R. v. Stulec, 2022 BCPC 301

Citation: R. v. Stulec 2022 BCPC 301 Date: 20221205 File No: 81520-1 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REX v. KAROLINA STULEC REASONS FOR SENTENCE OF THE HONOURABLE JUDGE JETT É Counsel for the Crown: P. Mann Counsel for the Defendant: D. Karp Place of Hearing: New Westminster , B.C. Date of Hearing: October 11, 2022 Date of Judgment: December 5, 2022

Introduction [ 1 ] Ms.

Stulec has entered guilty pleas on counts 1, 7 and 9 of the information which read as follows: Count 1: Karolina Stulec, on or about the 4 th day of January 2019, at or near New Westminster, in the Province of British Columbia, did unlawfully traffic in a controlled substance, to wit: Fentanyl, Carfentanil and/or U-4700 (methbenzamide), contrary to section 5(1) of the Controlled Drugs and Substances Act; Count 7: Karolina Stulec, on or about the 1st day of May 2019, at or near the City of Vancouver, in the Province of British Columbia, did possess a controlled substance, to wit: Cocaine for the purpose of trafficking in a controlled substance, contrary to section 5(2) of the Controlled Drugs and Substances Act ; and Count 9: Karolina Stulec, on or about the 1st day of May 2019, at or near the City of Vancouver, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit: Diacetylmorphine (heroin) and/or Fentanyl, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act. [ 2 ] All of these drugs are

Schedule I substances in the Controlled Drugs and Substances Act (“ CDSA”) . The maximum penalty for trafficking or possessing for the purpose of trafficking a

Schedule I controlled substance is life imprisonment.

Summary of the Evidence [ 3 ] Police targeted a series of known drug lines in New Westminster and elsewhere in the lower mainland. The police believed that a male named “Rocky” owned and ran the lines. [ 4 ] Ms. Stulec completed a pair of typical dial-a-dope street level sales to undercover operators; fentanyl and cocaine on the 4 th of January 2019, and fentanyl on the 22 nd of January 2019.

During the transaction on the 4 th of January, the UCO asked about the possibility of purchasing larger quantities to take up north for fishing charters; she said she “had a guy” who cut the product and was selling for $30,000 a kilogram, which would be reduced to $10,000 in a couple of weeks. She added that she worked the drug line with her partner “Rocky” from 10:00 a.m. to midnight in Burnaby and New Westminster. They discussed future purchases and exchanged phone numbers. [ 5 ] “Rocky” is Ms. Stulec’s co-accused, Chang Jun Lee. Mr. Lee was Ms. Stulec’s boyfriend and they lived together.

The parties agree that the “guy” Ms. Stulec referred to on the 4 th of January was Mr. Lee. [ 6 ] The subsequent police investigation focused on Lee. He subsequently completed multi-ounce sales of a heroin/fentanyl blend to the UCO, and was preparing to complete a sale of 2 kilograms of cocaine and 1 kilogram of a heroin/fentanyl mix, when he was arrested with those substances on the 1 st of May 2019. Later on that same day police executed a search warrant at an apartment in Vancouver where Mr. Lee and Ms. Stulec were living together. The apartment was rented in Ms.

Stulec’s name, and she was present in the apartment when police arrived at the door. [ 7 ] During their search of the apartment, police recovered drug trafficking paraphernalia including packaging material and cutting agents, $51,000 in cash, numerous electronic devices and score sheets. Police also located quantities of cocaine, heroin, fentanyl and methamphetamine in a variety of locations inside the apartment.

Some of these were larger quantities of one or more of these substances, some were blends of two or more controlled substances, and some were packaged in smaller quantities typical for street sales. [ 8 ] The following is a list of the substances located in the apartment during the search conducted on the 1 st of May 2019: 1. Cocaine and cocaine blended with phenacetin: 703.9 grams. 2. Fentanyl/caffeine blend: 59.3 grams. 3. A variety of blends with combinations of two or more of heroin/fentanyl/caffeine/phenacetin/U-47700: 120.8 grams. 4. Methamphetamine: 21.26 grams. Positions of Counsel [ 9 ] Ms.

