R. v. Borecky, 2023 BCPC 173

Citation: R. v. Borecky 2023 BCPC 173 Date: 20230123 File Nos: 65567-1, 68690-1, 70131-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. THOMAS EDWARD BORECKY TROY JONATHAN HENSON ADRIAN JONATHAN SKERRATT ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A. ORMISTON (RE: ACCUSED BORECKY) Crown Counsel: M. Wray Federal Crown Counsel: S. Gill Counsel for the Accused: D. Ferguson Place of Hearing: Chilliwack , B.C. Date of Hearing: December 19, 2022

Date of Judgment: January 23, 2023 [ 1 ] THE COURT : The issue at this sentencing is the appropriate length of the custodial sentence Mr. Borecky should serve. The Federal Crown seeks a global sentence of 10 years on the Controlled Drugs and Substances Act offences with one year concurrent on the charge of evading police. The Provincial Crown seeks a consecutive sentence of five years' incarceration on the Criminal Code offences and submits that the totality principle should lower the overall sentence to something below 15 years. [ 2 ] Counsel for Mr. Borecky submits that given the 1,477 days Mr.

Borecky has spent in custody awaiting disposition of this matter that a fit total sentence is one of time served. If Mr. Borecky is granted one-and-a-half times the credit for that time, this would essentially be a sentence of six years. The Facts [ 3 ] Mr. Borecky was on parole for the last of his criminal convictions when a warrant issued for his arrest for failing to return to his appointed residence in Prince George. Police attempted to track Mr. Borecky and discovered that he had registered a vehicle using an address in Chilliwack.

Police surveilled this residence and observed conduct consistent with drug trafficking. [ 4 ] Ultimately, a search warrant was obtained and on May the 30th of 2017, police discovered illicit drugs in a room of the residence associated to Mr. Borecky. They also located Mr. Borecky. In a search incidental to arrest, police found drugs packaged in baggies in Mr. Borecky's coat pocket.

The drugs found on his person have the following weights and estimated values: 7.13 grams of methamphetamine valued at between $713 to $855; 3.36 grams of crack cocaine estimated between $268 to $336; and 2.17 grams of heroin estimated at $434. In the room associated to Mr. Borecky, police located score sheets, packaging materials and a scale with heroin and cocaine residue. More drugs were located in his room including 2.21 grams of cocaine estimated at $220, 2.47 grams of methamphetamine estimated at $260, and 5.8 grams of heroin worth $1,160.

The total estimated value of the controlled substances found on his person and in his room is between $3,055 and $3,265. Mr. Borecky was released and not charged with these offences until much later. [ 5 ] While not within the range of dates charged for trafficking, it is admitted for the purposes of sentencing that Mr. Borecky was found with heroin and fentanyl, methamphetamine and cocaine when he was arrested in September of 2018. The total estimated value of the drugs on this occasion was between $1,295 and $1,690. He was also found with $2,000 in cash. The Crown relies on these facts only to establish Mr.

Borecky's ongoing involvement in the drug trade between May 2017 and the December 2018 offences. [ 6 ] By December 2018, police had received further complaints of conduct consistent with drug trafficking associated to Mr. Borecky's Dodge Ram truck. On December 6th, 2018, police saw Mr. Borecky in his truck at the Salvation Army shelter, a place frequented by drug users and dealers. Police pursued Mr. Borecky's vehicle for three city blocks with lights and eventually sirens activated before he stopped his vehicle. [ 7 ] Given Mr.

Borecky's history of flight from police, a new recruit was directed to pull his police vehicle in front of Mr. Borecky's truck. Police approached Mr. Borecky's window, tried to open the driver's door and directed him to exit the vehicle. Mr. Borecky rolled up his window and drove away, causing the officer to jump out of the way to avoid injury. Mr. Borecky was driving double the legal speed limit on city streets as he left. In order to preserve the public's safety, police did not initiate a chase. [ 8 ] On December the 11th, 2018, police again saw Mr. Borecky's truck parked in a McDonald's parking lot.

Knowing that Mr. Borecky was arrestable, police attempted to essentially box him in with their vehicles. Mr. Borecky repeatedly reversed his truck into a police vehicle in an apparent attempt to push it out of his path. Mr. Borecky refused to get out of the truck as directed. The officer smashed his window. Mr. Borecky fled from the passenger-side door, running away to the street. He was apprehended by the police dog and bitten brutally in the process. Police struck Mr. Borecky in the face multiple times to secure him in handcuffs. $1,114 in cash was found on the ground where Mr.

Borecky was arrested. [ 9 ] Immediately outside the passenger door of the truck police found a case containing the following: Two baggies of fentanyl with a total weight of 0.52 grams; three baggies of methamphetamine totalling a weight of 0.99 grams; and 17 baggies of crack cocaine totalling a weight of 9.73 grams. In the vehicle driver's door handle of Mr. Borecky's truck, police located two baggies analyzed as heroin with a total weight of 0.93 grams. In the truck they also found unused syringes and a knife pushed into the driver's vent, a Narcan kit, a scale and small empty baggies.

Police also located a cell phone which was ringing constantly. They observed texts consistent with people looking to buy heroin, cocaine and methamphetamine. On a call intercepted by police, the person referred to the name "Reece" which is known to be an alias used by Mr. Borecky. Two feet from the truck along the course that Mr.

