Her Majesty the Queen v. Shahnawaz [Indexed as: R. v. Shahnawaz]

51 O.R. (3d) 29

[2000] O.J. No. 4151

Docket No. C33082

Court of Appeal for Ontario

Osborne A.C.J.O., Laskin and Charron JJ.A.

November 7, 2000

*Application for leave to appeal to the Supreme Court of

Canada was dismissed without reasons April 19, 2001 (Gonthier,

Major and Binnie JJ.). S.C.C. File No. 28265. S.C.C. Bulletin,

2001, p. 729.

Criminal law -- Sentencing -- Principles -- Psychological effect on accused -- Accused convicted of trafficking in heroin -- Accused having suffered years of torture and political imprisonment in Afghanistan -- Defence evidence demonstrating additional imprisonment would have very negative psychological effects on accused -- Trial judge finding usual range of sentence nine to 12 years' imprisonment but ordering conditional sentence in light of accused's psychological condition -- Trial judge erring in determining psychological condition key factor in sentencing in absence of evidence that psychological disabilities playing any role in crime -- Crown appeal allowed and sentence of six years' imprisonment imposed.

Criminal law -- Sentence -- Trafficking in heroin -- Accused convicted of trafficking in 650 grams of heroin -- Trial judge acknowledging that appropriate range of sentence for offences involving similar amounts of heroin being nine to 12 years' imprisonment -- Accused suffering from post-traumatic stress disorder as result of political imprisonment and torture in Afghanistan -- Defence adducing psychiatric evidence that imprisonment would be particularly hard on accused -- Trial judge imposing conditional sentence of 17 months less a day followed by two years' probation -- Trial judge erring in considering treatment of accused's psychological condition as crucial factor in his rehabilitation in absence of any evidence that his psychological disabilities played any role in commission of offence -- Sentence varied on appeal to six years' imprisonment.

The accused was convicted of four counts of trafficking in a total of 650 grams of heroin with an estimated street value of $227,500. He spent seven months in pre-trial and post- conviction custody. The trial judge found that the accused's level of involvement in the trafficking scheme was very low. The accused had spent three years as a political prisoner in Afghanistan, during which time he was subjected to horrific torture. As a result, he suffered from post-traumatic stress disorder. His treating psychiatrist expressed the opinion that the accused's experience in pre-trial detention had reactivated and intensified the symptoms of his post-traumatic stress disorder and that his condition was not likely to improve as long as he was in detention. The trial judge concluded that incarceration was causing intense psychological suffering for the accused and that there were no prospects of rehabilitation as long as he remained in prison. She held that the appropriate range of sentence for offences involving similar amounts of heroin was nine to 12 years' imprisonment, but that this was an exceptional case requiring an exceptional sentence. She imposed a conditional sentence of 17 months less a day followed by two years' probation. The terms of the conditional sentence and the probation order included a requirement that the accused remain in his residence except for reporting or medical purposes and that he submit to electronic monitoring to enforce this restriction.

The Crown appealed. The Ministry of Correctional Services obtained leave to intervene on the appeal on the question of electronic monitoring. The Ministry argued that the trial judge erred in ordering that the accused submit to electronic monitoring in the absence of evidence that the necessary resources were available in the community to provide for such surveillance. The Ministry took the position that electronic monitoring is not presently available to supervise conditional sentences in Ontario and sought leave to introduce fresh evidence to support its position.

Held, the appeal should be allowed.

Per Charron J.A. (Osborne A.C.J.O. concurring): The trial judge's conclusions about the accused's low level of involvement in the illicit drug trade were, for the most part, based on inferences drawn from an absence of evidence and were essentially speculative in nature. The evidence that was accepted by the trial judge did not reveal the accused's actual level of involvement in the illicit drug trade beyond showing that he knowingly and repeatedly trafficked in substantial amounts of heroin. It was not possible to determine on the record the actual level of his involvement in the drug trade with any degree of certainty.

The trial judge erred in considering the treatment of the accused's psychological condition as the crucial factor in his rehabilitation in the absence of any evidence that his psychological disabilities played any role in the commission of the offences. Rehabilitation as a goal of sentencing is not the restoration of an offender's physical and mental health but his reinstatement as a functioning and law-abiding member of the community. There was no connection in this case between the accused's post-traumatic stress disorder and his illegal drug activities. The conditional sentence should be set aside and a sentence of six years' imprisonment substituted.

In view of that conclusion, the issue raised by the Ministry on the appropriateness of imposing electronic monitoring as a term of the sentence was moot. The fresh evidence sought to be relied on by the Ministry could and should have been introduced at the sentencing hearing. The Ministry's motion to introduce fresh evidence was dismissed.

Per Laskin J.A. (dissenting): The sentence imposed by the trial judge was not unreasonable and did not reflect an error in principle. It was entitled to deference.

The Crown's position on appeal supported a lenient sentence. The Crown recognized that compassion was called for because it sought incarceration only for the maximum reformatory term of two years less a day. Nothing justified increasing the length of the sentence asked for by the Crown, let alone tripling it.

The accused had already served over two-thirds of his conditional sentence. In light of the significant punishment he had already received, incarcerating him now would not be in the interests of justice.

APPEAL by the Crown from sentence for trafficking in heroin.

