R. v. Bahari Date:, 2016 BCPC 447

Citation: R. v. Bahari Date: 20160517 2016 BCPC 447 File No: 59266-2-C Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. AARYA BAHARI ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A.M. WOLF Counsel for the Crown: D. Clements Counsel for the Defendant: B. Jessop Place of Hearing: Richmond , B.C. Date of Hearing: March 31, 2016 Date of Judgment: May 17, 2016

[ 1 ] Mr. Bahari is before the court having pled guilty on March 31, 2016, to an Indictment 59266-2-C and it was to the first count of that, that of importing a substance into Canada, specifically, the substance was opium, that is contrary to s. 6(1) of the Controlled Drugs and Substances Act . [ 2 ] He has been in custody for quite some time, by a total and credit, 447 days and he has consented to remain in custody during that time period. [ 3 ] There were submissions by Mr. Lepine on behalf of the Prosecution Service and submissions on his behalf by way of counsel. The facts are fairly straightforward.

He is a Canadian citizen with no record. On July 20, 2015, he flew to the Netherlands and came back five days later. Because of the shortness of the trip and coming back from the Netherlands itself, he was referred to a secondary immigration inspection. In a suitcase there were handbags and two framed pictures. The frames were unusually heavy and a drug dog was brought onto the scene. Ultimately, some bricks of opium were located and the frames also contained opium. There was some discussion early on about what the weight of that opium was.

Ultimately, while different measurements were as high as 3.129 kilos, the Crown was content to rely on the lower weight of 3 kilos. The value, while it has not been placed before me with respect to any expert reports, is estimated to be anywhere around $100,000.00. [ 4 ] On arrest, Mr. Bahari had provided a number of statements to some of the arresting officers. He said that he did not pay for the plane ticket. He said that his friend and mother paid for it, and that the purpose of his visit to the Netherlands was to deliver vitamins to a friend there.

He indicated that he happened to meet a man in a bar and he was asked to smuggle some opium back. He said that he himself concealed the opium in the handbags and the frames, and estimated that it took him approximately 12 hours to accomplish this task. He said that he placed pepper and ink cartridges with the opium to throw off drug detection dogs. At one point, he indicated to somebody that he thought he had approximately $15,000.00 or $20,000.00 because he was in debt for $15,000.00. Another reference was that he would obtain $20,000.00.

At one point he said the value of the opium was around $30,000.00, but later indicated that it was about $100,000.00. He told the police that a photo was taken of him and sent to someone in Canada so they would know what he looked like. [ 5 ] The Crown, in their submissions, questioned the coincidental nature of bumping into someone in a bar who asked him to smuggle some drugs. As well, the Crown submitted the purpose of the trip was questionable.

He appeared to be nervous when going through Customs; said to someone that he likes a challenge and the Crown made reference that maybe this challenge was to be equated with drug smuggling. [ 6 ] Crown quite properly pointed out that the money seemed to be the main purpose of the crime. Crown had pointed out that the debt that he suffered was not crushing or life destroying.

The Crown indicated that, in his own letter, he does not talk about debt but, rather, the impression he gives in his letter is that he ultimately wanted to take a shortcut and was, to use the accused's own words, "greedy", found in a letter at Tab 7 of the defendant's book of letters, filed. [ 7 ] The law asks me to consider the substance, which is a

Schedule 1 substance. Many of the different precedents dealing with

Schedule 1 substances are not helpful when determining what an appropriate sentence is for opium possession. Opium is not as strong as heroin or cocaine. As well, the market for opium, according to the Crown, is much smaller than the market for heroin or cocaine. The Crown argues that opium in Canada is essentially restricted to certain communities from the Middle East. [ 8 ] Crown went through some different cases. I do not need to go into those cases in great detail, but in one case, there was a 46- year-old gentleman with no record, the trial had started, then he invited the judge to find a finding of guilt.

Dealing with 14 kilos of opium with a value of $275,000.00, ultimately, the sentence was imposed in the three-year range. I note that in this case it is a lesser quantity but in both cases the accused had no criminal record. [ 9 ] Goodarzi was an Ontario case of 2009 that was tendered before the court. I found it useful in that it covered a lot of the different sentences in Ontario with respect to what appropriate sentences would be. But I am left ultimately with distinguishing features. It was a much larger quantity.

It was not a plea, it was a trial; and while the sentencing position in Ontario is helpful to understand what Ontario has with respect to sentences for opium, it does not help me understand what the appropriate sentences in British Columbia are. [ 10 ] Salamat Ravandi was another one where an individual received 4.5 years for 17 kilos of opium, and that case commented on the idea of a range. In that case, there was 17.95 kilos of opium. I point out again that we are dealing with a significantly lesser amount here of 3 kilos. [ 11 ] Eshghabadi was one where an individual received two years for importing.