Stulec’s co-accused, Mr. Lee, plead guilty to four counts on the information and appeared before me for sentencing on the 1 st of April, 2022. I followed the joint recommendation of counsel that he be sentenced to a 7 year term of imprisonment. It was agreed that Mr. Lee acted as a mid-level trafficker. Mr. Lee also had a prior conviction for trafficking in a

Schedule I substance, as well as multiple convictions for identity theft and fraud. [ 10 ] Crown counsel submits that Ms. Stulec should also be sentenced as a mid-level trafficker while also acknowledging that her moral culpability falls considerably below that of Mr. Lee. Crown submits that a fit sentence in this case would be a global 36 months jail. Defence counsel agrees that a sentence of imprisonment is required, but submits that a Conditional Sentence of Imprisonment (“CSO”) in the range of 18 months to 2 years less a day followed by a period of probation would be fit in this case.

As a result of amendments to the Criminal Code proclaimed into force on 17 November 2022 , a CSO is a sentencing option for trafficking and possession for the purpose of trafficking controlled substances. These amendments apply here because s. 11(

i) of the Canadian Charter of Rights and Freedoms guarantees the benefit of the lesser punishment when varied between the time of the commission of the offence

and time of sentencing. Personal Circumstances of the Offender [11] Ms. Stulec is 43 years old. When she was in her teens, a relatively stable home situation was transformed into dysfunction whenher parents divorced. She remained with her mother who was struggling with a cocaine addiction. She did not complete high school, andin her early 20s began working as an exotic dancer. From ages 24-40 she worked in massage parlors and was employed as a sex tradeworker by escort agencies. [12] Ms.

Stulec began to use a variety of street drugs, then developed an addiction to opioids which was active when these offenceswere committed in 2019. She was prescribed methadone 20 years ago, but continued regular use of illicit street drugs. [13] Her relationship with Mr. Lee was initially transactional, sex for drugs. They became intimate partners over time, but defencecounsel asserts that there was always a power imbalance between the two, and that Mr. Lee was at times both physically and emotionallyabusive. Ms. Stulec knew that Mr.

Lee was selling drugs, and over time she began to work his drug lines at the street level in return for asteady supply of her own. [14] Ms. Stulec has attended treatment for her drug addiction on numerous occasions but without much success until she was acceptedinto the treatment program operated by the Elizabeth Fry Society around March of this year. She completed that three month program inJune of 2022. I have a letter from staff at that program which describe Ms. Stulec as a committed attendee who often exceededexpectations and displayed excellent leadership skills. Ms.

Stulec is also attending counselling at DIVERSEcity Community ResourcesSociety aimed at assisting her with depression and anxiety, as well as, her opioid addiction. [15] Ms. Stulec is back living with her mother, who is now clean and sober. She has the support of her niece, who has had a front rowseat for her Aunt’s many struggles in life; she has written a letter for the court explaining some of that history, and is greatly encouragedby the positive changes she sees in her Aunt. Ms.

Stulec was working recently with an agency called Atira, and has an opportunity toreturn to that place as a peer support worker after these legal proceedings have been concluded. Principles of Sentencing [16] The principles of sentencing that apply in this case are set out in s. 718 to 718.2 of the Criminal Code and there are alsoprinciples of sentencing specific to drug offences in s. 10 of the CDSA. [17] Denunciation and deterrence are the primary principles when sentencing an offender for offences related to drug trafficking.

Assuch, those who engage in trafficking can generally expect a custodial sentence: R. v. Smith, 2017 BCCA 112; R. v. Voong, 2015 BCCA285; R. v. Creuzot, 2017 BCSC 1075. While these principles are paramount in cases of this type, I must not fail to consider as well that“one of the main objectives of Canadian criminal law is the rehabilitation of offenders” which assists the court to impose a sentence inany given case which is “just and appropriate”: R. v. Lacasse, 2015 SCC 64 at para. 4; see also R. v. Schneider, 2019 BCCA 310 atparas. 10-11.

