IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  This is a pre-sentence ruling on a constitutional issue.  Mr. Sajadi has pled guilty to a charge of possessing a loaded restricted firearm without an authorization or licence contrary to s. 95(1) of the Criminal Code.  He has also pled guilty to a charge of unlawfully possessing cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act.  Both offences occurred on February 19, 2013, at Vancouver and are included as Counts 6 and 8 in the same Information.

[2]           At the time of the guilty pleas, the issue of the constitutional validity of the mandatory minimum sentence of three years' imprisonment for the s. 95(1) offence was raised.  The constitutionality of the mandatory minimum sentence may become relevant if the individual circumstances in this case support a sentence of less than three years for this accused.

[3]           The court has been asked to determine this threshold issue at the sentencing hearing for these offences by first determining a fit sentence for Mr. Sajadi while relying on a hypothetical assumption as proposed by all counsel that the mandatory minimum sentence in s. 95(1) does not apply.  If Mr. Sajadi's offences and his personal circumstances support a conclusion that a sentence of three years or more would be imposed, then the question of the constitutionality of the mandatory minimum sentence would become academic at Mr. Sajadi's sentencing hearing.

[4]           Where the potential for constitutional infringement created by the mandatory minimum lacks any significant effect on the sentencing decision for the individual accused, courts should not proceed with an inquiry into the constitutional validity of the mandatory minimum sentence; R. v. Lloyd, 2014 BCCA 224, at paragraphs 6 and 43 and 44; R. v. Hammerstrom, 2014 BCSC 1201, at paragraphs 16, 17, and 26 through 30; R. v. Ball, 2013 BCSC 2372; R. v. Craig, 2013 BCSC 2098; and R. v. Curry, 2013 ONCA 420.

[5]           For the reasons that follow, I have found the circumstances of these two offences and the personal circumstances of the offender, Mr. Sajadi, will result in a sentence that is more than the mandatory minimum of three years.  In this case, further consideration of the constitutional validity of the mandatory minimum would be an academic question.

[6]           The principle of judicial restraint applies when considering any further inquiry in the constitutionality of the mandatory minimum sentence.  I will decline to consider an application challenging the constitutionality of the mandatory minimum sentence based on the specific circumstances in Mr. Sajadi's sentencing. 

[7]           Admissions of fact have been filed at this sentencing hearing.  The circumstances of other offences that were charged, but were not the subject of guilty pleas have been included in the admissions as counsel have agreed the circumstances are relevant to the determination of a fit sentence at this hearing.

[8]           The Vancouver Police began to investigate Mr. Sajadi's activities in May 2012.  About one month before this investigation began, the police had attended to a residence in New Westminster to speak to Mr. Sajadi after police determined they had a duty to warn Mr. Sajadi of a possible threat to his life.  The police had received information that someone wanted Mr. Sajadi killed.  When police officers spoke to Mr. Sajadi in April 2012 and informed him of this threat, Mr. Sajadi told them he was already aware of the threat, but he did not know of any reason why anyone would want to harm him.

[9]           By October 2012, the police decided to include surveillance of Mr. Sajadi as part of their investigation.  The police installed tracking devices in two vehicles used by Mr. Sajadi.  Subsequent searches of these vehicles in February 2013 revealed a hidden compartment and a GPS jamming device had been installed in each car.  The tracking devices installed by police in both vehicles would stop functioning for varying periods of time while the police observed Mr. Sajadi driving the tracked vehicle.  The police were unable to maintain visual contact on some occasions when the tracking device stopped working.

[10]        In January 2013, the surveillance of Mr. Sajadi led to contact between police and Mr. Sajadi when he was found slumped forward in the front seat of a rental vehicle.  He seemed impaired and did not smell of alcohol.  The vehicle was searched and a small quantity of cocaine, $1,000 in cash, and six phones were found inside the car.  No charges proceeded from this incident in January.

[11]        Drug paraphernalia and discarded containers with residue of cocaine or heroin were found by police in garbage container searches after the police observed various people dispose of garbage bags from the apartments used by Mr. Sajadi during the surveillance operation.  The information obtained from the police investigation was used to support applications for search warrants.

[12]        The warrants were granted and were utilized in the three searches conducted by police on February 19, 2013.  The police entered and searched three apartments in Vancouver located at 2228 West Broadway, 5380 Oben Street, and 1638 East 3rd Avenue.  Mr. Sajadi was arrested on February 19, 2013, and released by a promise to appear.  Charges were not laid against him at that time and the release document expired in the spring of 2013.  Charges were eventually approved against Mr. Sajadi and one co-accused.  Mr. Sajadi was arrested as he was travelling from the United Kingdom to the United States and he was returned to Vancouver on December 12, 2013.  His release on bail conditions was ordered on December 19, 2013, and he has been adhering to his bail terms since his release from custody.

