Her Majesty the Queen - v. -, 2022 SKPC 12

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 12 Date: February 25, 2022 Informations: 991118468, 991118469, 991118470, 991125690 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ryley Lorne Olynik and Brandon Jeffrey Lupkoski Appearing: C. Bliss For the Crown P. Thomson For the Accused, Ryley Lorne Olynik A. Oberholzer For the Accused, Brandon Jeffrey Lupkoski SENTENCING DECISION R.D. J ACKSON, J I. INTRODUCTION [ 1 ] Ryley Lorne Olynik and Brandon Jeffrey Lupkoski were convicted after trial [1] of the following:

Ryley Lorne Olynik:

a) break and enter and discharge firearm;

b) carry firearm for purpose dangerous;

c) breach of release order for failing to keep the peace and possess weapon;

d) possess firearm while prohibited;

e) evade police; and

f) intentionally discharge firearm while reckless for the life or safety of others. Brandon Jeffrey Lupkoski:

a) break and enter and discharge firearm;

b) carry firearm for purpose dangerous;

c) possess firearm while prohibited; and

d) intentionally discharge firearm while reckless for the life or safety of others. [ 2 ] Briefly, the two accused attempted to gain forceable entry to a basement suite by prying and battering the door and firing multiple shots from a .22 calibre rifle through a bedroom window. [ 3 ] The suite was occupied at the time by a tenant and a friend staying over. Both sustained injuries in the process of repelling the attack. The friend was struck in the head by a metal bar when he first answered the door to the intruders.

He then managed to quickly close and bolt the door, preventing entry. [ 4 ] The tenant sustained superficial gunshot wounds to his arm and shoulder in the process of throwing objects at the shooter from inside the bedroom, including a propane cylinder, which struck the shooter in the upper portion of his body. [ 5 ] The entire incident lasted several minutes, ending when the two perpetrators retreated without gaining entry. [ 6 ] Neither of the victims knew the intruders nor could offer any explanation as to why this residence was targeted. [ 7 ] The assailants fled the scene by motor vehicle parked in the alley and moments later were flagged by police when crossing a nearby bridge.

When they failed to stop when signaled to do so, a pursuit followed by several police units terminating in the town of Warman, where both accused were apprehended. II. SENTENCING PRINCIPLES [ 8 ] The purposes and principles of sentencing are found in

Part XXIII of the Criminal Code , including principally, ss. 718 , 718.1 , and 718.2 . [ 9 ] The Court must bear in mind the fundamental purpose of sentencing to protect the public and contribute to respect for the law and maintenance of a just, peaceful, and safe society, having regard to one or more of the following:

a) denunciation and deterrence;

b) separation of offenders from society where necessary;

c) rehabilitation;

d) proportionality regarding the gravity of offence and moral culpability of the offender;

e) mitigating and aggravating factors;

f) parity concerning sentences imposed on similar offenders for similar offences in similar circumstances;

g) totality where consecutive sentences are contemplated such that the total sentence is not unduly long or harsh; and

h) consideration of all available sanctions other than imprisonment that are reasonable in the circumstances. III. PERSONAL CIRCUMSTANCES Ryley Lorne Olynik [ 10 ] Mr. Olynik is a 31 year-old, Caucasian male. According to his Pre-Sentence Report (PSR), he grew up in a home where domestic violence was present. He suffered physical abuse as well from his stepfather. He struggled with school, failing to graduate and encountered trouble with the law at an early age. He has suffered addiction issues leading to poor choices as a youth and adult. [ 11 ] Mr.

Olynik’s criminal record consists of several entries as a youth involving violence and weapons, including robbery, possession of restricted weapons, assault with weapon, carry concealed weapon, as well as several compliance-related convictions. [ 12 ] As an adult, Mr. Olynik continued to accumulate significant violence and weapons convictions consisting of attempted kidnapping (44-month sentence in the penitentiary), assault with weapon, assault causing bodily harm, together with drug possession and numerous compliance convictions. [ 13 ] Mr.

Olynik’s overall risk to offend generally was assessed in his PSR as “high”. Brandon Jeffrey Lupkoski [ 14 ] Mr. Lupkoski is a 27-year-old, Caucasian male. He characterized his upbringing in his PSR as suffering “a lot of abuse” from his parents and older brother and that there was “drinking and partying a lot” in the home. He reports being sexually abused by a neighbour as a youth. He left home at age fifteen and began abusing illicit drugs, leading to a daily fentanyl addiction. On the night of the subject incident before the Court, he stated that he was on Xanax and in a “bad state of mind”. Mr.

