R. v. Bornyk

2017 BCSC 850 R. v. Bornyk IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Bornyk, 2017 BCSC 850 Date: 20170216 Docket: X076411-2 Registry: New Westminster Regina v. Timothy Dale Bornyk Before: The Honourable Mr. Justice Crawford Oral Reasons for Sentence Counsel for the Crown: A. Jantunen Counsel for the Accused: J.R. Ray Place and Date of Trial/Hearing: New Westminster, B.C. February 16, 2017 Place and Date of Judgment: New Westminster, B.C. February 16, 2017 [1] THE COURT: I thank counsel for their summary of the appropriate matters to consider in the circumstances of the sentencing of Mr. Bornyk who I found guilty of a break and entry that occurred at a house in Surrey on the 6th or 7th of July, 2010. [2] In short, the circumstances were the owners of the house were away. They had not left their alarm on because they were having the roof fixed and were concerned that the roofers would trigger the alarm. On the night in question, Mr. Bornyk broke into the house. The evidence was some $20,000 or $30,000 of personal effects, jewellery, crystal, and other items were stolen. When the police attended, one of the identification experts found a single fingerprint on the box of one of the collectable dolls that the owner of the house, Mr. Porritt, collected and resold from time to time. I was satisfied that in the circumstances the only conclusion that could be drawn was that Mr. Bornyk was the person responsible for the break and entry, but it was not until a year later that the match was made of Mr. Bornyk's fingerprint found at the house to fingerprints found on his criminal record. The house had been ransacked, but as noted, the occupants were away and other than the intrusion and undoubted upset that brought to the Porritts' life, fortunately nobody was at home at the time and affected by the break and entry. Rather, it is the sanctity that one enjoys in one's house that was severely disrupted for Mr. and Mrs. Porritt. [3] Mr. Bornyk's background is terrible. Counsel advised me he had an abusive childhood, that there were drugs and alcohol. For some reason, the lengthy criminal record, though, does not start until age 23, but it starts in 1999 and since then there are at least some 30 dates when Mr. Bornyk has been in a courtroom listening to a judge pronouncing sentence. In a summary way, the record appears to relate to guns, although fortunately not the use of a gun, save one pointing; drugs; dangerous operation of motor vehicles; breach of probation orders; breach of a conditional sentence order; and gradually jail terms escalating over the last 10 years. In terms of breaking and entry, there are only two or three that occurred in 2011. [4] Oh, one thing, gentlemen, I forgot to ask this. The time-served issue is not in play? [5] MR. JANTUNEN: There is no time served on this matter. [6] THE COURT: All right, and secondly, I forgot to ask, but did Mr. Bornyk want to say anything to the court? [7] MR. RAY: No, My Lord, I think the letter that his -- [8] THE COURT: Has spoken for him. [9] MR. RAY: -- girlfriend wrote speaks for him. [10] THE COURT: All right. [11] The one ray of hope that enters this picture is a wonderful letter from Kerry Mineault who describes herself as a healthcare field worker, a community support worker, who has been attending an elderly gentleman that is a paraplegic for the last 18 years, but she says she has known Mr. Bornyk for three years. She is a grandmother herself and I take it that a relationship has formed and she speaks well of Mr. Bornyk's ability to relate to her daughters and grandchildren. She says that in the last three years, she has seen a good deal of growth in terms of his personal development, being able to speak better, making better choices, gradually acquiring the ability to be a useful person in society, and she points out the curiosity of a person working in her field finding interest in a man with such a terrible criminal record, and she points to the connection that Mr. Bornyk has made with the children and that she has observed a vast improvement in his behaviour. [12] She points out that when she initially met him apparently there were conditions in place and she had to meet his parole officer and so she knew exactly what she was dealing with. She says that she was able to persuade him to turn himself in instead of the usual aggressive approach that he had taken and indeed is reflected in the criminal record. She says he started to appreciate how he is a danger to society and that he has to make better choices. She says that he has now had a few jobs and that he had never previously worked. [13] She refers to Mr. Bornyk completing the rehab program at VisionQuest Recovery Society and two certificates have been filed with