Cases referred to Leger v. R. (1979), 10 C.R. (3d) S-25 (Que. C.A.); R. v. C. (D.W.), [2000] O.J. No. 3759 (C.A.); R. v. Fireman, 1971 CanLII 450 (ON CA), [1971] 3 O.R. 380, 4 C.C.C. (2d) 82 (C.A.); R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, 194 N.R. 321, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269; R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, 49 Alta. L.R. (3d) 111, 145 D.L.R. (4th) 577, 210 N.R. 241, 43 C.R.R. (2d) 189, 114 C.C.C. (3d) 436, 6 C.R. (5th) 231; R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 44 O.R. (3d) 263, 135 C.C.C. (3d) 41 (C.A.); R. v. Messervey (No. 2) (1991), 96 Nfld. & P.E.I.R. 314, 305 A.P.R. 314 (Nfld. Prov. Ct.); R. v. Moncini (1975), 1975 CanLII 1461 (BC CA), 23 C.C.C. (2d) 452, [1975] 4 W.W.R. 509 (B.C.C.A.); R. v. Proulx (2000), 2000 SCC 5, 142 Man. R. (2d) 161, 182 D.L.R. (4th) 1, 249 N.R. 201, 212 W.A.C. 161, [2000] 4 W.W.R. 21, 140 C.C.C. (3d) 449, 49 M.V.R. (3d) 163, 30 C.R. (5th) 1 (S.C.C.) (sub nom. R. v. P. (J.K.D.)); R. v. R. (A.) (1994), 1994 CanLII 4524 (MB CA), 92 Man. R. (2d) 183, 61 W.A.C. 183, 88 C.C @@.C. (3d) 184 (C.A.); R. v. Shaw, [2000] O.J. No. 2646 (S.C.J.); R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, 129 D.L.R. (4th) 657, 188 N.R. 284, 102 C.C.C. (3d) 193, 43 C.R. (4th) 269; R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, 173 D.L.R. (4th) 66, 239 N.R. 201, 63 C.R.R. (2d) 43, 134 C.C.C. (3d) 353, 24 C.R. (5th) 1; R. v. W. (A.G.), 2000 CanLII 5641 (ON CA), [2000] O.J. No. 398 (C.A.); R. v. Wallace (1973), 1973 CanLII 1434 (ON CA), 11 C.C.C. (2d) 95 (Ont. C.A.); R. v. Wellington (1999), 1999 CanLII 3054 (ON CA), 43 O.R. (3d) 534, 132 C.C.C. (3d) 470, 23 C.R. (5th) 234 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 676(1)(d), 687, 742.4 Authorities referred to Martin, Report of the Attorney-General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (Toronto: Queen's Printer, 1993), pp. 327-34

Beverly Wilton, for appellant. P. Andras Schreck, for respondent. Brian Whitehead and Lisa C. Ofiara, for intervenor, Ministry of Correctional Services.

[1] CHARRON J.A. (OSBORNE A.C.J.O. concurring): -- This is a Crown appeal against sentence. Following his trial by judge and jury, the respondent Abdul Momen Shahnawaz was convicted of four counts of trafficking in heroin. The quantity of heroin sold by Shahnawaz was 650 grams (a pound and a half) with an estimated street value of $350 per gram for a total of $227,500. At trial, the judge agreed with Crown counsel that, based on case law involving similar amounts of heroin, the appropriate range of sentence in this case would be nine to 12 years' imprisonment. However, the trial judge found this to be an exceptional case requiring an exceptional sentence, and imposed a conditional sentence of 17 months less a day with two years' probation in addition to the seven months of pre-trial and post-conviction custody Mr. Shahnawaz had already served. The Crown seeks leave to appeal the sentence, arguing that the trial judge placed too much emphasis on Mr. Shahnawaz's personal circumstances an d imposed a sentence that is manifestly unfit.

[2] Counsel for Mr. Shahnawaz does not dispute the trial judge's finding that the appropriate range of sentence for like offences is nine to 12 years' imprisonment, but submits that it was within the trial judge's discretion to conclude that this case was deserving of an exceptional sentence. Counsel submits that the trial judge's conclusion was based on two critical factual findings which were amply supported by the evidence. First, the trial judge found that Mr. Shahnawaz's level of involvement in the trafficking scheme was very low. She found it unlikely that he owned the drugs or that he was paid for his involvement. Rather, she concluded that it was more likely that he had been the pawn of higher level and unscrupulous drug dealers. Second, the trial judge found that imprisonment would cause intense psychological suffering to Mr. Shahnawaz.

[3] The terms of the conditional sentence and of the probation order included a requirement that Mr. Shahnawaz remain in his residence except for reporting or medical purposes and that he submit to electronic monitoring to enforce this restriction. The Ministry of Correctional Services ("the Ministry") sought and obtained leave to intervene on this appeal on the question of electronic monitoring only. The Ministry argues that the trial judge erred in ordering that Mr. Shahnawaz submit to electronic monitoring in the absence of evidence that the necessary resources were available in the community to provide for such surveillance. The Ministry takes the position that electronic monitoring is not presently available to supervise conditional sentences in Ontario and seeks leave to introduce fresh evidence to support its position.

[4] Counsel for Mr. Shahnawaz submits that the Ministry should not be allowed to introduce fresh evidence on this appeal because it failed to bring an application before the sentencing judge under s. 742.4 of the Criminal Code, R.S.C. 1985, c. C-46, for a change of conditions. The respondent argues that this latter course of action was not only open to the Ministry, it was anticipated by the sentencing judge as evidenced by her reasons for sentence. The respondent argues further that, even if this court were to receive the proposed fresh evidence, the Crown should not be permitted to rely on it in support of its appeal against the imposition of a conditional sentence because Crown counsel at trial could have introduced this kind of evidence on the sentence hearing but failed to do so. Counsel submits that it would be unfair for the Crown to rely on this evidence at this late stage of the proceedings.

[5] Crown counsel takes no position with respect to the Ministry's motion and does not rely on the proposed fresh evidence in support of the appeal.

[6] I would allow the appeal. It is my view that the sentence is manifestly unfit. The trial judge correctly stated that the appropriate range of sentence for offences involving similar amounts of heroin was nine to 12 years' imprisonment. While Mr. Shahnawaz's personal circumstances could properly be taken into account in reducing the sentence, the trial judge placed too much emphasis on this factor. In my view, there was no justification for the imposition of a sentence other than a penitentiary term. Consequently, a conditional sentence was not an available sentencing option.

