R. v. Homeniuk Date:, 2011 BCPC 114

Citation: R. v. Homeniuk Date: 20110127 2011 BCPC 0114 File No: 175068-3-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SOMMER HOMENIUK ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: L. Winn Counsel for the Defendant: J. Douglas Place of Hearing: Surrey , B.C. Dates of Hearing: November 27, 30, December 4, 2009; March 1, 24, 25, May 21, Dates of Hearing: June 9, September 28, 29, 2010; January 20, 2011 Date of Judgment: January 27, 2011 [ 1 ] THE COURT : Sommer Homeniuk has pled guilty on Information 175068-3-C to four counterfeiting-related offences.

Count 4 states that on May 12th of 2009 she uttered counterfeit money at Joe's Farm Market in Surrey, contrary to

Section 452(a). Count 5 is that on May 13, 2009, she uttered counterfeit money at Studio Trends Hair & Tanning Ltd., contrary to the same section. Count 6, that on May 13th of 2009, that she uttered counterfeit money at Canada Safeway, contrary to that section. Count 7 states that on June 7th, 2009 she had possession of counterfeit American currency, contrary to

Section 450 (

b) of the Criminal Code . [ 2 ] These are all indictable offences. The maximum penalty is 14 years incarceration. The Crown is seeking a conventional jail sentence for Ms. Homeniuk in the range of 12 to 24 months. The defence is seeking a conditional discharge or a suspended sentence with probation, but if a custodial sentence is to be imposed, that it be a conditional sentence order in the range of two to three months. [ 3 ] The Integrated Counterfeit Enforcement Team of the RCMP began an investigation in August of 2008 of a counterfeiting operation which led to the charges against Ms.

Homeniuk and two others, Jesko Lindt, Ms. Homeniuk's common-law partner at the time, and Richard Thomas McGaw. That investigation included surveillance that revealed a significant counterfeiting operation underway based at the Surrey residence of Mr. Lindt and Ms. Homeniuk, located on 151B Street in Surrey.

[4] On surveillance of Ms. Homeniuk on May 12th and 13th of 2009 the charges in Counts 4 and 5 arise. She was observed to passcounterfeit $50 notes at Joe's Farm Market and at Studio Trends in exchange for small value products and legitimate currency as change. She tried the same at a Safeway store in respect to Count 6, but the note was detected. She was followed home by the surveillance team. She knew that she was being followed and she fled into the house. She was pursued by police and she was arrested there. Mr.

Lindt washome and he was arrested. [5] A relatively sophisticated counterfeiting operation involving computers, printers, and other paraphernalia, was found in the homeand ultimately seized in the execution of a search warrant the following day. Subsequently, in respect of Count 7, Ms. Homeniuk wasfound in possession of one U.S. counterfeit $50 note. [6] On May 13th of 2009, Mr. McGaw was surveilled from the residence with a package in his possession and he was arrested.

Hewas arrested in a vehicle in which he was a passenger, and in which over $70,000 in counterfeit U.S. currency was found, which waslinked by fingerprints of Mr. McGaw and Mr. Lindt, and by serial numbers, to the counterfeiting operation at the Lindt/Homeniukresidence. Seizures at the residence placed the total amount of counterfeit U.S. and Canadian $50 and $100 notes at about $220,000. [7] On an earlier date, Mr. McGaw was sentenced for his involvement and he received an effective 36-month jail sentence by way ofthe joint submission.

He had a considerable record and a past conviction for a counterfeiting offence. [8] Mr. Lindt has pled guilty to charges of making counterfeit money, possessing instruments to make counterfeit money, andpossession of counterfeit currency, and he will be sentenced at a later date. [9] This places Ms. Homeniuk's offences in some context relative to the greater counterfeiting scheme that was underway.

Althoughthat counterfeiting was relatively sophisticated and involved currency production, at least of the quantities seized on these dates, andpossibly more, as there is no sign that this was other than an ongoing operation, Ms. Homeniuk's role in this operation, based on theevidence before the court, is much less than the co-accused. [10] A victim impact statement has been filed by way of an affidavit of Farhad Salji who is a currency analyst with the Bank ofCanada. He monitors developments relating to currency and counterfeiting.

In addressing its responsibilities to promote the economicand financial welfare of this country, the Bank of Canada is responsible for issuing quality bank notes which are readily accepted andsecure against counterfeiting. With the arrival of higher quality computers and printers, the number of counterfeit notes passed annuallyin Canada has increased significantly. Achieving consistently low levels of counterfeiting is critical to maintaining confidence in thecurrency. Widespread counterfeiting has the potential to significantly impact the Canadian economy. [11] In his affidavit Mr.

