 fine, 30 days respectively 2006 driving while disqualified - $500 fine 2008 fail to comply with recognizance – 15 days resisting arrest – 12 months concurrent fail to comply with undertaking – 12 months concurrent [ 48 ] Some early charges could relate to the stolen truck count: 2005 possession of property obtained by crime under $5000 - 1 count – 3 months plus probation; a second count, $300 fine.

These counts are sufficiently dated to have no weight in sentencing. [ 49 ] But some more recent charges do have a bearing on the drug trafficking counts: 2008 possession for the purpose of trafficking – 12 months concurrent possession of a scheduled substance (2 counts) – 12 months concurrent possession of a scheduled substance - $200 fine 2013 possession for the purpose of trafficking – 12 months consecutive trafficking in controlled substance, two counts – 12 months each, concurrent plus lifetime firearms prohibition 2016 possession of a scheduled substance - $1,000 fine

2018 possession of a controlled substance, 4 counts – time served (30 days) D. Personal Factors [ 50 ] Mr. Shivak is 38 years old. He was born in Edmonton but raised in Saskatchewan. He later lived in BC. [ 51 ] He left home early, at age 15. Essentially, his father kicked him out. [ 52 ] Mr. Shivak got a job with Victoria Tank Service. He held this job for 10 years. [ 53 ] He did well. He was able to purchase a home in Victoria which he still owns. [ 54 ] However, Mr. Shivak was caught at the intersection of two difficulties. He ran into money problems and he became addicted to methamphetamine.

He was associating with the wrong crowd, and all this led him to the sort of activity that put him in front of this Court. [ 55 ] Mr. Shivak had a family, but it broke up. He has two daughters, age 17 and 5. He is particularly close to his 17-year old daughter. They speak frequently, even while he has been in custody, at least to the extent that he has been able to make calls. He moved to Alberta so that he could be close to her. [ 56 ] Mr. Shivak has a strong relationship with his mother. She has kept in close contact with Defence counsel throughout these matters. Mr.

Shivak’s mother moved to Victoria to look after Mr. Shivak’s home. Even though she is in her retirement years, she got a job to make payments for the home. Mr. Shivak’s daughter won a scholarship to attend the University of Victoria. She will be staying in Mr. Shivak’s home in Victoria. [ 57 ] Mr. Shivak has not done any programming lately for his addiction problem, but he did complete a program in 2012 in connection with his sentence for an earlier offence. [ 58 ] Mr. Shivak has tried to do all the programs he has been able to at the ERC, given the limitations on programming there.

He has completed programs in relapse prevention, WHMIS (workplace hazardous materials information system), building services, transportation of dangerous goods, and private and public law. He passed the electrical apprentice entrance exam. [ 59 ] Mr. Shivak has already spent 978 days in custody. That is longer than any sentence he has ever received. [ 60 ] I note that this period of confinement has been a form of addiction treatment, since it has prevented access to drugs. [ 61 ] Mr. Shivak said in his statement, and I accept that he was sincere, that he is remorseful. He is sorry for what he has done.

He’s been sober for now two years. He wants to do now what he couldn’t do when he was in the grip of methamphetamine addiction. He wants to be a good father. [ 62 ] From the foregoing, I find that Mr. Shivak is remorseful, he has taken steps to rehabilitate himself, and he has strong support from his mother and older daughter. The period of pre-trial custody has served as a means of specific deterrence. VI. Sentences A.

Count 1: Trafficking in the Stolen Truck [ 63 ] The Defence did not dispute that 1 year imprisonment, consecutive, was appropriate for this offence. [ 64 ] I observe that this offence involved some sophistication and planning. The truck was acquired from BC. False registry information was obtained in Alberta. The truck was re-VIN’d in a manner, an expert testified, that would not have alerted a police officer untrained in auto theft. The false VIN put on the truck had some accurate characters. Several parties were involved in the re-VIN’ing, registration, and attempted sale of the truck.

I would have given consideration to a sentence for this offence longer than 1 year, but I will not depart from counsel’s mutual assessment of a fit sentence. B. Counts 2, 4, 8: Firearms Offences [ 65 ] Two issues must be addressed, the length of the sentences for these offences and whether the firearms offence sentences should be consecutive to or concurrent with the trafficking offences. The Crown and Defence accepted that the firearms offences would be concurrent with one another. [ 66 ] Mr. Shivak has no prior firearms offence convictions. 1.

