R. v. Salehzadeh, 2017 ONSC 6460

File #: CR-15-00007935-0000

2017 ONSC 6460

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

REZA SALEHZADEH

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE JUSTICE M. FUERST

on July 28, 2017 at NEWMARKET, Ontario

APPEARANCES:

J. Kim & J. Costain Counsels for the Crown

J. Shulman Counsel for the Defendant

CITATION: R. v. Salehzadeh 2017 ONSC 6460

Friday, July 28, 2017

R E A S O N S F O R S E N T E N C E

FUERST, J. (Orally):

An unhappy marriage may end in separation and divorce. In this unfortunate case, an unhappy marriage ended in the murder of one spouse by the other.

On October 14^th, 2015, Reza Salehzadeh murdered Fereshteh Massoudian, his wife and the mother of their child, in their home.

Before setting a trial date, and without having had a preliminary hearing, Mr. Salehzadeh pleaded guilty to second degree murder. He faces a mandatory sentence of life imprisonment. The only matter for me to decide is the period that he must serve before he is eligible for parole.

The Principles Governing the Parole Ineligibility Determination

Section 745(c) of the Criminal Code provides that on conviction for second degree murder, the offender must be sentenced to life imprisonment, with no eligibility for parole for a fixed period ranging from a minimum of 10 to a maximum of 25 years. Section 745.4 specifically empowers the sentencing judge to increase the parole ineligibility period from the minimum of 10 years to the period that the judge deems fit, up to the maximum of 25 years.

In exercising his or her discretion under

s. 745.4, the sentencing judge must have regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation of the jury, if any. As Mr. Salehzadeh pleaded guilty, there is no jury recommendation to be considered in this case.

As a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by the sentencing judge’s determination that, according to the criteria set out in

s. 745.4, the offender should wait a longer period before having his suitability for release assessed. The determination of the parole ineligibility period is “a very fact sensitive process”: see R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, at para 18. The sliding scale of parole ineligibility reflects the fact that “within second degree murder, there is both a range of seriousness and varying degrees of moral culpability”: Shropshire, at para 31.

An increased parole ineligibility period does not require unusual circumstances: see Shropshire, at paras 26 to 27.

In R. v. McKnight (1999), 1999 3717 (ON CA), 135 C.C.C. (3d) 41, the Court of Appeal for Ontario held that in assessing the s. 745.4 criteria and in deciding whether to increase the period of parole ineligibility, all of the objectives of sentencing are relevant. Those objectives, as set out in section 718, are denunciation of unlawful conduct and the harm caused to victims or to the community; deterrence, both general and specific; the separation of offenders from society when necessary; rehabilitation; reparation for harm done to the victim or to the community; and, promotion of a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. The court, however, observed in McKnight that the statutory 10 year minimum ineligibility period limits the weight that can be accorded to the offender’s prospects of rehabilitation.

Regardless of the period of parole ineligibility imposed, the sentence remains one of life imprisonment. The sentencing judge does not decide when the offender should be paroled, but merely the period he must serve before parole can even be considered: see R. v Trudeau (1987), 24 O.A.C. 376 (C.A.).

The Nature of the Offence and the Circumstances Surrounding Its Commission

Ms. Massoudian and Mr. Salehzadeh met and married in Iran before immigrating to Canada in 2005. They had one child, a daughter, who was 12 years old in 2015. The three of them resided together in a detached house in Vaughan. They had a basement tenant.

Mr. Salehzadeh worked in the insurance industry, with some assistance from his uncle. However, he was supposed to be setting up an audiology, or hearing aid, clinic. Ms. Massoudian was building her own cake and pastry business, and was to assist her husband in setting up the clinic.

The marriage was not a happy one. In 2010, Mr. Salehzadeh was diagnosed with depression, and prescribed an anti-depressant after a suicide attempt. According to medical records, at some point in 2011 he reported having given up on his wife and not caring anymore. However, in mid- 2012, he told his doctor that he was determined to stay in the marriage.