[13]        When the police searched the West Broadway apartment on February 19, 2013, a firearm was located.  This handgun was not the firearm that is the subject of the guilty plea, but it is a relevant factor to be considered in sentencing.  The handgun is described as a .40 Smith & Wesson calibre Glock Model 27 semiautomatic pistol.  There was also a cartridge magazine seized with readily accessible ammunition.  This gun was in a bedroom on the top of a bedside table and in plain sight.

[14]        On the same tabletop within a few inches of the handgun, the police found the magazine containing three cartridges.  There was one more cartridge lying on top of the table next to the gun and another cartridge on top of a folded bed sheet placed on the tabletop.

[15]        Mr. Sajadi was arrested by police when they entered without prior announcement into the West Broadway apartment.  He was found standing in the door of a bedroom with his hands in the air.  A female in the apartment was also arrested, but not charged.  Police forensic testing of the firearm and the loaded magazine identified Mr. Sajadi's DNA on both items.

[16]        The West Broadway apartment had furniture and appeared to be lived in, although there were also boxes and storage items stacked in the living areas and inside the bathtub.  Police found 0.29 grams of cocaine on a plate on the same table where the gun and magazine were located.

[17]        Other items located during the search of this apartment included $960 in cash, a sharpened Samurai sword on the counter, four unopened boxes of baking soda, an empty case for a Heckler & Koch handgun, a Garmin GPS system, a motion-activated camera with transmitter and receiver, a shoulder bag containing $2,350.52 in change, two Samurai swords on the floor, a pill container with 2.05 grams of heroin, two key fobs for an Infiniti G35 car, a key fob to control the garage door, elevator, and front door of the Oben Street apartment, and a box containing a bullet-proof ballistic vest.

[18]        In the parking garage of the West Broadway apartment, the police located and searched the Infiniti G35 using the key fob located in the apartment.  The car was found to have a hidden compartment with a BlackBerry phone inside.  There was a GPS jamming device hardwired into this vehicle.

[19]        A search of the Oben Street apartment located drugs, money, and a handgun and other materials associated with mid-level drug trafficking.  The specific items and locations within the apartment are described in detail in the agreed statement of facts.  In summary, the police search disclosed the apartment was lived in.  While the police were there, a co-accused, Deguzman, arrived and was arrested.

[20]        In the kitchen, the police search located two boxes of Ziploc bags, a Magic Bullet blender base, a bag contained 1.13 kilograms of Benzocaine labelled as "Benzo" (Benzocaine is a substance commonly used to dilute cocaine powder).  There were a number of containers and a knife with white residue.  These items were consistent with use in the mixing of cocaine powder with diluting substances such as benzocaine or baking soda.

[21]        In the dining room of the Oben Street apartment, the police located a tenancy agreement in Deguzman's name.  In the same room, there were two phones and a suitcase similar to one observed one week earlier by surveillance officers when it was carried by the mother of the accused from the East 3rd Avenue apartment to a car and transported to the Oben Street apartment and carried inside.  The suitcase had a large quantity of powder cocaine and crack cocaine contained in several bags.  The total weight of the cocaine was 734 grams.

[22]        Also in the suitcase, police found a photograph of Mr. Sajadi and another male, three scales, a radio, tinfoil, a measuring cup, a coin counter, coin-roll wrappers, 50 rolls of quarters, and three different forms of chemicals commonly used as agents to dilute cocaine.  These three different chemical dilution agents had a combined total weight of 612 grams.

[23]        The chemical materials in the suitcase were described by police investigators as substances commonly used in the mixing and preparing of cocaine for sale and in the preparation of crack cocaine from powder cocaine.  The police expert on drug trafficking methods has described this suitcase as suitable for use as a mobile cocaine processing facility.

[24]        The police searched the living room at the Oben Street apartment and located a handbag containing five bundles of money.  The total amount of cash in the bag was $4,940.  The same handbag also contained three cartridges for a nine millimetre calibre firearm.  Also in the same room, the police found a ballistic vest and documents with Mr. Sajadi's name, a cup from a blender containing 2.6 grams of heroin, a larger amount of heroin weighing 38 grams, several cellphones, a burned piece of tinfoil, a lighter, and a rolled up piece of paper, and a scale with white residue on it.

[25]        In a bedroom of the Oben Street apartment, the police located 61 grams of caffeine.  This is another commonly used agent for diluting cocaine.  There were documents with the name of the co-accused and bundles of cash.  The total amount of money located in this room was $21,900.