[7] In view of this conclusion, the issue raised by the Ministry on the appropriateness of imposing electronic monitoring as a term of the sentence is moot. Although it would still be open to this court to consider the issue, I do not think that this is an appropriate case to do so. The trial court is the better forum to determine factual issues. The issue raised before this court for the first time on appeal could have been brought before the trial judge in either of two ways. The fresh evidence sought to be relied upon by the Ministry could and should have been introduced at the sentencing hearing. The trial judge specifically asked Crown counsel at trial whether electronic monitoring was a viable option but received no assistance on this inquiry. She therefore relied on the limited information available to defence counsel. Alternatively, if indeed the electronic monitoring was an unworkable condition due to a lack of resources, an application for a change of conditions could have been brought before the sentencing judge after the sentencing under s. 742.4. As counsel for the respondent noted, this course of action was even anticipated by the trial judge. On such application, any request for a change of conditions could have been fully canvassed by the trial court and a proper determination made on the availability of community resources.

[8] I would therefore dismiss the Ministry's motion to introduce fresh evidence. I would grant leave to appeal, allow the appeal, set aside the sentence and, for the reasons that follow, substitute the sentence with a term of six years' imprisonment.

The Offences

[9] The facts of the offences are simple. They are succinctly set out by the trial judge as follows [at para. 7]:

It is clear from the jury verdict that Mr. Shahnawaz trafficked in heroin on four separate occasions: February 13, February 20, March 9 and March 25, 1997. On the first date, the undercover agent received only a sample amount of heroin and no money was paid. On February 20, the police provided their agent with $7,000.00 and the agent obtained 100 grams of heroin from Mr. Shahnawaz. On March 9, the police provided $3,500 and the agent obtained 50 grams of heroin. March 25th was arranged ahead of time to be the "take down" date at which Mr. Shahnawaz was to be arrested. The agent, acting on instructions from the police, arranged to purchase 500 grams of heroin at a price of $70.00 per gram. Because an arrest was to be made on this date, the police did not provide any "buy money". On March 25th, Mr. Shahnawaz gave the agent a package containing 500 grams of heroin and was immediately arrested. The total amount of heroin involved was approximately 650 grams. At an estimated street value of $350.00 per gram, this is a substantial amount of heroin.

[10] It is also noteworthy that, on two occasions, Mr. Shahnawaz attended a pre-arranged drug transaction in the company of his young children. On February 13, Mr. Shahnawaz's five-year-old son was in the back seat of the car in which he met with the police agent. On March 25, Mr. Shahnawaz placed the package with the 500 grams of heroin underneath his baby in the carriage and took both his children with him to meet with the police agent.

[11] Mr. Shahnawaz's defence at trial was that he acted under duress. Mr. Shahnawaz acknowledged that he supplied the drugs to the person who, unbeknownst to him, was the police agent, but that he did so because this person had made death threats against him, his wife and his children.

[12] In addition to his own testimony, Mr. Shahnawaz called Dr. Payne in support of his defence. Dr. Payne is a psychiatrist who treated Mr. Shahnawaz regularly from 1992 to the time of trial. Dr. Payne's main diagnosis was that Mr. Shahnawaz suffered from a condition, known as post-traumatic stress disorder, resulting from the torture inflicted on him when he was a political prisoner in Afghanistan some years earlier. Dr. Payne described the typical symptoms of post- traumatic stress disorder as a tendency to relive the traumatic experience with resulting anxiety, depression, fearfulness and irritability. The main thrust of his testimony, as it related to the defence of duress, was that Mr. Shahnawaz was a person of low average intelligence who had limited inner resources and difficulty coping with stress. It was Dr. Payne's opinion that Mr. Shahnawaz, if faced with a problem, would be more likely to give in to external pressure and opt for the quick solution rather than think through the various options open to him.

[13] It is not necessary for the purpose of this appeal to describe in any detail the testimony offered by Mr. Shahnawaz in his defence. It is obvious from the verdict that his explanation was rejected by the jury.

[14] The trial judge correctly noted that the extent of an accused's moral culpability is a relevant factor in sentencing. Of course, the precise findings of fact made by the jury which led to the rejection of the defence are not known. As the trial judge noted, the defence could have been rejected because the jury did not believe that threats were made or, alternatively, they accepted that threats were made but rejected the defence because Mr. Shahnawaz had other avenues of escape. In the latter case, Mr. Shahnawaz's moral culpability would be less than if he engaged in the illicit drug trade voluntarily. In order to assess the degree of Mr. Shahnawaz's involvement, the trial judge made an extensive review of the evidence relating to duress and made her own findings of fact.

[15] The trial judge concluded that she did not believe Mr. Shahnawaz's explanation of the events. She noted that, in many respects, the explanation given by Mr. Shahnawaz simply defied logic. Further, his conduct at the time of the four drug transactions was inconsistent with his allegation of duress. The trial judge noted [at para. 14] that there was "a striking contrast between Mr. Shahnawaz's casual, easygoing appearance in the videotape of the February 20th drug deal and his nervous, agitated demeanour in the courtroom and his doctor's description of how he handled stress." The trial judge also found it surprising that Mr. Shahnawaz did not make any appointments with Dr. Payne for all of February and March 1997. Given the relationship of trust between Mr. Shahnawaz and Dr. Payne, one would reasonably expect that he would have sought his assistance if he had been under the stress that he described. Finally, the trial judge noted that she thought it was "inconceivable" that Mr. Shahnawaz, a devoted father would have brought his children on two of the drug transactions as he did if indeed, as he alleged, the police agent had threatened to kill the children. The trial judge concluded as follows [at para. 17]:

Accordingly, I am satisfied beyond a reasonable doubt that Mr. Shahnawaz was not under any duress from Mr. Shah. I do not believe that Mr. Shah made any threats. Mr. Shahnawaz fabricated this evidence to avoid telling the truth about why he was dealing in heroin.