I must also take into account the principle of restraint expressed in s. 718.2(

e) of the Code. [18] In its most recent sentencing decision, R. v. Parranto, 2021 SCC 46, the Supreme Court of Canada reminded sentencing judgesthat “(T)he goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal…”This means that courts of first instance must strive to ensure that the sentence imposed is proportionate to the gravity of the offence andthe degree of responsibility of the offender: R. v. Parranto at para. 10. See also R. v. Nur, 2015 SCC 15 at para. 43. Range of Sentence [19] Ms. Stulec does not have a criminal record.

The usual range of sentence for first time street-level Fentanyl traffickers establishedby our Court of Appeal in R. v. Smith, 2017 BCCA 11 is 18-36 months jail, or even longer where additional aggravating circumstancesare present. [20] The range for mid-level fentanyl traffickers has not been set by our Court of Appeal, but appears to start near the top of the Smithrange and goes up from there. In R. v.

Campbell, 2021 BCSC 853 at paragraph 65, Justice Ker reviewed a number of sentencingdecisions which, in her view, disclosed a broad range of three to 10 years jail for mid-level fentanyl traffickers. [21] A sentencing range established for an offence or category of offences is a guideline and not a strait-jacket, an observation madeby the court in Smith and again most recently in R. v. Parranto, 2021 SCC 46. A suggested range does not preclude lesser or greatersentences if warranted. Sentencing is an inherently individualized process. No two offenders are identically situated.

There is no suchthing as a uniform sentence for a particular crime. A sentence outside the usual range can be imposed so long as it is in accordance withthe principles and objectives of sentencing: R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500; R. v. Lacasse, 2015 SCC 64;R. v. Smith, supra, at paras. 35, 43 and 46; R. v. Williams, 2019 BCCA 295; R. v. Padda, 2019 BCCA 351; R. v. Friesen 2020 SCC 9. Analysis [22] I have considered the following aggravating and mitigating circumstances. [23] The aggravating circumstances are readily apparent: 1. This was a dial-a-dope scenario.

The evils of dial-a-dope drug trafficking were cited in the oft quoted judgment of Justice Hendersonin R. v. Franklin, 2001 BCSC 706. The moral culpability for this offence is reflected in the public safety concerns outlined in that case, inparticular the easy and ready availability of dangerous drugs which is the hallmark of the dial-a-dope delivery model. These werecommercial sales and profit was the motive. 2. Ms. Stulec was trafficking a number of different substances, all of which are hard drugs; one of those substances was fentanyl.

3. Sales of fentanyl and its analogues - some of which were located in the drug combinations at the apartment in New Westminster - are unquestionably the cause of ever increasing numbers of British Columbians overdosing and dying when using opioids. The usual sad statistics were tendered before me here. I incorporate and wholly endorse Madame Justice Ker's reasons in Campbell , supra, at paragraphs 2 to 3 and 38 . 4. Ms.

Stulec was residing at the apartment where quantities of drugs, cash, and packaging materials were located; some of the controlled substances located in the suite had been packaged for sale on the street. I infer that these drugs were being distributed via the drug lines owned and operated by Mr. Lee. [ 24 ] There are also important mitigating factors: 1. Ms. Stulec’s guilty plea and genuine expression of remorse. 2. She is a first time offender. 3. She has had a difficult life which resulted in a serious drug addiction; I am satisfied that her addiction was the critical factor that drew her into Mr.

Lee’s personal orbit, and ultimately drove her decision to aid him in his drug operations. 4. Ms. Stulec made a number of efforts to work on her substance use issues; after failed attempts to complete a recovery program, she has recently broken through and is now making significant progress. She is currently clean and is continuing on a path which shows great promise. 5. Ms. Stulec has obtained work as a peer support worker with the aim of helping others who struggle with drug addiction. [ 25 ] The parties disagree with respect to Ms. Stulec’s role in Mr.