Ms. Massoudian became pregnant in 2014, but the pregnancy was terminated at Mr. Salehzadeh’s insistence. Ms. Massoudian initially was saddened, and later angered by this. Ultimately, she confided in her mother and her sister that she was ready to leave the marriage.

Ms. Massoudian’s father reached out to Mr. Salehzadeh’s uncle to act as a mediator for the couple. After a meeting with the uncle in September 2015, Ms. Massoudian agreed to stay in the marriage and try for another year. However, in the weeks leading up to her death, she confided to her family that she was unhappy and wanted to end the marriage sooner. She told her sister that she believed her husband would never actually open the clinic, and she was tired of dealing with the marriage.

According to bank records, the couple refinanced the family home not long before the fall of 2015. The money gained was intended to finance the audiology clinic. Instead, some of it was used to pay off large amounts of credit card debt.

On October 14^th, 2015, the couple’s daughter left for school at 8:15 a.m. The downstairs tenant also left for classes. He did not return home until around 1:00 p.m., at which point he went to sleep.

At 9:44 a.m., Ms. Massoudian’s sister, Faezeh Massoudian, called her cell phone. Mr. Salehzadeh answered the call. He appeared to be in good spirits. The sisters spoke to one another about the plans for the audiology clinic. Fereshteh advised that nothing had been done. When Faezeh reassured her sister that such things take time, Fereshteh replied that sometimes you find a place and can’t find a doctor, and sometimes you find a doctor but can’t find a place. Fereshteh indicated she had plans to go shopping that day.

Mr. Salehzadeh overheard his wife’s comments to her sister about his inability to get the audiology clinic up and running. He became angry. A heated verbal argument ensued shortly after Ms. Massoudian ended her phone call with her sister. The verbal argument became physical. It culminated in the murder of Ms. Massoudian by Mr. Salehzadeh.

Mr. Salehzadeh’s cell phone records show that he left the house and made several telephone calls, including to the house at 11:34 a.m., leaving a voice message on the answering machine; to a newspaper where he had placed an ad; and to a friend about visiting the friend’s parents. He returned home shortly before 2:10 p.m.

Mr. Salehzadeh made a 911 call from the landline at the house at 2:10 p.m. Emergency Medical Services were dispatched, and arrived at 2:16 p.m. Mr. Salehzadeh met the paramedic in the driveway and told him to “hurry up”. When the paramedic went into the house, Mr. Salehzadeh led him to a bedroom where Ms. Massoudian was on the ground, with a towel covering her pelvic area. An electrical cord was wrapped tightly around her neck. She had no pulse. There were signs of lividity.

There was a knife nearby with drops of blood on it. A plastic shopping bag was next to Ms. Massoudian’s head.

There were clear signs that a violent struggle occurred in the room. The mattress was askew, and the sheets and blankets had been removed and were scattered on the ground near Ms. Massoudian’s body. Pillows with blood stains were on the ground. The dresser drawers were open. Blood was splattered on the walls. The bedroom was smeared with blood. There was a significant amount of blood near Ms. Massoudian’s head.

A metal pipe with Ms. Massoudian’s blood on it was found in the garage.

When asked by the paramedic what had happened, Mr. Salehzadeh answered, “We all have issues. We all have problems.” He said that he had left earlier in the morning, and then returned to find this.

Mr. Salehzadeh suggested that the downstairs tenant may have been responsible. He then questioned himself as to why he was not crying.

Mr. Salehzadeh called his uncle, told him that Fereshteh was dead, and asked him to pick up the daughter from school.

Mr. Salehzadeh was taken outside when the fire department arrived on scene at 2:29 p.m. He was observed to be gesturing to an upstairs window, yelling “Fuck you”, and asking “Why did she do it? I was good to her”.

York Regional Police attended and arrested both Mr. Salehzadeh and the downstairs tenant. The tenant was released unconditionally after he provided an exculpatory statement which was corroborated. Mr. Salehzadeh was charged with second degree murder.

