ONTARIO COURT OF JUSTICE DATE: 2021·10·04 NEWMARKET
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
JABIR KHAN
SENTENCING
Submissions Heard: September 9, 2021. Sentence Delivered: October 4, 2021.
Counsel: Mr. Kevin Stewart.................................................................................... counsel for the Crown Mr. Steven Hinkson.......................................................................... counsel for the defendant
KENKEL J.:
Introduction
[1] Mr. Khan and Mr. Nelson were friends for four years. They worked together on renovation projects. In May of 2019, the two engaged in a series of coded conversations regarding Mr. Khan moving an item or “ting” from Mr. Nelson’s building. Both Khan and Nelson plainly anticipated that their conversation might be the subject of police surveillance. Their conversations and other information led police to believe that Mr. Nelson was arranging to have Mr. Khan pick up a gun. On the night that Mr. Khan agreed to pick up the item, Mr. Nelson cautioned him to watch his surroundings. Mr. Nelson and his girlfriend then engaged in counter-surveillance at the time of the exchange and afterwards.
[2] As it happened, Mr. Nelson’s conversations were subject to intercepts granted in relation to a robbery investigation. On the final night when police were alerted to the impending transfer, officers attended and observed the exchange. They stopped Mr. Khan a short time later and found a sawed-off shotgun and four rounds of ammunition in a red duffle bag.
[3] Mr. Khan was convicted at trial of Possession of a Restricted Firearm s 91(3) and occupation of a motor vehicle knowing that there was an unregistered restricted firearm therein s 94(2) of the Criminal Code. The Crown elected to proceed by indictment, so the maximum penalty for the unauthorized possession of the prohibited weapon is 5 years – s 91(3)(a). Unauthorized possession of a prohibited firearm in a vehicle is punishable by a sentence of up to 10 years – s 94(2)(a).
[4] The Crown submitted that a global 4 year sentence is required. They suggested 4 years on the s 91 offence and 18 months concurrent on the s 94 offence. The Crown also requests a s 109 order for life, a DNA order and a s 743.21 order prohibiting contact with Nathaniel Nelson while in custody.
[5] The defence submits that a global sentence of 2.5 years would be appropriate. Pre-trial custody and credit for time spent on bail would reduce the sentence to an upper reformatory term. Considering Mr. Khan’s good conduct while on a restrictive bail, the court should consider allowing him to serve that sentence in the community by way of a conditional sentence. The defence does not take issue with the proposed ancillary orders.
[6] For the reasons that follow, I find that a global net sentence of two years and 323 days remaining to be served is the least restrictive sentence that could meet the purpose and principles of sentencing in this case.
Aggravating Factors
[7] Beyond the serious nature of the offences, there are further circumstances that aggravate sentence:
- Mr. Khan’s criminal record
- The fact that Mr. Khan was subject to multiple lifetime firearms prohibitions at the time of these offences
- The firearm was found with ammunition in the same bag
- The impact of firearms on this community and the Greater Toronto area
[8] Mr. Khan has a lengthy criminal record starting in 1992. In 1993 he was convicted of three counts of Armed Robbery and one count of Assault with Intent to Steal. He received a sentence of two years less 1 day. In 1996 he was again convicted of Armed Robbery and he received his first penitentiary sentence of 3 years with a lifetime firearms prohibition. That penitentiary sentence was followed by an 11-year gap following statutory release to 2009/10 when he was convicted of several drug trafficking and possession offences. He received another penitentiary sentence in 2013 of 36 months (after 31 months credit for pre-trial custody, total sentence 5.5 years) for drug trafficking. That penitentiary sentence was followed by a shorter gap from release to 2019 when he committed these offences.
[9] While there are some positive signals in the gaps in Mr. Khan’s record, his involvement with violence and drug trafficking and the failure of past penitentiary sentences to deter him from involvement in these offences show there continues to be a need for specific deterrence.
[10] Since his 1996 conviction for Armed Robbery, Mr. Khan has been subject to a s 109 firearms prohibition for life. Further s 109 orders would have been mandatory on his drug trafficking convictions in 2010 and 2013. The fact that Mr. Khan was specifically prohibited from possessing firearms at the time he took possession of the sawed-off shotgun with ammunition in this case is a serious aggravating factor.
[11] A sawed-off shotgun is a firearm that has been modified to make it easier to conceal and transport. There is no lawful use for this weapon. It is inherently dangerous and capable of causing grievous bodily harm and death. Illegal firearms such as this shotgun have left a trail of death and injury throughout the Greater Toronto Area including York Region. The effect of these offences in this community requires a strong denunciatory and deterrent response.
Mitigating Circumstances
[12] There are several mitigating factors:
- Mr. Khan has been on a house arrest bail for 26 months
- Mr. Khan spent 42 days in custody prior to interim release
- Despite the record, there were significant gaps where Mr. Khan kept out of trouble and had a stable life.
- There has been a further gap since his arrest of over 2 years and 4 months with no further charges or allegations of breach
- Mr. Khan is employed in his own business and has not re-offended since he was arrested for this offence
- Mr. Khan expressed remorse at the time of sentencing
- Any custodial sentence imposed would be served in difficult conditions during the COVID pandemic
- Mr. Khan said he took the firearm as a favour for a friend. There is no evidence he intended to use it.