Borecky fled, police found a baggie containing 50 grams of a powdered substance that I found, from the Gardiner hearing, to have contained heroin in an unknown concentration. [ 10 ] Police estimate the total value of the drugs found during the December 11th arrest as follows: $100 worth of fentanyl, $60 worth of methamphetamine and $760 worth of cocaine. Given my findings at the Gardiner hearing and Mr. Borecky's assertion that the 50 grams of powder containing heroin was poor quality, the concentration of heroin and the value of that product is not quantifiable. [ 11 ] Mr.

Borecky was released and not charged with these offences until March of 2020. [ 12 ] On January 8th of 2019 in the early evening, Mr. Borecky went to Chilliwack General Hospital and sought help for withdrawal from fentanyl. He was disruptive and in significant distress. Despite best efforts of the hospital staff, Mr. Borecky left the emergency room. At that time, Mr. Reiter was pulling up to the hospital in his Nissan Murano. He got out of the vehicle while it was still running to help his elderly wife out of her wheelchair and into the vehicle as she had just been discharged from hospital herself. Mr.

Borecky jumped into the driver's seat of Mr. Reiter's vehicle and stole the vehicle. He was identified using video surveillance footage. Officers

were then on the lookout for this vehicle. [ 13 ] At 6:44 p.m., police received reports of an attempted robbery from the parking lot of the Chances Casino. When police attended they learned that Mr. Borecky arrived at the casino in the stolen Murano and drove up to the victim, Ms. Stephan. Mr. Borecky asked her for a lighter and when she leaned in to light his cigarette, he grabbed her purse and started to drive away. Ms. Stephan was tangled in the purse strap and dragged for about a hundred yards. Ms. Stephan suffered road rash injuries and a bleeding knee. Ms.

Stephan was pregnant at the time and she yelled this to Mr. Borecky who let go of the purse and she fell to the ground. Ms. Stephan said she thought she would be run over as Mr. Borecky drove close to her head where she lay on the ground as he sped away. [ 14 ] Less than an hour later, Mr. Borecky went to the Superstore parking lot. He drove past Ms. Reyes who was walking her grocery cart to her car and then circled back, parking next to her vehicle. Mr. Borecky grabbed Ms. Reyes' purse from her cart. Ms. Reyes attempted to struggle with Mr. Borecky for the purse; however, Mr.

Borecky is much larger and was able to take it. Ms. Reyes tried to grab Mr. Borecky when he was seated back in the stolen vehicle; however, he pulled away and Ms. Reyes fell to the ground. Her wallet and keys to her gated community and home were in the purse when it was stolen. [ 15 ] Later that evening, Mr. Reiter's Murano was seen by police on Highway 1 and clocked going 175 kilometres an hour. Given road conditions and concerns for public safety, police did not pursue the vehicle.

They followed the stolen vehicle at a distance and could not safely keep pace, including travelling at speeds over 140 kilometres an hour. The Murano collided with a barrier at an exit from the highway and witnesses saw Mr. Borecky flee the driver's seat. Police Services dog tracked and found Mr. Borecky hiding in a farmer's field in the dark. [ 16 ] Police found Ms. Reyes' wallet in the Murano and a television from a suspected break and enter earlier that evening. The television is the subject of the possession of stolen property charge; the owner of the television is Mr.

Ehlert who was not cooperative with police when they attended his residence earlier that evening when his house alarm was activated. Mr. Ehlert did tell police that a male he knew as Reece had come by asking for money and he told that person to leave. Mr. Borecky acknowledges that he possessed Mr. Ehlert's television, knowing that it was stolen. Principles of Sentencing [ 17 ] Sentencing is an individualized process where the court must take into account not only the circumstances of the offences but also the specific circumstances of the offender.

Section 718 of the Criminal Code identifies the objectives of sentencing which can be achieved by, where necessary, separating offenders from society, denouncing unlawful conduct, general deterrence, rehabilitation and promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community. [ 18 ]

Section 718.2(

b) states that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This provision requires an analysis of what is commonly referred to as the range of sentence.

Sentences of incarceration will be used with restraint and imposed where no other meaningful consequence will suffice. [ 19 ] Section 10(1) of the Controlled Drugs and Substances Act identifies the fundamental purpose of any sentence for an offence under that Part as contributing to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation and treatment in appropriate circumstances of offenders, and acknowledging the harm done to victims and to the community.

The fundamental principle of sentencing under the Criminal Code is found in s.718.2 , which states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 20 ] In R. v. Ipeelee , 2012 SCC 13 , the Supreme Court noted this fundamental principle of proportionality is closely tied to the purpose of sentencing, that being the maintenance of a just, peaceful and safe society through the imposition of just sanctions.

The proportionality principle ensures justice for victims and offenders, the former by requiring a sentence that reflects the gravity of the offence and which denounces the unlawful conduct and ensures public confidence in the justice system. The proportionality principle also acts as a restraint to ensure justice for the offender by ensuring that the sentence does not exceed what is appropriate, given the moral blameworthiness of the offender.

In the words of the Supreme Court in Ipeelee : In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. There is no question that deterrence and denunciation are the principles that will be paramount in determining a fit sentence in this case. The Offences [ 21 ] The offences wherein Mr. Borecky possessed controlled substances for the purposes of trafficking are remarkable for the sustained persistence in the face of various attempts at deterrence. Mr.

Borecky's return to drug dealing was immediate upon his release from custody from a lengthy Federal sentence for the same type of offences. [ 22 ] The circumstances put before me, from both Crown and defence, support the finding that Mr. Borecky continued in the drug trade from May 2017 through to his arrest in December 2018. During this time Mr. Borecky was not bound by release orders, given the delay in laying the Federal charges, but he was arrested and pursued by police on multiple occasions. Nevertheless, the offending did not stop until Mr.

