R. v. Samadi, 2022 BCPC 320

Citation: R. v. Samadi 2022 BCPC 320 Date: 20220921 File No: 247461-2 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. ELIA SAMADI ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P.L. DOHERTY Counsel for the Crown: A.L. Russell, appearing by videoconference Counsel for the Defendant: R. Bellows Place of Hearing: Vancouver , B.C. Date of Hearing: September 21, 2022 Date of Sentence: September 21, 2022

Introduction [ 1 ] THE COURT : Mr. Samadi faced two counts of possession for the purpose of trafficking cocaine and fentanyl, the allegations arose from events which occurred around January 19, 2019. At trial, he brought an application under the Charter for exclusion of evidence seized by the police. I denied his application and admitted the evidence. Following my ruling, he did not contest the case further and, accordingly, I found him guilty of both counts.

I ordered the preparation of a presentence report and a psychological assessment at his counsel's request. [ 2 ] The case proceeded to sentencing on May 9, 2022 after the previous date of October 25, 2021 was adjourned for the defence to obtain a neuropsychologist report. Crown completed their submissions on May 9, 2022, but Mr. Bellows did not, and the case was further adjourned until the day our sentencing started, which was in September 2022. However, Mr.

Bellows applied to adjourn the sentencing approximately two weeks ago to provide for more time for the status of his client's medical condition to crystalize and to obtain an updated presentence report. I denied the application finding that the sentencing should proceed as I have more than sufficient information regarding Mr. Samadi. [ 3 ] The issue before me is what is a fit and appropriate sentence for Mr. Samadi in this matter. The Facts [ 4 ] Mr. Samadi was found by the police to be operating what is often referred to as a dial-a-dope operation.

He ran this operation from a rental vehicle which was parked in a shopping mall parking lot. After watching a number of brief visits by five different individuals at different times to the driver's side of Mr. Samadi's vehicle over two days, the police moved in and arrested him. They found 110 small baggies of fentanyl totalling 18.3 grams and 45 baggies of cocaine totalling 11.48 grams. The street value of these drugs at the time was estimated to be approximately $4,400. The police also found five cellular phones, five knives, and four cans of bear spray.

They also found cash in the amount of just over $1,000 in the vehicle. One of the cellphones received a number of calls for drug requests after seizure by the police. [ 5 ] I have a significant amount of material before me. I have a presentence report, a psychological assessment of Mr. Samadi. Plus, I have a significant amount of medical records regarding Mr. Samadi consisting primarily of his GP records, but also including counselling records and specialist records. [ 6 ] In the presentence report, which I will summarize briefly, I learned that he was born initially in Ottawa. He is presently 28 years of age.

At the age of three, he moved to the Lower Mainland with his parents and two older brothers. He had a kidney condition at the time and he required treatment. His parents have previously moved from Iran to Canada for better opportunities. [ 7 ] His parents were very disappointed to learn of the offences before the court. They were suspect of the fact that he may be consuming illegal drugs and were not overly surprised. Although they were disappointed with his actions, they are committed to supporting him whenever possible, including providing him with housing. Mr.

Samadi's mother said that her son is intelligent yet manipulative. As a child, he was difficult to rear compared to the other two sons and required extensive support. She has noticed that she has lost trust in him over the years. I can say, though, that she testified before me just last week and, given his recent efforts at maintaining a drug-free lifestyle, she finds him much easier to live with and finds him more trustworthy. [ 8 ] Mr. Samadi describes his group of peers as minimal in scope and has minimal prosocial influences in his life.

His counsellor confirmed to me that he has few friends and lives an isolated life. He has graduated from high school. However school records show that he struggled with school and had behavioural difficulties throughout his academic career. [ 9 ] The report writer found that Mr. Samadi accepted full responsibility for the offences. He expressed remorse. He cited negative peer influences and poor problem solving and decision making. The records revealed that Mr. Samadi started using marihuana, cocaine, mushrooms, and fentanyl around the age of 13.