[13] On June 24, 2019 Mr. Khan was released on a recognizance that required him to remain in his residence at all times except for the purpose of employment or while with a surety. He’s been active working with his business while on release. He’s had access to other activities with a surety. He did not apply for a further variation. Even though the COVID pandemic has limited almost everyone to similar conditions for much of the past 18 months, I agree with the defence that the time spent on bail, extended in part due to the COVID disruption, is a relevant mitigating factor.
[14] Mr. Khan was arrested on May 28, 2019, so he spent 28 days in pre-trial detention until release including the day of his release. I agree with the defence that Mr. Khan should receive the standard enhanced credit for that time (28 x 1.5 = 42) for a total of 42 days.
[15] Mr. Khan has had two gaps or periods where he’s been able to work, maintain relationships and refrain from committing criminal offences. The Pre-Sentence Report shows that after his release from the 36-month sentence imposed in 2013, he again rebuilt his life and relationships and was successfully employed in his own business. Despite this offence in 2019 he has continued with that business and it’s not alleged he’s committed any further offences. Mr. Khan spoke on sentence and indicated his remorse for his poor choices and his commitment to focus only on the positive influences in his life in the future. I accept Mr. Khan’s statement of remorse and regret as genuine given his efforts to reform.
[16] I agree with the defence that the fact that the sentence will be served during the COVID pandemic, at least at the outset, is a factor that emphasizes the need for the least restrictive sentence despite the many aggravating factors.
[17] While Mr. Khan was not a credible witness on the central issue at trial, I accept that he took the firearm as a favour to help Mr. Nelson. The phone intercepts show that Mr. Nelson was worried that he was under surveillance and that his apartment might be raided by the police. He moved his sawed-off shotgun to his girlfriend’s apartment, while the girlfriend distracted her mother. Mr. Nelson’s girlfriend was in the late stages of pregnancy, so it wasn’t long until she insisted the shotgun be moved. Mr. Nelson then turned to his friend Mr. Khan to move and hide the illegal prohibited weapon. I agree with the defence that there is no evidence that suggests he was going to use the firearm for his own purposes.
[18] I accept that portion of Mr. Khan’s evidence that he took the firearm and ammunition as a favour without intention to use them, but that does little to lessen his culpability. Those who help others to possess prohibited firearms directly assist in maintaining the significant danger to the community that those weapons pose.
Sentence
[19] York Region has suffered the loss of many people, particularly young persons, due to the proliferation and use of illegal firearms. This firearm was removed from an address in Scarborough, another community that has suffered the tragedy of gun violence. The danger posed by such illegal weapons and the impact of those weapons on this community and the Toronto area calls for exemplary sentences focused on general deterrence and denunciation – R v Mohiadin 2021 ONCA 122 at para 12.
[20] Prior penitentiary sentences and prohibition orders have failed to deter Mr. Khan from becoming involved in serious offences. This sentence must not only denounce the danger to the community his conduct posed but must also deter him and others from committing such offences. The sentence must promote a sense of responsibility for the danger to the community posed by the offences.
[21] Even at this stage for a mature offender who served his first penitentiary sentence more than 25 years ago, the long gap after 1998 and the shorter more recent gap, combined with the information about Mr. Khan’s current employment and relationships shows that rehabilitation remains a relevant goal.
[22] The overall sentence must balance all of the relevant factors and be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[23] The principle of restraint always applies, but I agree with the defence that the need for an exemplary sentence here must be tempered to a degree by the knowledge that the circumstances of incarceration during the COVID pandemic will make at least the initial part of this sentence more difficult to serve.
[24] The Crown’s position of 4 years reflects the gravity of the offence and many of the circumstances of this offender. The two-and-a-half-year sentence proposed by the defence would not be fit, even before consideration of the mitigating factors and credits that the defence submits would further reduce the time to be served. Considering the circumstances of this offence I find that a sentence of 3 years and 6 months would be the appropriate starting point.
[25] I find that the mitigating circumstances discussed other than statutory credit for time-served reduce that sentence by 6 months for a total global sentence of 3 years. Mr. Khan is entitled to statutory Summers credit for the 28 days spent in pre-trial custody which I credit as 42 days. Deducting the statutory credit of 42 days from the global three years leaves 2 years and 323 days remaining to be served.
[26] The global sentence that would have been imposed prior to Summers credit for pre-trial custody is 3 years. Deducting credit for 28 days time served weighed as 42 days leaves 2 years and 323 days remaining to be served on the s 91(3) offence. I find that resulting sentence remains fit and is the least restrictive sentence that would be proportionate to the circumstances of this offence and this offender.
[27] I agree with both counsel that it is appropriate to impose a concurrent sentence of 12 months on the s 94(2) count. The total global sentence remaining to be served is 2 years and 323 days.
[28] There will be a further s 109 order for life.
[29] Both offences are designated secondary offences with respect to the DNA databank provisions in s 487.04. The circumstances of this offence involving a highly dangerous prohibited firearm and the lengthy record for offences of violence require that a DNA order on both counts be made in the public interest.
[30] Given that close contact with Mr. Nathanial Nelson was a central feature to the offences, I find it necessary to order under s 743.21 that Mr. Khan have no communication directly or indirectly with Mr. Nelson while Mr. Khan is in custody.
Delivered: 4 October, 2021.
Justice Joseph F. Kenkel