[26]        In the same room, the police found a suitcase containing men's clothing, toiletries, and a Prada brand man purse.  Inside the man purse, there was a Heckler & Koch nine millimetre semiautomatic pistol which was loaded with six cartridges.  The serial number of this firearm was obliterated and could not be deciphered by the police firearms analyst.  In the same man purse, the police also found a knife, one pair of gloves, and a single glove.  Police forensic testing of the firearm identified Mr. Sajadi's DNA profile on the material obtained in a lab test of the slide and the receiver on this gun.

[27]        A Ziploc bag found in a closet near the bathroom in this apartment contained several documents including Mr. Sajadi's expired interim driver's licence valid for the period of July to September 2012.

[28]        The third search on February 19, 2013, was at an apartment on East 3rd Avenue in Vancouver.  When police arrived to execute the search warrant, they knocked on the door.  Mr. Sajadi's father came to the door and the police entered the apartment.

[29]        In the search of this residence, the police found a notebook containing written entries that were described by a police expert as the drug trafficking records kept by a mid-level drug dealer involved in the distribution of cocaine by purchasing it at the kilogram level and selling it at below the kilogram level.  Some pages of the notebook had several fingerprints identified as belonging to Mr. Sajadi.

[30]        The police expert on drug trafficking described the general characteristics of mid-level drug traffickers.  This expert's opinion was summarized in the statement of facts as follows, paragraph 77:

[31]        Mr. Sajadi is now 29 years old and he has no prior criminal record.  His prospects for rehabilitation are encouraging as he has the support of his family.  His parents attended court and they, along with other members of the community, have presented letters describing his abilities and his character.  These letters express the views of people who know him well and are familiar with his talents as a worker and his artistic ability.  These character reference letters establish that there is not any need for specific deterrence of Mr. Sajadi as it seems unlikely that he will reoffend in the future.

[32]        At the time of these offences, Mr. Sajadi was a user of narcotics himself, but he has now established a period of abstinence that will likely increase his prospects for rehabilitation.  His guilty plea is a tangible expression of remorse.  He is now employed as a exterior building painter and has recovered his health after ending his use of narcotics.

[33]        His family immigrated to Canada when he was an infant in 1991.  He suffered a childhood illness of meningitis, but is now in good physical health.

[34]        His current family physician, Dr. Robbertse, has provided a letter dated October 18, 2014.  In that letter, the medical history of a mixed depression anxiety disorder is described.  The current treatment for Mr. Sajadi includes an antidepressant medication described by the doctor as an SSRI as well as cognitive behavioural therapy with regular scheduled counselling sessions.  The doctor considers the prognosis for Mr. Sajadi to be very good and notes his positive attitude and gainful employment despite the stress of the current court proceedings.

[35]        He has one younger brother and both his parents are close to him.

[36]        Mr. Sajadi has addressed the court at the sentencing hearing and provided his own statement of regret for the decisions he made when he committed these offences.  He was aware of the information provided to him by police as part of their duty to warn him of the threat to his life in 2012.  He explains his possession of the firearms as a response to the fear created by this threat.  His fears were increased by the police surveillance during this investigation since Mr. Sajadi could not know the identity of the people that he noticed following him on several occasions.  He believed this activity was a threat to his safety.

[37]        His family members, his friends, and his physician have expressed the hope that Mr. Sajadi will not be incarcerated as they believe he has learned his lesson and has progressed in his own rehabilitation.  I accept the genuine and well-informed views of his family and friends as a significant basis for mitigation of the sentence to be imposed.

[38]        The Crown has sought a total sentence of five years' imprisonment for the firearm possession offence and drug offence.  The Crown suggests the sentences should be consecutive terms to achieve this total of five years.  The Crown does acknowledge there are some other sentencing decisions in British Columbia where the sentences for multiple offences in similar circumstances have resulted in concurrent terms of imprisonment.

[39]        The defence position on sentence is that the range of sentence could be 18 months to three years and that the circumstances of Mr. Sajadi's offence and his personal background would support a sentence of less than three years. 

[40]        In support of their position of the length of an appropriate sentence for these offences, the Crown has referred to several cases including R. v. Ball, 2013 BCSC 2372 and 2014 BCCA 120; R. v. Guha, 2012 BCCA 423; R. v. Borecky, 2013 BCCA 163; and R. v. Brown, 2014 BCPC 113 (CanLII), 2014 BCPC 0113.  Based on these decisions, I conclude that the range of sentence for the s. 95 offence in Count 6 when assessed for the purpose of this proposed constitutional challenge without any inflationary effect from the mandatory minimum would be 18 months to 36 months' imprisonment.  This is the range of sentence for a first offence where there are not significant aggravating factors in the circumstances of the firearms offence.