Lee’s drug operation, and whether her conduct takes her into a sentencing range at the upper end of R. v. Smith or beyond. [ 26 ] Crown counsel submits that Ms. Stulec was more than a street level dealer. While conceding that Ms. Stulec was not the principal of this operation or even second in command – the role of principal is reserved for Mr. Lee – she worked closely with him, rented vehicles that were used on the drug line, rented the apartment where the drugs were packaged for sale on the street, and benefited financially from that arrangement.

Crown points to their joint living arrangements in a comfortable and well equipped apartment, and matching Cartier bracelets. [ 27 ] Crown counsel places particular emphasis on Ms. Stulec’s exchange with the UCO on the 4 th of January 2019 which was summarized earlier in these reasons; when the UCO inquired about the possibility of obtaining larger quantities of controlled substances, she said she “had a guy who cut the product and that it was currently selling for $30,000 a kilogram, and would be reduced to $10,000 in a couple of weeks.” Ms.

Stulec then discussed future purchases with the UCO and exchanged phone numbers. In this conversation Ms. Stulec also told the UCO that she worked the drug line with “her partner” Rocky” (aka Lee) from 10:00 a.m. to midnight in Burnaby and New Westminster. [ 28 ] I agree with Crown counsel that the evidence supports a finding that Ms. Stulec was below Mr. Lee in this hierarchy, but operating at a level above that of a mere street level dealer. Having said that, there is no evidence that Ms. Stulec was involved in sales of higher quantities of drugs, which occurred after Mr.

Lee became the sole point of contact with the UCO. [ 29 ] I also find that Ms. Stulec was (and remains) a vulnerable person, easily exploited by others, as is apparent from her life story. Mr. Lee was one of those exploiters and she was subservient to him; to that extent I find that it is not enough to say that she was a rung or two below him on the ladder. Crafting a fit sentence for Ms. Stulec in these circumstances requires a careful balancing of all aspects of her involvement in this drug business together with her personal circumstances. [ 30 ] There can be no question that these are serious offences.

People are dying in British Columbia every day after consuming these toxic substances. Many of those who do the selling are addicted themselves, and operate in a daily environment where death stalks them as well. And many of those same people have fallen prey to those who are prepared to exploit others for financial gain. [ 31 ] Ms. Stulec addressed me at the close of submissions. She struck me as a person who has been damaged both emotionally and physically by her drug use and lifestyle over many years.

She was remorseful, and appeared to recognize the damage she has done to others just like herself in the community. She is also hopeful, perhaps for the first time in a long time. She told me that she found a new life when she finally committed to treatment, has new sober friends and her first real job in 20 years. [ 32 ] Crown and defence filed numerous authorities. I have considered them all; a list of those authorities have been attached as an appendix to this judgment. As usual, many can be distinguished on their facts.

In some, sentences were imposed where the only sentencing options were a suspended sentence or a period of institutional jail. And of course, the circumstances of the offence and offenders vary from case to case. [ 33 ] The decision which I find most closely approximates the circumstances here is R. v. Flintroy , 2021 BCSC 1187 . In that decision, the Crown was seeking 30 months jail; the defence a suspended sentence or a CSO with probation to follow. Mr. Justice Crossin imposed a 20 month CSO followed by 12 months probation. Ms.

Flintroy and her long time intimate partner Cameron Mak were working in a New Westminster “stash house”, where large quantities of drugs are kept for distribution to street level dealers; the two of them had the task of repackaging and distributing those drugs to others, who in turn passed the drugs along to street level dealers. Additional quantities of drugs were located at a second address in Vancouver. Several others operated at a level above that of Mak and Flintroy.

