Date: 20170126
Docket: CR 14-01-33718
(Winnipeg Centre)
Indexed as: R. v. Kurdydyk
Cited as: 2017 MBQB 2
COURT OF QUEEN’S BENCH OF MANITOBA
BETWEEN:
HER MAJESTY THE QUEEN
- and KLYM ARSEN KURDYDYK
Accused
)
)
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)
)
)
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APPEARANCES:
Stacy C. Cawley
for the Crown
Wendy Y. Martin White
for the Accused
Judgment delivered:
January 26, 2017
PERLMUTTER A.C.J.Q.B.
Introduction
[1]
Klym Kurdydyk was convicted after a trial of unlawful possession for the purpose
of trafficking of “Ecstasy” and Methamphetamine contrary to s. 5(2) of the Controlled
Drugs and Substances Act, S.C. 1996, c. 19 (the CDSA).
The Crown seeks a
sentence of two years’ incarceration followed by a period of probation. The defence
seeks a suspended sentence with a period of probation. In the alternative, the defence
suggests a sentence of 30 to 90 days, which defence counsel argues sends a message
of deterrence and denunciation and, with probation, also addresses rehabilitation.
Page: 2
Circumstances of the Offences
[2]
The background of this matter is set out in my decision delivered November 12,
2015, cited as 2015 MBQB 175. Suffice to say that on August 23, 2013, in the vehicle
driven by Mr. Kurdydyk, the Royal Canadian Mounted Police located two seven-gram
bags of powder, from which a sample proved to be Methamphetamine and MDMA
(Ecstasy).
Circumstances of the Offender
[3]
Mr. Kurdydyk is 23 years of age, single, with no dependants. He was 19 years
old at the time of these offences. He has one semester left to complete his Bachelor of
Arts degree. He was raised by his parents in Vita. His father is a retired teacher and
his mother is a nurse. He reported to Dr. Somers, as the author of the psychological
risk assessment dated April 8, 2016, that has been filed in this matter, that he is close
with his parents and pretty close with his younger brother. He described to Dr. Somers
that growing up his family life was hectic, with parental conflict. Mr. Kurdydyk attended
school in Vita through to his middle adolescence. He began “failing out” and “smoking
weed,” which he funded by “stealing stuff.” He reported to Dr. Somers being bullied in
school. When he was age 15, he went to Robert Land Military Academy in Ontario for
grade 10.
He then returned to Manitoba and entered high school, from which he
graduated, and, as noted, has attended university. He has also held various forms of
full-time and part-time employment.
Page: 3
[4]
In his psychological risk assessment, Dr. Somers indicates that Mr. Kurdydyk has
had significant involvement with mental health professionals. He was taken to see a
psychiatrist by his parents in his early adolescence, likely in response to acting-out
behaviour at school and being chronically bullied. He was diagnosed with attention
deficit/hyperactivity disorder (ADHD) and was prescribed medication. Later, he was
prescribed antidepressant medication while he was away at military school.
[5]
Dr. Somers reports that Mr. Kurdydyk described a relatively long and varied
history of experimentation with drugs, starting with marijuana in his middle
adolescence, with his adding alcohol, and having used cocaine, MDMA and prescription
medications. He also reported drug use during his attendance at university. In the
psychological risk assessment, it is noted that Mr. Kurdydyk reported that his drug use
has had profound negative effects on his life. With increasing use, he could not afford
it. He began selling MDMA to support his own habit, and in August 2013, “four months
in,” he was arrested. When released on a promise to appear, he returned to university.
He explained to Dr. Somers that he continued to use “weed” “heavily” at that time
because of withdrawal and anxiety.
[6]
In the psychological risk assessment, it is indicated that “approximately two
years ago, just before March break,” Mr. Kurdydyk consulted Dr. Schellenberg, who is a
family practitioner with special interest in psychiatry. Dr. Schellenberg was to assist
him with withdrawal from Adderall and Methamphetamine.
medication.
He was prescribed
Dr. Schellenberg confirmed with Dr. Somers that he continued to see
Mr. Kurdydyk and described him as compliant with his medication regimen, although he
Page: 4
also stated that Mr. Kurdydyk will not go very deep into addressing issues in his life. He
described Mr. Kurdydyk as having been a manipulative kid who was unlikely to attend
further without a court order. At the sentencing hearing, it was indicated that, as at
that date, Dr. Schellenberg sees Mr. Kurdydyk twice a month.
Dr. Schellenberg
reported that Mr. Kurdydyk is intelligent, vulnerable, gullible, has trouble knowing the
consequences of his actions, and has depression, possible ADHD and paranoia.
[7]
In the psychological risk assessment, it is also noted that Ms Thibault of the
Addictions Foundation of Manitoba (AFM) reported that Mr. Kurdydyk maintains regular
contact with her, but with limited effort. She reported to Dr. Somers that Mr. Kurdydyk
will miss appointments, but make telephone contact. She offered to transfer him to
AFM support services on the university campus, but he declined.
She reported to
Dr. Somers that she did not have any reason to believe that Mr. Kurdydyk has resumed
substance use, but regarded him as likely to gain more from regular, in-person contact.
[8]
The psychological risk assessment places Mr. Kurdydyk at a low to moderate risk
of re-engaging in offending behaviour in the future. His risk of offending appears to be
largely premised on his own use of drugs, which appears to be associated with his
mental health.
Mr. Kurdydyk voiced to Dr. Somers the expectation of receiving
continued support from his current support system, which includes his parents and
professionals involved with him.
Mr. Kurdydyk also voiced to Dr. Somers personal
responsibility for his current circumstances and credibly reports that he intends to use
this as an opportunity to put his life on a healthy, effective and pro-social track. He
Page: 5
voiced to Dr. Somers his aspiration of productive employment and continuing with
mental health and substance abuse relapse interventions available and in place for him.
Sentencing Principles
[9]
Section 718 of the Criminal Code (as in force on the date of the offences) sets
out the objectives of sentencing as including:

the denunciation of unlawful conduct;

the deterrence of the offender and other persons from committing offences;

the separation of offenders from society, where necessary;

the assistance in rehabilitating offenders;

the provision of reparations for harm done to victims or to the community;
and

the promotion of a sense of responsibility in offenders, and acknowledgment
of the harm done to victims and to the community.
[10]
In addition to the proportionality principle outlined in s. 718.1 of the Criminal
Code, which requires that a sentence be proportionate to the gravity of the offence
and the degree of responsibility of the offender, s. 718.2 sets out additional principles
to be considered.
In particular, s. 718.2(d) provides that a court that imposes a
sentence shall also take into consideration the principle that an offender should not be
deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances,
and s. 718.2(e) provides that a court that imposes a sentence shall also take into
Page: 6
consideration the principle that all available sanctions other than imprisonment that are
reasonable in the circumstances should be considered for all offenders.
Mitigating and Aggravating Factors
[11]
The mitigating factors are:

Mr. Kurdydyk was age 19 at the time of these offences.

There has been no reinvolvement while on bail.

Mr. Kurdydyk does not have a criminal record.

With his post-secondary education, past employment and stated intention to
put his life on a healthy, pro-social track, he appears to be on his way to
being a productive member of society.

Mr. Kurdydyk voiced to Dr. Somers personal responsibility for his current
circumstances.

He has taken, and continues to take, steps to deal with his mental health and
addiction issues. His addiction issues are associated with his mental health.

Mr. Kurdydyk has professional and family support.

He is assessed as a low to moderate risk of reoffending, largely premised on
his own use of drugs.
[12]
The aggravating factors are:

Methamphetamine is a dangerous drug.
Ecstasy, now a Schedule I drug
under the CDSA, is also a dangerous drug that can be toxic and cause
Page: 7
long-term central nervous system disorder, as highlighted by the Manitoba
Court of Appeal in R. v. Bercier (T.J.), 2004 MBCA 51, 184 Man.R. (2d) 106.

This was a significant amount of drugs – as much as 140 dosages.

While some of the drugs were for personal usage, the majority were
possessed for the purpose of trafficking.