I asked at the beginning of these proceedings whether it was trafficking or possession for the purpose of trafficking versus importing. Importing is generally seen as more serious than possession for the purpose of trafficking in the case law. In that case, the individual received two years. [ 12 ] Ultimately, the Crown concluded their submissions by summarizing what their position was with respect to sentence, and they indicated that a three-year sentence of imprisonment, minus time served, that that time of 377 days was what their position was.

They wanted a weapons prohibition and a DNA order as well. [ 13 ] Defence, Mr. Jessop, was very able in his submissions and again covered much of the case law which I have reviewed. He pointed out that this gentleman, Mr.

Bahari, is 26 years old and was 25 at the time of the offence; that he was born in Montreal; lived in Iran until nine years old and travelled throughout the States; that his father was a carpet salesman; and he went to high school in San Diego where he was very active and, according to defence counsel's submissions, entrenched in athletics. [ 14 ] In 2008, sadly, there was a split up in the family between his mother and father, and at that time, Mr.

Bahari moved to the Lower Mainland where he went to Capilano College. [ 15 ] I pause there for a moment to indicate that, in a lot of the letters that were filed in support of Mr. Bahari, they confirmed that he

has a good work ethic, that he is a talented artist and has some great skills. [ 16 ] After graduation from college, he was in a relationship and looking for work and some of the letters speak as well to some of the problems that he had in trying to find employment. At the time of the offence he was living in an apartment. [ 17 ] By way of explanation of the offence, it is clear by the submissions of Crown and by the own admissions of Mr.

Bahari, that it was financially motivated. [ 18 ] The defence indicated that sometimes people under stress may not behave in a rational manner, and argues that he was cooperative and that he was given an opportunity. Even if I believe that he was given an opportunity, it is my view that really he was given a choice. He is an educated man. He has had opportunities. He has family in his life and he has seen people work very hard. I think his mother is a good example to him of an individual that is able to overcome barriers, settle down in a community, get a job and work hard. Others around him also work hard.

He has had individuals tender letters on his behalf, and also I note that there are family and friends in the court today that do not take shortcuts, but they go out into the community and work very hard on a daily basis. [ 19 ] Defence counsel argued that the letters to the court demonstrated significant insight and genuine remorse and argued that the accused does feel genuine remorse.

By the way, I think the Crown in their submissions at the end of your case also agreed that your letters showed insight and remorse. [ 20 ] The case law really asks the court to look at the quantity and type of drug and try to establish a range. It is very easy to get caught up in quantities and types of drugs. Mr. Goodarzi, again as I mentioned, was a much higher amount and so the gravity of the offence was higher. [ 21 ] The mitigating factors were quite properly set out by Mr.

Jessop; that there was a guilty plea indicated to counsel at an early trial date and by my count, I think you have had some 27 appearances on this, so it has been a long journey to get to the point of completing your sentence; that he has no criminal record; that he is remorseful; he has strong support in the community and he is not entrenched in any criminal lifestyle; that he is youthful, he was 25 at the time of the offence, 26 now; and that those mitigating factors guide us in sentencing and argues that specific deterrence is not an issue that I need to deal with. [ 22 ] The Crown again, at the end of their submissions, stood up and said that they believe that specific deterrence is not an issue that the court needs to be overly concerned with.

That is, that you have learned your lesson; that you are in custody and that has made quite an impact on you. [ 23 ] Ultimately, I think the letters your family input and your counsel's submissions point to this idea that was spoken of in one of the letters, that this act is really an aberration of character, that otherwise you have shown good character. [ 24 ] Another submission of the Crown, and this is an important factor in the case law, is taking a look and saying what efforts you have made to rehabilitate yourself.

You have been in custody for quite some time under pre-trial, but I am told by your counsel that you have taken advantage of every program that you possibly could. [ 25 ] I also believe that the delay in accomplishing the sentencing is something that I have to take into account. Very early on, you wanted to complete sentencing.

There was a lack of court time and of those 27 appearances, basically, you were just accomplishing dead time, awaiting to do something early on that you should have had the right to do, which was to complete sentence. [ 26 ] Your counsel indicated that ultimately this was a juvenile pursuit of what you deemed to be success. Defence counsel further submits, once he has been able to reflect upon the situation, he realizes that he was mistaken.

I believe that this is what we refer to as specific deterrence that I mentioned earlier and, ultimately, that you are a human being that will not be back before the court on an offence like this in the future. [ 27 ] The ultimate question is, is a two-year sentence appropriate, which is suggested by your counsel, minus time served, or the three-year sentence as the Crown suggested, or even a higher sentence? But for your guilty plea, I believe that if I were to review the Ontario authorities, a five-year sentence would be appropriate.