When police executed a warrant at the New Westminster house, the couple were found in possession of drugs with a street value of almost $1 million. The controlled substances included large quantities of cocaine, methamphetamine, heroin and fentanyl. [ 34 ] Ms. Flintroy had a troubled background not unlike Ms. Stulec’s, including a dysfunctional upbringing, and work as an exotic dancer and sex trade worker from an early age. She developed a drug addiction which became a lifelong struggle, including multiple

failed attempts at treatment. Mr. Justice Crossin found that with respect to the drug offences, Ms. Flintroy was seriously compromised by her addiction, Mr. Mak was the directing mind, her conduct was the product of his leadership, and there was no evidence that she was the decision-maker. To complete the circle, Mr. Mak was sentenced (at a separate hearing) to 7 years jail following a joint submission from counsel. [ 35 ] There are some differences in the circumstances as compared to Ms. Stulec, but they are not enough to override the significant similarities between the two cases.

The sentencing judge found that there was no evidence Ms. Flintroy profited from her participation beyond the use of a vehicle and a roof over her head. And Ms. Flintroy was sentenced some 6 years after the offences were committed. I find that the Cartier bracelet is some evidence that Ms. Stulec gained something from her drug trafficking activities, but otherwise it would appear that her main benefit was a roof over her head, paid for with the profits of Mr. Lee’s drug trafficking enterprise. Ms.

Stulec was also sentenced long after offending; in her case, the gap is nearly 4 years. [ 36 ] In Flintroy , the offender had made significant strides in her rehabilitation by the time of sentencing, including the successful completion of a residential drug recovery program and was residing at a recovery house where she was thriving. She found a job as a support worker for a community housing organization. Most of these efforts took place only a year or so prior to the sentence hearing. Mr.

Justice Crossin commented that “the successful journey to rehabilitation is palpable in this case.” The court found that a suspended sentence was not appropriate, but after taking into account the guidance handed down by the Supreme Court of Canada in R. v. Proulx , 2000 SCC 5 , Crossin J. found that a CSO would be a suitable sentencing option. Sentence [ 37 ] I have concluded that a sentence in the Provincial range would be fit. In coming to this conclusion I have taken into account Ms. Stulec’s personal vulnerabilities as outlined above, and that she was taking direction from Mr. Lee.

I also find that although her conduct crossed the boundary between street level and mid-level participation, her primary role was street level sales employing the dial-a-dope delivery model. She did not participate in the sale of larger quantities of drugs to the UCO. It is also of particular significance that Mr.

Stulec did not have a criminal record before she entered guilty pleas to these offences. [ 38 ] Having found that the jail term here should not exceed two years less a day, I must consider the CSO provisions in the Criminal Code . [ 39 ] In addition to the requirement that the jail sentence imposed must be for less than two years, before imposing a CSO the court must be satisfied that service of the sentence in the community would not endanger the safety of the community, and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Code . [ 40 ] In R. v.

Proulx , 2000 SCC 5 , the Supreme Court of Canada distinguished a CSO from probationary measures, and observed that Parliament intended conditional sentences to include both punitive and rehabilitative aspects. The court suggested that for this reason a CSO should generally include punitive conditions that are restrictive of the offender’s liberty.

The court also found that a CSO fashioned in this way can provide significant denunciation and deterrence, while at the same time achieving the restorative objective of rehabilitation. [ 41 ] I have decided that a CSO in this case would not endanger the safety of the community, and that it would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Code . [ 42 ] I impose a 22 month CSO on each count, concurrent one with the other, to be followed by 12 months of probation. [ 43 ] The terms of the CSO are as follows: 3001 – You must keep the peace and be of good behaviour.

You must appear before the court when required to do so by the court.