There was a commercial aspect to this trafficking, although not part of a
sophisticated organization.
Analysis
[13]
Defence counsel argues that Mr. Kurdydyk was an undiagnosed individual with
mental health issues who was trying to self-medicate.
He is now dealing with his
mental health and addiction issues and defence counsel argues that this constitutes
exceptional circumstances for the purpose of a suspended sentence. Defence counsel
argues that while Dr. Schellenberg and Ms Thibault indicated they would like
Mr. Kurdydyk to do more, they do not question he has addiction and mental health
issues. Defence counsel correctly points out that Mr. Kurdydyk’s rehabilitation is not
done.
[14]
The cases of R. v. Peters (R.N.), 2015 MBCA 119, 323 Man.R. (2d) 237, R. v.
Tran (A.), 2015 MBCA 120, 323 Man.R. (2d) 293, and R. v. Racca (R.A.), 2015 MBCA
121, 323 Man.R. (2d) 245, involved appeals by the Crown dealing with sentences
imposed on charges of possession of cocaine for the purpose of trafficking in which a
conditional sentence or a suspended sentence was imposed. The common issue raised
Page: 8
was whether there were “exceptional circumstances” to warrant a departure from the
established sentencing range. In Tran, M.A. Monnin J.A. noted (at para. 24) that the
overriding factor that applies to a finding of exceptional circumstances is invariably
multiple mitigating factors. Also, Monnin J.A. adopted the following quotation regarding
what constitutes exceptional circumstances from Bennett J.A. in R. v. Voong (D.M.) et
al., 2015 BCCA 285 at para. 59, 374 B.C.A.C. 166 (at para. 24):
Exceptional circumstances may include a combination of no criminal record,
significant and objectively identifiable steps towards rehabilitation for the drug
addict, gainful employment, remorse and acknowledgement of the harm done to
society as a result of the offences, as opposed to harm done to the offender as a
result of being caught. This is a non-exhaustive list, but at the end of the day,
there must be circumstances that are above and beyond the norm to justify a
non-custodial sentence. There must be something that would lead a sentencing
judge to conclude that the offender had truly turned his or her life around, and
that the protection of the public was subsequently better served by a
non-custodial sentence.
However, Parliament, while not removing a
non-custodial sentence for this type of offence, has concluded that CSO
[conditional sentence order] sentences are not available. Thus, it will be the rare
case where the standard of exceptional circumstances is met.
[15]
In my view, the circumstances of the case at hand do not justify a non-custodial
sentence.
I find that this is not one of those rare cases where the standard of
exceptional circumstances is met. While Mr. Kurdydyk has mental health and addiction
issues, it cannot be said that he “had truly turned his ... life around, and that the
protection of the public [is] ... better served by a non-custodial sentence.” Although
relevant and mitigating, some rehabilitation undertaken by an offender is not an
exceptional circumstance in itself. See R. v. Wiebe, 2016 MBPC 43 at para. 13 (QL).
[16]
In the case at hand, Mr. Kurdydyk experienced a difficult childhood, where there
was marital conflict, childhood bullying and some mental health issues. However, it is
Page: 9
noteworthy that he was raised in Vita by his two parents, who are professionals, and he
went to school, including military school for a year, and then university, while having
access to mental health professionals.
This is in contrast to those cases where an
accused grew up in an unstable home, with no family support, poverty, subjected to
physical abuse and dealing with unique systemic or background factors relating to their
culture that may have played a part in bringing them before the court; for example, as
discussed in R. v. Gladue, [1999] 1 S.C.R. 688, and R. v. Ipeelee, 2012 SCC 13,
[2012] 1 S.C.R. 433. See Tran at para. 26.
[17]
In Tran, the Manitoba Court of Appeal also explained that in the canvass of
factors warranting consideration of “exceptional circumstances,” the aspect of
“demonstrated rehabilitation over a period of time might be the most persuasive,” with
the circumstances in R. v. Ramos (Z.M.), 2007 MBCA 87, 214 Man.R. (2d) 280,
referred to as an example (at para. 27). In the case at hand, while Mr. Kurdydyk has
had some success in rehabilitation, his case does not include the “extremely positive”
pre-sentence report in Ramos. As at the date of the psychological risk assessment,
Dr. Schellenberg reported that Mr. Kurdydyk would not go very deep into addressing
issues in his life, that his contact with Mr. Kurdydyk was almost like parental guidance
and that Mr. Kurdydyk had been a “manipulative kid” who was unlikely to attend further
without a court order to attend. As at the date of the sentencing hearing, it was also
reported that Dr. Schellenberg indicated that it should be mandated that Mr. Kurdydyk
continue seeing him regularly. As well, as noted, Ms Thibault of AFM reported that
Mr. Kurdydyk maintains regular contact with her, but with limited effort, and that
Page: 10
Mr. Kurdydyk will miss appointments.
She offered to transfer him to AFM support
services on the university campus, but he declined. She reported to Dr. Somers that
she regarded him as likely to gain more from regular, in-person contact.
[18]
In sentencing Mr. Kurdydyk, I am mindful of his degree of responsibility given
the nature of his trafficking operation.
While Mr. Kurdydyk was not involved in a
sophisticated organization and his trafficking was at street level, the expert opinion
evidence of Staff Sergeant Anderson and Mr. Kurdydyk’s text messages reveal that