[16] The trial judge nonetheless concluded that it was unlikely that Mr. Shahnawaz was involved at a high level in the illicit drug trade. She stated as follows [at para. 18]:

The only thing that suggests he might be involved at a high level is the quantity of heroin involved. However, all of the rest of the evidence supports the proposition that Mr. Shahnawaz was likely no more than a dupe or a pawn in the hands of unscrupulous high-level dealers. Based on my own impressions of Mr. Shahnawaz at trial and the expert evidence before me, I doubt that Mr. Shahnawaz possesses the cognitive skills necessary to function as a high-level drug dealer. The police did a thorough search of his home at the time of his arrest and found no evidence of drug dealing. There were no drugs, no packaging materials and no drug paraphernalia. Mr. Shahnawaz does not have a pager or a cell phone and there was no evidence of any unusual activity on his personal telephone line. He has an extremely modest life style, in keeping with his welfare income. He has virtually no assets. Because of the story fabricated by Mr. Shahnawaz to explain his involvement in these drug deals, I am unable to determine the true facts of his involvement. However, based on the whole of the evidence, I cannot be satisfied that he was the owner of the drugs involved, that he received any compensation for his role in these offences, or that he was actively involved in the illicit drug trade other than at the lowest levels. On the contrary, I find that it is more likely than not that the reverse was true; i.e. that Mr. Shahnawaz was delivering the drugs at the behest of persons unknown, that he received no payment and that his involvement in the drug trade was simply as a delivery person. However, I am satisfied beyond a reasonable doubt that Mr. Shahnawaz knew that the substance he was delivering was an illegal drug. His own evidence confirms that he had that knowledge.

[17] The Crown does not dispute the trial judge's findings of fact on this appeal and an appellate court owes deference to those findings. However, it is my view that the trial judge's conclusions on Mr. Shahnawaz's low level of involvement in the illicit drug trade are, for the most part, based on inferences drawn from an absence of evidence and essentially speculative in nature. Her conclusions are also somewhat at odds with her finding that, given Mr. Shahnawaz's fabricated testimony, she was "unable to determine the true facts of his involvement." In my view, the latter statement accords more with the evidence in this case. The evidence that was accepted by the trial judge does not reveal Mr. Shahnawaz's actual level of involvement in the illicit drug trade beyond showing that he knowingly and repeatedly trafficked in substantial amounts of heroin. It is not possible to determine on this record the actual level of his involvement in the drug trade with any degree of certainty. We also do not know precisely why he was involved in drug trafficking. There is no suggestion that he is an addict or even a user. The evidence only shows that he received money in exchange for the drugs from the purchaser.

[18] The Crown argued at trial that Mr. Shahnawaz's involvement of his children in two of the four transactions constituted an aggravating factor. The trial judge agreed that Mr. Shahnawaz put his children in harm's way and that in doing so he showed flagrant disregard for their well-being. She noted, however, Mr. Shahnawaz's extraordinary attachment to his children and found that the discrepancy between his love for his children and his conduct could only be explained by his poor cognitive skills and coping mechanisms as described by Dr. Payne. She therefore concluded that while this fact still gave her cause for concern in fashioning an appropriate sentence, she did "not consider it to be an aggravating factor that would increase the length of the appropriate sentence."

[19] The Crown argues that the trial judge erred in effectively dismissing this behaviour as mere carelessness on Mr. Shahnawaz's part and submits that his decision to involve his children in the commission of these offences is an important aggravating factor to be considered in sentencing.

[20] I disagree with the Crown's characterization of the trial judge's decision on this point. The trial judge did not view this conduct as mere carelessness. She described it as "a flagrant disregard for [the children's] well being." She also recognized that this factor was an aggravating circumstance but, in light of Mr. Shahnawaz's personal psychological profile, she concluded that this behaviour should not result in an increase of what would otherwise be an appropriate sentence. I do not consider it necessary or useful to consider this factor in isolation. In my view, the trial judge's approach to this issue simply exemplifies the overemphasis that she placed on the offender's personal circumstances. I therefore turn to consider this evidence. The Offender

[21] The trial judge summarized the circumstances of the offender as follows [at paras. 4-6]:

Abdul Momen Shahnawaz was 34 years old at the time of trial. He is married and the father of four young children. Mr. Shahnawaz was born and grew up in Afghanistan. When he was only 17 years old he was arrested by the Russian authorities for political reasons and held without trial. Apparently, the authorities believed that Mr. Shahnawaz had information as to the whereabouts of his older brother who was a rebel fighter with the Mujahadeen. Mr. Shahnawaz was imprisoned in Afghanistan for a period of three years during the course of which he was subjected to horrific and repeated torture. He was later transferred to an army barracks from which he managed to escape, making his way out of Afghanistan, through Pakistan and into India. He met and married his wife in India and the first two of their children were born there. The family immigrated to Canada in 1991 and was granted refugee status.

Mr. Shahnawaz has been diagnosed as suffering from post- traumatic stress disorder and has been receiving psychiatric care since arriving in Canada. His treating psychiatrist, Dr. Donald Payne, testified at trial and also at the sentencing hearing. Dr. Payne has considerable experience treating patients who have been victims of torture. He testified that in addition to post-traumatic stress, Mr. Shahnawaz suffers from chronic depression and anxiety, has limited cognitive skills and has limited inner resources to deal with stressful things. He also has physical ailments such as a stomach disorder, muscle pain and headaches; although, Dr. Payne was of the view that some of these symptoms may be a manifestation of psychological tension. Dr. Payne testified at trial that of the approximately 1400 torture victims he has treated, Mr. Shahnawaz would be in the lowest 2% in terms of his level of functioning. In Dr. Payne's opinion, Mr. Shahnawaz is completely unable to work as a result of his psychiatric disability. The sole income for the Shahnawaz family is from public assistance.

Mr. Shahnawaz has one prior conviction for theft that arose from a shoplifting incident in 1991. The goods stolen were not of significant value. Mr. Shahnawaz was given a conditional discharge. Because of the time that has passed, the nature and circumstances of the 1991 offence and its dissimilarity from the charges in this case, I consider it appropriate to treat Mr. Shahnawaz much the same as a first time offender.

[22] The record does not provide much detail on the mistreatment received by Mr. Shahnawaz at the hands of the Russian authorities in Afghanistan but both Mr. Shahnawaz in his testimony and Dr. Payne, in relating the information received from his patient, are consistent in saying that Mr. Shahnawaz was repeatedly beaten and tortured during the first five months of his detention before he was transferred to another jail in Afghanistan. It is the effect that this abuse has had on Mr. Shahnawaz coupled with the fact of imprisonment following his conviction which became of particular concern to the trial judge on sentencing.