Count 8: s. 117.01 Offence [ 67 ] In my opinion, count 8, the breach of the lifetime firearms prohibition offence under s. 117.01 must be distinguished from the other two firearms offences. Substantial authority supports the sentence for this offence being consecutive to other offences. See R v Hilbach , 2020 ABCA 332 at para 77 : [77]

Section 117.01 , Criminal Code concerns violation of a firearms prohibition. Typically, sentences run concurrently to one another

if they arise from the same circumstances. However, breach of a prohibition order is an exception to this rule as it is essentially acontempt of court order. As a result, the sentencing judge should have made the term of imprisonment on the breach offence consecutiveto the sentence imposed on the robbery offence, providing that the totality principle is not violated by the imposition of consecutivesentences: R v Martin, 2018 NLCA 12, para 25.

See also R v Hotchen, 2019 ABPC 226 at para 71, and the cases cited there by Judge Pharo. [68] The sentence for count 8, then, will be consecutive to sentences for other offences. [69] What is the fit sentence for the count 8 offence? [70] Mr. Shivak was fully aware of the prohibition order: Trial Decision at paras 506-507. [71] He has no prior weapons offences, though. He has one conviction approximating violation of a court order, the drive whiledisqualified conviction, but that is from over 14 years ago. [72] The evidence disclosed that he had at least one gun earlier, before the March 2018 events.

He engaged in numerousconversations respecting the acquisition of firearms, and indicated that he had provided firearms to others. He expressed a strongmotivation to acquire a firearm. See the discussion of the Firearms Evidence in the Trial Decision at paras 424-464. Mr. Shivak, whoknew about the firearms prohibition, conducted himself as if it did not exist.

I consider these matters, in the nature of admissions, to havebeen established beyond a reasonable doubt. [73] The s. 117.01 offence engages the objective of general deterrence, since individuals should be deterred from violating courtorders, and specific deterrence, since Mr. Shivak did not pay any regard to the prohibition. A one-year sentence was recognized in R vJohnsrud, 2014 ABCA 395 and Hotchen at para 75. [74] In my opinion, the one-year period of imprisonment urged for this offence is appropriate. 2.

Count 2 s. 86(1), Carry in a Careless Manner [75] The count 2 offence is dealt with at paras 518-536 of the Trial Decision. [76] The Defence conceded that carrying a loaded firearm in a backpack in a Walmart on a Friday afternoon was carrying in a“careless manner:” Trial Decision at para 534. Ms. Alger had the backpack that contained the firearm. I found, though, that Mr. Shivakwas a party to the offence. The firearm was his. She only obtained possession of it when it was put in the backpack. He sent her intoWalmart, where she was to wait for him while he did business respecting the truck. As the Crown said, Mr.

Shivak “literally left Ms.Alger holding the bag:” Trial Decision at para 535. [77] The carrying in a careless manner was not part of the drug trafficking. This offence concerned taking the firearm into a publicplace and the risks to the public that were created. In my opinion, the sentence for this offence must be served consecutively to thesentences for other offences.

The circumstances were unlike, for example, a firearm being stored carelessly at the place where drugs arebeing stored or trafficking business is transacted or in the vehicle transporting drugs bound for trafficking. [78] In my opinion, the 6 month sentence urged by the Crown is appropriate for this offence. 3.

Count 4: s. 95(1)(a), Knowing Possession of a Loaded Restricted Firearm without Authorization orLicence [79] The Crown had urged a sentence of 4 ½ years for this offence. [80] See paras 495-502 of the Trial Decision. [81] R v Bedi, 2015 ABCA 361 suggested at para 12 that this offence, even if committed in the context of a trafficking offence,should be sentenced consecutively: [12] The distinct offences of drug trafficking and possession of a prohibited or restricted weapon, even if for the purpose of furtheringthe trafficking enterprise, invade different legally protected interests.

