Court File and Parties

Ontario Court of Justice

Date: May 8, 2015

Court File No.: Brampton 14-15686

Between:

Her Majesty the Queen

— and —

Rashad Waquad

Before: Justice J. Copeland

Heard on: January 30, 2015 and April 27, 2015

Reasons for Judgment released on: May 8, 2015

Counsel

Mr. Melnik — counsel for the Public Prosecution Service of Canada

Mr. Hinkson — counsel for the defendant Rashad Waquad

Judgment

COPELAND J.:

[1] Guilty Plea and Sentencing Submissions

[1] Mr. Waquad pled guilty before me to one count of possession for the purpose of trafficking of oxycodone. Counsel for the Public Prosecution Service of Canada seeks a sentence of 18 to 24 months incarceration. Counsel for Mr. Waquad seeks a conditional sentence of between 12 and 16 months, followed by a short period of probation.

Facts of the Offence

[2] The facts admitted in support of the guilty plea involve a police investigation of drug trafficking by Jabir Khan in Thunder Bay. Intercepted communications showed that Mr. Khan arranged shipments of oxycodone from the Toronto area to Thunder Bay, where the drugs were then provided to local dealers under his control. Police intercepted three shipments in June and July 2012 (there was no admission that any of these shipments originated with Mr. Waquad).

[3] Through intercepted communications, Mr. Waquad was identified as one of the parties responsible for obtaining oxycodone pills for shipment to the Thunder Bay area, under the direction of Mr. Khan.

[4] A search warrant was obtained for Mr. Waquad's home in Mississauga. The warrant was executed on July 24, 2012, at which time police located a ziplock bag containing 200 oxycodone pills (80 milligram tablets) in the residence. The packaging was similar to the packaging of the oxycodone shipments intercepted by police, and the quantities of oxycodone were consistent with quantities referred to in intercepted communications involving Mr. Khan.

[5] Apart from the fact that Mr. Waquad was found in possession of 200 tablets of oxycodone at the time of his arrest and the fact that three shipments destined for Mr. Khan had been intercepted (but not admitted to have been sent by Mr. Waquad), there was no evidence and no factual admissions regarding the scope of the broader drug trafficking scheme, either in terms of volume of drugs or dollar value. Nor was there any admission of specific amounts of drugs Mr. Waquad had involvement with, other than the 200 pills of oxycodone found in his home.

[6] Counsel for the PPSC accepted defence counsel's characterization of Mr. Waquad's role in the scheme as follows. Mr. Waquad did bookkeeping work for Mr. Khan, who was the principal in the offence (the bookkeeping work was for legitimate business). According to the pre-sentence report, Mr. Khan was also Mr. Waquad's godson. In the context of this relationship, Mr. Khan became aware of Mr. Waquad's use of oxycodone. Mr. Khan asked Mr. Waquad to store oxycodone at his home, as a transit point on its way to be shipped to Mr. Khan in Thunder Bay. Thus, Mr. Waquad's role was to receive the oxycodone and store it at his home, and then pass it on for shipment to Mr. Khan in Thunder Bay. Mr. Waquad was compensated for his participation by way of oxycodone tablets for his own use, not in cash.

[7] Based on the facts above, in approaching the considering of the appropriate sentence for Mr. Waquad, I proceed on the basis that his role in the overall drug trafficking scheme was a smaller role. I also approach the sentence taking into consideration that it appears that the principal in the scheme preyed on Mr. Waquad's own dependence on oxycodone, which I will address further in these reasons.

Circumstances of Mr. Waquad

[8] Mr. Waquad is a 73 year old first offender. He was born and raised in Pakistan. He came to Canada in 1974, and is a Canadian citizen. He was married for 25 years, but is currently separated. He has two grown daughters.

[9] A pre-sentence report was prepared in advance of the sentencing hearing. It is very favourable to Mr. Waquad. The writer of the report recommends that Mr. Waquad would be suitable for community supervision and has no significant issues which would indicate a risk for re-offending.