respect to anger management and life skills programs that were taken in the latter part of last year. She still acknowledges there is an ongoing drug addiction issue and that he will have to take responsibility for that. She says he has acknowledged the pain and fear his criminal actions have caused and that he wants to become a positive factor in society. He has evidently gone and spoken at VisionQuest to tell people there that crime does not pay and addiction kills, which appears to be a monumental reversal of Mr. Bornyk's past 17 years. She says she believes Mr. Bornyk is sorry for the crimes he has committed. [14] That is quite a remarkable letter. Mr. Bornyk, if that lady is standing beside you then you have a far different life to look forward to. [15] The Crown has quite properly brought to my attention the case law, particularly decisions of Madam Justice Wedge in R. v. Singh, 2012 BCSC 858, and the Honourable Judge Caryer in R. v. Crittenden, 2010 BCPC 348. They are useful cases in that they have an extensive survey of relevant case law and they are not that far different in substance to the case before me with Mr. Bornyk. [16] In Singh, Madam Justice Wedge came to the conclusion that on a series of breaking and entries, a sentence of three years was appropriate, with time served. The Honourable Judge Caryer took the opportunity to set out the very great concerns society has with the break and entry of a residential property and the potential shattering effect it can have on the people in the house, but if they are not there, it is the invasion of privacy and the loss of the idea that home is a refuge. I know it is some time past, 2010, the Porritt's gave evidence in front of me and their demeanour seemed to indicate they had survived the matter well. It really was not a question put to them, but they seemed, I would say, for instance, with Mrs. Porritt, there was no behaviour that gave me cause to think she had been personally affected in the long term, though that is now and not then. Judge Caryer imposed a sentence of six years, again, for a gentleman who also had a terrible record. [17] Mr. Ray argued that given the terrible upbringing that Mr. Bornyk had and the ongoing difficulties he had had with drugs, that what could be seen was that Mr. Bornyk appeared to be turning his life around. Mr. Ray acknowledged the seriousness of the offence, but asked the court take into account the passage of time since 2010. Unfortunately, this matter has gone through an earlier trial, to the Court of Appeal, and back before me. He noted the attempts to improve life skills at VisionQuest and he noted that already, as apparently can be seen in the criminal record of Mr. Bornyk, that he has done federal time. He said the real opportunity that arises here is that Mr. Bornyk has the potential to obtain a ticket as a welder if he is put into the Provincial Court system. [18] The Criminal Code provides a number of sections dealing with sentencing. At s. 718, the Code states: The fundamental purpose of sentencing is . . . to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims [and] to the community. [19] Section 718(1) provides: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [20] Section 718(2)(b) states: . . . a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances . . . [21] Section 718(2)(c) states: (c) where consecutive sentences are imposed [which is the situation being suggested here] the combined sentence should not be unduly long or harsh . . . [22] I agree with the comment of Madam Justice Wedge that the issue of rehabilitation remains an objective. Remarkably for a man approaching 40, but hopefully he is finally finding a basis for starting a better life in society. [23] Mr. Bornyk, would you stand up, please. [24] The sentence I impose, then, is that there will be a 21-month sentence together with a two-year probation order following that. [25] There will also be an order that you provide a DNA sample as requested by the Crown. [26] You can sit down, sir. [27] MR. RAY: I am thinking that conditions for probation should include no-contact with the complainants. [28] THE COURT: With the Porritts, yes. [29] MR. RAY: I do not know if the Crown has any other conditions. I would suggest Your Lordship think about that he obtain such counselling as and when directed by his probation officer. [30] THE COURT: I will sign that order, too. Are there any other -- there is some standard provisions, I believe, and -- no? [31] MR. JANTUNEN: The statutory conditions. Other than that, no, I do not have anything else that I would be -- [32] THE COURT: All right. [33] MR. JANTUNEN: -- asking for. [34] THE COURT: Very good. Thank you, gentlemen. Thank you for your conduct throughout. "Crawford J."