R. v. Slemko Date:, 2017 BCPC 402

Citation: R. v. Slemko Date: 20170830 2017 BCPC 402 File No: 207267-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. ANDREW RONALD SLEMKO ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. GARDNER Counsel for the Crown: H. Magnin Counsel for the Defendant: D. Sokol Place of Hearing: Surrey , B.C. Date of Hearing: August 11, 2017 Date of Judgment: August 30, 2017

[ 1 ] Mr. Slemko was convicted after trial of four counts on Information 207267. This included two counts of possession for the purpose of trafficking in methamphetamine, 43 grams, and MDMA, 390 grams, and two counts of possession of class A precursors, red phosphorus, 1.3 kilograms, and ephedrine, 1.08 kilograms, knowing they would be used to produce [indiscernible – background noise] for trafficking in methamphetamine. [ 2 ] Let me say at the outset, I will be reading at length from the Crown’s written submissions.

As usual, counsel has put it better than I can probably put it. [ 3 ] Denunciation and deterrence are the predominant sentencing principles at play in cases involving the commercial production and trafficking of methamphetamine and MDMA. The Crown argues the sentence should account for the significant aggravating factors present and reflect the overall gravity of the offences and the degree of responsibility of this offender. The Crown also seeks ancillary orders including a ban on firearms and a DNA order. [ 4 ] Mr.

Slemko was not convicted of production of any drugs, however, the evidence that he was a principal operator of a large and a sophisticated MDMA and methamphetamine production operation equipped to produce large quantities of both, is submitted by the Crown, and I agree, directly relevant to both the seriousness of the offences for which he has been convicted and his level of moral culpability in his commission of them. [ 5 ] Similar circumstances arise in the three cases I have been referred to. First of all, R. v. Huynh , dated May 20, 2016, a decision of the Provincial Court of British Columbia here in Surrey.

In that case, the offender was convicted not of drug production, but of possession for the purposes of trafficking methamphetamine, that being 27.3 grams, and possession of a precursor, pseudoephedrine , knowing it would be used to produce methamphetamine.

There, as here, possession of both substances occurred at a residence devoted to the production of methamphetamine and in the context of possession of the highly toxic chemicals located at the residence. [ 6 ] In determining what impact the production-related evidence should have on the sentence imposed, His Honour Judge Sutherland stated as follows at paragraph 23: Mr. Huynh has been charged with unlawfully possessing a precursor (pseudoephedrine), knowing that it would be used to produce methamphetamine, again not charged with production of crystal methamphetamine and not convicted of it.

However, like many offences, there are different ways of committing the offence and these ways fall along a continuum of seriousness. The circumstances animating the offence largely determine where on the continuum it falls. I consider Mr. Huynh’s commission of the offence to fall on the very serious end of the charge of possession of the precursor pseudoephedrine knowing that it will be used to produce methamphetamine. I consider this offence to fall on the very serious end for the following reasons.

The accused’s possession of the precursor was essentially immersed and integrally related to the production of the finished product. His possession was much more closely linked to the production of methamphetamine than the other end of the spectrum where possession is made with perhaps the theoretical intention that someday in the distant future, it would be used to produce crystal methamphetamine at some unknown location. As mentioned in my reasons for conviction, this house was essentially devoted to a stage in the production of crystal meth.

The sheer quantities of chemicals involved reflect that the offence was being committed on a significant scale. [ 7 ] In Huynh , the offender was sentenced to two years' jail on the possession for the purpose of trafficking count, and one year concurrent on the precursor counts. The evidence established Mr. Huynh’s role, while not the mastermind of methamphetamine production laboratory, it was analogous to being a franchise operator for one part of the production process. The offender was motivated by profit.

In that case, there was no evidence before the court about the potential yield of methamphetamine or its associated value. In imposing the sentence, the trial judge commented that there were no significant mitigating factors. [ 8 ] A similar analysis was seen R. v. Dragusica , a 2010 case of the British Columbia Supreme Court delivered by His Lordship Justice Schultes. In that case the offender was convicted of possession for the purpose of trafficking in methamphetamine.

The 180 grams of methamphetamine that was the subject of the charge was located in a storage locker rented by the offender, together with a boxed-up meth laboratory.