[10] Mr. Waquad completed school to the college level in Pakistan. He has been self-employed for most of his career. He continues to work part-time preparing income tax returns and doing book-keeping.

[11] In 1986, Mr. Waquad suffered a car accident and sustained back and neck injuries. He was prescribed oxycodone for pain. He has been diagnosed with spinal stenosis and severe degenerative disk disease in his spine, which is causing some compression of the nerves in the spine. At present he takes oxycodone by prescription for pain (which was confirmed by medical evidence).

[12] Family members interviewed by the writer of the pre-sentence report reported that Mr. Waquad was remorseful for his actions. The described his actions in committing the offence as out of character. They also reported that Mr. Waquad had suffered emotional and physical abuse from his estranged wife during the course of their marriage. His wife is significantly younger than he is. They reported that he stayed in the marriage in order to raise his children. As noted above, Mr. Waquad is currently separated from his wife, and it is reported that the separation is acrimonious. The separation occurred after the charges, and appears to have been triggered by the fact of the charges, although after what appears to be many years of an unhappy relationship.

[13] The background in relation to Mr. Waquad's marriage is relevant to the offence that Mr. Waquad has been found guilty of in that the pre-sentence report suggests that it was a contributing factor to his offending. The principal in the trafficking scheme, Mr. Khan, was Mr. Waquad's godson. The pre-sentence report discloses that Mr. Waquad did bookkeeping work for Mr. Khan. In this context, he was treated by Mr. Khan with respect and love. In the context of Mr. Waquad's failing relationship with his wife, the relationship with Mr. Khan filled a void. As a result, to some extent, Mr. Waquad's participation in the trafficking scheme was motivated by a misplaced sense of loyalty to his godson.

[14] In addition, as outlined above, I find that Mr. Waquad's own dependence on oxycodone was a factor which led him to commit the offence of which he has been found guilty. I accept that Mr. Waquad has been dependent on oxycodone for many years as a result of the motor vehicle accident he suffered in 1986, and the resulting conditions and pain he suffers. While this motivation does not justify his actions in any way, it greatly lessens concerns about re-offending in light of the fact that Mr. Waquad is now receiving oxycodone legally pursuant to prescription. It is also a mitigating factor that Mr. Waquad was motivated by his own drug dependence, and not, for example, by simple greed.

[15] I accept that Mr. Waquad's guilty plea represents a genuine expression of remorse and a taking of responsibility for his actions.

Aggravating and Mitigating Factors

[16] The only significant aggravating factors in this case are the nature of the drug at issue, and the quantity. There is no question that these are important aggravating factors.

[17] I accept the Crown's submission, based on the case law, that oxycodone is a serious drug of abuse. I accept that abuse of oxycodone and the addiction that results cause real and serious harm to individuals and communities. This harm takes the form of addiction, of broken relationships and families, of crime committed to obtain funds to purchase drugs, and in some cases of death by overdose: R. v. Smith, 2012 ONCA 761 at para. 3; R. v. Holmes, 2014 ONSC 2986 at paras. 16, 19.

[18] With respect to the quantity, 200 pills is more serious than a case involving for example, 10-15 pills. 200 pills is a significant amount.

[19] The mitigating factors that weigh in Mr. Waquad's favour are significant.

[20] Mr. Waquad is a first offender. This factor is entitled to weight for any first offender, but I find that it is particularly significant due to the fact that Mr. Waquad is 73 years old. He has lived his entire life to this point free from interaction with the criminal justice system, and as a productive member of the community, working and raising his children.

[21] Mr. Waquad pled guilty. I accept his guilty plea as a taking of responsibility and a genuine showing of remorse.

[22] Mr. Waquad played a small role in the broader trafficking scheme.