Lupkoski’s has an adult criminal record consisting of one series of events in 2016 where he was convicted of possession for the purpose of trafficking charges, several weapons offences, as well as compliance issues, for which he received a penitentiary sentence. [ 15 ] Mr. Lupkoski’s PSR also rates his risk to offend generally as “high”. IV. AGGRAVATING AND MITIGATING CIRCUMSTANCES [ 16 ] The Court considers the following to be aggravating factors:

a) the attack appeared pre-planned and targeted;

b) the dwelling was located in a residential area;

c) the dwelling was occupied at the time of the attack (s. 348.1 C.C.);

d) a firearm was used and multiple shots were fired;

e) both occupants sustained injury – one by blunt trauma to the head – the other by gunshot wounds;

f) both accused were on a weapons prohibition orders at the time of the incident;

g) both accused were on release conditions at the time; and

h) both accused have serious criminal records for which they have been sentenced to penitentiary dispositions. [ 17 ] Mitigating factors include:

a) the relative youth of the offenders and consequent potential for rehabilitation;

b) both accused had troubled and difficult personal circumstances growing up, including abuse, neglect, and addictions issues; and

c) both appear to have strong outside supports and employment prospects. V. SENTENCE POSITIONS [ 18 ] The Crown seeks a global disposition for Mr. Olynik of 11.5 years, comprised of 10-year sentences (concurrent) for the two most serious offences of the home invasion (s. 348(1)(

b) C.C. ) and reckless discharge of firearm (s. 244.2(1)(

b) C.C .) together with consecutive sentences for possession of weapon while prohibited of 1 year (s. 117.01 C.C .) and 6 months for evade police (s. 320.17 C.C .), with the balance to be concurrent sentences. [ 19 ] For Mr. Lupkoski, the Crown’s position is slightly lower being 10.5 years globally consisting of 9.5 year sentences concurrently for the two most serious offences plus 1 year consecutive for the possession of firearm while prohibited, again with the balance to be concurrent sentences. [ 20 ] Defence are of the view that the sentences should be in the range of 5 to 6 years globally. VI.

CASE LAW [ 21 ] Numerous cases were cited by counsel as comparables in regard to the most serious offences of reckless discharge of firearm and break and enter and discharge firearm (home invasion). As expected, few cases can be said to be right on point; however, as noted in R v Klemenz [2] , parity is about fairness and is not to be merely a matching exercise.

Section 244.2(1)(b) – Reckless Discharge of Firearm [ 22 ] The punishment for this offence carries a 4 year minimum sentence. In R v Morrisey [3] , the Supreme Court stated that mandatory minimum sentences should act as an “inflationary floor” setting new minimum punishments for “best” offenders in the “best” circumstances. In other words, offenders with the lowest moral culpability in the least aggravating of circumstances. The Crown submits, and the Court agrees, that neither offender in this case would fall within such categorization. [ 23 ] The following illustrates a general sampling of the range of sentences for this offence in our province and abroad:

R v Anaquod , 2021 SKCA 111 [ Anaquod ] -42 years old -police stand-off -shots fired at police, narrowly missing one officer -criminal record (CR) including assault with weapon and robbery -significant Gladue [4] factors 8 YEARS R v Arcand , 2019 SKQB 131 -36 years old -fired shots at police using home-made gun -downtown Saskatoon -pedestrians, motorists, and office workers at risk -CR including 21 youth and 16 adult – 3x assault-related convictions -significant Gladue factors – turbulent and unstable homelife involving physical and substance abuse 8 YEARS R v Bako , 2017 SKCA (SentDig) 6 -31 years old -permanent resident -several shots fired from front door of residence from .32 calibre handgun -victim struck in torso – loss of spleen and on antibiotic therapy for life -CR including assault with weapons and utter threats 6 YEARS R v Rodney , 2017 ONCJ 68 [ Rodney ] -22 years old -four shots fired into home in residential area -home occupied, including a young person -CR – minor 5 YEARS R v Reis , 2017 ONSC 1961 -28 years old -victim pursued and shot at 5x – wounded in pelvic area -no CR 5 YEARS R v Skinner , 2016 NSCA 54 -19 years old -multiple handgun shots into parked car in busy residential area