In assessing the seriousness of the offence, the sentencing judge found the capacity of the lab was suitable for production at the multi kilogram level. [ 9 ] In addressing the impact of that evidence on a determination of sentence, the sentencing judge stated the following: I emphasize, however, that the capacity and sophistication of the production operation functions simply as the context within which the offence of possession for the purposes of trafficking is found to be taking place. I am mindful that Mr.

Dragusica has been convicted of the possession offence and not of the offence of production. [ 10 ] Distinct from our case, it is argued in Dragusica , the role of the offender was not clear and was determined to be beyond merely arranging to store the lab. The accused was relatively youthful, 34 at the time of sentencing, had a supportive family, and employment prospects.

He had served eight months of pre-trial custody in the interim between the commission of this offence and the sentencing. [ 11 ] The sentencing judge found the absence of evidence of the offender committing new offences since his release from custody three years prior to be mitigating. Taking into account the time he served in custody, the sentencing judge imposed a conditional sentence order of two years less a day.

[12] Finally, the Crown argues, similar considerations are taken into account by the sentencing judge in Wong. There the offenderwas convicted of constructive possession of one kilogram of methamphetamine for the purpose of trafficking. That possession occurredin a residence containing materials for production and where it could be reasonably inferred methamphetamine was produced.

Thesentencing judge concluded there were no significant mitigating facts and imposed a sentence of two-and-a-half years, noting if Mr.Wong had been shown to have been actively involved in either the production or trafficking of methamphetamine, the resulting sentencewould have been significantly longer. [13] In the case at bar, as in Huynh, Mr. Slemko’s possession of the methamphetamine, MDMA, ephedrine, and red phosphorus wasessentially an integral link to his operation of a large-scale MDMA and methamphetamine production operation.

I agree that Mr.Slemko’s connection to and control over the production operation establishes beyond any doubt he had both the intention and ability touse the precursors to make large quantities of methamphetamine.

Likewise, his possession of both finished Ecstasy andmethamphetamine in light of the evidence of prior production of MDMA occurring, that he had produced such drugs previously. [14] The circumstances surrounding his commission of these offences fall on the serious end of the possession for the purposes oftrafficking in MDMA and methamphetamine and possession of red phosphorus and ephedrine knowing they would be used to producemethamphetamine.

The sentencing position taken by Crown appropriately reflects this. [15] As to the range of sentence the court should consider, the Crown has argued that methamphetamine and Ecstasy are bothSchedule 1 substances. The range of sentence for offences involving commercial production and trafficking in methamphetamine andMDMA is between two and five years, depending on the specific aggravating or mitigating facts present. They rely on the decision of R.v. Scott, 2006 BCSC 678 , 2006 BCSC at page 678, quoting from paragraph 37. The Court of Appeal in R. v.

Renaud, 2006BCCA 526 , 2006, BCCA, page 526, confirms this point stating the offence of production of methamphetamine would usuallyrequire a penitentiary sentence. The cases included by the Crown demonstrate the commercial sale of methamphetamine, MDMA andprecursors have routinely attracted significant custodial sentences. [16] The Crown has pointed to a number of facts in considering the appropriate sentence, and I agree with what they have stated intheir written submissions, first of all in relation to the storage locker which was located on 24th Avenue, Mr.

Slemko had exclusivecontrol over the storage locker and its contents, including the 43 grams of meth, the 390 grams of Ecstasy, the 1.08 kilograms ofephedrine and the 1.384 kilograms of red phosphorus. [17] The purpose for which Mr. Slemko secured and used the storage locker was to store items he acquired for use in his drugproduction operation. The locker contained all chemicals and equipment used to make methamphetamine except hydriodic acid. This isevidence given by their expert, Adrienne Law.

The potential yield and estimated sale value of the methamphetamine based on theprecursors located in the locker, if hydriodic acid was present, is set out in appendix A of their argument. The locker containedchemicals and equipment used to make MDMA, including large quantities of methylamine. [18] The value of the saleable Ecstasy and meth located in the lab is estimated, in the evidence of Sgt. Baird to be approximately$10,000. As stated by Adrienne Law, the production equipment and precursors located in the locker were valuable.