[23] After the jury returned the guilty verdict, the trial judge revoked Mr. Shahnawaz's bail pending sentence. He therefore went into custody on June 2, 1999. There followed five brief court appearances on June 10, June 17, September 8, September 23 and September 30 before the sentencing ultimately proceeded on October 4, 1999. The trial judge noted in her reasons for sentence that she was "shocked by the deterioration in [Mr. Shahnawaz's] appearance over time." She stated [at para. 22]:

He appeared to me to be very fearful, submissive in the extreme (almost cowering), unable to make eye contact, withdrawn and visibly trembling.

[24] In addition to her own observations, the trial judge heard evidence from two psychiatrists called by the defence, Dr. Payne and Dr. Helen Meier. As indicated earlier, Dr. Payne, a psychiatrist, was Mr. Shahnawaz's regular physician. Dr. Meier was a psychiatrist with expertise in post-traumatic stress syndrome who saw Mr. Shahnawaz in jail on June 30 and on September 20, 1999. Both psychiatrists also prepared written reports which set out the essence of their testimony at the sentence hearing.

[25] Dr. Payne treated Mr. Shahnawaz for a number of years. He saw him a total of 33 times from 1992 to the time of trial. He then interviewed Mr. Shahnawaz in jail on September 18, 1999 for about 50 minutes for the purpose of updating earlier reports before the sentence hearing. Dr. Payne noted that, on examination, Mr. Shahnawaz appeared very tense and more emotionally distressed than he had been whenever he had seen him previously. He was very pleased in seeing Dr. Payne and being able to talk to him. He was very emotional in showing this. Mr. Shahnawaz reported that he had been much more emotionally distressed since his present incarceration. He reported recurrent nightmares of something bad happening to his children and of being back in jail in Afghanistan. He reported feeling emotionally distressed in the same way that he felt when in detention in Afghanistan. He related feelings of fearfulness, depression and shame that his children know that he is in detention. He reported increased physical symptoms of tension including severe headaches, shaking, increased smoking, poor appetite and recurrent severe chest pains for which he was presently being held on the medical unit. He stated that he kept to himself and that he was constantly thinking and brooding about his situation. He would talk to himself and found that his only way of receiving comfort was through prayer.

[26] Dr. Payne saw no evidence of any thought disorder (hallucinations or delusions), no evidence of any aggressive thinking or behaviour, and found him correctly orientated as to time and place. He expressed the opinion that Mr. Shahnawaz's experience in detention had reactivated and intensified the symptoms of his post-traumatic stress disorder and that his condition would not likely improve as long as he was in detention. Dr. Payne concluded his report with the opinion that Mr. Shahnawaz represented no significant risk to himself or others if he were in the community. It was his view that his marked upset over his current detention would act as a very strong deterrent to any further illegal activity.

[27] Dr. Meier saw Mr. Shahnawaz in jail for the specific purpose of assessing the effect of incarceration on his psychiatric condition. She interviewed him twice, on June 24, 1999 and on September 18, 1999, with the benefit of Farsi interpretation. Dr. Meier obtained the historical information from Mr. Shahnawaz on his imprisonment in Afghanistan and his subsequent symptoms over the years. The information she received was consistent with Dr. Payne's testimony. Dr. Meier also received from Mr. Shahnawaz a description of his increased symptoms since his incarceration. In her first report, Dr. Meier concluded that Mr. Shahnawaz suffered from an exacerbation of the post-traumatic stress disorder and that continued incarceration without the appropriate treatment would probably lead to an increasing intensity of his condition. She concluded her updated report by stating [at para. 25]:

Continued incarceration will probably lead to increased intensity of the Post-Traumatic Stress Disorder and severity of depression. Even with specific treatment, including counselling and medication, continued incarceration represents contemporary trauma and re-traumatization for Mr. Shahnawaz.

[28] The trial judge observed [at para. 26] that, based on the evidence before her, "it would seem more likely that after a lengthy penitentiary term Mr. Shahnawaz will be even more dysfunctional and unable to cope with the stresses of every day life, than he was before he went to prison." She also noted that there was no evidence of any treatment programs which might be available in the penitentiary system. She concluded as follows [at para. 27]:

Based on the evidence before me, I find that incarceration was causing intense psychological suffering for Mr. Shahnawaz. As long as Mr. Shahnawaz remained in prison, there were no prospects of rehabilitation. Further, prolonged incarceration would make eventual rehabilitation upon release more unlikely, and perhaps impossible.

[29] The trial judge went on to state [at para. 28] that "judicial clemency is frequently exercised in cases where an accused would be particularly affected by imprisonment because of physical or mental disabilities." She noted that "it is also recognized that in such cases, less weight need be given to the principle of general deterrence." She cited Leger v. R. (1979), 10 C.R. (3d) S-25 (Que. C.A.) and R. v. Messervey (No. 2) (1991), 96 Nfld. & P.E.I.R. 314, 305 A.P.R. 314 (Nfld. Prov. Ct.). She also quoted from R. v. Wallace (1973), 1973 CanLII 1434 (ON CA), 11 C.C.C. (2d) 95 (Ont. C.A.). The trial judge noted that Mr. Shahnawaz's case was different from the situation in Wallace because there was "no clear evidence" that Mr. Shahnawaz's disabilities played any role in the commission of the offences, but she nonetheless drew several parallels between the two cases with respect to the effect of imprisonment on the offender's condition.

[30] In my view, the trial judge erred in considering the treatment of Mr. Shahnawaz's psychological condition as the crucial factor in his rehabilitation in the absence of any evidence that his psychological disabilities played any role in the commission of the offences. Rehabilitation as a goal of sentencing is not the restoration of an offender's physical and mental health but his reinstatement as a functioning and law- abiding member of the community. It is in this sense that rehabilitation of the offender serves to protect society. Although the trial judge noted this distinction between Mr. Shahnawaz's case and Wallace, it is my view that she failed to appreciate its significance.