At the time of the writing of this report, he was still suspected to be engaged in substance misuse. [ 10 ] The psychological assessment, which was prepared shortly after the presentence report, reveals that at the time of his arrest, he was not selling drugs. He said he was sick and tired of dealing drugs and he was done with them and that he was returning them to his boss as he did not want to be involved. This, he said, is why the drugs were found in his underwear and he was returning them later in that day rather than selling them. After hearing the evidence against Mr.

Samadi, that statement is clearly a false one. He had customers going to his car and buying drugs from him and he was actively selling drugs to people at the time. [ 11 ] The psychiatric assessment also confirms the difficulties behaviourally and academically he had in school. Although he denied use of drugs at the time of the report, medical records confirm that in 2017 before the offence he was admitted to the hospital with fentanyl withdrawal symptoms and was prescribed medication for that. The assessor found that Mr.

Samadi was a poor historian and he provided accounts that were inconsistent with prior accounts he provided in the medical records. [ 12 ] He was diagnosed as having a schizoid personality disorder based on his strange beliefs, abnormal perceptual experiences, strange thinking or speech, constricted affect, eccentric behaviour, and lack of close friends.

He also met the criteria for an antisocial personality disorder based on his failure to conform to social norms and lawful behaviours, irritability, and aggressiveness consistent with irresponsibility, pursuit of illegal occupations, and rationalization of illegal behaviours, and a childhood history of oppositional defiant disorder and conduct disorder. There was concern by the assessor that he had borderline intellectual functioning, and I note that his childhood records express that concern as well. [ 13 ] I have reviewed the medical records provided by Mr. Bellows.

Based on them, I have come up with a chronology of events in Mr. Samadi's life which are important to this case. On January 19, 2019, the offence occurred. On April 26, 2020, Mr. Samadi was involved in his first motor vehicle accident. He was not required to go to the hospital. He had a suspected head injury, though.

December 17, 2020 was the police incident, during which Mr. Samadi made suicidal comments to a bank employee and the police were called. There was an altercation that occurred with the police and Mr. Samadi suffered anxiety and soft tissue injuries as a result. It has also been opined by his GP that he may have suffered PTSD from this event. [ 14 ] On January 26, 2021, I provided my ruling denying the Charter application. On March 18, 2021, the psychiatric report was completed. On March 19, 2021, the PSR was completed. On December 16, 2021, Mr. Samadi was in his second motor vehicle accident.

It was a single-vehicle accident. He suffered a head injury or exacerbated a prior suspected head injury and there were concerns that he had PTSD. [ 15 ] On January 3 rd , 2022, he was admitted to the hospital with seizures and altered level of consciousness for two weeks. He was diagnosed with conduct disorder, polysubstance abuse, and a seizure disorder. The hospital staff were initially concerned that he was going to relapse right away and start using drugs.

It was opined that his seizures were occurring as a result of fentanyl withdrawal. [ 16 ] In May of 2022, his GP noticed a material improvement since his discharge. He was generally interested in counselling and rehab. In August of 2022, a neurologist opined that Mr. Samadi had suffered a traumatic brain injury as a result of the motor vehicle accidents. In September of 2022, SHARE Family & Community Services confirmed that Mr. Samadi, over the previous months, had been engaged in wanting to be involved in counselling sessions and was abstinent from the use of opiates. [ 17 ] Mr.

Samadi and his mother made significant efforts in accessing counselling despite some setbacks between ICBC providers and other health providers. He has also provided clean urine samples since.

His mother confirmed to me that he is making substantial efforts to change and, according to her, his efforts at rehabilitation are genuine and he does not appear to be using drugs. [ 18 ] Crown counsel also provided me, as is common in these cases, with the reports regarding deaths from drug toxicity and I take from that material that the opioid crisis since 2016 in this province remains acute with an average of over 1,000 deaths per year. Black market fentanyl is the driving force behind these deaths. It not only causes deaths but disabilities in users and a wide variety of other social problems.

