IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On July 25, 2016, Mr. Olenik was charged with possessing heroin and fentanyl for the purpose of trafficking.  At the time, Mr. Olenik was 25 years old, he did not have a criminal record and he was dependent on illicit drugs.  It was this dependency that fuelled Mr. Olenik's offence.  Since being charged Mr. Olenik has stopped using drugs, moved away from negative influences, excelled at his employment and formed positive relationships. Identifying an appropriate sentence is, in these circumstances, challenging.  This is because Mr. Olenik is a changed person.  He is no longer the drug dependant individual who committed a serious criminal offence; rather, he is on the pathway to rehabilitation and it is within this mosaic of crime and rehabilitation that the Court is required to impose a fit and appropriate sentence.

[2]           On July 25, 2016, the police saw a rental car cross a solid yellow line.  Based on this driving infraction the police stopped the car.  The only person in the vehicle was the driver, Mr. Olenik.

[3]           An officer went to the passenger side of the vehicle and inside the vehicle he saw a small baggie containing white powder which he believed to be cocaine.  As a result, Mr. Olenik was removed from the car and he was arrested. When Mr. Olenik was removed from the car, the police noticed that he had been sitting on a folded knife.

[4]           A search pursuant to the arrest was conducted and the police located in Mr. Olenik’s pant pocket two plastic baggies containing white powder. While searching Mr. Olenik, the police also noticed a plastic bag protruding from the waist area of his pants.  The bag was removed and it contained 41 baggies.  Of the 41 baggies, ten contained powder cocaine, two contained heroin and fentanyl, and 29 contained rock cocaine.  Also located were 2.5 OxyContin pills.  In total, the police seized 31.9 grams of cocaine and 0.51 grams of powder which analyzed to be a mixture of heroin and fentanyl.

[5]           In considering this matter the Court has had the benefit of a pre-sentence report, reference letters and submissions from counsel.

[6]           Mr. Olenik is 26 years of age. He was born in Vancouver.  His parents separated when he was two.  Despite this, Mr. Olenik enjoyed a positive upbringing which was free from, physical, social or sexual abuse.  Mr. Olenik has a close relationship with his mother and a somewhat distant relationship with his father.

[7]           While in high school Mr. Olenik began associating with a negative peer group.  This resulted in him being truant from school.  As such, and when he was in grade ten, it was decided that Mr. Olenik would move to the United States where he would live with his father.  Despite benefiting from the move, it was decided that Mr. Olenik would move back to Vancouver and complete high school with his friends.

[8]           Once back in Vancouver, Mr. Olenik started drinking and experimenting with ecstasy.  By the time he was 23, Mr. Olenik decided to move back to the United States.  Mr. Olenik remained in the United States for two years after which he returned to Vancouver.  Once back in Vancouver, Mr. Olenik re-established old contacts, he started using drugs and he also started selling drugs.

[9]           Mr. Olenik was able to graduate from high school and since then he has held a variety of unskilled jobs.  At the time of his offence, Mr. Olenik was working for a local bar and he was living locally.  Since his arrest, Mr. Olenik has moved to Sechelt where he is working as a commercial painter.  Letters presented to the court confirm Mr. Olenik’s employment and support the conclusion that he is a valued and reliable employee with a promising future.

[10]        As for his living circumstances, Mr. Olenik is living with two roommates, one of whom is his work supervisor.  The roommates are described as having a positive influence on Mr. Olenik and one has provided a letter to the court.

[11]        With respect to Mr. Olenik’s drug use, he started using drugs in high school and it appears that he stopped when he was in the United States.  In 2009, and on his return to Vancouver, Mr. Olenik began using drugs and he slowly increased in the amount and variety of drug used.

[12]        According to the pre-sentence report, when Mr. Olenik was arrested he was spending approximately $300-400 a day on cocaine and heroin.  Mr. Olenik supported his drug habit by selling drugs.  Apparently, Mr. Olenik had been selling drugs for a year prior to his arrest.

[13]        Mr. Olenik advised the writer of the pre-sentence report that he has stopped using drugs, and he has manged to stay drug free without the aid of treatment or counselling.  He also advised that he is prepared to attend counselling should he be ordered.