Salji points out by way of example the implications for the currency if large-scale counterfeiting occurs in aparticular area, and the resulting reluctance of merchants to accept bank notes in order to ensure that they are not left without properpayment. [12] Mr. Salji pointed out that businesses operating on narrow margins, like grocers, stand to lose significantly when counterfeit notesare passed, and ultimately the consumer will pay higher costs as a result. Mr. Salji also stated that the Bank of Canada and policingagencies devote significant resources to respond to the growth in counterfeiting.

It is evident from his affidavit that maintaining theintegrity of the Canadian bank note against rampant degradation and its ready acceptance is a significant concern for the Bank ofCanada. The prevalence of and easy access to American currency in Canada, and its generally ready acceptance here justifies similarconcerns in respect to American currency. [13] This places in some context the significance of counterfeiting offences committed in Canada and in this community.

As a result,the courts have recognized the importance of deterrence, both general and specific, and denunciation, as significant sentencing principlesin addressing counterfeiting offences. [14] The Court of Appeal of this province in a case called R. v. Le in 1993 upheld a nine-month sentence of incarceration in respect toa 30-year-old first offender who had 24 $100 counterfeit notes in his possession and passed 11 or 12 notes.

At paragraph 6, in upholdingthe sentence, the Chief Justice stated: Counterfeiting is an offence for which, in my view, deterrence is a far more important factor than it is for any other offence. It requirespremeditation and planning, and is driven entirely by greed. (R. v.

Le (BC CA), 1993 22 BCAC 27) [15] An Alberta Provincial Court decision in a case called Christopherson, which was provided by the Crown, sets out similarconcerns and points out, as well, that printers and others in lead roles in these operations generally will be sentenced more severely thanthose who merely distribute the items involved. (R. v. Christopherson 2002 ABPC 173) [16] In determining a fit sentence in respect to Ms. Homeniuk, I have in mind the objectives and principles of sentencing which are setout in Sections 718 to 718.2 of the Criminal Code.

Those objectives, in addition to denunciation and deterrence, include consideration ofrehabilitation and restorative principles. I must impose a sentence which is proportionate to the gravity of the offence and the degree ofresponsibility of the offender. I must consider aggravating and mitigating factors. All available sanctions other than imprisonment thatare reasonable must be considered.

An offender should not be deprived of liberty if less restrictive sanctions are available. [17] These considerations emphasize that sentencing is an individual process which acknowledges the significant need to deter peoplefrom committing counterfeiting offences while balancing the particular circumstances of the offence and the offender. [18] I have reviewed the pre-sentence report in respect to Ms. Homeniuk. She is 29 years of age. She has no previous criminalhistory. She is the mother of six children ranging in age from one year to 11 years. Only her youngest child, whose father is Mr. Lindt,

resides with her currently. [ 19 ] The pre-sentence report describes a troubled childhood. Ms. Homeniuk's mother was involved in drug dealing. She reports experiencing violence, abuse and neglect. She was diagnosed with ADHD at the age of 18. She lacked parental support and guidance and became pregnant at a young age. Her schooling is limited, and she has a very limited work history. Ms. Homeniuk is currently unemployed. She began using crystal meth and crack cocaine as a young teenager. She has had periods of abstinence. She has attempted counselling programs in the past.

She is currently attending with a mental health and addictions worker at the Surrey Mental Health and Addictions Clinic. [ 20 ] In the pre-sentence report Ms. Homeniuk stated that she became involved in these offences because she was in a relationship with Mr. Lindt and had no income and was using illicit drugs. [ 21 ] Mr. Douglas, in his submissions, has emphasized this background; he has pointed out that Ms. Homeniuk has been anxious to plead guilty from an early point in what has been a relatively long preliminary inquiry process, subject to a resolution of certain issues with the Crown.

She is working to rehabilitate herself, as pointed out in a letter which has been filed confirming her addiction counselling. She's been taking this through, as I indicated, an agency, and a letter is provided by the Fraser Health Group. That letter points out the added challenges Ms. Homeniuk faces and is addressing as a result of ADD/ADHD diagnoses. [ 22 ] Mr. Douglas has argued for a conditional discharge or a suspended sentence with probation for Ms. Homeniuk, or in the alternative, a short conditional sentence order.

When considering a discharge I have to consider whether it is in the interests of the offender and not contrary to the community interest that she be discharged. A conditional sentence order is also open for consideration in this case.

There is no minimum sentence of imprisonment, and I would not, in any event, impose a sentence of two years imprisonment or more. [ 23 ] The issues in respect to a conditional sentence order then require consideration as to whether sentencing of this offender to serve a sentence in the community under appropriate conditions would endanger the safety of the community, and further, whether such a sentence is consistent with the purpose and principles of sentencing mentioned earlier. [ 24 ] There is no evidence that Ms.