Borecky’s ultimate arrest and incarceration in January of 2019. [ 23 ] Mr. Borecky emphasizes the unfairness in this pattern of what he calls "catch and release" by police which allowed the grip of his own addiction to tighten and his offending conduct to continue. He describes his arrest as a rescue. Counsel points out that there were times police had the opportunity to safely arrest Mr. Borecky and failed to do so. [ 24 ] Lengthy periods of pre-charge delay can be relevant at sentencing and I have considered the authorities counsel have provided in that regard.

This case is not as aggravated as one where offenders continue with criminal activity while in breach of interim release orders. However, I do not find that Mr. Borecky's ongoing offending during a lengthy period of pre-charge delay is mitigating either,

particularly since in this year-and-a-half period Mr. Borecky demonstrated that the pressure of ongoing police investigation was not sufficient to change his course of conduct. In my view, the consequence of the Crown's regrettable and unexplained delay in charging Mr. Borecky is that the trafficking charges should be viewed as one continuous endeavour as opposed to discrete counts warranting consecutive sentences. [ 25 ] The charges before the court are serious. When I consider the trafficking offences it is relevant that the substances Mr. Borecky possessed are dangerous and highly addictive.

There is a wealth of jurisprudence recognizing the societal damage caused by cocaine and heroin in particular. These drugs cause real harm to individual users and the community at large. The Crown has emphasized the fact that fentanyl was one of the drugs Mr. Borecky possessed for the purpose of trafficking; however, the quantity of fentanyl is slight in comparison to the other controlled substances. [ 26 ] The reports filed by the Crown do help put this relatively small amount of fentanyl into context. While Mr.

Borecky was in possession of approximately a hundred dollars' worth of this substance, fentanyl is cheaper and 50 times more potent than pure heroin. The statistics in the reports also show that Mr. Borecky possessed fentanyl for the purpose of trafficking at a peak in the opioid crisis when deaths in Chilliwack were reaching unprecedented heights. [ 27 ] While fentanyl stands alone as the notorious leader in the opioid crisis, the facts at this hearing suggest Mr. Borecky primarily possessed other drugs for the purpose of trafficking.

Sentencing for the omnibus charge will not be defined by the fact that fentanyl was involved, but it most certainly increases the seriousness of the offence. It also remains aggravating that Mr. Borecky possessed a variety of dangerous controlled substances. [ 28 ] There is a dispute to be resolved at this sentencing about whether these offences represent possession for the purpose of mid- level or street-level trafficking. When Mr. Borecky was sentenced for his last offences he was characterized as a mid-level trafficker. Previous counsel, Mr. Schultz, made a strong argument, and Mr.

Ferguson reiterates it here today, about why this court should not jump to the conclusion that Mr. Borecky’s degree of involvement in the drug trade has continued. Counsel has pointed to the fact that Mr. Borecky's previous offences involved a much greater quantity of drugs, in the range of $100,000 in value, and the trafficking went hand- in-hand with a number of very serious firearms offences. [ 29 ] I agree with defence counsel that the determination of Mr. Borecky’s role in the drug trade must be made on the facts of the index offence, not an assumption based on his prior conduct. This is not to say that Mr.

Borecky's previous history is entirely irrelevant. His own submissions to the court involve his past conduct and his candid admission that he returned to "the exact same scenario" when he was released from serving his last sentence. [ 30 ] When Mr. Borecky was sentenced in 2012 he was found to be a mid-level trafficker participating in the organization and not merely the sale of drugs. Mr. Borecky links his past offences to his most recent offences through his best friend and "drug boss". Mr.

Borecky explained to this court that he picked up working for this same person as soon as he was released from custody for his last convictions in order to make up a sizable debt. While refuting that he was a mid-level trafficker, he was working to pay debts to the same drug boss returning to the same community and involved with the same drugs. [ 31 ] The evidence before me regarding the value of the drugs seized from Mr. Borecky generally aligns with cases of street-level drug dealing.

If the Crown had established that the 50 grams of powder containing heroin had a street value of $10,000 this would have brought Mr. Borecky more clearly into the range of a mid-level trafficker. In the absence of expert evidence and because Mr. Borecky's evidence on the Gardiner hearing cast doubt on the purity and value of that exhibit, the analysis is not so straightforward. [ 32 ] Regardless of the quantities of drugs seized in these investigations there are other features of this sentencing that are similar to cases where offenders are elevated in the drug trade hierarchy. In both 2017 and 2018, Mr.

Borecky is found with scales and empty packaging for drugs. The scale found in a room associated to him in 2017 had cocaine and heroin residue on it. There is good reason to find that Mr. Borecky was processing and packaging smaller units of drugs that he possessed. I do not agree with Mr. Borecky's submission that the overall quantity or value of the drugs seized in this case is trifling.

They may be much lower than in his 2012 sentencing, but they are significant especially since he was found in possession of such quantities repeatedly and in combination with cash well over a thousand dollars each time. [ 33 ] I do not, as I have said before, have expert evidence before me as the court did in cases like R. v. Lloyd , 2019 BCCA 128 where cash in similar quantities was found to be more than one would expect of a street-level dealer. But I do find it is safe to conclude, particularly in combination with Mr.

