Court File and Parties

Ontario Court of Justice

Date: 2018-10-11

Court File No.: Newmarket 17-02789

Between:

Her Majesty the Queen

— and —

Farzad Farahnak Foumani

Before: Justice David S. Rose

Heard: October 9, 2018

Reasons for Judgment Released: October 11, 2018

Counsel

Mr. Nadi — counsel for the Crown

Mr. J. Christie — counsel for the accused Farzad Farahnak Foumani

Judgment

Rose J.:

Facts and Background

[1] Mr. Farahnak Foumani pleaded guilty before me on July 3, 2018 to the charge of Possession of Opium for the Purpose of Trafficking. As part of the plea he admitted that in 2017 the York Regional Police had received information about drug trafficking in the Greater Toronto area which identified Mr. Farahnak Foumani as a trafficker. On April 5, 2017 they did surveillance on his residence and saw him drive his motor vehicle and act consistent with trafficking. They did this again on April 6, and when they saw Mr. Farahnak Foumani traffic to another man they arrested the buyer, and located 2.5 grams of opium. They arrested Mr. Farahnak Foumani too and found 54.5 grams of opium wrapped in baggies. He also had $860.00 in cash.

[2] Mr. Farahnak Foumani has no prior criminal record. He was born in Iran in 1978. He married when he was 20 years old, and fled Iran 9 years later. After a harrowing trip, he arrived in Toronto. His spouse immigrated here in 2011. They are both now permanent residents of Canada. He has a degree in microbiology in Iran but has been employed menially here in Canada.

Addiction and Rehabilitation Efforts

[3] Mr. Farahnak Foumani is an opium addict. Most of his family in Iran uses opium. He started using opium as a teenager as a way of dealing with the stress of growing up a young person involved in protests in Iran. His wife is fully aware of his addiction. Mr. Farahnak Foumani spent up to $800 a day on his habit. He admits to trafficking to support his habit. This was confirmed by the Officer in charge of the case, who told the Pre-Sentence report writer that, "…the subject was trafficking drugs (opium and marijuana) in order to support his own drug habit". The police confirm that Mr. Farahnak Foumani did not involve his spouse in his drug activities. The pre-sentence report is quite positive. It reports that "To the subject's credit, it appears that he has made some significant gains towards improving his situation".

[4] This includes steps to deal with his addiction. Material filed by Mr. Christie confirms this. He was under the care of Dr. Chernick for Opioid addiction from April to September 2017 when he transferred his file to Dr. McMaster in Newmarket. The transfer was completed because Mr. Farahnak Foumani moved to the Newmarket area to avoid those near his old residence who used opium. Material filed discloses that Mr. Farahnak Foumani has provided many negative drugs screens for substances other than methadone. In short, he has done very well on the methadone program.

[5] Mr. Farahnak Foumani has also attended counselling with his wife aimed at enhancing the treatment for his addiction. A fairly detailed letter was provided from Dr. Lisa Doupe confirming this. That counselling took place from February to late June 2018 and included 24 appointments. Dr. Doupe summarizes him as having a positive attitude to his addiction and treatment. He has worked hard in his counselling.

[6] Aside from Dr. Doupe Mr. Farahnak Foumani is under the care of a Sleep Disorder Doctor, who also provided a positive report. In short, this offender has made significant effort to properly deal with his addiction from a number of different angles. I find that his efforts to deal with his addiction are exemplary. He has a very real possibility of successfully dealing with his addiction.

Sentencing Submissions

[7] The Crown seeks a jail sentence of 12 months, 2 years' probation, a weapons prohibition and DNA sample as a secondary designated offence. Mr. Christie argues that the appropriate sentence is 90 days in jail but does not oppose the ancillary orders. The defence position is grounded in the logic that Mr. Farahnak Foumani's rehabilitative efforts will be interrupted by serving a jail sentence which is not intermittent. In Dr. Doupe's report of September 18, 2018, only 3 weeks ago, she reported that Mr. Farahnak Foumani is seeing her approximately once per week. There is a sound basis for the defence position.

[8] The consequences of this sentence to Mr. Farahnak Foumani extend beyond the length of incarceration, and ancillary orders. As a permanent resident, conviction for an offence which carries a life sentence make him inadmissible to Canada and subject to deportation. If the sentence is less than 6 months, he will have a right of appeal. If the sentence is anything more than that he will have no right to appeal his removal from Canada. As someone who arrived from Iran, that has significant implications.

Sentencing Principles

[9] I would identify two significant components in imposing sentence on Mr. Farahnak Foumani: denunciation and deterrence, and also rehabilitation. Striking a balance in a case like this is not easy.