Homeniuk was the leader in this operation, or a directing mind, or had any particular skill or training that was applied to this operation. Her role was minor. Although no cases were presented in which offences of uttering led to a conditional sentence order, I note that the Ontario Court of Appeal in the case of R. v. Ijam 2007 ONCA 597 , converted a conventional jail sentence of 21 months to a conditional sentence order of the same duration on more serious charges of possessing proceeds of crime, possessing instruments of forgery, and production of counterfeit currency.

I take from this that there are circumstances in which the concern for deterrence on offences such as those Ms. Homeniuk has pled to when compelling mitigation is present, as it was in Ijam , can lead to a conditional sentence order. [ 25 ] The Crown has brought to my attention two additional cases for consideration in respect to Ms. Homeniuk. R. v. Rafuse, [2004] SKCA 161 is a case in the Saskatchewan Court of Appeal in which that court reduced a 12-month sentence of conventional jail to six months in respect to a 21-year-old person found with five counterfeit $100 notes in his wallet.

He was aware that the driver of the vehicle that he was in was in possession of a further quantity of counterfeit bills, but he did not know that the amount totalled $10,000. He gave a false name and stuck to that false name until confronted with his real identity, confirmed by fingerprints. [ 26 ] That case points out the importance of individual circumstances of the offence and the offender in determining a fit sentence. The court said that the sentence imposed at trial was demonstrably unfit at 12 months, despite the offender's lengthy record.

A six- month consecutive sentence for impersonation was also imposed. A lengthy criminal history likely excluded the conditional sentence order from consideration in that case. [ 27 ] I do not find the case of R. v. Bernstein, [1988] BCJ 1180 which was provided by the Crown and which is a British Columbia case, to be particularly helpful. That case involved a 25-year-old offender with no record, who uttered a counterfeit $20 note, and who had 11 others in his possession. The Court of Appeal refused to vary a six-month sentence. The court noted particularly his continuing lack of remorse.

The decision predates the availability of conditional sentence orders. [ 28 ] At age 28 at the time of these offences, and 29 years of age today, Ms. Homeniuk is still relatively young. She has no other court history. She has entered a plea of guilty. She is currently parenting her one-year-old son. I take account of her troubled childhood, and diagnoses, and challenges that she currently faces. Her pre-sentence report is generally positive. Her role in this counterfeiting operation was minor on the evidence before me.

She passed, or attempted to pass, three notes based on the pleas entered, and she had one other in her possession. She lived with Mr. Lindt, who was a significant player in the scheme, but beyond that there is no evidence that she assumed any directing role. [ 29 ] In these circumstances, her specific deterrence is not a significant sentencing objective. Her ongoing rehabilitation can be achieved in the community. General deterrence and denunciation in her case can be addressed through a community-based sentence. Conventional jail is not required. [ 30 ] I have considered whether a discharge is appropriate.

I have determined that to do so would be contrary to the community interests because it does not provide in these circumstances an adequate statement of deterrence and denunciation. Although Ms. Homeniuk's role was relatively minor, the offences were committed in the context of a relatively sophisticated counterfeiting operation being carried on from her home on a going concern basis. [ 31 ] In my view, a conditional sentence order followed by probation reflects the concerns described by other courts for offences like this, while at the same time balancing Ms.

Homeniuk's particular circumstances and the steps that she is taking towards her own rehabilitation. The conditional sentence order, in my view, does not need to be lengthy. [ 32 ] Ms. Homeniuk, would you stand up, please. On all of these charges concurrent I impose a conditional sentence order for a period of three months, to be followed by a probation order for 15 months.

[ 33 ] The conditions of the conditional sentence order will be the following; that the statutory conditions apply. In addition to that, you are to keep the peace and be of good behaviour. You must report to a conditional sentence supervisor before 12 noon tomorrow, which is January the 28th, 2011, and thereafter you are to report as directed by the supervisor. [ 34 ] You will reside where directed by the supervisor. You are not to change that address without the prior approval of the supervisor. During the term of the conditional sentence order you will be bound by a house arrest condition.

You are not to be outside of your place of residence, except in the following circumstances: To attend court when required to do so; to attend to your legal counsel; to attend to your supervisor's office; to attend to any employment or educational or vocational program as directed by your supervisor; to attend to any medical or dental appointment for yourself or your child residing with you, having advised your supervisor in advance of the date, time, location and name of the doctor or dentist; to attend to any medical emergency respecting yourself or your child. [ 35 ] You may be away from your residence during a two-hour period each day pursuant to a

schedule approved by your supervisor for the purpose of attending to the needs of your child residing with you, including fresh air and exercise, and grocery shopping. If I have not already referred to it, you may be away from your residence for the purpose of attending your employment pursuant to a

schedule provided on the letterhead of your employer and approved by your supervisor. [ 36 ] You may be away from your residence to attend to any assessment, treatment or counselling as directed by the supervisor, and you may be away from your residence when travelling directly to or from any of the commitments that I have just referred to. [ 37 ] You may also be away from your residence where you have the prior written approval of your supervisor, in which case you must carry that with you and produce it on request of a peace officer or supervisor.