Borecky's own submissions about his life in the drug trade, that this was a profitable enterprise for Mr. Borecky. Mr. Borecky's own account of his involvement in the drug trade did not paint a picture of subsistence living. I accept that Mr. Borecky is an addict and that especially by the time of his 2019 arrest, his addiction became the driving force in his criminal conduct. However, Mr. Borecky describes his return to trafficking in 2017 as a business decision.

His written letter to the court filed in May 2021 details how he resumed trafficking immediately upon his release to settle a debt and as a means of supporting his lifestyle before he descended back into his own addiction. I found it notable that when Mr. Borecky detailed his painful withdrawal from drugs in January 2019, he says he was dealing with both the physical withdrawal as well as the disorienting new experience of being left destitute. He says his "work cell" was taken and he was cut off from the "business" by his drug boss. [ 34 ] On the other hand, factors that support Mr.

Borecky's submission that he was a street-level dealer are as follows. First, he was found by police quite literally selling drugs at the street level from his truck and at homeless shelters. Second, there is an absence of evidence supporting the inference that Mr. Borecky was supplying drugs to other sellers. Finally, given the issues effectively raised by defence counsel regarding the value of the 50 grams of powder containing heroin, the Crown has not established that the drugs Mr. Borecky possessed had a high monetary value.

Nevertheless, he did have a bulk quantity of a powdered substance that he acknowledges, at some point at least, he acquired to attempt to sell on the street. [ 35 ] The onus is on the Crown to establish aggravating factors at sentencing beyond a reasonable doubt and for this reason I find that in committing these offences, Mr. Borecky did act as a street-level dealer. However, I also find that as street dealers go, he was fairly high up the ladder with historical participation and strong affiliation to the organization supplying his product. In this way, Mr.

Borecky’s case is like R. v. Emery where Justice Ker found the offender straddled the categories of street and mid-level trafficking. I am mindful that there is no evidence that Mr. Borecky supplied other drug dealers, such as in Mr. Emery's case. While the reasons may be different, I do find Mr. Borecky to be in a similar situation. [ 36 ] Collectively, Mr. Borecky's offences show an ongoing and profound disregard for the safety of others, from the vulnerable users of highly addictive drugs to the strangers going about their daily lives on the roadways, at the hospital or grocery store.

The presence of a knife in an accessible place on December 11th, 2018 increases the risk of violence inherent in the drug trade. At times Mr. Borecky's offending seems quite deliberate, such as the ongoing CDSA offences, multiple attempts to evade police or attempting to curb his withdrawal by collecting from a client like Mr. Ehlert during the January 8th, 2019 spree of offences. [ 37 ] Nevertheless, I do accept Mr. Borecky's earnest descriptions of the hell and desperation he was plunged into on January 8th of 2019.

His submissions are consistent with what this court hears often from addicts about long waitlists and lack of resources here in Chilliwack. While Mr. Borecky's criminal record is serious and not entirely free from offences of violence, I have not heard about a history of gratuitous harm to others and I accept that Mr. Borecky was looking to steal what he needed on January 8th with the least resistance. [ 38 ] It is important to emphasize here that despite Mr.

Borecky not setting out that day to terrorize the community or harm others, the result was that he did victimize vulnerable people; an 84-year-old man picking up his wife at the hospital and women in parking lots in the early evening hours. The offences, particularly the purse-snatchings and the repeated attempts to flee from police in December 2018, appear to have some degree of forethought. While Mr. Borecky did not use a weapon in the January 2019 offences, he caused both physical and psychological injury. Ms.

Stephan was physically injured although luckily not more so, and after having a struggle for her purse in the grocery store parking lot, Ms. Reyes describes how the offence against her has made her hesitant to shop after dusk and her fears have made her more reliant on others. [ 39 ] On the surface, Mr. Reiter's victim impact statement focuses on the financial loss associated to his vehicle; however, his statement speaks volumes about how this kind of crime actually affects people.

He was in the delicate act of trying to assist his wife, who could not walk, into the car and blames himself for having left the engine running. At the ages of 85 and 83, Mr. Reiter and his wife relied on the vehicle that Mr. Borecky stole; they relied on it to get groceries, go to the doctor, and on this day it was to be a safe ride home for his wife who had been discharged from the hospital. Mr. Reiter describes living on pensions that are barely enough to survive and how they scrimped and borrowed to afford this new SUV which cost them $50,000.

Only $34,500 was recovered through insurance. [ 40 ] All of the offences before the court show an intent persistence that would not yield to police action or harm to strangers. The January 8th spree of offences stopped only when Mr. Borecky crashed the stolen car and he was tracked down in a farmer's field. The Offender [ 41 ] Mr. Borecky is in his late 40s. Sadly, his life has been defined by trauma and criminality. Mr. Borecky must have a store of strength and resilience that led him to some success in his early adult life despite an abusive childhood. He is educated and held gainful employment for a time.

Former counsel alluded to an impulsivity and attitude towards authority that is reflected in the dense and lengthy criminal record that has been filed. Mr. Borecky's substance abuse and involvement in the drug trade is longstanding. He has eight prior convictions for drug trafficking, cultivation or production starting in the mid 1990s and continuing through to 2012. He was, as I have said, just on parole when these offences began. [ 42 ] It is difficult to describe Mr. Borecky's involvement in the drug trade as anything other than entrenched.

He returned to it at the first possible moment despite a significant federal sentence meant to deter him from exactly such conduct. Mr. Borecky identifies his close personal relationship and obligations to his drug boss as the magnet that pulled him so immediately back to crime. Mr. Borecky submits that Mr. Vidal's murder has effectively interred his own debt to the drug trade. [ 43 ] I do not doubt that the death of Mr. Vidal gives Mr. Borecky several good reasons to change his course in life; however, I cannot accept that all of Mr. Borecky's criminal connections have automatically been severed. Mr.