Productionequipment in the locker had been used previously in the production of Ecstasy and the locker contained 10 kilograms of caffeine. [19] Mr. Slemko had control over the drug laboratory located in the garage at 20668 72nd Avenue in Langley. He also rented theproperty for purposes of housing a drug lab since May of 2010 for $1800 per month. Mr. Slemko had control over all production-relatedchemicals and equipment located in that lab and the chemicals and equipment in the laboratory were valuable.

The lab contained allitems required to produce MDMA, with the exception of methylamine, which was found in the locker. [20] Thirty-three pounds of dimethyl sulfone, a common cutting agent for methamphetamine, were located at the lab, and asdescribed by Adrienne Law, the lab was sophisticated and large in scale, and there was evidence of previous production of MDMA thathad occurred at that location. [21] There were tangible examples of the expense associated to the set-up and operation of the drug production operations, includingrent for the lab location, which was $1800 a month, and Mr.

Slemko had been paying this amount to the property owner in cash sinceMay of 2010; approximately $86,000. [22] The 57 barrels of methylamine valued between $300 to $700 a barrel were discovered. There were receipts found in the storagelocker for 3,000 tablets of ephedrine dated August 18, 2013 in the amount of $5,860, and receipts for two Buchner funnels dated May 11,2013 in the amount of $186.

Adrienne Law testified that laboratory quality glassware is expensive and the plastic copper reaction vesselestimated to be worth $300. [23] The Crown has submitted that the following factors are aggravating: The serious harm and danger arising from the production,sale and use of methamphetamine and Ecstasy, the sale and sophistication of the drug production trafficking operation, Mr. Slemko’s rolein the operation of the drug production trafficking operation, including Mr.

Slemko being the operating mind of this large andsophisticated drug production trafficking operation, his involvement was premeditated and ongoing and his motivation was for profit andthe potential for profit was large. Both the storage locker and laboratory were properties owned by third parties which is a statutoryaggravating factor, and Mr.

Slemko took active steps to insulate himself from police detection demonstrating his appreciation of thenature of his actions. [24] Crown has argued that there is serious harm and danger arising from the production of these substances as the dangers posed tothe community has been repeatedly stated by the higher courts. These include the dangers arising from the production process relating totheir use of toxic chemicals, and from the risk of explosion. They also speak to the harm seen to individuals and communities arisingfrom the use of these drugs.

They referred to nine separate cases in their written argument on this point which emphasized denunciationand deterrence to be the sentencing principles that must be emphasized, including the most recent decision of our Court of Appeal, R. v.Georgiev, 2014 BCCA 246 , 2014 BCCA, page 246, at paragraphs 8 to 10. The only legitimate use from the evidence that Ihave heard of red phosphorus is in matchbooks. The use of this precursor has the risk of explosion.

[25] As for the scale and sophistication of this operation, the Crown has characterized it as large scale and sophisticated, requiringsignificant effort, planning and financial outlay. The drug operation encompassed both the production and sale of drugs on a commercialscale.

Adrienne Law provided her opinion that the drug production or trafficking operation was sophisticated, and the laboratory andmaterials it contained supported the entire MDMA production process, and clearly the laboratory was set up to produce MDMA and thecontents at the locker supported the entire methamphetamine production process. [26] The lab had a large capacity based on the variety and quantity of chemical sizes and glasswork, production equipment and setup, and the materials, chemicals and equipment in the lab and the locker were expensive, and there had been previous production ofMDMA in both the lab and the locker devoted to the production of drugs, and the residence beside the building containing the lab wasnot lived in.

The lab was also set up with barricades and expensive surveillance equipment to presumably reduce or eliminate risk ofpolice detection or drug rips. The Crown has also urged the court to consider the potential yield of methamphetamine from theprecursors located in the locker was significant and the capacity of the lab to produce ecstasy was substantial. [27] The Crown has also argued that Mr. Slemko is clearly an intelligent person who chose to engage in a crime that requiresintelligence, training and skill, and as Mr. Justice Ehrcke commented on a similar offender in R. v.