The material provided by the Crown proves to me that the situation regarding opioid overdoses remains critical. Positions of Counsel [ 19 ] Crown counsel seeks a sentence of two years in jail and argues that, in the circumstances of this case, a conditional sentence order is not appropriate. Mr. Bellows on behalf of his client points to his compliance, complete attitude change since his hospitalization with seizures and, despite his many challenges, he has embarked on a solid course of rehabilitation.

He argues that, while a jail sentence is perhaps appropriate, a CSO is the proper sentence given his client's substantial efforts at rehabilitation. Aggravating and Mitigating Factors Aggravating • Involved were two

Schedule I drugs, fentanyl and cocaine, which attract a maximum life sentence; it took place during a dial-a-dope operation; • Mr. Samadi had weapons with him; • The motivation behind the offences was partially for profit. Mitigation • Mr. Samadi is a youthful offender • He has no prior criminal record • He has a supportive family • Has made substantial efforts recently at rehabilitation. Analysis [ 20 ] The applicable provisions in relation to sentencing in this matter are found in s. 10 of the CDSA and the Criminal Code in s. 718 to 718.2 .

It has been held time and time again that offenders who engage in drug trafficking can expect a custodial sentence, see R. v. Smith , 2017 BCCA 112 , and R. v. Voong , 2015 BCCA 285 .

Section 718 principles of denunciation and deterrence are paramount in these types of offences. However, sentencing courts have been reminded that other principles such as rehabilitation are very important, and we should not lose sight of a sentence that is just and appropriate. [ 21 ] In R. v. Schneider , 2019 BCCA 310 , the B.C. Court of Appeal confirms that trafficking in fentanyl for a first-time offender does not automatically attract a sentence beginning at the 18 months of jail which was the bottom of the range as stated in the earlier decision of R. v. Smith .

The court made it clear that in appropriate circumstances, even a suspended jail sentence could be imposed: lower than the range in Smith . This may be done in order to achieve a fit sentence. The decision of R. v. Williams , 2019, at paragraph 57, confirms such an approach. [ 22 ] It is also important to mention the relatively recent decision of R. v. Parranto , 2021 SCC 46 , in which the Supreme Court of Canada confirms the views of our Court of Appeal.

The court in Parranto recognizes that, at times, it is necessary to depart from the usual sentencing range for an offence to achieve a proportionate sentence and exceptional circumstances in the matter are not required in order to do so. The court set out at paragraphs 10 to 12 the role of proportionality, parity, and individualization in the sentencing process:

[10] The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal. Unlike other principles of sentencing set out in the Criminal Code , proportionality stands alone following the heading “Fundamental principle” (s. 718.1).

Accordingly, “[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender” [and then Friesen is cited] The principles of parity and individualization, while important, are secondary principles. [11] Despite what would appear to be an inherent tension among these sentencing principles, this Court explained in Friesen that parity and proportionality are not at odds with each other.

To impose the same sentence on unlike cases furthers neither principle, while consistent application of proportionality will result in parity (para. 32). This is because parity, as an expression of proportionality, will assist courts in fixing on a proportionate sentence (para. 32).

Courts cannot arrive at a proportionate sentence based solely on first principles, but rather must “calibrate the demands of proportionality by reference to the sentences imposed in other cases” (para. 33). [ 23 ] Over onto paragraph 12: As to the relationship of individualization to proportionality and parity, this Court in Lacasse aptly observed: Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. … Individualization is central to the proportionality assessment.

Whereas the gravity of a particular offence may be relatively constant, each offence is “committed in unique circumstances by an offender with a unique profile” (para. 58). This is why proportionality sometimes demands a sentence that has never been imposed in the past for a similar offence. The question is always whether the sentence reflects the gravity of the offence, the offender’s degree of responsibility and the unique circumstances of each case … [ 24 ] Mr. Bellows does not necessarily disagree that a jail sentence is inappropriate, but he submits that the sentence should be in the form of the CSO.

