COURT FILE NO.: CR-18-4285

DATE: 20201113

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Sihat Jahangiri

Offender

Edward Posliff, for the Federal Crown

John Christie, for the Offender

HEARD: October 9, 2020

REASONS FOR SENTENCE

HEBNER J.

[1] On February 19, 2020, with respect to Count 2, the accused pled guilty to the lesser included offence of possession of crack cocaine, contrary to s. 4(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The accused was thus convicted of that offence.

[2] On February 21, 2020, after a jury trial, the jury found the accused guilty of Count 1, namely: possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. The accused was thus convicted of that offence.

[3] These are my reasons for sentence. In order to arrive at a fit and just sentence, I have had the benefit of receiving a pre-sentence report and extensive submissions from counsel.

Overview of the Offence

[4] The offences took place in May 2017. At the time, the accused lived at 10195 East Court Drive in Windsor, Ontario. Christopher Scollon lived in the basement. The accused and Mr. Scollon had known each other for approximately 14 years.

[5] On May 23, 2017, Mr. Scollon left Windsor and traveled to Toronto by Via Rail train to buy two kilograms of cocaine. For that purpose, he took $90,000 in cash with him. He took the $90,000 in cash, along with other items, to Toronto in a red backpack. He purchased the cocaine from someone named Bobby. He gave Bobby the $90,000 in cash and put the two kilograms of cocaine into his backpack.

[6] Mr. Scollon returned to Windsor on the train, with the red backpack. He drove his vehicle from the Via Rail train station to a Quonset hut located at 3450 Pillette Road in Windsor. He arrived at the Quonset hut at approximately 12:07 a.m. on May 24, 2017. Mr. Scollon was observed by Windsor Police Service Officer Antel leaving his vehicle, opening the trunk, picking up the red backpack, and entering the Quonset hut through a pedestrian door. At 12:24 a.m., Mr. Scollon left the Quonset hut with the red backpack. He got into his vehicle and left the area. He drove to the residence at 10195 East Court Drive, arriving there at approximately 12:36 a.m.

[7] At 2:10 a.m. on May 24, 2017, the accused left the residence driving his black Mercedes. He drove to the Quonset hut, arriving at approximately 2:18 a.m. He was observed there by Officer Antel. The accused left his Mercedes carrying a black duffel bag and approached the bay door. He punched a number into a keypad and the bay door opened. He went into the Quonset hut and the door closed. At 3:35 a.m., the bay door reopened, the accused came out and was arrested.

[8] On arrest, police found three cell phones on the accused’s person. Also on his person was $2,025 in Canadian currency, a baggie of crack cocaine and rolled up rubber gloves. The accused had a wallet with a driver’s licence depicting his address as 924 Moy Avenue in Windsor. I understand that residence to belong to the accused’s parents. One of the rubber gloves had tested positive for cocaine. He had a white garbage bag containing vacuum sealed packaging materials wrapped in duct tape. Another rubber glove had been found on the ground by the accused that tested positive for cocaine.

[9] Inside the black duffel bag there was a blue cup with cocaine residue, two boxes of different sizes of Ziploc bags, a package of baking soda, a small scale with cocaine residue and a Windsor Star newspaper.

[10] Inside the Quonset hut was an old burgundy truck. The key to the truck was in the top drawer of the desk located inside the Quonset hut. Inside the burgundy truck, police officers found a blue Walmart-type shopping bag containing the following: a Ziploc sandwich bag containing 248.2 grams of cocaine; a Ziploc sandwich bag containing 248.6 grams of cocaine; a Ziploc sandwich bag containing 248.5 grams of cocaine; a large Ziploc freezer bag containing a sandwich bag with 124 grams of cocaine; a sandwich bag with 123.8 grams of cocaine; 28.1 grams of cocaine in a clear plastic bag tied in a knot; and 20.7 grams of cocaine in a clear plastic bag wrapped in newspaper.

