Court File and Parties

COURT FILE NO.: CRIMJ(F)1011/15 DATE: 2017 04 03

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN D. Frost and D. Libman, for the Crown

- and -

HESAM BAYRAMI-ASL J. Stilman, for the Accused Accused

HEARD: January 11th and February 22nd, 2017

REASONS FOR SENTENCE

LeMay J.

[1] After a six day jury trial, Mr. Hesam Bayrami-Asl was convicted of one count of importing opium contrary to the Controlled Drugs and Substances Act. The conviction stems from the fact that, on June 4th, 2014, the Offender entered Canada through Pearson International Airport with approximately 3.9 kilograms of opium hidden in the false bottoms of two suitcases.

[2] I am required to determine the appropriate sentence for this offence.

Facts

[3] The Offender was born in Iran, but has lived in Canada since 1991. He has moved back and forth between Canada and Iran regularly starting in 2010, as he was responsible for running the family business after his father passed away.

[4] The Offender travelled from Toronto to Turkey on May 31st, 2014, arriving in Istanbul on June 1st, 2014. He purchased his ticket for cash at the airport. He spent three nights at a hotel in Istanbul, and met up with a woman that he knew, Sanaz Poursiamak. He testified that the purpose of this trip was to consider exploring a clothing business, although he did not provide a lot of details about this business.

[5] Ms. Poursiamak did not testify in this trial. She had been known to the Offender from the time he dated her sister for six months back in 2009. The Offender became a friend of one of Ms. Poursiamak’s cousins, but had no contact with Ms. Poursiamak between 2009 and 2013. There was an incident in 2013 where Ms. Poursiamak was detained at Pearson because there was opium in an amount for personal use in her possession. The Offender was aware that Ms. Poursiamak was an opium user.

[6] The Offender was also aware that Ms. Poursiamak owned a spa in Canada, and had been exporting beauty products into Iran. As a result of this export business, Ms. Poursiamak had been generating large amounts of currency in small bills that she needed to move to Canada. The Offender testified that there were restrictions on what currency could be taken out of Iran and, as a result, Ms. Poursiamak could not move this currency openly.

[7] When they met up in Turkey, Ms. Poursiamak provided the Offender with two suitcases. Both contained sealed packages that were placed in false bottoms of the suitcases. The Offender testified that he believed he was transporting $80,000.00 in currency that had been generated by Ms. Poursiamak’s spa business in Iran from Turkey to Canada.

[8] The Offender testified that he was to be paid $15,000.00 plus expenses to bring this $80,000.00 in currency across the border, and that he was certain it was currency because he inspected the sealed packages and they were firm, much like currency would be if it was in a package. The Offender was aware that the penalty for bringing in more than $10,000.00 in currency was a fine, and the potential confiscation of the money.

[9] The Offender flew into Pearson Airport on June 4th, 2014 on the same flight as Ms. Poursiamak. He went through his initial screening at customs with Officer Matthew Schrock. Officer Schrock determined that Mr. Asl should attend a secondary inspection, and marked his customs declaration card accordingly. The Offender then went downstairs to the baggage carousel and had a conversation with Ms. Poursiamak. He then went to the washroom, encountered Officer Schrock there, and went to secondary inspection.

[10] In the secondary inspection area, Officer Schrock emptied the Offender’s suitcases, which included both his clothing and Ms. Poursiamak’s clothing. He noticed an anomaly in the suitcases, and had them x-rayed. Officer Schrock then punctured the packaging and tested it, confirming that it was opium.

[11] The weight of the opium was 3.9047 kilograms. The evidence established that the opium had a street value at the kilogram level of $88,000.00, at the ounce level of $111,000.00 and at the gram level of $117,000.00.

[12] As is clear from the foregoing, the Offender testified. The jury’s verdict makes it clear that they rejected the Offender’s evidence, and it did not leave them in a state of reasonable doubt.

The Offender

[13] The Offender was born in Tehran, Iran and is currently 43 years old. He lived in Turkey for a period of time, and came to Canada in 1991. He is a Canadian citizen. He has two sisters, one older and one younger. His parents were married until his father’s passing in 2010. His father owned a construction company.

[14] The Offender became responsible for managing the construction company when his father passed away in 2010, and has been travelling back and forth between Iran and Canada on a regular basis as a result of his responsibilities to the business.