[23] Mr. Waquad's role in the scheme arose as a result of his own dependence on oxycodone arising out of a motor vehicle accident approximately 30 years ago, and out of his misplaced loyalty to his godson, in the context of Mr. Waquad's own failing marriage. I consider the impact of Mr. Waquad's own dependency on oxycodone as a mitigating factor because Mr. Waquad has now taken steps to regularize his use of oxycodone: R. v. Holmes, supra at para. 17, 21; R. v. Andrews, [2005] O.J. No. 5708 at paras. 36-47 (ONSC). He now takes the drug pursuant to a prescription. I note that defence counsel asked me to consider as mitigating the fact that Mr. Waquad was "paid" for his participation in the scheme in oxycodone, on which he was dependent, and not in cash. Defence counsel took the position that this indicated that his involvement in the scheme was not commercial. I do not accept that Mr. Waquad's involvement was not commercial – since he did receive remuneration, although in the form of pills and not cash. However, I take the form of remuneration as evidence that Mr. Waquad's participation in the scheme was driven by his dependence on oxycodone.

[24] Mr. Waquad is a low risk to re-offend. As noted above, the pre-sentence report recommends that he is a suitable candidate for community supervision.

[25] I also consider Mr. Waquad's age as mitigating. His age is relevant in assessing the impact of a lengthy term of imprisonment. A lengthy term of imprisonment will have a greater impact on someone in their 70s than on a younger person, simply due to the reality that a person in their 70s has fewer years left to live: R. v. McNamara (No. 2) (1981), 56 C.C.C. (2d) 516 at p. 520 (ONCA); R. v. Grimberg (2002), 163 C.C.C. (3d) 310 (ONCA). I note that I do not consider Mr. Waquad's health issues as a mitigating factor, because I have not been provided evidence that they could not be managed in the prison system, and they are not so severe that I can draw that conclusion in the absence of specific evidence.

[26] I also consider the time spent in pre-trial custody by Mr. Waquad, and time spent on a restrictive house arrest bail. Mr. Waquad spent 24 days in pre-trial custody, and over two years on a house arrest bail (his bail conditions were subsequently loosened in November 2014). I take these amounts into account in arriving at the appropriate sentence: R. v. Downes (2006), 79 O.R. (3d) 321 (ONCA).

[27] Defence counsel asked me to place some weight on the fact that Mr. Waquad's marriage failed after the charges, and that as a result of the marriage breakdown, he is now also not in communication with his two grown daughters. It is fair to say from reading the pre-sentence report, that it appears that Mr. Waquad's marriage had difficulties for many years before he was criminally charged. The charge appears to be the straw that broke the camel's back. In these circumstances, I do not give significant weight to the marriage breakdown as a consequence that mitigates sentence.

Analysis

[28] The primary issue in dispute between the prosecution and defence counsel is whether a conditional sentence can address the needs of general deterrence and denunciation. I will address these principles in considering the legal analysis of whether a conditional sentence is available and appropriate.

[29] Counsel are in agreement regarding the factors the court should consider in assessing if a conditional sentence is available and appropriate:

(i) The offence must be one that is not punishable by a minimum term of imprisonment;

(ii) The term of imprisonment imposed must be less than two years;

(iii) The safety of the community would not be endangered by the offender serving the sentence in the community; and

(iv) A conditional sentence must be consistent with the fundamental purposes and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code. (R. v. Proulx, [2001] 1 S.C.R. 61)

[30] The primary area of disagreement between the parties in this case centres on the fourth branch of the analysis. For this reason, I will deal with the first three branches briefly.

[31] There is no minimum term of imprisonment in the circumstances of Mr. Waquad's case. I also note that this offence was committed in July 2012. The Crown accepts that a conditional sentence was available for this offence at that time.

[32] I find that a term of imprisonment of less than two years is appropriate in this case. Crown counsel in this case seeks a sentence of 18 to 24 months incarceration, an implicit concession that a sentence of less than two years is within the appropriate range. The general range of sentence for first offenders (and even for some non-first offenders) involving oxycodone or similar narcotics in amounts within the range of this case is less than two years: Smith, supra; See also Holmes, supra.

[33] I find that the safety of the community would not be endangered by Mr. Waquad serving the sentence in the community. As noted above, he is 73 years old and a first offender. There was no violence involved in the commission of the offence. While I recognize the serious harms that flow from illegal use of oxycodone and the illegal market to support such use, I find that Mr. Waquad is very unlikely to reoffend. I come to this conclusion based on his prior good character, his taking responsibility for the offence, and the other mitigating factors outlined above.