[11] Also inside the burgundy truck was a black laptop bag containing the following: a Ziploc sandwich bag containing 249.3 grams of cocaine; a Ziploc sandwich bag containing 248.6 grams of cocaine; a Ziploc sandwich bag containing 248.9 grams of cocaine; and a Ziploc sandwich bag containing 248.5 grams of cocaine.

[12] In the glovebox of the burgundy pickup truck, police located a large Ziploc bag. Inside there was a small Ziploc bag with 28 grams of cocaine and a clear plastic bag tied in a knot with 1.6 grams of cocaine.

[13] The total amount of powdered cocaine found in the burgundy pickup truck was 2,066.8 grams.

[14] A search of the residence at 10195 East Court Drive uncovered a safe in the closet of the master bedroom. Inside the safe were nine bundles of Canadian currency in various denominations totaling $18,000. A search of the residence at 924 Moy Avenue uncovered a safe located in the attic bedroom. Inside the safe were bundles of Canadian currency totaling $50,050.

[15] Expert evidence was provided at the trial by Officer Smith, who provided evidence on street values and quantities of cocaine. Officer Smith’s evidence was that 1 kilogram of cocaine is sold for between $40,000 and $60,000. Accordingly, the cocaine found in the Quonset hut was worth between $80,000 and $120,000.

Circumstances of the Offender

[16] Mr. Jahangiri was born on January 8, 1987. He is currently 33 years of age. He is one of four children born to his parents. Mr. Jahangiri was born in Iran and immigrated to Canada, with his family, in July 1991 under the Convention Refugee Status through the United Nations. He described his childhood as “good”. His basic needs were always met. Mr. Jahangiri’s parents said that he was helpful in caring for his younger brother who was born with a hearing impairment and autism. He continues to remain close with his family.

[17] Mr. Jahangiri demonstrated behavioral problems in the family home resulting in him having to reside in detention centres. He left the family home at the age of 18 and has lived independently since.

[18] Mr. Jahangiri is currently in a common-law relationship. He and his partner have been together for five years. He has no children. Mr. Jahangiri’s partner describes him as a supportive partner.

[19] Mr. Jahangiri currently assists his parents, who suffer from health issues, with groceries and household duties.

[20] Mr. Jahangiri attended three elementary schools and two high schools before being placed in a youth detention centre. In school, Mr. Jahangiri was suspended several times for violence, harassment and intimidation of others, defiance of school rules, disruptive behaviour, possession of marijuana and other such infractions.

[21] While in youth detention, Mr. Jahangiri completed some credits but did not finish high school. He started his own renovation business in 2016 and has been self-employed since that time. He would like to further his education by studying skilled trades at the college level.

[22] Mr. Jahangiri started using marijuana in high school. He started using cocaine at the age of 20 and developed a crack cocaine addiction. He said he consistently used crack cocaine until his arrest in May 2017. Since his arrest, Mr. Jahangiri has struggled with abstinence and would be amenable to counselling. Mr. Jahangiri acknowledges excessive alcohol use in the past. He claims to have stopped abusing alcohol when he met his partner.

[23] The author of the pre-sentence report noted the accused to be polite and cooperative throughout their interactions. Mr. Jahangiri indicated he has not been diagnosed with physical or mental health issues but has struggled with some depression and anxiety since his arrest due to his strict release conditions. He described house arrest as “extremely exhausting”. His leisure activities are restricted, and he would like to be able to better assist his parents.

[24] Mr. Jahangiri claims to have distanced himself from negative peers since his arrest.