In the case of possession of a restricted or prohibited weapon, theCriminal Code provisions are directed at the “potential danger that the possession of such weapons represent to the public, and theconsequent necessity for their control”: R v Auerswald, (ON CA), [1975] OJ No 1258 at para 6, 28 CCC (2d) 177(CA). [82] However s. 10(2)(a)(

i) of the CDSA provides that aggravating factors include, in relation to the commission of the offence,that an accused “carried, used or threatened to use a weapon.” [83] If the possession of a weapon must be considered as an aggravating factor for the possession for the purpose offences, then itshould not receive a separate consecutive sentence. That would be a form of double-counting. [84] One approach would be to make the weapon offence sentence concurrent with the trafficking sentences.

See, e.g, R v Rider,2013 MBQB 116, Mainella J at para 49: [49] In my view, the criminal activity here of “drugs and guns” is sufficiently interrelated to form part of one single, continuouscriminal transaction. The same drug trafficking syndicate was using the accused’s basement suite to stash drugs, guns, and proceeds ofcrime. The accused was paid for his services in running the stash house. The guns that were stockpiled in the accused’s basement werenot for criminal activity separate and apart from the drugs such as robberies; they were connected to cocaine trafficking. Accordingly, in

my view, concurrent sentences are called for; there is no reason to depart from the general rule of concurrent sentences for multiple interrelated crimes. See R. v. Wozny (C.P.) , 2010 MBCA 115 , 262 Man. R. (2d) 75 at para. 46 (C.A.). [ 85 ] The best way through this issue is to follow R v Dyck , 2020 ABCA 412 at para 33 : [33] We confirm that double counting, where one factor is used as an aggravating factor in one offence and is then sentenced separately and consecutively, by itself, is inappropriate.

We also confirm, however, that such double counting only has validity if the net effect is to result in an excessive total sentence .... Any problems which may have arisen as a result of double counting in the present case were effectively subsumed within the reduction of sentence of 16 years to 11 years by application of the totality principle. The Alberta approach appears to align with the BC approach. See, e.g., R v Swales , 2016 BCCA 502 at para 14 : [14] In his statement, Mr. Swales cites R. v.

Borecky , 2013 BCCA 163 , 298 C.C.C. (3d) 180, as standing for the proposition that, as a matter of principle, concurrent sentences are to be imposed on an offender who commits related drug and weapons offences. However, in oral argument Mr. Swales accepted that Borecky stands only for the proposition that a sentencing judge is not required to impose consecutive sentences in all cases in which an offender is convicted of both drug and weapons offences.

Borecky affirms the long- standing principle that whether to order sentences to be served consecutive or concurrent is a matter within a sentencing judge’s discretion. However, when consecutive sentences are imposed the judge must have regard to the totality principle, to ensure that the aggregate sentence is commensurate with the offender’s overall culpability. This is what the sentencing judge did here and it cannot be said he erred in taking that approach.

That is, because of the different interests affected by the weapons and trafficking offences, the sentences for these offences should run consecutively (respecting Bedi ). But if the global sentence is excessive, it may be reduced through the application of the totality principle ( Dyck , Swales ). [ 86 ] I shall follow what I understand to be the Alberta approach. The sentence for the s. 95 offence, then, shall be consecutive to the possession for the purpose of trafficking offences. [ 87 ] The gravity of the offence is high.

Possession of a loaded handgun entails risks of injury or death, whether caused intentionally or accidentally. The degree of responsibility for this offence is high. The offence requires knowledge and intention for possession, knowledge of the restricted nature of the firearm, and knowledge that it is loaded. Further, the firearm is a tool used for the purposes of facilitating a drug trafficking business. This offence calls for denunciation and deterrence. Individuals must be deterred from arming themselves to carry on illegal businesses.

The intentional wrongdoing inherent in this conduct should be denounced. [ 88 ] I find that a sentence of 3 years imprisonment for this offence is appropriate: see R v Parranto , 2019 ABCA 457 para 59 . 4. Total for Firearms Offences [ 89 ] I have reached a similar result to the result proposed by the Crown. The total period of imprisonment for the firearms offences is 4 ½ years, calculated as 1 year for count 8 plus 6 months for count 2 plus 3 years for count 4. C. Counts 6 and 7: Possession for the Purpose of Trafficking [ 90 ] Two issues must be determined.

The first is whether the Crown has established that Mr. Shivak’s possession for the purpose of trafficking was on the wholesale level or only on the commercial level. The second is the appropriate sentence for each offence, based on that determination. [ 91 ] The Crown rightly recognized that the sentences for the two possession for the purpose offences would be concurrent to each other: R v Felix , 2019 ABCA 458 , Antonio JA at para 81. 1. Wholesale vs.