Borecky's record, including for drug offences, spans decades and different provinces. Mr. Borecky is not only contending with a physical addiction but also the novel venture of a radical shift in lifestyle. Mr. Borecky's attempts at legitimate employment are in the distant past and his plans to relocate to another province once released are not tethered to strong, viable prospects for a pro-social life. I have heard of no supports or significant relationships that may assist him in making that change. Mr.

Borecky proposes to move away from Chilliwack to start anew but I must consider that he was released from custody in Prince George and made his way back to Chilliwack and his connections here in short order. [ 44 ] Mr. Borecky identifies the following changes in his life. First, he has been diagnosed with depression and is now medicated for that condition. Second, he has started the methadone program. Finally, he points to a change in attitude which he has expressed eloquently in his written submissions.

I wholeheartedly agree that if he were able to support himself without resorting to crime, it would be an enormous benefit to himself and the community at large. [ 45 ] Despite the fact that Mr. Borecky has had many opportunities to change his past and many harsh sentences intended to coerce him towards that choice, I cannot entirely foreclose the prospect that he could yet make this change. I say this despite the fact that our Court of Appeal at his last sentencing presciently ruled that there was no evidence to support a finding that Mr. Borecky's prospects for rehabilitation were realistic. See R. v.

Borecky , 2013 BCCA 163 at para 72 . [ 46 ] In his personal submissions to the court, in his letter and in his comments on the record, Mr. Borecky lifts the dark curtain on what was happening behind the scenes in the drug trade. His raw candour leads me to believe that Mr. Borecky really has had an internal shift in how he looks at life.

I find he earnestly regrets his chosen path and that at this more advanced stage in life he wants out, not only out of custody to make a fresh start but out of the lifestyle he has lived. [ 47 ] However, even if I accept the circumstances he says have changed, I have to be realistic about the consequences to the

community of any potential failure. Mr. Borecky's history of drug trafficking and his prospects for rehabilitation cannot be considered in the absence of his own substance abuse which is longstanding. His addiction to drugs worsened more recently when his brother murdered his father. As many do, he turned to fentanyl as an escape. Mr. Borecky's own description of his addiction paints a picture of utter helplessness. He blames the authorities for not charging him sooner so that he could have been incarcerated and saved from this downward spiral. [ 48 ] What is notably absent in these offences and in Mr.

Borecky's personal history is any self-propelled attempt to address his addiction and distance himself from a life of crime. While the delay in charging Mr. Borecky with the trafficking offences served neither his best interest nor the community, the repeated involvement of the police and scrutiny Mr. Borecky was under did nothing to inspire the steps towards rehabilitation that he now wants to undertake. [ 49 ] Defence counsel persuasively argued that the answer to the current opioid crisis does not lie in increased incarceration but rather in more compassionate and medical intervention.

This is difficult logic to apply in Mr. Borecky's case. He was not only a user of fentanyl but a purveyor of seriously harmful drugs as well. Just before the January 8th offences he was at the hospital seeking whatever medical interventions are available but he abandoned those options, causing a real danger to the community. These realities of drug use and addiction complicate the analysis. [ 50 ] In weighing Mr. Borecky's prospects for rehabilitation now I must, unfortunately, conclude that the Court of Appeal's prognosis in 2013 has not changed for the better. The management of Mr.

Borecky's addiction is in its infancy and is confined to a controlled environment. One factor that could assist Mr. Borecky in his rehabilitation is his genuine remorse for causing harm to the victims on January 8th. I believe Mr. Borecky when he says that he does not recognize himself in the callous, reprehensible way he acted that day. I believe Mr. Borecky when he says that he finds his own actions that day despicable and shameful. There is integrity in Mr. Borecky's genuine expressions of remorse for putting innocent people in harm's way. Mr.

Borecky has received rehabilitative sentences in the past and they have not led to change. There is always hope but that hope must be balanced against the need to ensure the public is protected. In my view, ensuring public safety requires Mr. Borecky to gain insight into the causes of his offending and take responsibility for changing. Remorse is a step in this direction. [ 51 ] Mr.

Borecky pointed to many outside forces working against his success: his addiction, the hospital staff who could not help him, Crown who did not seek to detain him sooner and a drug boss who led him straight back to dealing from his last federal sentence. Nevertheless, I find that Mr. Borecky's moral blameworthiness for the drug offences is high. He knows, both as an addict and as someone who has been sentenced for such offences in the past, that these drugs cause serious harm. Possession for the purpose of trafficking in fentanyl and heroin occurred in the full blown emergency of an opioid crisis.

His decision to return to trafficking was based on business and relationships, not his own addiction. He returned to it while still on parole when there was presumably some support and structure to keep him on the right path. He supported himself on the profits of pedalling misery and addiction to others. [ 52 ] His culpability for the offence of evading police is also high. Mr. Borecky does not have the same insight into the harm caused by his drug and driving offences as he does to the robberies and the vehicle theft.

To be clear, as I have said, his remorse for the harm he caused to the civilian victims of his January 8th offences is profound and genuine; however, his submissions in relation to the other charges lack insight and underestimate the seriousness of the danger he posed to the police and the public.