Criminal Record

[25] Mr. Jahangiri’s criminal record starts in May 2005 with public mischief and failure to comply with a recognizance. He received a $300 fine and a suspended sentence. In June 2006, Mr. Jahangiri was convicted of possession of a prohibited weapon and failure to comply with a recognizance. He was sentenced to 12 days in jail and probation. In January 2008, Mr. Jahangiri was convicted of possession of a Schedule I substance for the purpose of trafficking and possession of a Schedule II substance for the purpose of trafficking. He was sentenced to ten months in jail. In March 2009, Mr. Jahangiri was convicted of possession of a Schedule II substance for the purpose of trafficking, assault and mischief. He was sentenced to 90 days in jail. In June 2010, Mr. Jahangiri was convicted of possession of a prohibited firearm. He was sentenced to 19 months and ten days incarceration. In December 2015, Mr. Jahangiri was convicted of assault. He was given a suspended sentence. There are two additional convictions for failure to comply with a recognizance in December 2017 that I do not consider, as they are subsequent to the date of the offence in question.

Positions of the Parties

[26] The Crown takes the position that a fit and just sentence is ten years incarceration. Mr. Christie, for the accused, takes the position that a fit and just sentence is five years incarceration.

Legal Principles

[27] In R. v. Muise, [2007] O.J. 5553, Dobney J. said the following about the effect of the existence of drugs in our society:

The blight of drugs in our society is very serious. There are long term effects far beyond the person using drugs for their own recreation. Violence blossoms as turf wars erupt. Thefts proliferate as users seek more money to buy drugs. The devastating impact that individual drug users have on their families, jobs and society’s social support network when addictions have negative consequences are far-reaching. The ties of the drug dealing to criminal organizations that involve themselves in other antisocial activities endangering lives and corrupting others, cause untold misery.

[28] Those words are as true today as they were in 2007. The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous. Cocaine sale and use is also closely associated with violent crime.

[29] In R v. Bryan, 2011 ONCA 273, the Court of Appeal said that normally, sentences of five to eight years would reflect the proper range for someone, without a record, convicted of possession for the purpose of trafficking in slightly more than a pound of cocaine. Mr. Christie does not take issue with the range. He agrees that the appropriate range is five to ten years.

[30] In R v. Feeney, 2015 ONSC 3218, the accused was found guilty by a jury of conspiracy to traffic in cocaine and possession of cocaine for the purposes of trafficking. When Mr. Feeney was arrested, police found just over nine ounces of cocaine and $39,100 in cash in a backpack Mr. Feeney was carrying. They seized about 13.5 ounces of cocaine and approximately $1,800 in cash from his apartment. Mr. Feeney was sentenced to eight years. Mr. Feeney had no prior convictions for drug offences. His criminal record was somewhat dated and consisted of one conviction for assault.

[31] In Feeney, Garton J. described five levels of trafficking starting at the bottom of the hierarchy:

1. street level seller – small hand to hand transactions, often an addict – trafficker;

2. street level supplier – transactions up to an “8 ball” (eighth of an ounce) or one ounce;

3. supplier to street level supplier – multi-ounce transactions;

4. distributor to supplier – one half kilo to multi-kilo transactions; and

5. importer to distributor.

[32] In R. v. Graham, 2018 ONSC 6817, Mr. Graham was convicted of a number of offences, including possession of cocaine for the purpose of trafficking. He was found with three ounces of cocaine, two digital scales and $14,880 in cash. Code J. Noted that “cocaine is a hard drug because it is addictive and because it causes significant direct and indirect damage to users” (para. 44). Code J. noted the misery and devastation caused by cocaine, particularly to the users. He noted the disastrous effects on families and the ruination of lives. He noted that the trafficking of cocaine is an unlawful but lucrative business “and so it spawns collateral violent crime, either to protect territory, protect and enforce unlawful transactions, or simply to steal an unlawful product or its unlawful proceeds”. In the end, Code J. found Mr. Graham to be a mid-level trafficker and found a three-year sentence was appropriate.

[33] In R v. McGill, 2016 ONCJ 138, [2016] O.J. No 1346 (O.C.J.), at para. 54, Green J. summarized the leading authorities as setting out the following principles:

• the Court of Appeal has created graduated weight or amount based categories of cocaine trafficking and sentencing rages set for each of these categories.

• The Court of Appeal has several times expressed the view that five to eight years is the “proper range” for adult offenders found in possession of approximately a half kilogram of cocaine for the purpose of trafficking.

