R. v. Fiedorowicz, 2016 ONCJ 26

CITATION: R. v. Fiedorowicz , 2016 ONCJ 26 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Leszek FIEDOROWICZ Before Justice F. Crewe Reasons for Sentence released on January 13, 2016 Mr. R. Krueger .............................................................................................. counsel for the Crown Mr. D. Barrison .................................................................................... counsel for Mr.

Fiedorowicz CREWE J.: Introduction [ 1 ] The issue herein is the determination of a fit sentence for a 42-year-old father of three who has pled guilty to conspiracy to traffic in cannabis on a mid-level scale. He has no prior record for like offences. Brief

summary of the facts [ 2 ] The facts in this case are not complex but, as fairly alluded to by Mr. Krueger in his submissions, are somewhat amorphous. [ 3 ] Mr. Fiedorowicz was observed by police during surveillance conducted in the course of a larger investigation, Project Battery, targeting Asian organized crime. Mr. Fiedorowicz was not named in the

Part VI wiretap application for this project, however, commencing on December 17, 2013, Mr. Fiedorowicz was observed by police a total of eight times, up to and including April 2014, attending at the apartment of one Ken Ying MAI for the admitted purpose of retrieving quantities of marijuana from Mr. Mai for resale. Mr. Mai is alleged to be a member of a criminal organization. Mr. Fiedorowicz is not alleged to be a member of this organization, but to knowingly conduct business with a member of that organization. [ 4 ] The precise quantities retrieved from the apartment of Mr. Mai are not known. Mr.

Fiedorowicz was captured on video surveillance on each attendance, entering the “stash house” empty-handed and leaving with a bag containing a quantity of marijuana which the Crown urges me to find approximated 1 to 2 kg based on the shape of the bag and the apparent heft thereof. The Crown therefore urges me to conclude possession of a total approximate weight of 8 to 16 kg of marijuana. [ 5 ] While the contents of the bags and purpose for possession thereof are admitted, the weight is not. No seizures of any of the bags containing marijuana were made by police, notwithstanding Mr.

Fiedorowicz was normally followed from the stash house, sometimes in the company of Mr. Mai, and conducted what was presumed to be sales of the marijuana. The larger investigation was ultimately taken down and arrests made on May 28, 2014. Pretrial custody and release conditions [ 6 ] Mr. Fiedorowicz was arrested on May 28, 2014, and detained at his bail hearing. He was released pursuant to a bail review hearing on August 29, 2014. Since that time he has been subject to strict bail conditions, including house arrest. POSITIONS OF THE PARTIES A. Crown Position [ 7 ] Mr.

Krueger submits that the appropriate sentence is one of 12 months custody in addition to time served in pretrial custody. The Crown also seeks a period of probation following the custodial portion of the sentence. [ 8 ] Crown Counsel relies on a number of aggravating factors:

(

i) the commercial nature of Mr. Fiedorowicz’s activities. (ii) Certain sales by Mr. Fiedorowicz occurred inside a building which was located next to a playground; (iii) Mr. Fiedorowicz conducted his criminal activities in concert with a known member of a criminal organization; (iv) he was on bail at the time of the offences herein (he has consented to committal to trial on those charges, possession for the purpose of trafficking marijuana, on which he was charged together with other occupants of the residence from which the marijuana was seized); (

v) these offences, involving significant quantities of cannabis, occurred over a lengthy and continuous period of time. [ 9 ] Mr. Krueger does acknowledge a number of mitigating factors : (

i) this arrest and prosecution constitutes part of a larger project prosecuted by the Guns and Gangs Task Force. These investigations and subsequent trials are complex matters, and the Crown recognizes that an arrested party who “steps up” and enters a guilty plea at a relatively early stage of the prosecution, prior to the preliminary inquiry, is entitled to considerable credit for remorse. (ii) The Crown further acknowledges that Mr. Fiedorowicz has complied with the terms of his bail since his release in August 2014. (iii) He has no prior convictions for like offences. Indeed, Mr.

Fiedorowicz’s criminal record denotes but one incident in 2009 wherein he was convicted of two Criminal Code driving related offences, dangerous driving and failing to stop at the scene of an accident. He received fines for both. (iv) Mr. Fiedorowicz has a family, including a very young child. [ 10 ] Mr. Krueger takes the position that in view of these mitigating circumstances, Mr. Fiedorowicz is entitled to benefit of the lowest sentence that satisfies the ends of justice. Position of the Defence [ 11 ] Mr. Barrison advocates for a sentence of “time served”, to be followed by a period of probation. [ 12 ] Mr.

Barrison says that he and his client understood that the three months pretrial custody, for which his client was to receive enhanced credit of 4 ½ months pretrial custody, were to be deducted by the Crown from the period of incarceration being sought at this hearing. [ 13 ] He further submits that considerable credit ought to be granted his client in view of the 16 ½ months house arrest since his release on bail. Noteworthy in that regard, he submits, is the fact his client has not been free to attend at employment, notwithstanding that employment has been available to him.

As recently as four months ago, Crown counsel consented to a variation to permit him to go to work, however it was not possible to have his sureties attend court for the purpose of entering into a new recognizance. Therefore he and most importantly his wife and children have been deprived of any income he may have earned during that time. He is dependent upon his wife financially at this time. Background of the offender [ 14 ] Mr. Fiedorowicz is 42 years of age, with three children aged 17, 11, and one and a half years of age. He lives with his children and their mother, his wife, who works as a physiotherapist.

