Why some sentences are more equal than others

Law360 Canada (December 20, 2024, 11:30 AM EST) --

John L. Hill

On June 17, Emil Marian Stan and his co-accused Nicoleta Rusu were sentenced after being arrested and tried for a sophisticated shoplifting scheme. Over eight months, Stan and Rusu stole $40,000 worth of high-end products from Shoppers Drug Mart and Lululemon. Rusu wore clothing to conceal the items she stole and Stan assisted by using devices to jam security systems the stores used at their exits.

Stan was sentenced to 18 months after being credited for six months for time served and two years probation for the offences. In a different proceeding, Rusu received a 12-month sentence on pleading guilty to five counts.

Stan appealed his sentence and sought the court’s permission to extend the time to appeal. The extension was granted unopposed by the Crown. A three-judge panel of the British Columbia Court of Appeal heard the appeal. Stan was self-represented.

He argued that the sentence was unfit and sought parity with the punishment imposed on Rusu. His position was that s. 718.2(b) of the Criminal Code says that offenders who commit similar offences should receive comparable sentences. The Appeal Court’s written decision was released on Dec. 11 (R. v. Stan, 2024 BCCA 415).

The Appeal Court took only eight paragraphs to acknowledge the parity principle but found that Stan’s argument was unconvincing because he was comparing apples to oranges.

The false equivalence resulted from Stan’s belief that he and Rusu had committed a similar crime and should thus be treated equally.

The Court of Appeal swiftly pointed out that a sentencing court must consider aspects other than the crime that has been committed.

Stan was from Romania and had run up a lengthy criminal record while living in the United Kingdom. He was also facing charges in eastern Canada. The Court of Appeal also noted he had dealings with unsavoury people. He was an electrician who ran up gambling debts, and when his business failed, he borrowed money from loan sharks to repay his indebtedness. He is subject to a deportation order and faces removal once paroled or released.

Rusu is a first-time offender who had pleaded guilty to a lesser number of charges. Stan had offended while on judicial interim release from other charges, and that became an aggravating factor in his sentencing.

Stan asked the Appeal Court to reduce his sentence, stating that it was demonstrably unfit. This argument was also given short shrift. The Appeal Court noted Stan’s lengthy criminal record for committing similar offences. The sentencing judge had calculated an appropriate sentence for each offence and determined that the cumulative sentence would be three years. The sentencing judge concluded that a three-year sentence would be too long and reduced it to two years by applying the totality principle. He further gave credit for six months of pre-trial custody.

The court accepted the Crown’s position that the sentence imposed on Stan was appropriate and in line with the jurisprudence (R. v. Drake, [2019] B.C.J. No. 877; R. v. Lacasse, 2015 SCC 64).

The reference to the Lacasse case was likely cited by the Court of Appeal to substantiate the standard of review where the Supreme Court stated, “[E]xcept where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.”

 The court citation of Drake referenced other cases where custodial sentences of six months to one year for prolific offenders are not uncommon:

• R. v. Mack, 2008 BCCA 520 — One year for one theft ($16 in mouthwash) for an offender with 73 convictions;
• R. v. Gibbs, 2007 BCCA 241— One year for two indictable thefts (each under $70) for an offender with 60 convictions (a concurrent sentence for a summary theft was not considered; and
• R. v. Pozzebon, 2004 BCCA 198— One year for two thefts ($40 and $89) for an offender with over 40 convictions.

The sentencing judge applied the totality principle in the reduction of the sentence calculated to determine a fit punishment. There was no error, and the sentence imposed on Stan will stand.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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