[34] The dispute between the prosecution and defence counsel in relation to what is required to achieve general deterrence and denunciation is joined on the last branch of the analysis for a conditional sentence. Although the Crown concedes that concerns in relation to specific deterrence of Mr. Waquad can be met by a conditional sentence, he submits that a conditional sentence is not sufficient to address general deterrence and denunciation.

[35] I have considered the purposes and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code, and developed in the case law. Of particular importance in this case are general deterrence and denunciation, rehabilitation, and restraint. I agree with the concession by the prosecution that specific deterrence can be achieved in this case through a conditional sentence, given Mr. Waquad's personal circumstances outlined above.

[36] General deterrence and denunciation are paramount considerations in sentencing for possession for the purpose of trafficking of narcotics, in particular oxycodone: R. v. Holmes, supra at para. 15. But I must also balance the needs of rehabilitation of the particular offender before me, and consider his individual circumstances.

[37] The Supreme Court of Canada recognized in R. v. Proulx that conditional sentences are capable of achieving significant general deterrence and denunciation, depending on the duration of the sentence imposed, the nature of the conditions imposed, and the circumstances of the offender and the community in which the sentence is to be served. The Court also recognized that conditional sentences are available for a range of offences, and that (absent statutory limitations) the courts should not create presumptions in favour of or against conditional sentences for any particular offences: R. v. Proulx, supra.

[38] Further, although not frequent, conditional sentences have been held to be appropriate in cases of possession for the purpose of trafficking of narcotics where there are significant mitigating circumstances of the particular offender: R. v. Holmes, supra at para. 18; R. v. Kerr, [2001] O.J. No. 5085 (ONCA); R. v. Veljkovic, [2006] O.J. No. 1327 (ONCA); R. v. Hayes, [2001] O.J. No. 684 (ONCA). These cases are a judicial recognition that a conditional sentence is capable of achieving the goals of general deterrence and denunciation in the context of sentencing for offences related to trafficking in narcotics.

[39] I find that the decision of Justice Hill in Holmes, which counsel for the PPSC brought to my attention, is helpful regarding the appropriateness of a conditional sentence for Mr. Waquad. In Holmes, Justice Hill imposed a blended concurrent sentence of 90 days intermittent and a 20 month conditional sentence on an offender who pleaded guilty to two counts of possession for the purpose of trafficking in relation to 76 percocet tablets and 32.2 grams of cocaine[1]. Many of the mitigating factors in Holmes were similar to this case, including the guilty pleas, steady employment, and the fact that the offences were driven by the defendant's own dependence on percocet. I note that the mitigating factor of advanced age which is present in this case was not present in Holmes. In addition, there were two aggravating factors present in Holmes which are not present in this case. Mr. Holmes possessed not one, but two illegal narcotics (see paras. 3 and 19), and Mr. Holmes had a prior criminal record, although it was unrelated (see paras. 9 and 22).

[40] I must balance the need for a sentence sufficient to achieve general deterrence and denunciation together with the need to consider the mitigating circumstances particular to Mr. Waquad. As noted above, Mr. Waquad is 73 years old, and a first offender. These circumstances combined speak to the need for restraint (see generally R. v. Hamilton, [2004] O.J. No. 3252 (ONCA) and ss. 718.2 (d) and 718.2(e) of the Criminal Code). In addition, as I have outlined above, the particular circumstances which motivated Mr. Waquad to commit the offences weigh in favour of mitigation. He committed the offences to feed his own dependence on oxycodone. This is a mitigating factor, particularly as Mr. Waquad now receives oxycodone legally by prescription, thus minimizing the risk of future reoffending. I note as well the very positive pre-sentence report, including the recommendation by the writer that Mr. Waquad would be suitable for community supervision. I note as well that Mr. Waquad has already been subject to very significant restraint on his liberty prior to his conviction. He served 24 days pre-trial custody before he was released on bail. Thereafter, he was on a house arrest bail for over two years.