The cause of death to Ms. Massoudian was ligature strangulation. The forensic pathologist also noted head injuries with traumatic brain damage, and external blood loss from lacerations to the scalp including a crescent shaped laceration on the crown of the head. There was bruising to the back of Ms. Massoudian’s hands, and fractures to the hand and forearm, suggestive of impact with a tool or weapon. There was also an incised wound of the forearm, which indicated that she was cut by a sharp object.

The Victim Impact Information

Ms. Massoudian’s sister, Faezeh Massoudian, provided a Victim Impact Statement. She describes the loss of a sister who was her best friend and backbone in life. She also describes coming to Canada from Iran with her own family and her parents on urgent visas when they learned of her sister’s death. She obtained custody of her niece earlier this year, and is attempting to ensure that her niece’s emotional and other needs are met. Faezeh cares for her niece with financial assistance from her own father - the child’s grandfather - as she has no income because she is not authorized to work in Canada.

At the moment, it is unclear why proceeds of an insurance policy on Ms. Massoudian’s life and proceeds from the sale of the family home have not been made available to provide for the needs of Mr. Salehzadeh’s daughter. Mr. Salehzadeh today instructed his lawyer to provide information to try to facilitate the provision of these funds for his daughter’s care.

The Character of Mr. Salehzadeh

Mr. Salehzadeh is 45 years old. He is a Canadian citizen. He has no prior criminal record of any kind.

After working initially in Canada delivering pizzas, Mr. Salehzadeh became a licensed insurance agent. He was employed by his uncle. Ultimately, he was self-employed, although receiving business from his uncle.

Mr. Salehzadeh wanted to stand on his own feet. While continuing to work, he completed the audiology program at George Brown College. He became qualified as an audiologist in 2014.

In 2015, Mr. Salehzadeh took steps to set up an audiology clinic. By early October 2015, he was involved in negotiations to purchase an existing clinic.

Mr. Salehzadeh suffers from depression, which was first diagnosed in 2010. Although he was treated with medication, in the fall of 2015 he was suffering stress and anxiety related to the opening of his clinic.

On the sentencing hearing, Mr. Salehzadeh expressed regret for his offence. He described his actions as unjustifiable and wrong. He acknowledged that he hurt many people badly, including his daughter and his wife’s family. He takes full responsibility for his offence.

The Positions of the Parties

Crown and defence counsel jointly submit that a parole ineligibility period of 12 years should be imposed, along with a section 109 weapons prohibition order and a DNA order.

On behalf of the Crown, Ms. Kim emphasizes that while Mr. Salehzadeh pleaded guilty and has no prior criminal record, this is a case of domestic homicide, the most extreme form of domestic violence and breach of trust. It involved an unprovoked and vicious attack on Ms. Massoudian in her own bedroom. Mr. Salehzadeh waited hours before calling 911, and then tried to pass blame for the killing to the downstairs tenant. There has been significant impact on members of Ms. Massoudian’s family, who uprooted their lives in another country to come to Canada to care for Mr. Salehzadeh’s daughter. The devastating psychological impact on the child from the loss of her mother can be inferred.

On behalf of Mr. Salehzadeh, Mr. Shulman concedes that this was a brutal murder. He emphasizes that Mr. Salehzadeh indicated his desire to plead guilty at an early stage, without having a preliminary hearing. Mr. Salehzadeh has no prior criminal record of any kind. There is no history of reported incidents of domestic violence by Mr. Salehzadeh against Ms. Massoudian. Mr. Salehzadeh worked hard to support his family, but he had a difficult adjustment to Canada. He did intend to open his own audiology clinic, but his struggle with depression got in the way. When on October 14^th, 2015, he overheard Ms. Massoudian cast doubt on the opening of the clinic, he became angry. His anger sparked a verbal argument that became a physical assault on Ms. Massoudian.