You must notify the court or your conditional supervisor in advance of any change of name and promptly notify the court or supervisor of any change in employment or occupation. 3101 – You must report in person to a conditional sentence supervisor at (address inserted by 3:00 PM on the 6 th of December 2022 and after that, you must report as directed by your conditional sentence supervisor. (Off list) - You are to reside at [omitted for publication], New Westminster, B.C. and you must not change your residence without prior written permission from your conditional sentence supervisor. 3201 – When first reporting to a conditional sentence supervisor, you must provide them with your phone number if you have one.

You must not change your phone number without prior written permission from your conditional sentence supervisor. 3209 – For the first 9 months of this order, you must obey house arrest by being inside your residence at [omitted for publication], New Westminster, B.C. 24 hours a day every day. The exceptions are: You have the prior written permission of your conditional sentence supervisor. Such permission is to be given only for employment, counseling, medical appointments, or other reasonable purposes. You are going directly to, or returning directly from, a healthcare facility because of a medical emergency.

You have consented in court to providing proof of your attendance at the healthcare facility if requested by your conditional sentence supervisor.

You must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the house arrest. If you are given permission by your conditional sentence supervisor, you must carry it with you in paper or electronic format at all times when you are away from your residence.

If a peace officer finds your residence during the period of house arrest and requests to see the permission, you must show it to the officer. 3209 – For the following 9 months of this order, you must obey a curfew by being inside your residence at [omitted for publication], New Westminster, B.C. between the hours of 10 pm and 7 am every day. The exceptions are: You have the prior written permission of your conditional sentence supervisor. Such permission is to be given only for employment, counseling, medical appointments, or other reasonable purposes.

You are going directly to, or returning directly from, a healthcare facility because of a medical emergency. You have consented in court to providing proof of your attendance at the healthcare facility if requested by your conditional sentence supervisor. You must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the curfew.

If you are given permission by your conditional sentence supervisor, you must carry it with you in paper or electronic format at all times when you are away from your residence.

If a peace officer finds you outside your residence during the curfew hours and requests to see the permission, you must show it to the officer. 3004 – You must have no contact or communication directly or indirectly with Chan Yun Lee. 3400 – You must not possess or consume alcohol, drugs or any other intoxicating substances, except with a medical prescription. 3502 – You must attend, participate in and complete any intake, assessment, program, treatment, or a full time live-in treatment program as directed by your conditional sentence supervisor. This may include programming or treatment for: a.

Alcohol or substance use. b. Psychiatric and psychological health. The terms of the 12 month probation order are the following: 2001 – You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. 2104 – You must report in person to a probation officer at (address added) within two business days after completion of your conditional sentence, unless you have obtained before completion of your conditional sentence, written permission from a probation officer to report elsewhere or within a different time frame.

After that, you must report as directed by your probation officer. 2101 – When first reporting to a probation officer, you must provide them with the address or location where you live and regularly sleep and your phone number if you have one. You must not change them without prior written permission from your probation officer. 2004 – You must have no contact or communication directly or indirectly with Chan Yun Lee. 2501 – You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer.

This may include counselling or programming for: a. Alcohol or substance use. b. Mental health. 2106 – Your obligation to report to a probation officer ends when you have satisfied your probation officer that you have completed all your counselling and treatment, or that it is not required, and your officer has told you that you are no longer required to report. Ancillary Orders [ 44 ] These offences attract a mandatory firearms prohibition.

Pursuant to s 109 of the Criminal Code , you are prohibited from possessing: a. any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of for a period of 10 years from today; and

b. any prohibited firearm or restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 45 ] These are also secondary designated offences under the DNA regime. The Crown seeks that order, and the defence makes no submissions. After considering the factors set out in s. 487.051(3) of the Criminal Code , I am satisfied that it is in the best interest of the administration of justice to authorize the taking of samples of bodily substances from you. You must attend at (date, time and location) and submit to the taking of the samples.

This order is valid until executed. [ 46 ] There will be an order for forfeiture of all offence related property pursuant to s. 16 of the CDSA. [ 47 ] I am waiving the Victim Fine Surcharge. _____________________________ The Honourable Judge M. Jetté Provincial Court of British Columbia