While they are dated, he has convictions for serious driving offences that one would expect to be unforgettable reminders of the harm such recklessness can cause. [ 53 ] His degree of responsibility for the other Criminal Code offences is elevated but not as highly as for the possession for purpose of trafficking or evading police. I have given some weight to the fact that Mr. Borecky was in the throes of withdrawal on January 8th, 2019; however, this is tempered by the fact that he was in a hospital when these offences began. I do not have a foundation of medical evidence to properly weigh Mr.

Borecky's symptoms of withdrawal as a mitigating factor. But I have accepted Mr. Borecky is an addict and it just makes common sense that he would have been plunged into physical and psychological chaos when easy access to drugs was curtailed. That said, this spree of offences, victimizing innocent members of the community, cannot have been the only option. Aggravating Factors [ 54 ] In

summary, the aggravating factors in this case are the following: The criminal record, which is lengthy, serious, related and recent and includes a previous trafficking offence which is statutorily aggravating. Second, Mr. Borecky possessed a variety of serious and dangerous drugs for the purposes of trafficking. The one global count from 2018 includes fentanyl which is a particularly damaging and addictive substance. The trafficking offences were ongoing for a protracted period of time and were not entirely motivated by addiction.

He was found with a knife within reach in the last of the drug offences and the presence of a weapon increases the risk of violence. On the evading police charges it is aggravating that he was driving double the legal limit on city streets. He put passengers, the officers and the general public at risk. Finally, the impact on known victims in this case is aggravating. Whether or not he meant to cause harm, the harm that flowed from his actions was entirely foreseeable. Mitigating Factors [ 55 ] Mr.

Borecky has entered guilty pleas for these offences and particularly in relation to the January 8th offences I find Mr. Borecky has expressed a deep and genuine remorse. The mitigating affect of his guilty pleas are given even more weight during this COVID-19 pandemic. The pleas were entered before mass vaccinations had been achieved, sparing people from convening and saving significant court time at a trial. This makes Mr. Borecky's words of remorse real, as do his letters of apology written to the victims of the January 8th offences. [ 56 ] Mr.

Borecky has given vivid descriptions of what it was like to be incarcerated at the onset of the COVID pandemic and to have lived through the uncertainty of that time as a prisoner and I have also considered that as a collateral consequence. [ 57 ] Finally, I have considered that Mr. Borecky is himself an addict which has some bearing not only on the possession for the purpose of trafficking charges but also for the January 8th offences. Analysis

[ 58 ] The crimes before the court are serious and Mr. Borecky's moral culpability for them is high. The sentence must send a message that violent attacks on innocent strangers are not tolerated in a peaceful and just society. Mr. Borecky's past offences require me to impose a sentence sufficient to also deter him from continuing to offend, particularly in any kind of trafficking of drugs. [ 59 ] Despite his criminal record, Mr. Borecky's rehabilitation should not be completely eliminated from consideration.

He is not a young man, but he is on methadone and while in custody he says he has seen for the first time that change is possible. [ 60 ] For reasons I have outlined above, the objective of rehabilitation cannot be entirely abandoned, but nor can it trump the need to protect the public. There is no basis for me to find Mr. Borecky has responded positively to community supervised or court-ordered rehabilitation efforts in the past. I am confident this change will need to come from him and not from the coercive effect of court orders.

In this case, the objective of rehabilitation is best achieved through principles of restraint applied to the length of the total sentence. [ 61 ] The step-up principle, while it has been emphasized by the Crown, does not require automatic increases from past sentences. It is a principle of restraint designed to ensure that courts impose fit and fair sentences for repeat offenders like Mr. Borecky. The totality principle will also apply to these sentences as they could amount to a very high aggregate period of incarceration.

The totality principle requires me to ensure that the total period of time in custody is proportionate and does not crush all future hope of Mr. Borecky’s reintegration to a law-abiding society. Sentencing Ranges [ 62 ] Crown counsel relies heavily on Mr. Borecky's last offences in submitting that the sentence today should be higher than the eight-year sentence imposed in 2013 ( see R. v. Borecky , 2013 BCCA 163 ) given Mr. Borecky's rapid and similar reoffending. While Mr. Borecky's own case is obviously relevant in considering this offender, the offences are not the same.

The specific circumstances of the present convictions must be placed within the range established by the case law as opposed to automatically increasing the sentence beyond his last one. In R. v. Borecky the Court of Appeal decided that a fit sentence for the trafficking charges alone, without reference to the firearms, would have been five years. [ 63 ] In the present case, Mr. Borecky did not use an arsenal of firearms as tools of the trade and the drugs he possessed were a fraction of the value.

These differences are offset by the following: (1) the presence of fentanyl in the most recent charges; (2) the fact that he repeated his offending so quickly after his last sentence; (3) in contrast to the one discrete incident involved in his 2012 conviction, in this case there is evidence of ongoing involvement in trafficking for over a year-and-a-half uninterrupted by police investigation and arrest, and (4) even though he was not found with firearms there were different, albeit less aggravating indications that he was, at the very least, careless about the safety of others in the course of his business. [ 64 ] Given the Crown's position that Mr.

Borecky acted as a mid-level trafficker most, if not all of the cases they rely on relate to sentences in that range. All of the cases provided by counsel have been helpful since the sentencing ranges for street level and mid-level traffickers are not discrete. An offender's degree of involvement in the drug trade is one factor among many to be considered in crafting a fit sentence. [ 65 ] Given my specific findings about Mr. Borecky, I am guided by the appellate cases dealing with street-level traffickers, in particular R. v. Voong 2013 BCCA 527 and R. v. Smith 2017 BCCA 112 . I have also considered R. v.