Bamdad, where he stated: This accused turned his intellectual assets toward the accomplishment of a dangerous criminal purpose to the significant detriment of thecommunity. The sentence that is to be imposed must be one that takes into account the need to deter like-minded individuals from usingtheir knowledge and skill for this kind of illegal and dangerous purpose. [28] The evidence was that the value of the end product of the Ecstasy and meth was approximately $10,000. This profit could beexpanded with the use of a cutting agent if so employed. Also, I note that Mr.

Slemko incurred obviously significant expenses in the set-up and operation of the lab, and the Crown has suggested to the court the only reasonable inference from this is that he anticipated areturn on his investment. [29] In conclusion, the Crown argued a sentence relating to trafficking or production of methamphetamine must, as its primarypurpose, denounce and deter. [30] In R. v.

Francis, 2008 BCCA 309 , 2008 BCCA at 309, the Court of Appeal cites from the sentencing judge’s decisionwith approval the following comments: Insofar as courts are able to impose sentences that denounce and deter the increased use and distribution of methamphetamine, in myview they must do so. To do otherwise is to fail to appreciate the harm that these substances cause to the basic health and life of thepeople in the community.

To the extent that the distribution of methamphetamine, or "crystal meth", is on the rise in Surrey, NewWestminster and the surrounding areas, those persons who choose to be involved must appreciate that significant jail sentences willattach to their conduct if they are caught and convicted. [31] The Crown concludes by saying that the accused’s culpability in committing the trafficking and possession of precursoroffences falls at the very serious end of the spectrum for this offence, and urges the court once again to impose a sentence of three tothree-and-a-half-years’ jail term, less any pre-trial custody, in order to achieve the necessary denunciatory and deterrent effect. [32] Mr.

Slemko is now 40 years of age. He was born in Mississauga, Ontario, and his family moved to the Lower Mainland whenhe was three years old. He spent his entire youth in North Delta and then completed his high school education at Vancouver College. He then attended the University of Oregon in Eugene, where he graduated with a Bachelor of Science degree, majoring in economics anda minor in business administration. [33] He has, as of today’s date, served 306 days in pre-sentence custody which employing enhanced credit amounts to 459 days, orroughly 15 months.

His counsel has asked the court to impose a global sentence which would, in essence, amount to time served. [34] Mr. Sokol disagrees with the submissions by the Crown, and argues that there is no link between the Langley residence and the storage locker. Defence has argued that I have a duty to disregard what the police discovered at the outbuilding on 72nd Avenue. [35] In the case at bar, there was admissible evidence that Mr. Slemko rented the property on 72nd Avenue, and there were materialsconsistent with the production of banned substances in the interior of the outbuilding.

Although I have found that the evidence fell shortof satisfying the burden upon the Crown to prove the accused was involved in production on the day specified in the indictment, thatshould not be interpreted as a declaration of his innocence, and similarly, as in Dragusica, it provides context to what was discovered inMr. Slemko’s storage locker. I do not have an obligation to ignore admissible evidence. [36] Defence counsel has referred the court to numerous sentencing cases in R. v.

Wong where His Honour Judge Bowden of ourProvincial Court, prior to his elevation to the Supreme Court, sentenced the accused for possession of methamphetamine for the purposeof trafficking to two-and-a-half years' imprisonment. Mr. Wong was found in possession of 1.2 kilograms of methamphetamine in aprivate residence where he rented a room. The residence was also used to produce methamphetamine but the accused was not involvedin its production. Mr. Wong was 48 years old and had no prior record. There was no indication that the accused had any problems withsubstance abuse. [37] In Mr.

Justice Schultes’ decision in Dragusica, he stated in paragraph 56: Ultimately, while sentencing authorities are essential in identifying the usual range of sentence for similar offences and in situating theaccused appropriately within that range, sentencing must ultimately be an individualized process based on the circumstances of theoffence and the offender and the principles of sentencing embodied in the Criminal Code that deserve the greatest emphasis in light ofthe specific circumstances.

Given the prevalence of and harm caused by these offences in our community, general and specific deterrence and denunciation must beparamount considerations. The message must go out to those inclined to participate in this type of activity that the courts will not

countenance it. [ 38 ] He then referred to Mr. Dragusica’s relative youth, limited record, family support and responsibilities, and ongoing ability to be productively employed. It would be unwise to dismiss rehabilitation as a meaningful consideration. [ 39 ] Mr. Justice Schultes then stated: I find that rehabilitation, as a sentencing principle, should moderate the effect of the other applicable principles somewhat. Put another way, a sentence to put the opportunity to be productively employed beyond his reach would be counterproductive both for him and for the protection of the public in the long term.