[14]        It should be noted; although Mr. Olenik was a cocaine and heroin user at the time of his arrest, he had not reached the point where he was barely sustaining himself.  In this regard, he was not homeless and living on the street.  In fact, he had a job, he was able to rent a car and he had a residence.

[15]        The Crown argues that an 18 month custodial sentence is fit and appropriate.  The Crown also seeks the following ancillary orders; a section 109 firearm prohibition, a DNA order and forfeiture of the phone and the monies that were seized from Mr. Olenik.

[16]        In argument the Crown points out that 18 months is at the low end of the range as established by Madam Justice Newberry in R. v. Smith, 2017 BCCA 12.  The Crown also highlights that Mr. Olenik had been trafficking for a year prior to his arrest, and to the quantity and type of drugs involved.  Specifically, Mr. Olenik had just over an ounce of cocaine, and a small quantity of mixed heroin and fentanyl, all of the drugs are highly addictive with the sad reality that the use of fentanyl is frequently fatal.

[17]        The Crown acknowledges the changes that Mr. Olenik has made since his arrest, but cautions that there is an absence of identifiable and objective evidence that Mr. Olenik was so gripped with a drug addiction that he needed to sustain himself by selling drugs.

[18]        Counsel for Mr. Olenik argues Mr. Olenik’s circumstances are exceptional and, therefore, the protection of the public is best served by suspending the passing of sentence and placing Mr. Olenik on probation.  In support counsel points to Mr. Olenik’s age, and his current circumstances.  In the alternative, counsel argues that a fit and appropriate sentence would be a short period of incarceration.  Counsel relies on; R. v. Voong, 2015 BCCA 285, R. v. Naccarato, 2017 BCSC 645, R. v. Van Der Walt, 2017 BCSC 557, R. v. Wong, 2016 BCSC 1568., and R. v. Joon, 2017 BCPC 301.

[19]        The fundamental principles of sentencing are stated in s. 718 of the Criminal Code:

[20]        Section 718.1 of the Code states that the fundamental principle of sentencing is:

[21]        Additional sentencing principles are found in s. 718.2 of the Code; the relevant portions read as follows:

[22]        Section 10 (1) Controlled Drugs and Substances Act, S.C. 1996, c. 19, establishes the purpose of sentencing for drug offences.  The section states:

[23]        The authorities are clear; denunciation and deterrence are the primary principles when sentencing an offender for offences related to drug trafficking.  As such, those who engage in trafficking, absent exceptional circumstances, can expect a custodial sentence:  R. v. Smith, 2017 BCCA 112; R. v. Voong, 2015 BCCA 285; R. v. Cruezot, 2017 BCSC 1075.

[24]        Despite denunciation and deterrence being pressing objectives, the court must not ignore the unique circumstances of the offender and recognize no one principle automatically “trumps” the others.  (R. v. Nasogaluak, 2010 SCC 6.)

[25]        Proportionality is the sine qua non of a just sentence.  It is where the sentence imposed reflects the seriousness of the offence balanced against the degree of moral blameworthiness.  (R. v. Ipeelee, 2012 SCC 13, at paras. 36-37.)

[26]        In the instant circumstances, I find the nature and quantity of drugs involved makes Mr. Olenik’s offence serious.  My view is enforced with the recognition that, pursuant s. 5 (3) (a) of the Controlled Drugs and Substances Act, the maximum sentence available for the possession of heroin for the purpose of trafficking is life imprisonment.

[27]        As for Mr. Olenik’s degree of moral responsibility, I accept he was using cocaine and heroin at the time of his offence; however, I note his drug use did not rob him of the ability to make rational decisions.  Specifically, I observe he was able to work and rent a vehicle.  I also note that immediately after his arrest Mr. Olenik stopped using drugs without professional assistance. Hence, Mr. Olenik’s drug dependency was not to the degree that he lacked the ability to control and stop his drug use or that he was rendered homeless and incapable of making pro-social decisions.

[28]        The nature and quantity of drugs involved are aggravating. In this regard, just over an ounce of cocaine was seized.  The cocaine was rock cocaine and powder cocaine.  Further, the drugs involved (cocaine, heroin and fentanyl) are highly addictive and dangerous.  Lastly, it is also aggravating that this was not Mr. Olenik’s first foray into trafficking; rather, he had been selling drugs for approximately one year prior to his arrest.