Ellis 2022 BCCA 278 where our B.C. Court of Appeal has recently emphasized that sentencing ranges are guidelines that cannot eclipse the ultimate task of imposing a fit sentence. [ 66 ] There is a constellation of aggravating factors in this case that command a sentence above the street-level range articulated in Voong and Smith. First and foremost is the astounding lack of deterrence achieved by Mr. Borecky's eight-year sentence of incarceration in 2013. Regardless of the reason why he returned so quickly to the drug trade, it is clear that even a lengthy term of incarceration did not keep the public safe. Mr.

Borecky may not face identical pressures when he is released this time but I have no doubt there will be pressures that test the durability of his sobriety and his commitment to leave a well-worn lifestyle behind. [ 67 ] Second is Mr. Borecky's lengthy record demonstrating his entrenched involvement in the drug trade. Third is the fact that these offences spanned a significant period of time; they were not singular acts of selling drugs to meet a specific need. Fourth, Mr.

Borecky did not start trafficking drugs in 2017 to feed his addiction; it was profit-motivated even if that profit was due to someone else. [ 68 ] When I consider the whole of Mr. Borecky's submissions and evidence, I find that up to the end of 2018 the fact that he could satisfy his own addiction was a side benefit to being a drug dealer. And finally, unfortunately, I cannot reliably find that Mr. Borecky's commitment to a different life which he started in custody will be sustainable. [ 69 ] In situating Mr. Borecky in the wide spectrum of available sentences, I am guided primarily by R. v.

Lloyd , 2019 BCCA 128 , R. v. Emery 2019 BCSC 1789 and R. v. Wilson , 2021 BCSC 1160 . None of these cases are identical, of course, but a common feature is a rapid reoffending by people convicted of drug trafficking in the past. I am mindful that in Lloyd in particular, the case is more aggravated in several ways including his use of a weapon, that the sentencing judge did not accept he was an addict, that he did not plead guilty and had a quantity of drugs valued about twice as much as Mr. Borecky's case, including much more fentanyl. The amount of fentanyl Mr.

Borecky had was quite small and there is no evidence it was mixed with other substances. In upholding the sentence, our Court of Appeal found that six years was in the high end of the range. The sentence for Mr. Borecky should be lower than six years. [ 70 ] The case most factually analogous, both in terms of the offences and the offender, in my view is R. v. Wilson . Mr. Wilson was also a Chilliwack drug trafficker operating at the street level and found on multiple occasions to have a similar value of drugs as in the case at bar although notably Mr.

Wilson had a greater quantity of fentanyl in the mix of drugs he possessed for the purpose of selling. Like Mr. Borecky, Mr. Wilson also attempted to evade police in his vehicle with a knife and taser found in the car when he was ultimately arrested. Mr. Wilson had recent and related convictions although not nearly as serious as Mr. Borecky's last offence. Mr. Wilson had also demonstrated some ability to address his underlying addiction while on judicial interim release; nevertheless, the court found a sentence of seven years was appropriate and reduced it to five in light of the totality principle.

[ 71 ] I find that a fit sentence on the four charges of possessing controlled substances for the purpose of trafficking is four years' incarceration. Given the failure of the Crown to charge the 2017 offences and 2018 offences in a timely manner, Mr. Borecky's conduct is very much a continuous enterprise of trafficking in cocaine, heroin and methamphetamine and, accordingly, the trafficking offences should all attract concurrent sentences. [ 72 ] With respect to the charge of evading the police on December 6th and 11th, Crown seeks a one-year concurrent sentence; however, in my view a fit sentence is two years.

I also find that this sentence should be consecutive to the Controlled Drugs and Substances Act offences. All of the Criminal Code charges, those from December 6th, 11th, as well as those on January 8th, offend different legally protected interests. I cannot find that they are a linked series of acts within a single endeavour. Imposing one year concurrent for the evading police charge would not result in a proportionate sentence, in my view, given Mr. Borecky's history particularly of driving offences.

He has been convicted of impaired driving, driving while disqualified and dangerous driving four times, once causing death. Most relevant is a conviction in 2003 for flight from police where he received a 30-month sentence concurrent to a charge of dangerous driving. [ 73 ] The range of sentence for offences under s. 249.1 is broad, from non-custodial sentences to a maximum of five years' incarceration. Mr.

Borecky's record, the danger he posed to others on more than one occasion, and the manner in which he fled from the police place him near the mid range of these sentences. [ 74 ] The Criminal Code offences committed on January 8th are defined by the way Mr. Borecky recklessly endangered strangers in the community. The range of sentences for robbery and auto theft are broad, from non-custodial sentences up to life in prison for robbery, and 10 years in jail for the theft of a vehicle. [ 75 ] Our Court of Appeal has endorsed sentences from four months to three years' incarceration for purse-snatching robberies.

Sentences of a year and longer have been imposed even where no injuries are caused or no weapons are used. Vulnerability of the victims, the accused's criminal history and the degree of planning or premeditation also play a significant role in such sentencing: see R. v. Thompson , 2003 BCCA 308 , R. v. Porter [1996] B.C.J. No. 266 , R. v. Ruckman , 2003 BCCA 456 , R. v. Carter [1982] B.C.J. No. 1022 , R. v. King [1986] B.C.J. No. 717 and R. v. Gillis [1994] B.C.J. No. 53 . [ 76 ] The benchmark sentences for automobile theft offences is noted by our Court of Appeal in R. v.

