R. v. Azhadi, 2013 ONSC 5033

CITATION : R. v. Azhadi, 2013 ONSC 5033 COURT FILE NO.: 13-90000065-0000 DATE: 20130425 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) Bari Crackower for the Crown - and - ) ) SHAHIN AZHADI ) ) Darryl Schultz for Shahin Azhadi ) ) ) HEARD: April 18, 2013 Thorburn J . REASONS FOR SENTENCE I. OVERVIEW [ 1 ] Shahin Azhadi was convicted by a jury of possession of 72 Methadone pills contrary to

section 4 of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 . [ 2 ] Mr. Azhadi is 41 years old and has no criminal record. He told police at the time of his arrest that the pills were Methadone pills and that he had purchased them while living in Iran for six months, in order to combat his Opium addiction. He did not have a Canadian prescription although he says they were prescribed by a doctor in Iran. [ 3 ] Mr. Azhadi had a physician in Canada prescribe Methadone for him before he went to Iran. Thus, he was eligible to receive Methadone treatments in Canada.

There was therefore no need for him to bring illegal drugs into Canada. He testified that the only reason he had the Methadone pills was to overcome his Opium addiction. [ 4 ] Mr. Azhadi is now gainfully employed but says he will lose that employment if he does not obtain a discharge. [ 5 ] Mr. Azhadi’s counsel seeks an absolute discharge as Mr.

Azhadi has no criminal record, he admitted he had the pills on his person without a valid Canadian prescription, he was using the pills he obtained while in Iran to combat his Opium addiction, and he will lose his employment if he does not get a discharge. [ 6 ] The Crown submits that the appropriate sentence is a suspended sentence of 12 months’ probation. Mr. Azhadi is not a young offender. Moreover, he brought the Methadone pills into Canada when he knew or should have known they cannot be used without a prescription. The Crown also notes that while Mr.

Azhadi’s decision to proceed to trial is not an aggravating factor, he cannot claim there was a mitigating factor of having saved time and resources of a trial. The Crown notes that Mr. Azhadi has only been employed for a matter of months. [ 7 ]

Section 718 of the Criminal Code , R.S.C., 1985, c. C-46 provides that, in sentencing a person convicted of offences, the following objectives must be considered: 1. denunciation of unlawful conduct; 2. deterring the offender and others from committing offences; 3. separation of offenders from society where necessary; 4. rehabilitation of offenders;

5. reparation for harm done to victims or to the community; and 6. promotion of a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 8 ] The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 9 ] Other important sentencing principles to be taken into account include the following: (

a) A sentence should be increased or reduced to account for aggravating or mitigating circumstances relating to the offence or the offender; (

b) Similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances; and (

c) An offender should not be deprived of liberty if less restrictive measures are available in the circumstances. [ 10 ] I have considered and applied the principles of sentencing set out in the Criminal Code to the facts in this case. [ 11 ] An absolute discharge (as requested by Mr. Azhadi’s counsel) is inappropriate given the importance of general deterrence of those who purchase and bring illegal drugs into Canada, the number of pills seized, Mr. Azhadi was not a youthful offender, and he cannot claim an otherwise fit sentence should be mitigated by virtue of a guilty plea.

On the other hand, a suspended sentence is inappropriate given that Mr. Azhadi is a first time offender, he obtained the drugs only to help him overcome his own addiction to Opium, and he could have had the drug prescribed to him by a physician in Canada. [ 12 ] In these circumstances I believe a fit sentence is a two year conditional discharge on the following terms: (

a) Mr. Azhadi is not to be in possession of any drugs unless they have been prescribed by a physician in Canada; (

b) He is to continue his treatment for his Opium addiction as prescribed by his Canadian physician; (

c) He is to report to a probation officer as and when required and advise the officer of any change in address; (

d) He is to provide documentation to his probation officer as required to confirm that he is receiving ongoing treatment for his Opium addiction; (

e) He is to keep the peace and be of good behavior; and (

f) He is to perform 60 hours of community service over the next 12 months with supporting documentation to be provided to his probation officer to confirm same. Thorburn J. Released: April 25, 2013 CITATION : R. v. Azhadi, 2013 ONSC 5033 COURT FILE NO.: 13-90000065-0000 DATE: 20130425 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N: HER MAJESTY THE QUEEN - and - SHAHIN AZHADI REASONS FOR SENTENCE Thorburn J. Released: April 25, 2013