And you are to attend at the door of your residence or by telephone at the request of a peace officer to confirm compliance with the house arrest condition. [ 38 ] You must attend, participate in and complete to the satisfaction of the supervisor any assessment, treatment or counselling that may be directed by the supervisor. [ 39 ] You are not to attend at Joe's Farm Market, Studio Trends Hair & Tanning, or any Canada Safeway store in the Province of British Columbia. [ 40 ] You are to abstain absolutely from the possession or consumption of alcohol, or any non-prescription drug, or any substance controlled under the Controlled Drugs and Substances Act , unless you have a medical prescription for that substance issued in your name or the name of your child by a qualified medical practitioner. [ 41 ] You are to seek and maintain employment and/or attend an educational or vocational program as so directed by the supervisor. [ 42 ] Those are the conditions that will apply on the conditional sentence order. [ 43 ] On the probation order the following conditions apply: You are to keep the peace and be of good behaviour, and you must report to a probation officer forthwith following the completion of the conditional sentence order, and thereafter as directed by the probation officer.

You will reside where directed by the probation officer. You are not to change that address without the prior written approval of the probation officer. [ 44 ] You are to attend, participate in and complete to the satisfaction of the probation officer any assessment, treatment or counselling that may be directed by the probation officer.

You are to seek and maintain employment and/or attend an educational or vocational program if directed by the probation officer. [ 45 ] Subject to any submissions by counsel, those are the conditions that will apply to the probation order. [ 46 ] THE COURT: Nothing from the Crown? Mr. Douglas? [ 47 ] MR. DOUGLAS: No, Your Honour. [ 48 ] THE COURT: Now, there will be a forfeiture order with respect to items relevant to Ms. Homeniuk if there are any, otherwise, I can deal with them at the end of Mr. Lindt's sentencing. [ 49 ] MS. WINN: Yes, Your Honour, I've drafted an order for your signature.

I'm just going to hand it up at the end. [ 50 ] THE COURT: All right. [ 51 ] MR. DOUGLAS: I haven't seen it. [ 52 ] THE COURT: All right. So, subject to Mr. Douglas seeing the draft order. The victim fine surcharge will be waived. [ 53 ] Mr. Douglas, this is a secondary DNA Databank offence and I will hear any submissions from you on that. [ 54 ] MR. DOUGLAS: As far as DNA? No, I have no submissions. [ 55 ] THE COURT: Ms. Homeniuk, I am going to direct that you supply a sample of your DNA to the National DNA Databank.

I am going to direct that you attend at the Surrey Detachment of the RCMP before three o'clock in the afternoon on Thursday of next week, which is February the 3rd, for the purpose of supplying a sample of your DNA to the National DNA Databank. There are some specific days during which that can be done, and as long as it is done before that time next Thursday you will have complied with that order. [ 56 ] THE ACCUSED: What time was it again? [ 57 ] THE COURT: I beg your pardon?

[ 58 ] THE ACCUSED: What time was it again, on Thursday? [ 59 ] THE COURT: It will all be set out for you on a document, but you have to complete this process before three o'clock in the afternoon Thursday of next week, and I believe you can attend on Wednesdays and Thursdays, so, basically, there are two days available to you next week, and the times, I believe, are between 10:00 and 3:00 in the afternoon. [ 60 ] MR. DOUGLAS: Yes, I was just reading the forfeiture order. It really applies to all the items that were seized in this investigation. [ 61 ] MS. WINN: I'll hand up the draft to Madam Clerk. [ 62 ] MR.

DOUGLAS: So it's probably better made when Mr. Lindt has been sentenced. I don't know if you've made one prior with respect to Mr. McGaw. [ 63 ] THE COURT: I just do not recall whether any order was made at that time. [ 64 ] MS. WINN: No. No, I was actually going to wait until the very end of the proceedings since it's all -- all one -- all the same -- [ 65 ] THE COURT: I think what I am inclined to do, Ms. Winn is, unless you take some issue of this, or if there is some particular item that you could identify relevant to Ms. Homeniuk, I am simply going to defer addressing the forfeiture issue until Mr.

Lindt is sentenced and all matters have concluded. All right. So I will just return the draft to you at this point. [ 66 ] Subject to anything further at this time -- [ 67 ] MR. DOUGLAS: No, Your Honour. [ 68 ] MS. WINN: Thank you, Your Honour. [ 69 ] THE COURT: So, Ms. Homeniuk, that concludes the sentencing on this matter as far as you are concerned. (REASONS FOR SENTENCE CONCLUDED)