[15] The Offender has a good relationship with his mother, and with both of his sisters. The Offender is married, and his wife, who is from Iran, is a medical student who is working towards completion of her medical exams so that she can obtain her medical licence in Ontario.

[16] The Offender is not a user of opium or of other drugs, and has no addiction issues that I was made aware of.

Mitigating Factors

[17] The mitigating factors in this case are:

a) The Offender is a mature first-time Offender. b) The Offender has a supportive family network, and has been a productive member of the community.

Aggravating Factors

[18] The aggravating factors in this case are more complex. One of the key factors that the Crown argues is aggravating is the role that the Offender played in this importation scheme. Specifically, the Crown argues that the Offender was not a mere courier, but a principal in this scheme.

[19] The Defence, on the other hand, argues that the accused was a courier, and was simply willfully blind to what he was importing into the country. The question of whether the Offender was a mere courier or a principal in the operation is related to, but distinct from, the question of whether he actually knew what the substance was, or whether he was a willfully blind courier.

[20] Part of the defence’s argument was that, since the jury was instructed on willful blindness, I am required to adopt the interpretation of the jury’s verdict that is most favourable to the Offender. As a result, the defence argues that I should simply find that the accused was a willfully blind courier (with no additional knowledge of the importation scheme), and should sentence him on that basis.

[21] I reject this argument. In doing so, I note the Supreme Court of Canada’s decision in R. v. Ferguson (2008 SCC 6). In that decision, McLachlin C.J.C. states (at paragraphs 16 to 18):

[16] This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.

[17] Two principles govern the sentencing judge in this endeavour. First, the sentencing judge “is bound by the express and implied factual implications of the jury’s verdict”: R. v. Brown, 1991 SCC 73, [1991] 2 S.C.R. 518, p. 523. The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 1995 MBCA 16075, 95 C.C.C. (3d) 443 (Man. C.A.).

[18] Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven”

[22] Given this direction from the Supreme Court, and the differences in the arguments of the parties, I must resolve both the question of whether the accused had actual knowledge, and whether the accused was a mere courier, or was more principally involved in the importation scheme. If he did not have actual knowledge, then it is more likely than not he was just a courier.

[23] Part of my instruction to the jury on willful blindness made it clear that wilful blindness is imputed knowledge, and that it is deliberate ignorance.

[24] There is not a great deal of difference, if any, between the sentence for someone who is wilfully blind and someone who has actual knowledge. Indeed, in R. v. Sidhu (2009 ONCA 81), the Court of Appeal stated (at paragraph 17) that wilful blindness, rather than actual knowledge, was not a mitigating circumstance.

[25] However, given that the Offender is arguing that he was both wilfully blind and a courier, I must resolve the issue of whether he had actual knowledge in order to address the question of whether he was solely a courier in this case. If the offender was wilfully blind, then he can only be a courier. However, if he had actual knowledge he could be either a courier or a principal.

[26] I find, beyond a reasonable doubt, that the Offender actually knew that there was opium in the packages, rather than being willfully blind. I reach this conclusion for the following reasons:

a) The amount of money ($15,000.00 plus expenses) that the Offender claims he was being paid to bring $80,000.00 of currency into Canada does not fit with the risks associated with currency smuggling, which the accused himself acknowledged were at most a small fine and the confiscation of the money, which was not his. b) The explanation of smuggling currency itself makes no logical sense. It is simply unbelievable that the Offender would be paid nearly 20 percent of the value of the currency to bring it in person when it could have been transferred electronically from a Bank in Turkey. It must be remembered that, although Iran has restrictions on transferring U.S. dollars out of the country, the accused acknowledged that Turkey does not have such restrictions. c) The accused was well aware that Ms. Poursiamak was an opium user and had been caught at the border with opium in her possession before.

[27] Based on the foregoing, I find beyond a reasonable doubt that the offender knew he was smuggling opium into the country rather than cash.