• Higher amounts are not infrequently dealt with by way of penitentiary sentences of greater than ten years.

• In cases involving much more moderate amounts of the drug, the sentencing range for constructive possession of an ounce or less of cocaine is six months to two years less a day.

• Intermediate amounts tended to attract sentences in an intermediate range of two to five years.

[34] Most recently, in R. v. Maone, 2020 ONCA 461, the accused had sold large quantities of cocaine to an undercover police officer on three occasions and to a third party on a fourth occasion. The total transactions involved approximately 3.5 kilograms of cocaine. The sentencing judge found that an eight-year sentence was “not unreasonable” but imposed a global sentence of seven years after consideration of the significant mitigating factors in that case. Six months of credit was then granted to reflect time served and time spent on restrictive bail conditions. The Court of Appeal dismissed the accused’s appeal and said that the trial judge made no error “in the observation that an approximately eight year sentence would be in the correct range of sentence for offenses of this nature”.

Analysis

[35] Based on the evidence in this case, and the jury’s finding of guilt, I conclude that Mr. Jahangiri and Mr. Scollon were acting together. Mr. Scollon travelled by Via Rail train from Windsor to Toronto and purchased two kilograms of cocaine for $90,000 in cash. He returned to Windsor by Via Rail train with the cocaine in his backpack. He took the cocaine to a Quonset hut, a structure used by Mr. Jahangiri and Mr. Scollon to store cocaine for sale. He left it there, drove to the home he shared with Mr. Jahangiri and told Mr. Jahangiri about the acquisition.

[36] Mr. Jahangiri then left his home and drove to the Quonset hut. He took with him a black duffel bag. He entered the Quonset hut and was inside for an hour and 17 minutes. When he left the Quonset hut, and was arrested, he had on his person rubber gloves that tested positive for cocaine. He had a garbage bag containing the packaging materials. He had a black duffel bag with him. Inside the duffel bag, there were boxes of two different sizes of Ziploc bags, a package of baking soda, a small scale, a blue cup and newspaper. I conclude from this evidence that Mr. Jahangiri spent the hour and 17 minutes organizing and packaging the cocaine into the packages found by police when they searched the Quonset hut. Mr. Jahangiri had readied the cocaine for sale.

[37] Mr. Posliff submits that Mr. Jahangiri is at Level IV of the five levels of trafficking. He can be described as a distributor to a supplier. I agree with the suggestion. Mr. Christie acknowledged that, based on the evidence, Mr. Jahangiri must be classified as a distributor. The only conclusion that the court can reach given the quantity of cocaine and the packaging of that cocaine is that Mr. Jahangiri was a distributor of cocaine.

Aggravating Circumstances

[38] Mr. Jahangiri has a significant criminal record including previous convictions of possession for the purpose of trafficking. He is a recidivist. It is of note, however, that there was approximately an eight-year hiatus between his last drug offence and the offences that bring him before the court now.

[39] The quantity of cocaine in significant. The impact of cocaine on society is significant. I consider the impact of cocaine on society, as set out in the authorities, as a significant aggravating factor.

Mitigating Factors

[40] Mr. Christie points to the approximately eight-year gap in Mr. Jahangiri’s criminal record. Mr. Jahangiri has a supportive family and partner. He claims to have distanced himself from negative peers and he wishes to improve his employment and education circumstances.

Disposition

[41] The Criminal Code, s. 718.2(b), provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. In addition, deterrence and denunciation are important sentencing considerations when dealing with the sentencing of drug traffickers.

[42] I am told that Mr. Scollon was sentenced to six years. His involvement, and the involvement of Mr. Jahangiri, in their drug trafficking scheme was similar. Mr. Scollon enjoyed the mitigating circumstances of the guilty plea and may have had other mitigating circumstances not available to Mr. Jahangiri.