-no injuries -CR – significant youth record plus prohibited from possessing firearm at the time 7 YEARS (+ 1 year consecutive for firearm prohibition conviction) R v Fredericks , 2017 NBQB 30 [ Fredricks ] -34 years old -several shots fired into residence of girlfriend -no injuries -CR – lengthy, including weapon and weapons prohibition 8 YEARS (+1 year consecutive for weapon prohibition conviction) R v Alexander , 2013 ONSC 171 -29 years old -shots fired at loss prevention officer in mall -no injuries -CR – violence, including robbery and assault 7 YEARS R v Oud , 2016 BCCA 332 , 339 CCC (3d) 379 [ Oud ] -35 years old -shot several .22 calibre bullets into a door from 60 feet away after perceived drug rip-off -house occupied -one bullet grazed cheek of an occupant -CR – impaired driving -significant rehabilitation efforts 5 YEARS R v Brown , 2020 BCPC 137 [ Brown ] -26 years old -discharged firearm in hallway of rooming house -CR – for trafficking drugs -on weapons prohibition at time -significant Gladue factors 5 YEARS [ 24 ] In Anaquod and Arcand , the sentence imposed was 8 years.

However, both were stand-off situations where shots were fired intentionally at responding police officers. The circumstances in Arcand were exacerbated by the fact that the shooting occurred on a busy downtown street in Saskatoon putting not only the officers at risk but motorists, pedestrians, and occupants of nearby offices, as well.

[ 25 ] In cases involving shots fired into a home, the sentences ranged from 5 years ( Rodney, Brown, Oud ) to 8 years ( Fredericks ). Of particular note is Bako where our Court of Appeal did not vary a 6-year sentence where the offender fired several shots at close range directly into the house, causing serious permanent injury to the victim. [ 26 ] The Crown points out that Bako was an inmate appeal with no cross-appeal by the Crown, thereby diminishing to some degree the precedential value of the Court’s decision.

That being said, it is nonetheless a persuasive marker from our Court of Appeal for this type of offence in these types of circumstances. [ 27 ] In the present case, as in Bako , shots were fired at close range into an occupied house. Although the occupant here was only superficially wounded, it was only by sheer good fortune that more significant injury or death did not ensue given the very close proximity of the victim in attempting to repel the attack. [ 28 ] Having regard to all of the circumstances, an appropriate disposition for these two accused in the instant case is a sentence of 6 years’ incarceration.

Section 348(1)(b) – Break and Enter and Discharge Firearm [ 29 ] The Court has had the benefit of reviewing the numerous decisions provided by counsel relating to violent home invasions.

The spectrum of sentences in this province appear to fall within a general range of 4 years at the bottom to 12 years at the top, with the majority in the 5 to 7 year range ( R v Pelly , 2006 SKCA 60 , 279 Sask R 252 – 7 years; R v Noname (1), 2017 SKCA 21 – 5.5 years; R v Noname (2), 2017 SKCA 22 – 12 years; R v Janvier , 2011 SKCA 133 , 377 Sask R 129 – 7 years; R v Montgrand , 2010 SKCA 159 , 366 Sask R 303 – 7 years; R v Lemaigre , 2010 SKCA 158 , 366 Sask R 299 – 5 years; R v Payne , 2007 SKCA 28 , 293 Sask R 31 – 4 years; R v Fraser , 2007 SKCA 113 , 302 Sask R 210 – 7 years; R v Morash , 2006 SKCA 59 , 297 Sask R 38 – 6 years, 11 months; R v MacLoud , 2018 SKCA 1 – 5.5 years.) [ 30 ] The circumstances of this case are unique in that the accused were found guilty not by actual physical entry to the home, but by firing shots through the window in the process of attempting to gain entry [5] . [ 31 ] Notwithstanding the manner the break and enter occurred at law, the gravity and moral culpability of the accused are no different, in the Court’s view, than had they gained entry and attacked the victims directly. [ 32 ] Having regard to all of the circumstances, the Court determines a sentence of 6 years to be the appropriate disposition for both offenders.

As an aside, both Crown and defence took the position that the two most serious offences of the reckless discharge of firearm and home invasion should warrant sentences equal in length, albeit for much different periods of incarceration.