there was a commercial aspect to his trafficking. He was not a mere courier, and this
was not a case of a one-time desperate situation. This was also not a situation of
“social trafficking.” His text messages indicate that he was selling product on multiple
occasions over a period of time. His text messages also indicate that he had some
decision-making power, as evidenced by his ability to adjust the price of the drugs
based on the quantity sold. As well, he refers in text messages to another person
trafficking on his behalf. His text messages also reveal a knowledge level, wherein he
provided his customers with information on using the drugs and about purity.
Mr. Kurdydyk’s text messages reveal that he understood the danger of this product,
including the risk of it being laced with another substance.
[19]
Turning to the question of what constitutes a fit and fair sentence, it is largely
for these same reasons that I find that Mr. Kurdydyk’s moral culpability is on the higher
end.
As discussed above, while Mr. Kurdydyk was also a user, there is compelling
evidence that Mr. Kurdydyk was engaged in more than “social trafficking” and that
Page: 11
there was a commercial aspect to his trafficking, wherein he promoted the use of these
drugs notwithstanding his understanding of some of the associated health risks.
[20]
Denunciation and deterrence are the paramount considerations when sentencing
offenders trafficking in hard drugs.
See Racca at para. 13.
The court must also
consider the prospect of rehabilitation. Defence counsel argues that while there is a
wide range of available sentences, the range of sentence is lower since the delivery of
the Manitoba Court of Appeal decisions in Peters, Tran and Racca.
In my view,
Crown counsel is correct that the range of sentence for street-level trafficking of
Schedule I drugs remains as set out in R. v. Gilchrist (R.), 2004 MBCA 21 at para. 26,
184 Man.R. (2d) 23, which is “very wide (anywhere from 12 months to significant
penitentiary terms).” See also, Tran at para. 30. While not cocaine, which was the
drug at issue in Gilchrist, the drugs at issue in the case at hand are both dangerous
Schedule I drugs.
[21]
In R. v. Aleghin (15 April 2016), Winnipeg, CR 15-01-34177 (Man. Q.B.),
Keyser J. imposed an 18-month sentence where the accused pled guilty to possession
for the purpose of trafficking in cocaine. The accused was found with 22 rocks of crack
cocaine. The accused was age 20 and showed remorse. Keyser J. noted that the
accused was a low-level commercial trafficker, on probation at the time of her arrest,
with previous convictions for breaches, who breached a condition while on bail, did not
have a very favourable pre-sentence report, was a high risk to reoffend and had done
nothing to better herself since the offence. While Mr. Kurdydyk’s case involves more
drugs, he does not have a criminal record, did not breach his bail conditions and has a
Page: 12
largely favourable psychological risk assessment.
In addition, he has many other
mitigating factors in his favour that were not shared by the accused in the Aleghin
case.
[22]
Notwithstanding my conclusion that Mr. Kurdydyk’s moral culpability is on the
higher end, when I weigh the mitigating circumstances, in particular Mr. Kurdydyk’s
young age, his own mental health and addiction issues, and his ongoing efforts at
rehabilitation, I am of the view that these mitigating factors warrant a sentence at the
lower end of the range.
Overall, when I consider the amount of drugs that
Mr. Kurdydyk had in his possession for the purpose of trafficking, his level of
involvement, Mr. Kurdydyk’s personal circumstances, sentences imposed for similar
offenders who committed similar offences, the aggravating circumstances, the several
mitigating factors, including the efforts towards rehabilitation, and the circumstances as
a whole, I am of the view that a period of incarceration of 12 months is a fit and fair
sentence.
Conclusion
[23]
Accordingly, I am imposing a sentence of incarceration of 12 months for each of
the two offences, which are to be served concurrently, followed by two years of
supervised probation. As conditions of the probation order, Mr. Kurdydyk must comply
with the mandatory conditions of the Criminal Code and in addition:
Page: 13

he must report to a probation officer within two working days after the start
of the probation order and thereafter when required by the probation officer
and in the manner directed by the probation officer;

he must remain in the jurisdiction of the court unless written permission to go
outside that jurisdiction is obtained from the court or the probation officer;

he must abstain from the consumption of alcohol or other intoxicating
substances or the consumption of drugs, except in accordance with a medical
prescription; and

he is to attend, participate in and complete such assessment, counselling,
treatment or programming as his probation officer requires.
[24]
Crown counsel also seeks a number of ancillary orders to which defence counsel
does not object.
Crown counsel seeks a DNA order under s. 487.051(3) of the
Criminal Code on the basis that possession for the purpose of trafficking is a
secondary designated offence. Given the nature of these offences and the
circumstances surrounding their commission, and the fact that I have received no
indication that such an order would have a disproportionate impact on Mr. Kurdydyk’s
privacy and security, I make an order requiring him to provide bodily samples for DNA
analysis. I also make a mandatory 10-year weapons prohibition under s. 109 and an
order of forfeiture of all items seized.
______________________________ A.C.J.Q.B.