[43] I return to the Court of Appeal’s comments in Bryan. A range of five to eight years was identified for someone, without a record, who was convicted of possession for the purpose of trafficking in slightly more than a pound of cocaine. Mr. Jahangiri had a record at the time of the offences – a record that was noted to be significant and that included drug offences. He was convicted of being in possession of more than two kilograms of cocaine for the purpose of trafficking. In a safe in Mr. Jahangiri’s bedroom, police found $18,000 in Canadian currency, an amount that Mr. Christie concedes is subject to a forfeiture order. Given these facts, Mr. Jahangiri must be sentenced at the high end of the range.

[44] In my view, a fit and proper sentence for Mr. Jahangiri is eight years.

[45] Mr. Jahangiri has been released on strict bail conditions since the offence. I am told that he was subject to house arrest unless in the company of a surety. In June 2017, the bail conditions were amended to add a further exception for employment. In December 2017, Mr. Jahangiri was convicted of failure to comply with his recognizance and the exception was rescinded. From December 2017, for a period of two years and ten months, Mr. Jahangiri has been subject to house arrest except in the presence of a surety. Mr. Jahangiri has suffered some depression due to his restrictive bail conditions. Mr. Christie submits a credit of one year is appropriate.

[46] In R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555, the Court of Appeal set out the following roadmap for consideration of a credit for pretrial bail conditions:

• Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.

• The trial judge must consider time spent on bail under house arrest in determining the sentence.

• The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.

• The amount of credit will depend upon a number of factors including: the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender’s liberty; the ability of the offender to carry on normal relationships, employment and activity.

• Where credit is requested, the offender should supply the judge with information as to the impact of the conditions.

[47] In Downes, the Court of Appeal said that they had very little information as to how the appellant had spent his time on house arrest. It was unclear whether the condition that his surety always accompany the appellant interfered with any realistic employment prospects. It was unclear whether the house arrest severely constrained the appellant’s ability to move around. In the end, the Court of Appeal found out that an appropriate credit for 18 months spent on bail under house arrest conditions is five months, a little less than one-third of the time.

[48] In this case, I know that Mr. Jahangiri is in a significant relationship. I am unclear as to the impact the house arrest had on his liberty and his ability to earn an income. It must, however, have had some impact and I accept the submission that Mr. Jahangiri suffered some depression as a result of the conditions. He spent 34 months subject to restrictive bail conditions. In my view, an appropriate credit is ten months.

[49] I must also consider a request for a credit due to the impact the COVID-19 global pandemic will have on Mr. Jahangiri’s time in custody. Counsel agree that an appropriate credit is three to six months. I expect Mr. Jahangiri’s time in custody will be significantly more difficult as a result of the pandemic. In my view, an appropriate credit is six months. The total credit, then, is 16 months.

Conclusion

[50] For these reasons, I sentence Mr. Jahangiri as follows:

1. On Count 1, 8 years less 16 months credit – leaving 80 months, or 6 years and 8 months, left to serve.

2. On Count 2, 12 months to be served concurrently.

[51] In addition, I make the following ancillary orders:

1. A 10-year weapons prohibition, pursuant to s. 109 of the Criminal Code.

2. An order, pursuant to s. 487.051 of the Criminal Code, authorizing the taking of blood samples for DNA analysis.

3. A forfeiture order for the black duffel bag and all of its contents and the other items found on Mr. Jahangiri’s person at the time of his arrest; the cash found on Mr. Jahangiri’s person at the time of his arrest amounting to approximately $2,025; and the cash found in the safe at Mr. Jahangiri’s home in his bedroom amounting to approximately $18,000.

[52] A forfeiture hearing in respect of the Mercedes and the currency found in the safe at the home of Mr. Jahangiri’s parents amounting to approximately $50,000 is scheduled for January 5, 2021, at 10:00 a.m.

“original signed and released by Hebner J.”

Pamela L. Hebner

Justice

Released Orally: November 13, 2020

COURT FILE NO.: CR-18-4285

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Sihat Jahangiri

REASONS FOR JUDGMENT

Hebner J.

Released Orally: November 13, 2020