Section 117.01(1) – Possession of Firearm While Prohibited [ 33 ] The Court agrees with the Crown’s submission that a conviction for this offence shall ordinarily attract a consecutive sentence, as enunciated in R v Sakebow [6] , R v Delorme [7] , and the recent decision of R v Crookedneck [8] . [ 34 ] Given the significant and serious records of both the accused, a sentence of twelve months consecutive sought by the Crown is well within the range. However, the accused are receiving lengthy penitentiary sentences for other offences before the Court. Having regard to the totality principle in s. 718.2 (

c) of the Criminal Code , the accused are each sentenced to a period of incarceration of 6 months consecutive for this offence.

Section 320.17 – Evade Police [ 35 ] Similarly, the sentence for evade police also warrants a consecutive sentence [9] . Although the police pursuit did not involve

high speeds nor dangerous driving, it nonetheless took several police units out of the city to the town of Warman. Mr. Olynik had ample opportunity to stop over an extended period of time. The appropriate disposition on these facts having regard to the totality principle is a sentence of 3 months consecutive. VII. GLOBAL DISPOSITION [ 36 ] Mr. Olynik is sentenced to a global disposition of 6 years and 9 months comprised as follows: a. Information ending in 468 Count 2 – break and enter and discharge firearm - s. 348(1)(

b) of the C.C. – 6 Years (concurrent) Count 4 – carry firearm for purpose dangerous - s. 88 C.C. – 2 Years (concurrent) b. Information ending in 469 Count 1 – breach of release order – s. 145(5)(

a) C.C. – 6 months (concurrent) Count 2 – evade police – s. 320.17 C.C. – 3 months (consecutive) Count 3 – possess firearm while prohibited – s. 117.01(1) C.C. – 6 months (consecutive) c. Information ending in 690 Count 1 – intentionally discharge firearm while reckless to life and safety of others – s. 244.2(1)(

b) C.C. – 6 Years (concurrent) Total – 6 years 9 months [ 37 ] Mr. Lupkoski is sentenced to a global disposition of 6 years and 6 months comprised as follows: a. Information ending in 468 Count 2 – break and enter and discharge firearm – s. 348(1)(

b) C.C. – 6 Years (concurrent) Count 4 – carry firearm for purpose dangerous – s. 88 C.C. – 2 Years (concurrent) b. Information ending in 470 Count 1 – possess firearm while prohibited – s. 117.01(1) C.C. – 6 months (consecutive) c. Information ending 690 Count 1 – intentionally discharge firearm while reckless for life and safety of others – s. 244.2(1)(

b) of the C.C. – 6 Years (concurrent) Total – 6 Years 6 Months

VIII. REMAND CREDIT [ 38 ] On the submissions date of January 14, 2022, the Crown acknowledged that Mr. Olynik had 227 actual days remand credit, and that Mr. Lupkoski was entitled to 636 actual days remand credit. Since 39 days have elapsed from that point to the sentencing date, Mr. Olynik’s actual remand days now stand at 266, and for Mr. Lupkoski 675 days, as of date of sentencing, February 25, 2022. [ 39 ] The Crown agrees that the accused are entitled to an enhanced rate of remand of 1.5:1. Accordingly, Mr. Olynik shall be entitled to an enhanced remand credit of 266 x 1.5 = 399 days . [ 40 ] Mr.

Lupkoski shall be entitled to an enhanced remand credit of 675 x 1.5 = 1,012.5 days . IX. ANCILLARY ORDERS [ 41 ] The following ancillary orders shall attach with respect to both accused:

a) section 109 weapons prohibition for life (attaching to s. 244.2(1)(b), s. 348(1)(b), and s. 117.01(1) convictions);

b) DNA order pursuant to s. 487.051 C.C. (attaching to s. 244.2(1)(

b) and s. 348(1)(

b) convictions);

c) forfeiture of all weapons seized pursuant to s. 491 C.C.;

d) no contact with Calvin Boschman or Jordan Patterson while the accused are serving their custodial sentences pursuant to s. 743.21(1) C.C.;

e) release of all trial exhibits upon expiration of all appeal periods. [ 42 ] The Court declines to make a driving prohibition order pursuant to Mr. Olynik’s conviction under s. 320.17, as such would impede rehabilitation and employment prospects upon release. [ 43 ] All applicable surcharges are waived with respect to both accused. __________________________ Jackson, J