[10] Parliament provided guidance in sentencing drug cases in s. 10 of the Controlled Drugs and Substances Act. It is worth repeating:

10 (1) Purpose of sentencing Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

[11] In R. v. H.(C.N.) (2002), 170 C.C.C. (3d) 253 (Ont. C.A.), Justice Rosenberg added his own commentary to that section:

It seems to me that the importance of s. 10 is to encourage courts to recognize the particular problem that in many cases persons convicted of drug offences are themselves victims of the drug culture and dependent upon drugs as addicts or users. I think s. 10 recognizes a view that had become increasingly prevalent that, especially for the addict trafficker, the public interest — including the protection of the public — is best served by the treatment and rehabilitation of the offender.

[12] More recently, the Court of Appeal re-affirmed the importance of treatment when dealing with addict traffickers. In R. v. Lazo, 2012 ONCA 389, the Court said that:

Successful treatment of addiction is the best means of addressing drug crime. The public interest is served by diverting individuals in the appellant's situation into drug treatment programs that address the addictions which fuel their criminal activity.

[13] See also Green J. in R. v. Azeez, 2014 ONCJ 311. I would add to this that a sentence on a first offender should be as short as possible, see R. v. Priest (1996), 110 C.C.C. (3d) 289 (Ont. C.A.).

Analysis of Offence and Quantity

[14] Mr. Farahnak Foumani was involved in the sale of opium at a very low level. While the quantity of the seizure he had on him at arrest was not small – 54.5 grams – the evidence of trafficking must be considered alongside his addiction to that very substance. I therefore find that a portion of the opium seized from him was for personal use. To say that the entirety of the seizure was intended for distribution through trafficking ignores his noted addiction, and I would not do it. As Green J. noted in Azeez, supra, "Addicts are neurologically rewired by their dependence".

[15] In submissions Mr. Nadi argued that opium sentencing cases tend to attract a lower range of sentence than heroin cases. This is a fair position. I agree that opium is less potent than heroin. In R. v. Bhangal, 2010 ONSC 4950, at par. 40 Durno J. said:

The cases dealing with opium appropriately regard it as a hard drug, although it is the least potent of the opiates being made up of one-tenth morphine as well as codeine and thebaine. Unlike heroin and other drugs, opium is not readily marketable except among certain ethnic groups. For these reasons, those convicted of opium offences are not dealt with as severely as those whose offences involve heroin: Sentencing Drug Offenders, supra.

[16] This does not completely displace the rule that deterrence and denunciation are important sentencing principles in the case of an offender convicted under s. 5(2) of the CDSA for a Schedule 1 substance such as opium. Offenders convicted of such offences should normally serve a custodial sentence. The question is how long it should be. As the Court of Appeal has reminded sentencing courts, treatment of addicts serves the public interest. In such cases, the focus starts to shift from criminal interdiction to public health concerns.

Sentence Imposed

[17] Having reflected at length on the submissions and the material provided, I would impose a 90 day intermittent term of jail. Mr. Farahnak Foumani must serve a jail term for this, but it must be as short as possible in the circumstances, and it must be balanced against the gravity of the offence, his addiction and his significant ongoing efforts to deal with his addiction. A 90 day sentence will achieve all of those goals. He will be taken into custody now and released after processing. He will report to a jail on Friday no later than 7pm and released on Monday at 6 am, each and every weekend until he has completed his sentence.

[18] He will be on an intermittent term of probation while he is out of custody during the term of his intermittent jail sentence. Once he has completed his custodial sentence he will be on probation for 2 years. The Pre-Sentence Report suggests the following terms of probation, which seem reasonable. They are:

• Report to a probation officer in person and thereafter as directed;
• Do not purchase/possess/consume any unlawful drugs or substances except with a valid prescription in your name;
• Do not associate with anyone known to you to have a criminal record except for employment purposes;
• Do not associate with anyone known to you to be involved with drugs;
• Continue with counselling and treatment for drug addiction as directed by your probation officer;
• Continue with counselling with Dr. Doupe (or equivalent) as directed and do not stop that counselling without permission of the probation officer;
• Sign any necessary release of information forms to enable your probation officer to monitor your attendance and completion of any assessment, counselling or rehabilitation programs;
• Maintain legitimate employment.

Ancillary Orders

[19] There will be a s. 109 Order for 5 years. This is a secondary designated offence for purposes of DNA databanking. Given the nature of the offence, I find that it is in the best interest of the administration of justice that Mr. Farahnak Foumani provide a sample of his DNA for transmission to the national DNA databank, and he will do so today, or within 5 business days.

Released: October 11, 2018

Signed: Justice Rose