[29]        In mitigation, Mr. Olenik pleaded guilty.  This not only saved the state the time and expense associated with a prosecution, but it is also symbolic of Mr. Olenik’s remorse. I also find the significant rehabilitative steps taken by Mr. Olenik to be mitigating. In this regard, he stopped using drugs, he moved away from negative associates and he obtained employment where he has excelled.

[30]        Recently, the Court of Appeal in Smith set the range of sentence at 18 months to possibly exceeding 36 months, however, the majority in the case deferred to the sentencing judge’s sentence of 6 months.  This was because the fatal consequences of fentanyl had not risen to the level of common public knowledge in December of 2015 which is the date of Mr. Smith’s offence.  As such, it was reasoned that, the imposition of sentence reflecting the public’s knowledge regarding fentanyl, at the time of sentencing in 2017, would offend the proportionality principle.  Accordingly, the majority endorsed the range of 18 months to possibly exceeding 36 months, but deferred to the sentencing judge’s sentence. (Smith paragraph 65.)

[31]        With respect to Mr. Smith’s circumstances, he pleaded guilty to one count of possessing cocaine for the purpose of trafficking and one count of possessing fentanyl for the purpose of trafficking.  At the time of sentencing, Mr. Smith was 59 years old, he did not have a criminal record and he had a relatively strong work history.  Mr. Smith’s offence date was January 20, 2015, and his primary motivation for trafficking was to support an addiction to Tylenol 3.

[32]        In light of the above and recognizing that Mr. Olenik’s offence was prior to late 2016, I find that the appropriate range starts at 6 months.

[33]        Despite finding that the sentencing range starts at 6 months, this court acknowledges circumstances may justify stepping outside the range.  Thus, a sentencing judge can opt to impose a sentence below the prescribed range when there are exceptional circumstances such that the protection of the public is better served by a non-custodial sentence. (Voong, paragraph 59)

[34]        Similarly, in R. v. Rutter, 2017 BCCA 193, Madam Justice Fenlon, writing for the Court observed at paragraph 4:

[35]        Given that exceptional circumstances may support the imposition of a sentence below the established range, the question becomes what constitutes exceptional circumstances?  The answer is found in Voong, at paragraph 59, where Madam Justice Bennett stated:

[36]        Examples of circumstances where exceptional circumstances were considered are contained within the facts of the appeals that where argued and considered along with Mr. Voong.  The circumstances of the appeals are below:

[37]        Mr. Voong was sentenced for possession of cocaine for the purpose of trafficking.  The sentencing was approximately 18 months post offence.  Mr. Voong’s criminal record included previous drug offences and he had a conviction for break and enter that pre-dated the drug offence in issue by approximately 10 years.  At the time of sentencing, Mr. Voong was 40 years old.  He suffered from anxiety and panic disorders and he was selling drugs to support his drug addiction.

[38]        Mr. Voong had a long history of drug use with some attempts at treatment. Since being charged, Mr. Voong attended at a community health centre and testing confirmed he had been free from illicit drugs, thus, supporting the submission that at the time of sentencing he had been drug free for over a year.  He also remained engaged with counselling and he was being regularly tested.

[39]        In declining to interfere with the suspended sentence, Madam Justice Bennett observed at paras. 72- 73:

[40]        Mr. Galang pleaded guilty to selling cocaine within the context of a dial-a-dope operation.  Mr. Galang was selling drugs to help a friend work off a debt owed to others in the drug trade.  Mr. Galang was 22 at the time of sentencing; he did not have a criminal record and he had a good work history including running a business with two others.

[41]        Madam Justice Bennett declined to interfere with the sentence imposed, with the exception of increasing the probationary period from one year to three.  In doing so she stated at paragraph 81:

[42]        Ms. Charlton pleaded guilty to possessing cocaine and heroin for the purpose of trafficking and to breaching her probation order by possessing illegal drugs.  Ms. Charlton was 28, she had mental health issues, she had a lengthy and related criminal record, she shared the custody of her daughter and she was a drug addict.