Lawson , 2012 BCCA 508 to be between five months and five years' incarceration. The facts of the Lawson case are distinguishable but in pronouncing on the fitness of the three-year sentence the court emphasized the impact of previous property offences, premeditation and an offender's prospects for rehabilitation. I have also referred to R. v. Dick , 2000 BCCA 470 where a sentence of two years less a day was upheld on a conviction under s. 333.1 for a youthful but repeat offender. [ 77 ] Mr.

Borecky's persistence and the predictable way in which these offences impacted victims move the required sentence upwards in the available range. Mr. Borecky has a history of property offences including break and enter and robbery although these are quite dated. He was sentenced to three years for such offences in 1995. Mr. Borecky's genuine remorse must reduce the overall sentence. One of the two robberies was an unsuccessful attempt given that Mr. Borecky let go of the purse; however, not before dragging Ms. Stephan some distance and causing her injury. [ 78 ] I have also considered that Mr.

Borecky committed these offences while suffering symptoms of withdrawal. There are two reasons this factor does not have a strong downward pull on the sentence to be imposed for the offences he went on to commit. The first is that these were not unforeseeable consequences to Mr. Borecky's voluntary drug use and lifestyle in the drug trade. The second has to do with the overarching objective of criminal sentencing which is to protect the public. Regardless of the fact that Mr. Borecky did not set out to hurt anyone that day and regardless of the overwhelming impact of the drugs on him, Mr.

Borecky and others in our society must be deterred from acting with such heartless indifference to the integrity of others. [ 79 ] Mr. Borecky's submissions regarding his withdrawal from drugs do allow me to safely conclude that these were not carefully planned or sophisticated offences. I have also considered that Mr. Borecky did not use weapons and the physical force he used is on the low end, essentially elevating a theft to a robbery. That said, he did use actual physical force as opposed to mere threats of violence.

While the physical injuries were not serious, the psychological ones were profound. [ 80 ] The offences on January 8th took place over approximately three-and-a-half hours and could be described as a series of acts linked together by his motivation to curb his withdrawal; however, I would not describe them as a single endeavour, particularly since he offended against four different people in committing three different types of offences. [ 81 ] A fit sentence for the January 8 th offences is a global sentence of five years apportioned by consecutive sentences as follows: One-and-a-half years' incarceration for the motor vehicle theft, one-and-a-half years for the attempted robbery of Ms.

Stephan, one-and- a-half years' incarceration for the robbery of Ms. Reyes and six months' incarceration for the possession of stolen property. [ 82 ] These Criminal Code offences will be served consecutively to the 2017 and 2018 offences. The aggregate sentence amounts to a sentence of 11 years; however, this is not the sentence that I will impose today. On application of the totality principle, I am reducing the sentence on the motor vehicle theft by six months and the attempted robbery by six months.

I am also reducing the sentence on the flight from police sentence from two years to one year. [ 83 ] The total sentence I would have imposed before taking pre-trial custody into account is nine years or 3,285 days. After counsel's submissions, Mr. Borecky asked the court to consider enhanced credit beyond one-and-a-half for the time he has served for a number of compelling reasons. I cannot accede to this request, first and foremost because there is a statutory limit on how pre-trial custody should be taken into account. [ 84 ] I have taken into consideration the actual 1,477 days Mr.

Borecky has served of pre-trial custody. With enhanced credit of time- and-a-half that amounts to 2,216 days. This results in a total sentence to be served of 1,069 days which is just under three years. [ 85 ] For the record, I am going to go through the breakdown by count. On file 68690, the sentence I would have imposed is a global

sentence of four years' incarceration, and giving enhanced credit of 1,459 days of pre-trial custody the sentence is one day incarceration. The time served is apportioned as follows as between the counts: Count 1, one year; Count 2, one year; Count 4, 18 months; and Count 7, six months. Sentences on these counts are to be served consecutive to each other and to all other files. [ 86 ] On file 70131, the sentence I would have imposed on Count 8 is one year incarceration.

I am giving enhanced credit for 364 days in custody and the sentence is one day in custody consecutive to all other charges. [ 87 ] With respect to Count 1 on this same Information, the sentence I would have imposed is four years' incarceration consecutive to Count 8 but concurrent with Counts 1, 2 and 3 on Information 65567.

Having considered with enhanced credit, the equivalent of 393 days of time served, the sentence is 1,067 days of new time. [ 88 ] On all counts for file 65567 I would have imposed a sentence of four years' incarceration concurrent to each other and concurrent to Count 1 on 70131, but consecutive to all other charges.

Having considered the 393 days of time served on this sentence, the sentence to be served is 1,067 days, again concurrent to file 70131. [ 89 ] The total sentence on all charges to be served going forward is 1,067 days in custody. [ 90 ] There will also be a s. 109 order which is a weapons prohibition for life to apply on Count 1on Information 70131. [ 91 ] DNA is a primary designated offence for the robbery charge and that order will made in relation to Count 4 on Information 68690. [ 92 ] There is a forfeiture order for all illegal substances and offence-related property. [ 93 ] Is there anything further from counsel? [ 94 ] CNSL M.

WRAY: Your Honour, I neglected to ask when I made my original submissions, Crown would be asking for a no contact order for the victims on the Provincial offences pursuant to s. 743.21. [ 95 ] THE COURT: Any submissions on that, Mr. Ferguson? [ 96 ] CNSL D. FERGUSON: No, Your Honour. [ 97 ] THE COURT: I will make that order, and the names of the victims, for Madam Clerk's benefit, are as listed in the Information on the Provincial charges. (ORAL REASONS FOR SENTENCE CONCLUDED)