He then imposed a sentence of two years less a day. [ 40 ] Mr. Slemko has the ongoing support of his father, an oral surgeon, his mother, his younger sister, and his girlfriend. Each of them have written letters on his behalf. His father writes: I am writing this letter in support of my son, Andrew Slemko. The unfortunate circumstances surrounding his current situation have led to severe consequences, not only to Andrew but also to his immediate family. I believe that Andrew realizes that his life, as well as our family’s lives, has been changed.

My discussions with him during this past period have indicated that he is truly remorseful for what has happened and he realizes that he must make significant changes with his life in the future to earn our trust going forward. However, I promise that upon his release there will be a very supportive and committed family presence to help and guide him as we move into the future. I believe that Andrew cares deeply about his family and friends and wants to support us in both our personal and business affairs.

Throughout his life he has proven to be loyal, conscientious and forward-thinking with my wife, my daughter and me. Upon reflection, I see a kind and caring son, brother and grandson. This is the Andrew that I know. His perseverance has stood him in good stead in many challenging situations and I know that he carries this trait with him still. Andrew has an economics and business degree and will be able to continue again with work involving our management and development company.

The complete restructuring and repurposing of our company that he started, has been on hold these past months and now once again can be initiated and completed. In

summary, although the impact of the situation has been devastating for all of us, we will continue to support Andrew as we all move on and I believe that he will make a positive contribution to our family and society going forward in the future. [ 41 ] His mother writes: I am writing this challenging letter in support of my son, Andrew Slemko. Never in my wildest dreams did I ever expect to be asked to write a letter such as this in support of our son. To say that our family has not been greatly touched by these circumstances would be an understatement.

We have been angry, disappointed and heartbroken, but because Andrew is our son we will stand beside him like we always have. The Andrew that I know has many positive attributes. He is hardworking, determined, caring, thoughtful, loyal and loving. I must comment that we did our very best to provide a stable and respectable home and family. His early childhood was normal and uneventful.

In his elementary school days he was diagnosed with learning differences but through his perseverance, hard work, sports, and strong support from family and educators, he graduated from high school and then successfully completed an economics/business degree from the University of Oregon. In spite of the academic challenges he faced every day of his school career, he had the innate ability to pick himself up and start over again.

To this day he continues to live by this adage and over the years I have seen him convey this message to his sister, his friends and colleagues as they too have faced difficult decisions and challenges. I believe that with support of his family and community, he will be able to move forward and become a useful, successful and welcomed citizen in our society. For the past eight years we have watched the relationship develop between Andrew and his girlfriend, Allison Giroux. Andrew provided positive and constant support to Allison in her job and then her pursuit of obtaining an early childhood education degree.

Once again, he encouraged her and provided her with a stable environment in which to follow her dream. In recent years we have looked to Andrew for support in our family business. He is the website manager, bookkeeper and business and financial advisor, and as we work our way through the transition to retirement, his input is invaluable. We have missed his constructive input and are hopeful that he will be able to participate again in a meaningful way in the near future. Thank you for taking my thoughts into consideration.

My husband, our daughter and I are ready to offer whatever support to Andrew that is needed to ensure that he is successful. [ 42 ] I also have a letter from his younger sister, Catherine, who states that: Andrew and his girlfriend Allison have been together for eight years and it has been a pleasure to welcome her into our family. Throughout their time together we have watched Andrew support and encourage Allison to reach beyond what she thought possible.

He helped guide her to pursue a dream of becoming an early childhood educator and I know that she believes that because of him, she is where she is today. [ 43 ] I also received a letter from his common law who states: My name is Allison Giroux and I am writing this letter in support of Andrew Slemko. I have known Andrew since 2006. We became great friends instantly. Over time our friendship grew into a relationship, and in 2010 we started to date and it has now been almost eight years. We have lived together for seven years. Andrew is my best friend.