The past 20 months have been difficult for his family financially as he has not been able to contribute to the family expenses. Caselaw [ 15 ] The range of sentences that have been imposed for offences of this nature are widely disparate; however, there is guidance which can be taken from the case law. [ 16 ] In Sentencing Drug Offenders , Canada Law book, August 2014 (Armstrong, Sabbadini, Boni, Coroza) at page 4 – 15, the authors note that mid-level commercial dealers of marijuana (which Mr.

Fiedorowicz is alleged and conceded to be) typically tend to attract jail sentences in the range of nine months to penitentiary time, depending upon quantity, the offender’s background, and regional sentencing ranges. They further note that those engaged in strictly commercial enterprises have been deemed unfit for conditional sentences by numerous courts. [ 17 ] As support for this range the authors cite a number of authorities, including R. v. Nguyen [2006] O.J. No. 796 .

In that case, Justice Bradley of this Court imposed a sentence of nine months custody in circumstances not unlike the instant case. [ 18 ] Mr. Nguyen was found guilty of conspiracy to traffic in marijuana in circumstances wherein he arranged the sale of marijuana on numerous occasions in amounts that varied from ounces to pounds. [ 19 ] The accused in that case was a 38-year-old single father, with no related criminal record but a brief criminal history for

unrelated offences some years prior. [20] In imposing a sentence of nine months custody, the court stressed denunciation and deterrence, while also noting theimportance of rehabilitation and the promotion of a sense of responsibility. [21] The Court of Appeal upheld the sentence ([2006] O.J. No. 796]) in a unanimous decision. While noting that the trialjudge erred by considering the appellant’s lack of remorse to be an aggravating feature, the court nevertheless would have imposed thesame sentence having regard for the quantities of marijuana involved.

The Court of Appeal also held that the trial judge was correct inrejecting a conditional sentence. [22] I see no difference of substance between that case and the one before me. The accused before this court is an adult of 42years with a dependent family and no related criminal record, who has expressed genuine remorse for his actions. While no precisequantities have been proved or admitted in the instant case, there is little if any qualitative difference between a transaction involvingpounds as opposed to a kilogram.

I furthermore see no basis to conclude, in the absence of conclusive evidence, that the quantities werein the amounts urged by the Crown. [23] There are of course differences between the two cases. While it does not appear that Mr. Nguyen acted in concert with aknown member of a criminal organization, nor was there any indication that he sold drugs on any occasion near a playground, there aremitigating circumstances present in the instant case that were not present in Mr. Nguyen’s case.

Most notably is the plea of guilty andexpression of remorse which, as noted above, were acknowledged by the prosecutor in this case to be a significant mitigating factor inview of the complicated nature of this prosecution. Mr. Nguyen was found guilty after a trial. A plea of guilty and the attendantexpression of remorse has long been recognized by appellate courts in this country as a mitigating factor on sentence. [24] I agree with Justice Bradley’s assessment in Nguyen that deterrence and denunciation are important in the context of theseoffences. Although, as noted by Mr.

Krueger in his submissions, there is an apparent intention by the present federal government toreverse the recent trend of tightening sentencing laws around marijuana, indeed to legalize possession thereof, in my view that plays littlerole in this case. The trafficking of marijuana is the gravamen of the offence before this Court, and has always been treated in a morestern manner on sentence than simple possession. Rightly so. [25] I note as well Mr. Krueger’s acknowledgement that Mr.

Fiedorowicz ought to be entitled to the lowest sentence availablethat still satisfies the ends of justice in the particular circumstances of this case. That sentence, in accordance with the above authorities,is a sentence in the range of nine months’ custody. [26] I give Mr. Fiedorowicz credit, on a 1.5 to one basis, for 4 ½ months of presentence custody. [27] The only remaining issue is the credit to be attached to the 16 ½ months of house arrest. [28] In R. v. Downes, (ON CA), [2006] O.J.

No.555, the Court of Appeal for Ontario overturned thesentence imposed by a very experienced trial judge who failed to take into account 18 months of presentence house arrest, and thereforereduced the sentence from 21 months to 16, allotting five months credit for the 18 months house arrest. [29] At paragraph 29, the court noted: … on the other hand, some of the same considerations that justify credit for presentence custody apply to an offender who has spent along time under house arrest.

Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to thatextent inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of adifferent character than actual incarceration. Presentence house arrest varies little in character from the house arrest that is often imposedas a term of a conditional sentence under

section 742.1 of the Criminal Code. [30] The court acknowledged that the adoption of a formula would be inappropriate for calculating the credit to be applied topresentence house arrest, and indicated at paragraph 37 that the amount of credit will depend upon a number of factors including: thelength of time spent on bail under house arrest, stringency of the conditions, the impact on the offender’s liberty, the ability of theoffender to carry on normal relationships, employment and activity. [31] Mr. Fiedorowicz has been unable to earn a living since May 2014.

Since his release from custody in August 2014, owingto the terms of his bail, he has not been permitted to return to work, notwithstanding a desire and ability to do so. I am satisfied that in hiscircumstances, being the father of three young dependent children, that this has worked a hardship not simply upon him, but also his wifeand children. [32] It is therefore my view that the balance of the nine month sentence can be accounted for in its entirety by the 16 ½months during which Mr.

Fiedorowicz has been subject to house arrest. [33] Therefore, the sentence of this Court, having regard for the total credit for nine months of pretrial custody, is a suspendedsentence and probation for a period of one year. [34] In addition, the requested ancillary orders for a DNA sample and a

section 110 Order will be granted on consent. Released: January 13, 2016 Signed: “Justice F. Crewe”