It is agreed by the parties that in light of R. v. Chen , 2021 BCSC 882 , that a CSO is available to Mr. Samadi. The only issue here is whether a CSO would be consistent with the fundamental purposes of sentencing, see s. 742.1(

a) of the Code . [ 25 ] The Supreme Court of Canada in Proulx , 2000 SCC 5 held that a properly fashioned CSO can address the principles of deterrence and denunciation in certain cases. However, in the circumstances of this case, I do not see a CSO as a fit sanction. I agree with the Crown that while Mr. Samadi's efforts at rehabilitation are commendable, they commenced three years after the offence and are only at the beginning stages. [ 26 ] Mr. Samadi's moral culpability in this offence is of a moderate degree. He was caught operating a dial-a-dope operation out of a rental vehicle.

He had approximately $4,400 worth of drugs on him at the time of the arrest, the bulk of which was fentanyl, in numerous baggies to facilitate a multitude of sales, plus he had five cellphones, one of which was a drug line. He also had a number of potential weapons, five knives and four cans of bear spray. [ 27 ] It is true he was likely addicted to fentanyl at the time of the offending which drove his pursuits, but I also find that he had a profit motive as well in this matter. He admitted as much to the probation officer during the preparation of the PSR.

In such circumstances, a conditional sentence, in my view, would be inconsistent with the important principles of denunciation and deterrence in s.718 of the Code . [ 28 ] The Crown suggests a two-year jail sentence for Mr. Samadi. In my view, that is far too long a sentence for him. It must be remembered that he is a youthful offender who committed this crime when he was 26 and this is his first criminal conviction. In such circumstances, the principles of restraint must temper the length of his jail sentence. [ 29 ] I must also take into account his efforts at rehabilitation.

Since January of 2022, he has focused on addressing the significant contributing factor in his offending, his addiction. He, with the support of his parents, has remained abstinent of opiates since his hospitalization. He has diligently pursued counselling in this regard. In my view, too long a jail sentence could impede his continued rehabilitation and increase the risk of relapse. [ 30 ] Lastly, I must consider his schizotypal personality disorder. He is a loner who at times has odd beliefs. He is someone who will likely suffer a significant degree of anxiety while incarcerated.

He is also dealing with the effects of a brain injury as a result of past motor vehicle accidents. Dealing with such a condition will likely prove arduous for him while he is in prison. Accordingly, a sentence which takes these factors into account plus the need to denounce and deter this type of offending in my view amounts to a fair, fit, and principled sentence. [ 31 ] Accordingly, Mr.

Samadi, I sentence you to eight months in jail. [ 32 ] This sentence will be followed by a probation order for 18 months with the following conditions. [ 33 ] You must keep and peace and be of good behaviour. [ 34 ] You must report to a probation officer within two business days of your release from custody, and thereafter as and when directed. [ 35 ] You must reside as directed by your probation officer. [ 36 ] You will not possess or consume any non-prescription drugs or alcohol. [ 37 ] You will attend and successfully complete counselling as directed by your probation officer. [ 38 ] Now, ancillary orders.

Pursuant to s. 109 of the Criminal Code , I am making a 10-year mandatory weapons prohibition.

[ 39 ] You are to provide a sample of your DNA under s. 487.051(3) of the Code . I am satisfied that it is in the best interests of the administration of justice to make such an order. [ 40 ] Ms. Russell, are you going to submit to me at some time a forfeiture order? [ 41 ] CNSL A. RUSSELL: Yes, Your Honour. Thank you. My friend and I just had a final discussion about that this afternoon. I have one edit to make and then I will provide a copy via the judicial case managers to Your Honour. [ 42 ] THE COURT: Okay. In the circumstances, I am not going to impose a victim fine surcharge. (REASONS CONCLUDED)