Commercial [ 92 ] In Parranto at para 45 , Justice Watson stated that “The essence of ‘wholesaling’ is to acquire drugs in quantity and to distribute them to commercial dealers for further dissemination.” [ 93 ] In Felix , Justice Antonio set out some indicators of the wholesale level of trafficking: • amount – sale of a large amount of one or more drugs: paras 2, 52, 55 • scope of distribution – wide-scale distribution: para 59 • purpose of distribution – selling for resale: para 59 • control of distribution – directing activities of others: paras 59, 63 • role of offender – directing activities of others, handling wholesale amounts, handling proceeds, supporting the “organization.” [ 94 ] At para 62, Justice Antonio also identified some aggravating factors for individuals at the wholesale level, associated with being at a “higher rank of the organization:” • directing wholesale-scale employees • setting up or controlling supply chains and distribution methods

• establishing infrastructure, e.g. stash houses, security. Being an importer or manufacturer would also be aggravating factors: see Parranto at para 44 . [ 95 ] Was Mr. Shivak at the “wholesaling” level? [ 96 ] On the one hand, it was clear that his role was not purely retail. He was not a street-level dealer. He had “runners” doing sales to consumers. [ 97 ] On the other hand, he did not direct individuals above the “runner” level. The evidence did not show that he set up or established supply chains and distribution methods, as opposed to simply using supply chains and distribution methods. [ 98 ] Mr.

Shivak’s subordinated status was confirmed in in his conversations with the person at 236-333-6499: Trial Decision at para 363. He made numerous references to his “boss” as well. [ 99 ] Justice Antonio, though, had included at the wholesale level those who were at “the next tier,” those who “directed the activities of others, or who directly handled the wholesale amounts of drugs or their proceeds:” Felix at para 63 . [ 100 ] The amount of fentanyl found in Mr. Shivak’s possession was significant. It was in a commercial quantity (from the Trial Decision): [274] .... Cpl.

MacMillan testified that the price per gram of fentanyl, on the street, was (at the low end) about $280. The price could be as high as $400 per gram. At $280 per gram, the value of the fentanyl (plus the mixture) would be $6,874. [275] The greater the quantity purchased, the lower the price. Cpl. MacMillan testified that for an ounce or 28 grams of fentanyl, slightly more than the 24.55 grams found in this case, the price would be between $4,500 to $6,000. [276] Fentanyl is typically consumed in “points” or 1/10 of a gram.

Usually the amount sold on the street is shorted, so the purchaser gets only about .68 grams for the price of a gram. On a points basis, without shorting, the 24.55 grams found in this case, would yield 245 doses. [ 101 ] The condition of the fentanyl suggested that it was not for retail sale: [278] .... Some of the fentanyl, the 14.75 gram amount, was in a large lump, not suitable for individual use or sale without being broken down and properly packaged. It suggested trafficking. The 7.8 gram amount too was not ready for retail sale.

It suggested trafficking as well. [ 102 ] Drug sale proceeds in excess of what could be expected to be earned by a street-level runner were in evidence in the score sheets found in the backpack: [282] Cpl. MacMillan considered the amounts owing to be significant. The amounts were in the thousands of dollars. BJ’s balance ended up at $3,910, Joel’s at $6,700, and 2800’s at $1,400. These were not amounts that would be associated with a mere drug user or a street level retailer.

The inscriptions not only show that the person keeping the records was owed significant amounts, relating to the supply of significant amounts of drugs, but was in a position to hold the debt, to carry it. The person keeping the records had to be earning enough to carry the balances. In Cpl. MacMillan’s opinion, the score sheets were for a person who was higher in the drug distribution hierarchy than a user or a drug runner, a retailer of drugs to users. [ 103 ] The cellphone evidence established beyond a reasonable doubt that Mr.

Shivak was involved in providing an array of drugs to his runners for sale - powder and hard/crack cocaine, methamphetamine, fentanyl and heroin: Trial Decision at para 365. [ 104 ] The cellphone evidence established beyond a reasonable doubt that Mr. Shivak engaged in a large number of drug transactions. Deals were occurring on a weekly if not daily basis: Trial Decision at para 370. Mr. Shivak supported himself through his criminal lifestyle.