[31] In Wallace, there was clear evidence that the offender's psychiatric condition, paranoid schizophrenia, played a major role in the commission of the offences of robbery and assault. Hence Mr. Wallace's rehabilitation as a functioning and law- abiding citizen was directly linked to the treatment of his condition. There was also evidence that prolonged detention prevented the necessary treatment. In these circumstances, the court concluded that the total sentence of 10 years should be reduced to four years. The court stated as follows [at p. 100]:

If the primary object of the criminal law is the protection of society, how apt is this sentence? Perhaps such a sentence as this one offers immediate protection to society but clearly it does little to protect it for the future. The best future protection for society lies in imposing a sentence which will make the appellant's rehabilitation probable through the provision of medical treatment that can be made available to him. It seems then that if a moderate term of imprisonment had been imposed, the medical treatment which he needed would have been available during such term and the sentence must be altered so that we can accomplish his cure and protect the community.

[32] In this case, there is no connection between Mr. Shahnawaz's post-traumatic stress disorder and his illegal drug activities. The situation would be otherwise, of course, if, for example, Mr. Shahnawaz's involvement in the offence was due to an addiction to heroin. In such a case, the treatment of the addiction would have a direct bearing on his rehabilitation and its availability could indeed become the focal point of sentencing.

[33] The other two cases cited by the trial judge also present very different situations. In Leger, there was evidence that the dangerousness of the offender, who was convicted of arson, resulted from his illness. In Messervey, the accused was convicted of dangerous driving causing death. There was evidence that Mr. Messervey, who was mentally deficient, did not understand that his driving was dangerous. Hence, in both these cases, the offender's psychiatric or psychological condition had a direct bearing on the degree of his moral culpability. In this case, the only relationship between Mr. Shahnawaz's psychological condition and the commission of the offence was raised in relation to the defence of duress. Given the trial judge's finding that this version of events was totally fabricated, Mr. Shahnawaz's post-traumatic stress disorder becomes irrelevant to the assessment of his moral culpability.

[34] What we are left with as a relevant factor for consideration is the evidence, accepted by the trial judge, that imprisonment had and would probably continue to have an "extreme effect" on Mr. Shahnawaz. Given this fact, it becomes necessary to adjust the sentence imposed on this particular offender so as to ensure that it does not become disproportionate to his crime. The court must not lose sight of the fact, however, that it is difficult to predict Mr. Shahnawaz's future condition and that the state of any prisoner's health while in custody is largely a matter for the correctional authorities. It is my view that, taking all the circumstances into account, including the seven months spent in custody awaiting sentence and the time served on the conditional sentence, a fit sentence would have been one of six years.

[35] I would therefore grant leave to appeal sentence, allow the appeal, set aside the conditional sentence order and the order for probation and substitute a term of six years' imprisonment. The appellant is ordered to surrender into custody forthwith, failing which a warrant for his arrest shall issue.

[36] LASKIN J.A. (dissenting): -- I have read the decision of my colleague Charron J.A. I agree with her reasons on the issue of electronic monitoring that was raised by the intervenor, the provincial Crown. But I do not agree with her on the federal Crown's sentence appeal. I would dismiss the appeal.

[37] Mr. Shahnawaz was imprisoned in Afghanistan for three years, though he committed no crime. While detained, he was repeatedly tortured and beaten, and he has suffered profoundly because of it. The psychiatric evidence shows that because of what he experienced, incarceration would be a far more severe punishment for Mr. Shahnawaz than for a normal person. The trial judge, Molloy J., recognized that this was an exceptional case, a case that called for compassion and leniency and that warranted a significant reduction from the usual range for heroin trafficking. She therefore imposed a conditional sentence of two years less a day (minus credit for time served in custody). She attached strict conditions to this sentence, which included house arrest.

[38] I would not interfere with this sentence for three reasons:

(1) The sentence is entitled to deference. The sentence Molloy J. imposed is not unreasonable and does not reflect an error in principle. Therefore this court is not justified in interfering with it.

(2) The Crown's position on appeal supports a lenient sentence. The Crown, too, recognized that compassion was called for because it sought incarceration only for the maximum reformatory term, two years less a day. Nothing justifies this court increasing the length of the sentence asked for by the Crown, let alone tripling it as my colleague proposes.

(3) The sentence has been mostly served. Mr. Shahnawaz has already served over two-thirds of his conditional sentence. In the light of the significant punishment he has already received, incarcerating him now would not be in the interests of justice.

A. Background

[39] Unquestionably, Mr. Shahnawaz was convicted of very serious drug offences. After a trial before a judge and jury, he was found guilty of four counts of trafficking in heroin. The four incidents of trafficking, all to a police agent, took place between February 13 and March 25, 1997. The amount of heroin trafficked was about 11/2 lbs., with an estimated street value of $227,500.

[40] At the time of his trial, Mr. Shahnawaz was 33 years old. He had previously been convicted of one minor criminal offence for which he received a conditional discharge, and the trial judge fairly treated him as a first offender.

[41] Molloy J. imposed a conditional sentence of two years less a day and properly gave Mr. Shahnawaz credit equivalent to seven months for time already spent in custody. Thus, he was required to serve a conditional sentence of 17 months less a day. And the trial judge imposed strict, indeed onerous, conditions, which included:

-- house arrest: Mr. Shahnawaz must reside with his family and not leave the house save for reporting to his supervisor, obtaining psychiatric treatment or an emergency;

-- electronic monitoring to enforce the house arrest;

-- weekly reporting to his supervisor;

-- attending at the Clarke Institute for a psychiatric assessment, and then obtaining regular psychiatric treatment; and

-- the monitoring of the welfare of his children by the Children's Aid Society.

[42] After serving the conditional sentence, Mr. Shahnawaz must be on probation for two years on the same conditions, except that during the last year of probation he may leave the house for any purpose directed towards rehabilitation recommended by his psychiatrist.