[41] As noted above, although in most cases a conviction for of possession for the purpose of oxycodone or similar drugs will require incarceration for purposes of general deterrence and denunciation, there will be rare cases where the balance of all the relevant principles of sentencing will support a conditional sentence. This is one of those cases. I find that considering Mr. Waquad's circumstances and the circumstances of the offence a significant conditional sentence is consistent with the fundamental purposes and principles of sentencing, including general deterrence, denunciation, rehabilitation, and restraint.

[42] Counsel for the PPSC relied on the decision of the Ontario Court of Appeal in R. v. Smith, supra, to support his position of a sentence of incarceration. In Smith the Court of Appeal upheld a trial judge's decision to reject a conditional sentence for a first offender convicted of possession for the purpose of trafficking of a similar amount of oxycodone to this case. However, the Court of Appeal's decision in Smith does not hold that a conditional sentence can never be appropriate on a given set of facts for possession for the purpose of trafficking of oxycodone; rather the Court of Appeal held that the trial judge in that case did not err in principle, and the sentence he imposed was within the range of appropriate sentences. As noted above at paragraph 38, the Court of Appeal has also upheld conditional sentences for offences committed in circumstances similar to that of Mr. Waquad.

[43] It is difficult to assess the facts of Smith, as the Court of Appeal's endorsement provides little detail, other than the amount of the drug, and the fact that the Court rejected the characterization of the appellant in that case as a youthful offender. On the facts before me, particularly in light of Mr. Waquad's age and the unusual motivating circumstances of his offence, I find that a conditional sentence is appropriate.

[44] In my view, a sentence of 16 months, to be served conditionally, is proportionate to the gravity of the offence. This sentence achieves the goals of general and specific deterrence, and denunciation, while also taking into account Mr. Waquad's individual circumstances and the principles of rehabilitation and restraint. In coming to this sentence, I have taken into account the 24 days pre-trial custody and over two years house arrest bail to which Mr. Waquad was subject.

Sentence and Conditions

[45] In addition to the required statutory terms, the conditional sentence will be served according to the following conditions:

(1) For the first 6 months of the sentence remain within your residence daily with the following exceptions:

(i) For scheduled meetings with clients of your book-keeping/tax business, only between the hours of 9 a.m. and 12:00 p.m., or such other hours as approved in advance by the conditional sentence supervisor. You must travel directly between your home and the location of the meeting;

(ii) For one 4-hour period per week for shopping for food and other necessities (the specific period to be specified in the order);

(iii) For scheduled medical and dental appointments, and any medical emergencies;

(iv) For scheduled appointments with your conditional sentence supervisor;

(v) Such other exceptions as may be pre-approved by the supervisor of the conditional sentence order.

(2) For the following 5 months, observe a daily curfew of 11:00 p.m. to 6:00 a.m. with the following exception:

(i) Medical emergencies;

(3) Abstain from possession or consumption of drugs except lawfully prescribed medication;

(4) Abstain from possession of any weapon as defined in the Criminal Code.

[46] The 16 month conditional sentence will be followed by one year probation. In addition to the statutory terms, the terms of probation are as follows:

(1) Upon completion of the conditional sentence, report within two working days to the probation officer;

(2) Abstain from the possession or consumption of drugs except lawfully prescribed medication.

Ancillary Orders

[47] In relation to ancillary orders, there will be a weapons prohibition order for a period of 10 years pursuant to s. 109(2)(a), and for life pursuant to s. 109(2)(b) of the Criminal Code. This case pre-dates the amendments to the victim fine surcharge, so the surcharge is discretionary. Based on the information provided to me that Mr. Waquad works part-time, and is able to continue to do so under the conditional sentence, a victim fine surcharge of $100 is imposed. I will hear from counsel regarding time to pay the victim fine surcharge.

Released: May 8, 2015

Justice J. Copeland

[1] It appears that Justice Hill broke down the sentence as 90 days intermittent in relation to the percocet count, and 20 months conditional in relation to the cocaine count. But it is clear that he was considering the sentence globally.