[43]        By the time of sentencing, Ms. Charlton had addressed her mental health through counselling and medication and she was employed.  Ms. Charlton’s progress was confirmed through a positive report from Ms. Charlton’s counsellor and through a positive reference from her employer.

[44]        In considering the matter Madam Justice Bennett summarized at paras. 89 - 92:

[45]        Mr. Taylor pleaded guilty to possessing cocaine for the purpose of trafficking and two counts of breaching his recognizance. Mr. Taylor was selling drugs to fund his drug addiction. At the time of sentencing Mr. Taylor was 25, he worked for his father and as a barber.

[46]        Since his arrest, Mr. Taylor had made some rehabilitative progress, however, Madam Justice Bennett noted that there was little independent evidence of how he was progressing and she observed he had tested positive for cocaine approximately ten months post offence.

[47]        At paras.102-103, Madam Justice Bennett concluded:

[48]        Mr. Olenik’s offence and his unique circumstances dictate that the objectives of any sentence imposed must be; denunciation, deterrence and rehabilitation.  With respect to rehabilitation, I note his young age, the absence of a criminal record and the post arrest progress he has made.

[49]        The central questions to be determined are; am I satisfied that Mr. Olenik’s circumstances are exceptional and if so, what is a fit sentence in the circumstances?

[50]        In considering Mr. Olenik’s circumstances, I accept that Mr. Olenik committed his offence, in part, to fund his drug habit.

[51]        After considering the letters, the submissions of counsel and the pre-sentence report, I find Mr. Olenik stopped using drugs when he was arrested and that he severed contact with negative associates.  I also observe there have been no further allegations of misconduct, that he is living in a positive environment and that he is excelling in his employment.  I therefore conclude that Mr. Olenik has turned his life around and that the changes he has made are well seeded thus providing strong optimism that he will not reoffend.  Accordingly, I am satisfied that Mr. Olenik’s circumstances are exceptional.

[52]        As indicated I must impose a sentence that denounces, deters and rehabilitates.  In addition to these objects any sentence imposed must be the least restrictive that is appropriate in the circumstances.

[53]        Although probation is primarily rehabilitative in nature, a carefully crafted probation order can have some deterrent effect. In this regard, Madam Justice Bennett, in Voong, at paras. 37- 43, observed:

[54]        With respect to the denunciatory impact of a probation order Madam Justice Bennett commented at paragraph 61:

[55]        Mr. Olenik’s criminal conduct was serious and his degree of moral responsibility was high.  On the materials provided, I find that Mr. Olenik has substantially turned his life around.  As such, it is my view that Mr. Olenik’s exceptional circumstances support a finding that a suspended sentence would best achieve the purpose and principles of sentencing.

[56]        Accordingly, the passing of sentence is suspended and Mr. Olenik will be placed on probation for three years.  The terms and conditions are as follows:

[57]        Mr. Olenik consents to the forfeiture order being sought by the Crown, as such, it is granted.

[58]        Pursuant to s. 109 of the Criminal Code, Mr. Olenik is prohibited from possessing any firearm, cross-bow, restricted weapon, prohibited weapon, ammunition, and explosive substance for ten years.

[59]        The Crown applies for an order to obtain a sample of Mr. Olenik’s DNA.  In considering the issue I recognize that I can make the order sought if I am satisfied that such an order is in the best interests of the administration of justice.

[60]        In deciding the Crown’s application, I must consider Mr. Olenik’s criminal record, the offences for which he is being sentenced, the circumstances surrounding their commission, and the impact that an order would have on Mr. Olenik’s privacy and the security of his person.

[61]        I observe Mr. Olenik does not have a criminal record, that he was initially uncooperative when interacting with the police and that he was sitting on a folding knife at the time of his offence.  As for Mr. Olenik’s privacy and security of his person, I note the taking of a DNA sample is minimally intrusive and the results are guarded by statute.

[62]        After considering the relevant factors, I am satisfied that the taking of Mr. Olenik’s DNA is in the best interests of the administration of justice.  Crown’s application is granted.

[63]        The victim fine sur-charge is payable on or before March 1, 2018.