He is a man that can always make you laugh. When we started to date, I was in a position where my life was going nowhere. I was in complete debt, had very low self-esteem and thought I couldn’t do anything except be a server. Andrew brought me back to life and made me realize that I could anything and with the support of him, I took risks. I went back to school to get my diploma in early childhood education and fulfilled a lifelong dream. Andrew has a heart for people and sees them for who they truly are. He is an honest man who is willing to do anything for you no matter what time of day it is.

He is always there to pick you up and make sure that you are okay. Andrew will drop everything for the people he loves. Since 2014 when our lives changed, I believe that this made our relationship somewhat stronger. It has brought us closer. We have a stronger, deeper connection and it’s made me fall in love with him all over again. He has shown me that life has obstacles and it has its ups and downs but if you have that one person by your side you can conquer anything. My future is with this man and I want nothing more than to call him the father of my children, and my husband.

Andrew has every quality in a man, role model, father, best father, friend, I could ever ask for. I love Andrew more than anything and no matter what happens to him, I will stand by him like he did for me. That’s what friends do. [ 44 ] I also received a letter from Mr. Slemko. He writes: I am fully aware of the impact and embarrassment this event has on my family. I have nothing but gratitude and admiration for the ongoing love and support that I have received from my parents, my sister, Allison and her family. Without their steadfast confidence that I could persevere, the past three years would have been bleak.

I know that I come from a good and stable home and that my family are decent, respectable citizens. I know that this has been devastatingly hard for them. I want you to know that I am remorseful and the incarceration of the past 10 months has shown me a different side of society of which I was not aware. I have become more compassionate and empathetic and have seen the devastating effects of narcotics on my fellow inmates. When I am released I want to be a valuable member of society and follow through on my goals that I set forth previously.

I want to continue my business plans with my family, hopefully have a family of my own with my best friend, and be a role model for others. I also have other business and life goals that have been on hold and I urgently want to move forward on these. I have learned a lot throughout this ordeal and I have had a lot of time to soul search and think. I know I can accomplish good things and be successful if given the chance because I have always been able to pick myself up and start over when the need arose.

As my parents move forward in their later years, I want to be there to love and support them as they have supported me. This time is now. I truly regret the opportunities that I have lost and let slip by, and now hopefully will have time to make up for them. [ 45 ] The Crown has submitted that Mr.

Slemko comes from a good family and has a university education, however, he has elected to engage in an illegal lifestyle and the sole motive is greed. [ 46 ] I agree to a point, as there are invariably two reasons for someone to become involved in the sale of street drugs; either they sell to support a habit or they do it for financial gain. I am still waiting for the first accused person to say he does it for humanitarian purposes. Also, I am not entirely comfortable with the viewpoint that it is a somewhat aggravating factor that Mr.

Slemko has a university education and there is no excuse for his criminal venture in an effort to make easy money. Another way of looking at it is that because of his education, he is a better candidate for rehabilitation than many others. [ 47 ] On a previous day there was a minor disruption which caused a deputy sheriff to remove someone from the courtroom. Later that day the sheriff spoke to me and said that normally he would never leave an accused unattended in the prisoner’s box but he knew that Mr. Slemko would not be a problem.

And he was correct, he was not a problem. [ 48 ] I will deal first with ancillary orders. Under s. 109, Mr.

Slemko shall not possess any firearms, ammunition or explosive substance for a period of 10 years which will commence the day he is released from custody. [ 49 ] He will also provide a sample of his DNA for inclusion into the National DNA Databank. [ 50 ] As stated earlier, the accused has been in custody for roughly 10 months prior to today’s hearing, and based on an enhanced credit calculation I have computed that to be 15 months. [ 51 ] Having considered the sentencing provisions of the Criminal Code , the facts of this case, the accused’s personal circumstances, the submissions of counsel and the relevant case law, I have concluded that a fit and proper global sentence would be two years and six months, less time that he has already served. [ 52 ] Accordingly, on Count 4 I impose a sentence of a further 15 months' imprisonment in addition to the time served, which I must be clear on, is already 15 months. [ 53 ] On all of the remaining counts I will impose a sentence of 15 months to be served concurrently with Count 4. [ 54 ] Thank you, counsel, for your assistance. [ 55 ] The victim fine charge is payable forthwith, in default one day concurrent. (REASONS FOR SENTENCE CONCLUDED)