There was no evidence that during the material times he had any legitimate employment: Trial Decision at para 369. [ 105 ] The cellphone evidence established beyond a reasonable doubt that Mr. Shivak did not retail drugs to consumers, but distributed drugs to “runners,” persons who would retail the drugs. By my count, some 16 such runners were referred to in the cellphone evidence: Trial Decision at para 356. He carried on business in Alberta and British Columbia, particularly on Vancouver Island: Trial Decision at para 364. [ 106 ] An aspect of Mr.

Shivak’s business involved extending credit or financing to runners. They could receive product and pay Mr. Shivak after sales. The extension of credit, taking drugs now but paying later, was known as “cuffing”: Trial Decision at para 359. [ 107 ] I wrote at para 362 of the Trial Decision that Describing Mr. Shivak as a “mid-level” trafficker does not rely on an assumption of some rigid drug distribution organizational hierarchy. As seen respecting Mr. Mongeon and the sale of the Truck, an associate who in some contexts may be subordinate may have more authority in a particular area of expertise. Further, Mr.

Shivak appeared to engage in lateral transactions, with individuals with similar status or stature, as indicated by his discussions with Richdragon on February 20 and 25. [ 108 ] In my opinion, when all these indicators are taken together, the inescapable conclusion, the conclusion I reach beyond a reasonable doubt, is that Mr. Shivak fell within the wholesale level, as that category has been established by the Court of Appeal in Felix . 2. Count 7: Fentanyl

[ 109 ] Felix establishes a starting point of 9 years for fentanyl trafficking at the wholesale level: at para 2, 71. The starting point presumes an offender who has no criminal record and is of prior good character, and who has been found guilty after trial. It applies to trafficking, or possession for the purpose of trafficking, of fentanyl and its analogues: at para 45, 76. [ 110 ] This starting point serves the objectives of denunciation and deterrence.

In Felix at para 66 , Justice Antonio wrote that [66] As for all drug trafficking, particularly where there is any degree of sophistication, primacy must be given to denunciation and deterrence. Participation in a trafficking network is a calculated decision, premised on the ability to reap gains that outweigh any costs. This is precisely the type of crime for which deterrence may be most effective. [ 111 ] Mr. Shivak has a related record.

The information about his criminal activities proves that he is not “of good character.” He supported himself through criminal activity, largely through drug dealing. [ 112 ] An aggravating factor bearing on this count, established beyond a reasonable doubt, is that Mr. Shivak possessed a weapon for the purposes of protecting himself as a drug dealer. [ 113 ] The 9-year starting point sentence, increased to take into account Mr. Shivak’s record and lack of good character and the aggravating factor of the firearm reaches the 11 year sentence proposed by the Crown. 3.

Count 6: Methamphetamine [ 114 ] Wholesale trafficking in cocaine attracts a four and a half year starting point: R v Chung , 1999 ABCA 86 ; R v Honish , 1989 ABCA 228 ; R v Ma , 2003 ABCA 220 : Felix at para 42 . The starting point for wholesale trafficking in methamphetamine should track the starting point for wholesale trafficking in cocaine: see R v Figiel , 2015 ABCA 19 at para 5 . This starting point assumes no criminal record and prior good character: Honish at paras 3 and 4 . [ 115 ] I found that the quantity of methamphetamine in the backpack was in commercial quantities.

The cellphone evidence also established that Mr. Shivak trafficked in methamphetamine. [ 116 ] Again, this starting point serves denunciation and deterrence. And again, Mr. Shivak has a related criminal record, lacks the “good character” assumed by the starting point, and his blameworthiness is enhanced by his possession of a firearm to support his work as a drug dealer. [ 117 ] The Crown referred to a sentence of 4 years imprisonment for this offence.

That is slightly below the starting point, but I accept that sentence. [ 118 ] In any event, the sentence for the methamphetamine trafficking is concurrent to the sentence for the fentanyl trafficking. D. Totality 1. Total Sentence [ 119 ] The total sentence is 16.5 years, 1 year for count 1, 4.5 years for counts 2, 4, and 8, and 11 years for counts 6 and 7. 2. Totality Reduction [ 120 ] The Crown contemplated a reduction of sentence based on the totality principle taking a total sentence of 16 ½ years to 12-14 years imprisonment. [ 121 ] In my opinion, the totality review should take into account two issues.