Analysis

Canadian courts have repeatedly expressed that domestic violence cannot be tolerated. The murder of one spouse by another is the most extreme form of domestic violence. It represents a gross breach of trust, especially when the murder is committed in the family home, where the victim has every entitlement to safety and security. It carries a very high degree of moral blameworthiness.

While the taking of any human life by murder is a tragedy, Ms. Massoudian’s murder by her husband has significantly impacted those close to her. A young girl entering her teenage years has been forever deprived of her mother’s love and guidance. Other family members have uprooted their lives in another country to move to Canada to care for her. By his selfish act, Mr. Salehzadeh victimized his own daughter, along with other family members. This is a highly aggravating fact.

The viciousness of the attack upon Ms. Massoudian is also aggravating. It involved beating on the head with a weapon in the form of a metal pipe, cutting with a knife, and ultimately, ligature strangulation. Some of the injuries are indicative of Ms. Massoudian’s attempts to defend herself from the attack, notwithstanding that she was at an obvious disadvantage because she was unarmed.

Rather than summoning help for Ms. Massoudian, regardless of how fruitless that may have been, Mr. Salehzadeh left the house for hours. He made a series of telephone calls, including one back to the house, in an apparent attempt to establish an alibi for himself. This behavior was callous in the extreme.

Further, he tried to deflect suspicion from himself by casting blame for the murder that he alone committed on a completely innocent third party, the downstairs tenant. While it quickly became clear that his accusation was false, it did lead to the arrest and detention of that innocent third party.

In mitigation, there is no history of violence by Mr. Salehzadeh against Ms. Massoudian. He has no criminal record of any kind. He pleaded guilty, which is a sign of remorse and willingness to accept responsibility for his offence. He did so without having a preliminary hearing and without setting a trial date. In court, he expressed regret for his offence, and recognition of the harm he caused to family members, most particularly his daughter. By his guilty plea, he spared family members, including his daughter, the emotional anguish of testifying in court.

As the Court of Appeal for Ontario established in McKnight, a brutal attack on an unarmed, domestic partner attracts an increased period of parole ineligibility in the range of 12 to 15 years.

In R. v. Anthony-Cook, 2016 SCC 43 at para. 42, the Supreme Court of Canada held that trial judges should reject joint submissions as to sentence only where the proposed sentence “would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system”. I have no such concern about the joint submission put to me by Crown and defence counsel in this case. The 12 year period of parole ineligibility jointly suggested meets the objectives of sentencing set out in the Criminal Code, and recognizes the seriousness of this murder and the degree of Mr. Salehzadeh’s moral culpability.

Conclusion

Mr. Salehzadeh, please stand. I sentence you to life imprisonment with no eligibility for parole for 12 years. I order you to provide bodily fluid samples for DNA analysis. I impose a weapons prohibition order under section 109(2)(a) for 10 years, and section 109(2)(b) for life.

The warrant of committal will be endorsed to reflect that Mr. Salehzadeh’s life sentence began to run on October 14^th, 2015.

You may be seated.

Is there anything that needs to be clarified, Mr. Shulman or Crown counsel?

MR. SHULMAN: No, not that I can think of.

MS. KIM: No, that’s fine, Your Honour.

THE COURT: All right. We’ll just endorse the indictment, and we’ll retrieve the copy that Mr. Interpreter read from, since it’s not a judgment copy.

I’ve made the following endorsement on the indictment: Mr. Salehzadeh pleads guilty to second degree murder. He is found guilty, and a conviction is recorded. He is sentenced to life imprisonment with no eligibility for parole for 12 years. The sentence began to run on October 14, 2015. There is a DNA order, a section 109(2)(a) order for 10 years, and a section 109(2)(b) order for life.

And Mr. Registrar, if you can please, on the warrant of committal, then, we need to endorse that the sentence began to run on October 14, 2015, so that the penitentiary authorities have that date. But otherwise, I think that’s everything. All right, thank you very much. Thank you Mr. Costain, Ms. Kim, and Mr. Shulman for working together, as I know you did on this difficult case. Thank you to the staff for your help today.

MATTER CONCLUDED.