[43] I turn now to my reasons for dismissing this appeal.

B. Discussion

1. The sentence imposed by the trial judge is entitled to deference

[44] Deference to the sentencing judge's discretion is now a well-established principle of appellate review. An appellate court may justifiably interfere with the sentence imposed by a trial judge only if the sentence is unreasonable or reflects an error in principle.

[45] Several aspects of this principle of appellate deference are relevant to the discretion exercised by Molloy J. The first relevant aspect arises from one of the main rationales for deference: the highly subjective nature of sentencing and the trial judge's comparative advantage in determining a fit sentence. Iacobucci J. explained in R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227 at p. 249, 102 C.C.C. (3d) 193 at p. 210 that "the formulation of a sentencing order is a profoundly subjective process." Similarly, in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 at p. 567, 194 N.R. 321, Chief Justice Lamer observed that "[s]entencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction."

[46] In the search for an appropriate sentence, the sentencing judge has an important advantage over the Court of Appeal. In M. (C.A.), Lamer C.J.C. discussed the sentencing judge's comparative advantage at some length at pp. 565-66 S.C.R.:

This deferential standard of review has profound functional justifications. As Iacobucci J. explained in Shropshire, at para. 46, where the sentencing judge has had the benefit of presiding over the trial of the offender, he or she will have had the comparative advantage of having seen and heard the witnesses to the crime. But in the absence of a full trial, where the offender has pleaded guilty to an offence and the sentencing judge has only enjoyed the benefit of oral and written sentencing submissions (as was the case in both Shropshire and this instance), the argument in favour of deference remains compelling. A sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender's crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be "just and appropriate" for the protection of that community. The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly.

[47] The sentencing judge's comparative advantage is especially relevant in this case. Molloy J. had an opportunity to assess Mr. Shahnawaz over many days of trial and to observe how he had deteriorated after having been incarcerated. I will discuss this deterioration later in these reasons.

[48] The second relevant aspect of the principle of appellate deference relates to the sentencing judge's decision to depart from a customary range. Appellate courts serve the important role of minimizing the disparity among sentences for similar offenders and similar offences, and in doing so, give guidance to sentencing judges. Appellate courts perform this role by establishing ranges of sentences "customarily imposed for similar offenders committing similar offences." See M. (C.A.), at p. 567.

[49] However, cases will arise where the sentencing judge justifiably decides to depart from a customary range and that decision, too, is entitled to deference on appeal. Such deference finds support in two recent Supreme Court of Canada judgments: R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, 114 C.C.C. (3d) 436 and R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, 134 C.C.C. (3d) 353. In McDonnell, the Alberta Court of Appeal interfered with the sentence imposed by the trial judge because it departed from the "starting point" that the appellate court had established for similar offences. In restoring the sentence imposed by the trial judge, Sopinka J. for a majority of the court wrote at p. 450 C.C.C. [pp. 969-70 S.C.R.]:

. . . the sentencing judge took into account all relevant mitigating and aggravating circumstances and arrived at what she considered was an appropriate sentence. Accordingly, the sentence's departure from the Court of Appeal's view of the appropriate starting-point does not in itself imply that the sentence was demonstrably unfit.

Similarly, in Stone, Bastarache J., writing for the court on this point, held at p. 450 C.C.C. [p. 411 S.C.R.]:

One function of appellate courts is to minimize disparity of sentences in cases involving similar offences and similar offenders . . . In carrying out this function, appellate courts may fix ranges for particular categories of offences as guidelines for lower courts. However, in attempting to achieve uniformity, appellate courts must not interfere with sentencing judges' duty to consider all relevant circumstances in sentencing . . .

[50] The third relevant aspect of the defence principle is that it applies not just to the sentencing judge's determination of a fit length of sentence but also to the judge's determination of where that sentence ought to be served, in jail or in the community. The sentencing judge's decision on both these matters is entitled to deference on appeal.

[51] I now consider Molloy J.'s reasons. Whatever one's view of the appropriate sentence in this case, her reasons are admirable for their thoroughness, their thoughtfulness and, in my view, their analysis. She took into account all the relevant sentencing principles. She recognized and accepted the Crown's submission that the customary range for the amount of heroin trafficked in this case was nine to 12 years. As I read her reasons, three considerations prompted her to impose a conditional sentence: the impact of incarceration on Mr. Shahnawaz, his degree of moral culpability for the offences, and his prospects of rehabilitation were he to be incarcerated. In my view, these three considerations, taken together, reasonably supported a conditional sentence.

[52] On the first consideration, the trial judge found as facts [at para. 29] that "as a result of Mr. Shahnawaz's history and psychiatric disability, the experience of imprisonment was more painful for him than it would be for most people" and that his incarceration after his bail was revoked caused him "intense psychological suffering". The evidence overwhelmingly supports these findings. I will briefly review some of this evidence.

[53] Mr. Shahnawaz was born in Afghanistan and has a grade nine education. When he was a teenager, Soviet troops occupied Afghanistan. One of his brothers was killed by a bomb during the fighting. Another brother joined a resistance movement known as the Mujahadeen. Although Mr. Shahnawaz was not involved in politics, pro-Russian Afghani authorities arrested him in an attempt to find his brother. He was but 17 years old at the time.

[54] After his capture, Mr. Shahnawaz was subjected to treatment condemned by every free and democratic society in the world. He was blindfolded and taken to a detention centre known as the Khad, where he was held without trial. He was detained at the Khad for five months. Almost every day he was taken to a room where he was "interrogated". These "interrogations" lasted three to four hours, during which Mr. Shahnawaz was tortured. He was hit with a bayonet, causing him permanent scarring. He was strangled, causing him to lose sight in one of his eyes. He was beaten on the head and subjected to electric shocks. At times, he was suspended upside down. One time, he overheard two fellow prisoners in a nearby cell being shot to death. Their bodies were dragged past his cell. After five months in the Khad, Mr. Shahnawaz was transferred to another jail. There he was held for another 21/2 years. The beatings continued, though not as often.