[28] This brings me to the question of whether the Offender was a courier, or had a more principal role in the importation scheme. This issue was considered in detail by Hill J. in R. v. Holder (1998 ONSC 14962), [1998] O.J. No. 5102. In that decision, Hill J. stated (at paragraphs 34 and 35):

[34] It is not apparent from the verdict of the jury as to whether Ms. Holder was a courier or a principal acting on her own behalf. This is an issue which frequently arises in cases involving unlawful importation of a narcotic or a controlled drug or substance. If indeed the offender is a courier, it is seen uniformly as being a mitigating circumstance in sentencing. In these circumstances, the accused is viewed as a lesser player in the organization, an employee, a “runner”, or a “mule”. A principal on the other hand, is one who is a more active participant, more substantially involved, likely to receive more profit and certainly more intricately involved in domestic sub-distribution of the narcotic or controlled substance.

[35] As stated in R v. Bishop (April 24, 1998), Hill J. (Ont. Gen. Div.)(unreported) at pages 4-5, the appropriate starting reference point is that a convicted importer is a principal. This is a presumption that can be rebutted by an accused individual. The facts relating to the circumstances of the importation are, of course, peculiarly within the knowledge of the accused. The presumption that the accused is acting on her own can be rebutted by proof, on a balance of probabilities, pursuant to s.724(3)(d) of the Criminal Code.

[29] The accused must demonstrate, on a balance of probabilities, that he was a mere courier in this case. I reject that argument. Indeed, the preponderance of the evidence favours the conclusion that the accused was a principal in this case:

a. He travelled to Turkey for a number of days prior to bringing the opium back, and had no good explanation for his trip there. He explained that it was to look at establishing a business, but could not provide relevant details. As a result, this fact suggests that he was going to Turkey as part of an importation scheme. b. On his own evidence at trial, he had communication with Ms. Poursiamak in the airport in Toronto prior to being detained by customs. However, he denied knowing Ms. Poursiamak when questioned by customs the night of his arrest. These facts also suggests that he was involved in the importation scheme as a principal, and that it was a joint venture with Ms. Poursiamak. c. I reject the Offender’s evidence that he was paid money to bring this package into Canada, regardless of whether he knew it was opium or currency. The Offender’s explanation in this regard is not believable. In particular, I note that the Offender claimed to have been paid $15,000.00 plus expenses to import these packages. This amount is approximately twenty percent of the value of the Opium at the kilogram level. I reject this explanation. Instead, the Opium was being imported for his own gain. d. While far from determinative, for many couriers it is readily apparent that they could not be a principal as they have no access to funds as well as obvious financial need that acts as a motivator. In this case, the opposite is true. The Offender had access to funds, including the funds to purchase a ticket to Turkey on short notice, and I heard no evidence of financial need on his part.

[30] In the circumstances, therefore, I am of the view that the accused was a principal in this importation scheme, and he is not entitled to the mitigation of sentence that would be provided to a courier.

[31] The other aggravating factors in this case are:

a) The amount of opium that was imported, being nearly 4 kilograms. b) The fact that the importation was for commercial gain.

Purposes and Principles of Sentencing

[32] The statutory principles and purposes of sentencing are set out in section 718 of the Criminal Code and section 10 of the Controlled Drugs and Substances Act. In light of the fact that the accused was a principal who knowingly imported these drugs into the country, the principles of general deterrence and denunciation should be emphasized.

[33] There are relatively few cases on the sentencing ranges for the importation of opium. I was referred to case law by both the Crown and the Defence. The Defence also relied on some of the Crown’s cases in argument.

[34] The Defence referred me to three British Columbia cases, R v. Aghabeigi (2004 BCCA 263), R v. Pirouz (2009 BCCA 51) and R. v. Henareh (2015 BCSC 2455). On reviewing these cases, each of them is distinguishable from the case at bar.

[35] Aghabeigi concerned the importation of approximately 9.6 kilograms of opium in the lining of two suitcases. Ms. Aghabeigi was suffering from major depression, fibromyalgia and arrhythmia at the time of the offence. She also developed type 2 diabetes between the time of the offence and the date of sentencing. The Crown sought a sentence of six to seven years. Ms. Aghabeigi was given a sentence of three years. The British Columbia Court of Appeal found that the sentence in this case was “lenient”. I entirely agree with that characterization. Further, the sentence was lenient because of Ms. Aghabeigi’s personal medical circumstances, which is a factor that does not apply here.