[41]        The defence refers to cases including R. v. Cisneros, 2014 BCCA 154; R. v. Di Biase, 2014 BCPC 30 (CanLII), 2014 BCPC 0030; R. v. Do, 2013 BCPC 111 (CanLII), 2013 BCPC 0111; and R. v. Farrell, 2013 BCSC 1537.  There are cases where drug trafficking offences or weapons offences result in sentences of about one to two years, but in my view, the cases involving participation in dial-a-dope drug offences are not comparable to the more extensive involvement in drug trafficking and associated preparation and distribution found in Mr. Sajadi's offence.  The quantity of drugs and the extensive materials to prepare drugs for distribution place him in a significant directing role in trafficking compared to a driver or field worker in a dial-a-dope offence.

[42]        The possession of handguns is an offence that directly endangers public safety.  These two guns were not in a public place, but they were readily accessible, especially the gun that was on the tabletop.  There is no significant mitigation of the danger to public safety in this firearm offence based on the earlier threat to kill Mr. Sajadi.  The drug trade leads directly to encounters with some participants in the trade who favour violent enforcement of demands for payment.  The competing quest for profits among traffickers fuels the violent use of firearms.

[43]        I accept that Mr. Sajadi was a person who became afraid and fearful for his safety as a result of his involvement in the drug trade.  I also acknowledge and accept that he was determined to get out of the drug business before his arrest.  I also accept that Mr. Sajadi was not planning to make a pre-emptive strike using these weapons, but that does not reduce the danger these handguns posed to the safety of the community.

[44]        The weapons and ammunition were readily available for use by Mr. Sajadi in response to a perceived threat or attack at any time.  His drug trafficking made the prospect of these events more likely and immediate.  The danger posed by these guns is not significantly lessened by the intention to restrict their use to defensive actions by a drug trafficker responding to the real threats encountered in a drug trade conflict.

[45]        Denunciation and deterrence must be balanced with the real prospects for rehabilitation of Mr. Sajadi. When assessing the appropriate sentence for these two offences, the necessary elements of denunciation and deterrence must be considered in the context of the agreed statement of facts.  Those facts demonstrate the combined presence of serious criminality by drug trafficking in cocaine with the potential reliance on readily accessible firearms to protect the trafficker from dangers that may be associated with trafficking or may be the result of genuine or mistaken fears arising from other threats.

[46]        Given the specific aggravating circumstances of this s. 95 offence, in particular, the serious criminal activity including the possession of more than 700 grams of cocaine, drug trafficking materials, chemical mixing agents for dilution of cocaine, the presence of both powder and crack cocaine, large amounts of money, two motor vehicles modified with hidden compartments and GPS jammers, ballistic vests, ammunition, and handguns in readily accessible locations as well as the sustained duration of activities linked to drug trafficking by this offender, I conclude that the appropriate sentence for this offender and this firearms offence is more than the three years that should be considered as the upper range for those first offenders who commit this type of offence without further aggravating factors.  The aggravating factors I have noted in Mr. Sajadi's offence are significant and are directly relevant to the range of sentence that must be imposed.

[47]        I have found the circumstances of this offence place Mr. Sajadi's offending conduct in a range of sentence that is more than three years in duration.  The inquiry to determine the constitutional validity of the mandatory term of three years would, therefore, be an academic question in this sentencing hearing and I decline to address the constitutional issue in these circumstances.

[48]        I can consider an adjournment of sentencing if that is sought by counsel or I can now proceed to impose the sentences that I have found to be fit in this case.

[49]        MR. EDELMAN:  I would request an adjournment for the actual imposition of sentence just so that Mr. Sajadi has an opportunity -- just it was unclear what was going to be happening today -- so that he does have an opportunity to prepare, to get his affairs in order.  It would not need to be a lengthy adjournment, but it --

[50]        THE COURT:  Yes.

[51]        MR. EDELMAN:  Obviously I am in the court's hands, but if it we could have imposition of sentence on --

[52]        THE COURT:  That is fine, Mr. Edelman, you had indicated that earlier in your submissions to me that that was preferred and I understand your position.  What is the Crown's position, Ms. Gerrie, with regard to a brief adjournment of sentencing?

[53]        MS. GERRIE:  I am in Your Honour's hands.

[54]        THE COURT:  All right.  I am prepared to adjourn the imposition of sentence.  I will not be providing any further reasons.  I have, essentially, given the reasons that are relevant on sentencing in this ruling on the constitutional issue.  So it will be a brief appearance and it can be scheduled with a time estimate of about 15 minutes.  Do you want to attend the case managers, counsel, to do that?

[55]        MS. GERRIE:  Yes, thank you.

[56]        THE COURT:  I will adjourn, Mr. Sajadi, now to attend with your lawyer at the case manager's office.  It can be booked as a sentencing hearing, but a 15-minute time estimate is realistic.  Thank you to counsel for your assistance.