I note that at one time the minimum sentence to be imposed for importing this amount of opium was seven years and I strongly must respectfully disagree with the submission that two years minus time served is an appropriate sentence. [ 28 ] However, I recognize that the Pirouz 2009 B.C. Court of Appeal case allows me to consider the totality of the circumstances and ultimately weigh the personal circumstances of Mr.

Bahari with the circumstances of this offence, and upon consideration of these different factors, some of which would be mitigating and some of which would be aggravating, I do believe it is open for me to impose a sentence out of the normal range, which I consider to be three to five years in British Columbia. In Pirouz the court dealt with the importation and possession of 3.144 kilos of opium and, in some ways, the case was more serious in that he had been importing the drug for quite some time.

Equally, this is the approximate weight of the narcotic that is before the court today. [ 29 ] It is agreed that for our purposes of sentencing, this was done only once. This was the one and only time that Mr. Bahari has been involved in any drug importation scheme. Like Mr. Pirouz, Mr. Bahari appears to have made some steps towards rehabilitation as again, he was by consent detained in custody prior to sentencing and gained access to pre-trial programs. I want to make it clear that Pirouz is not a fitting precedent when it comes to some of the other factors. In Mr.

Pirouz's case, he had spent seven months in prison in Iran for political protests. He was tortured and diagnosed with post-traumatic stress disorder and depression, and while in prison he became addicted to opium. The judge in Pirouz pointed out on page 4 at 2009 BCCA 51 : ... that he was an opium addict with a substantial habit at the time of his arrest (as opposed to an offender motivated solely by profit)... [ 30 ] That is the emphasis of that judge taking into account the difference between a person who is addicted and a person who is motivated for profit.

[ 31 ] Eshghabadi and Nabiloo , another 2009 B.C. Supreme Court case out of Vancouver, provides me with the ability to consider a two-year sentence. However, again, in my view, the circumstances of those two accused and Mr. Bahari can be distinguished. If sentenced to more than two years, they would have been deported, and it appears that at least one, if not both, of those individuals were addicted to opium. [ 32 ] I have considered all the authorities provided by counsel and with respect to the Ontario opium sentencing cases.

But for your guilty plea, again, if I were to follow them, I expect the sentencing range would be in the five year range minus time served. However, I wish to rely on the Honourable Madam Justice Wedge's decision of Eshghabadi , at paragraph 73, wherein she finds that: I must be guided by the sentencing principles of s. 718 of the Criminal Code and the range of sentences imposed on similar offenders in similar circumstances. I must bear in mind the fundamental purposes of sentencing described in s. 718 .

As mandated by s. 718.1, any sentence must be proportionate to the gravity of the offence and the degree or responsibility of the offender. I must also bear in mind the objectives of sentencing. In this case, general deterrence and denunciation must be emphasized in light of this offence, but rehabilitation is also a significant factor. Finally, a sentence should be increased or reduced to account for any relevant mitigating or aggravating circumstances relating to the offence or the offender. [ 33 ] With respect to the range of sentence, I have considered R. v.

Ravandi , a decision of Justice Davies of October 2015, and while different, it does indicate a range of three to five years. [ 34 ] In conclusion, when I look at the totality of circumstances, I find this young, educated man has great potential, but for the sole purpose of greed, chose to take a shortcut to success. His family and friends around him all have had hurdles to overcome in their life, yet they chose to be law-abiding citizens and they chose to work their way through life. You chose to profit from people who are, by and large, addicted to opium.

Many of these individuals have spent time in jail in other countries, standing up for the values that help create healthier communities. Some of the accused in some of the cases that I have discussed immigrated to this country and endured torture in the process so that young men like you can have a new home, a home that is premised upon fair laws and just sanctions. [ 35 ] I note that there is some discussion in the case law as to what opium is, that it is not indigenous to Canada and that notably it is a substance not generally used outside certain ethnic minority communities.

While I do not consider this factor as either mitigating nor aggravating, I make mention of it because it is my view that all of Canada, its provinces such as British Columbia and every community in our province, whatever ethnicity, are entitled to be protected from people who profit on their addictions. Will you stand up, sir. [ 36 ] I sentence you to three years for the crime of importation of opium, and I will take into account the time you have served which is 447 days.

So the sentence ultimately will be three years, minus the 447 days. [ 37 ] There will be a DNA order; a 10 year weapons prohibition as well. [ 38 ] I want to thank counsel, both Crown and defence, for providing me with very extensive authorities on the topic and I want to thank your family for standing by you and being here as well. You do have great potential and a great future, you are just going to have to finish doing your time and then get on with the rest of your life. [ 39 ] MR. JESSOP: Thank you, Your Honour. [ 40 ] MR. CLEMENTS: Thank you, Your Honour.

And just for the record, that weapon prohibition is pursuant to s. 109(1) (

c) of the Criminal Code and the DNA order is pursuant to 487.051. (REASONS FOR SENTENCE CONCLUDED)