First, the length of of the total sentence caused by the count 4 being set as a consecutive sentence to the sentences for counts 6 and 7. Second, a more global perspective on the total sentence, with particular regard to the personal factors urged by Mr. Shivak and Defence counsel. I follow the lead of Justice Graesser in Dyck at para 13 . I must avoid imposing what Mr. Shivak would experience as a “crushing sentence.” [ 122 ] I have taken into account in the totality assessment Mr. Shivak’s remorse, the steps he has taken while imprisoned to rehabilitate himself, to learn and ready himself for release.

I have taken into account the strong support he has from his mother and daughter. I have taken into account that Mr. Shivak has been sober for 2 years and now wants most of all to be a good father. Mr. Shivak had been on a rough road, but he has been doing what he can to turn his life around. [ 123 ] While Mr. Shivak has struggled with addiction, the evidence did not disclose that his trafficking activities were motivated or induced by addiction, as opposed (e.g.) to the desire to earn money.

The Court of Appeal stated in R v Godfrey , 2018 ABCA 369 at para 16 that “[t]he connection of the crime to addiction is not significantly mitigating.” What I did consider mitigating were the steps Mr. Shivak has taken to operationalize his remorse and to improve his condition while he has been incarcerated. [ 124 ] In my opinion, to avoid double-counting of the firearm possession as a s. 95 offence and as an aggravating factor for the possession for the purpose of trafficking offences, and to give due credit to Mr.

Shivak’s personal mitigating factors, a deduction of 4 years should be made from the total sentence, bringing the total sentence to 12.5 years. E. Sentences [ 125 ] I therefore sentence Mr. Shivak as follows:

[ 126 ] For Count 1, trafficking in property, a pick-up truck, of a value exceeding $5,000 knowing that all of that property was obtained by the commission in Canada of an offence punishable by indictment contrary to s. 355.2 of the Criminal Code , I sentence you to 1 year imprisonment, consecutive to the sentences for the other counts. [ 127 ] For Count 2, without lawful excuse, carrying a restricted firearm, a handgun, in a careless manner contrary to s. 86(1) of the Criminal Code , I sentence you to 6 months imprisonment, consecutive to the sentences for the other counts. [ 128 ] For Count 4, possession of a loaded restricted firearm not being the holder of an authorization or licence under which he may possess the firearm in that place, contrary to s. 95(1) (

a) of the Criminal Code , I sentence you to 1 year imprisonment, consecutive to the sentences for the other counts. [ 129 ] For Count 6, possession of a substance included in

Schedule 1, methamphetamine, for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act , I sentence you to 4 years imprisonment, consecutive to the sentences for the other counts, but concurrent with the sentence for count 7. [ 130 ] For Count 7, possession of a substance included in

Schedule 1, fentanyl, for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act , I sentence you to 9 years imprisonment, consecutive to the sentences for the other counts, but concurrent with the sentence for count 6. [ 131 ] For Count 8, possession of a firearm while he was prohibited from doing so by reason of an order made pursuant to s. 109(3) of the Criminal Code , contrary to s. 117.01 of the Criminal Code , I sentence you to 1 year imprisonment, consecutive to the sentences for the other counts. [ 132 ] Mr.

Shivak shall receive credit for 978 days spent in pre-trial custody, at the ratio of 1.5:1, for a deduction of 1,467 days from his total sentence. [ 133 ] Mr. Shivak shall receive credit for the adverse conditions of his imprisonment during Covid and in connection with his recent medical diagnosis, for a deduction of a further 210 days from his total sentence. [ 134 ] I make a Prohibition Order under s. 109(3) of the Criminal Code , whereby Mr. Shivak is prohibited from possessing (

a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for life, and (

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 135 ] I make a DNA order under s. 487.051(3) in form 5.04 authorizing the taking of samples of bodily substances from Mr. Shivak as required for the purpose of forensic DNA analysis. [ 136 ] All items seized shall be forfeited to the Crown. Heard on the 25 th day of January, 2021. Delivered on the 26 th day of January, 2021. Dated at the City of Edmonton, Alberta this 29 th day of January, 2021. W.N. Renke J.C.Q.B.A. Appearances: Jared Bialowas Director of Public Prosecutions for the Crown Lisa Trach

Trach Law for the Accused