[36] Pirouz concerned the importation of 3.144 kilograms of opium, as well as the possession of an additional 2.263 kilograms. Mr. Pirouz was given a conditional sentence of two years less a day. In upholding the sentence, the Court of Appeal noted that the authorities, while limited in number, supported a range of sentence of between three and five years. However, the unique personal circumstances of Mr. Pirouz’s case (which included having been imprisoned in Iran, and suffering PTSD as a result), justified a departure from the range. Again, these mitigating factors are not present in the Offender’s case.

[37] Henareh concerned the importation of 14 kilograms of opium. In this case, the Court found that this was a commercial enterprise and that Mr. Henareh’s involvement was more than a one-time event. While Mr. Henareh was not found to be in partnership with the main importer, it was a business relationship and Mr. Henareh had knowledge of the opium importation scheme. Mr. Henareh was given three years for these offences. A number of Ontario cases were distinguished, in part, on “the different sentencing regime in Ontario” (see paragraph 93).

[38] This brings me to the Ontario cases. I start with R. v. Abolmolouk ((1987) 23 O.A.C. 144 (C.A.)). In that case, the Court of Appeal considered the range of sentence for the importation of 805 grams of opium. This case arose immediately after the Supreme Court’s decision in R. v. Smith (1987 SCC 64), 75 N.R. 321, which struck down the mandatory minimum sentence of 7 years under section 5(2) of the Controlled Drugs and Substances Act. In that case, the Court of Appeal found that a sentence of four years for a first time importer was appropriate.

[39] More recently, in R. v. Rashidi-Alavije (2007 ONCA 712), the Court of Appeal affirmed a sentence of five and a half years for a courier who brought 6 kilograms of opium into Canada. Mr. Rashidi-Alavije had no criminal record.

[40] Then there is the decision in R. v. Bokark (2008 ONCJ 378). In that case, the accused was a first time Offender who had imported 13 kilograms of opium. The Court found that the accused was involved in both the importation of the opium, and in possession for the purposes of trafficking the opium. In those circumstances, a sentence of nine and a half years was imposed. Bokark clearly involves a more serious offence than the one in this case.

[41] This brings me to the decision in R. v. Rajaei-Mehrabadi (2016 ONSC 3362). In that case, the Court was dealing with a case where the Offender had imported 6.45 kilograms of opium, which is more than was imported by the Offender in this case. Taking into account, inter alia, the fact that the accused had anxiety and depression, and that he had been on social assistance, Dawson J. stated (at paragraphs 23 to 25):

[23] Based on my review of the cases, and relying in particular on the factual information cited at paras. 6 and 7 of Abolmolouk, I agree that the range of sentence for the importation of multiple kilograms of opium for commercial drug trafficking is three to seven years. I would also adopt the British Columbia Court of Appeal’s description of a three year sentence for the importation of over nine kilograms in Aghabeigi as lenient.

[24] In my view, the quantity involved in the importation and whether the accused is addicted or a user, are of critical importance. If the evidence supports a finding of commercial trafficking on a significant scale a midrange penitentiary sentence will usually be required in order to deter and denounce the importation of an addictive substance. It is well known that addictions can lead to many other social costs and often to the commission of other crimes. However, the fact that opium is not as addictive as some of the other hard drugs and has a smaller market, are relevant factors affecting the determination of an appropriate range of sentence.

[25] I would add that were there any evidence that the opium imported in this case was being used to make morphine or heroin the range of sentence would extend considerably higher than seven years.

[42] In the circumstances, this case is relatively similar to the one that is before me. The distinguishing features are the fact that Dawson J. found that the accused in his case was a courier, and had a history of anxiety and depression. Dawson J. was also dealing with the importation of 6.45 kilograms of opium, which is more than was imported in this case.

[43] Dawson J. imposed a sentence of four and a half years. In my view, given the fact that the Offender was a principal, and imported multiple kilograms of opium, I am of the view that the sentence should be slightly longer than the sentence in Rajaei-Mehrabadi.

The Sentence to be Imposed

[44] Based on the foregoing, and based on the Offender’s role in this importation, I find that a fit and proper sentence is five years.

[45] There will also be a weapons and firearms prohibition order pursuant to s. 109 of the Criminal Code. To the extent such order is discretionary it will be for ten (10) years.

[46] Both counsel agree that the minimum victim surcharge fine of $200.00 should be imposed in this case, and I so order.

[47] In addition, there will be a DNA Order under s.487.051(3)(b) of the Criminal Code and a forfeiture Order.

LEMAY J

Released: April 3, 2017