[55] When he was finally released, Mr. Shahnawaz was sent to join the army, forced to live in a barracks and trained to use a rifle. He eventually escaped from the barracks and made his way home. He had not seen his family for three years.

[56] Mr. Shahnawaz then left Afghanistan and went to India, where he lived from 1983 to 1991. In India, he met and married his wife. In 1991, they moved to Canada. They now have four children.

[57] Mr. Shahnawaz was profoundly psychologically damaged by his experiences in Afghanistan. Since 1992, he has been seeing a psychiatrist, Dr. Payne, who has devoted much of his practice to treating victims of torture. Dr. Payne diagnosed Mr. Shahnawaz as suffering from post-traumatic stress disorder, chronic depression and a personality disorder that gives him difficulty with impulse control. In his evidence, Dr. Payne described post-traumatic stress disorder:

Post-traumatic stress disorder is a disorder that came into the diagnostic nomenclature in the early 1980s after there were studies done on Vietnam war veterans that had characteristic problems after that.

And it was noted that these problems occurred in other circumstances as well, usually where people are exposed to a very stressful psychological event which is outside the range of usual human experience and where they have a lot of fear associated with that, usually a fear that they could be killed and where they are in a situation where they sort of feel hopeless and helpless to do anything about it.

Typical symptoms that people have are the re-living of their experience. This can come at night, during bad dreams or nightmares, or during the day by some intrusive memories coming in. They don't really want to think about it, but they can't stop thinking about it.

They usually feel more anxious and keyed up about things. They feel depressed. You see, you know, a lot of withdrawal, crying, brooding about things.

[58] Because of what he has gone through, Mr. Shahnawaz is severely cognitively impaired. Of the over 1,400 torture victims Dr. Payne has treated, Mr. Shahnawaz functions at the lowest two per cent. He lives with constant stress. He cannot participate in many aspects of normal life. He and his family live on social assistance. He is likely incapable of work. At best, he could manage a simple repetitive job with no stress.

[59] After his conviction, Molloy J. revoked his bail and Mr. Shahnawaz spent several months in custody awaiting sentence. Incarceration dramatically worsened his condition. Dr. Payne visited him in the Toronto Jail and observed that imprisonment had aggravated Mr. Shahnawaz's post-traumatic stress disorder:

[Mr. Shahnawaz] reported that he now feels very depressed in contrast to the contentment with his simple life prior to his current problems. He reported that he has never smiled since he has been detained. He cries every night when he tries to go to sleep. He feels like crying during the day, but feels ashamed to cry in front of other people. When he cries during the day, he holds his head down to try to prevent others from seeing his tears. . . . . .

He reported that he has increased physical symptoms of tension. He has had more severe and more frequent headaches from the pressure in his head. He has a throbbing headache in his left eye, with the feeling that his head is going to break open and his left eye come out. He used to shake a little bit before his detention, but he reported that he now shakes a lot when he lies in bed trying to sleep. His smoking has increased. His appetite is often poor and he gives his food to other detainees. He had had increased stomach pain associated with a stomach ulcer. While in detention he has had recurrent severe pain in his left chest radiating down his left arm. He reported that because of this, he was taken to a hospital emergency department because of concern that he might have a heart problem. He reported that he had another electrocardiogram done yesterday and was to have a chest X-ray today. He reported that he is presently being held on the medical unit.

He reported that in detention he sits by himself and does not talk to anyone. He reported that he is constantly thinking and brooding about his situation. He does not watch television as he is bothered by the noise. He does not read as he can only identify English letters and cannot read words. He had a very limited education in Afghanistan and has forgotten the little that he had learned to read in the Afghan language. When he tries to concentrate on something else, his mind quickly goes off to thinking about his difficulties. He often shakes his head to clear it and washes his face to try to calm down. He talks to himself and talks to God. His only way of receiving comfort is to desperately pray to God in the same way that he did while in detention in Afghanistan. He feels that the other detainees believe that he is crazy.

[60] Indeed, Dr. Payne testified that when persons suffering from post-traumatic stress disorder are reminded of their past traumatic suffering they often experience flashbacks. These flashbacks cause their condition to deteriorate. In the words of Dr. Payne:

His reports of his detention in Afghanistan before were associated with torture and a lot of fear for his life and insecurity about what was going to happen to him. In terms of his incarceration now, there is a reactivation of those symptoms again, with flashbacks of these experiences, flashbacks being different than memory. It's not that "I'm in jail now and this reminds me of being in jail before" and get the fear, but it brings back similar feelings as if it - what was going on then is going on at the present time. And, this is noted in my report, comes up a lot more at night time where there are less cues in terms of what's going on. So hearing a guard walking outside the cell here can bring back the same sort of fear and feeling that he could have had in Afghanistan about the guards walking outside and not knowing when they might come in to beat him up.

[61] Dr. Payne's psychiatric evidence is supported by the trial judge's own observations. The trial judge saw for herself the impact of incarceration on Mr. Shahnawaz, incarceration that she had ordered. She described the impact of incarceration in these words [at para. 22]:

As a result of these various remands, I saw the accused in the courtroom on June 10, June 17, September 8, September 23 and September 30. Although these appearances were brief and Mr. Shahnawaz did not speak, I was shocked by the deterioration in his appearance over time. The difference in Mr. Shahnawaz between June 17th and September 8th was particularly striking. Even during the trial Mr. Shahnawaz had shown a submissive, nervous demeanour, and was weepy at times. However, at his attendances in court in September and during the sentencing hearing in October, his condition was worse. He appeared to me to be very fearful, submissive in the extreme (almost cowering), unable to make eye contact, withdrawn and visibly trembling.

[62] It is hardly surprising then that she concluded [at para. 27]: "Incarceration was causing intense psychological suffering for Mr. Shahnawaz."

[63] Moreover, in Dr. Payne's opinion, incarcerating Mr. Shahnawaz again will only worsen his condition. As a torture victim, Mr. Shahnawaz will never be able to accept that life in a Canadian prison does not present the same dangers as life in an Afghanistan prison. Even if he were to receive psychiatric treatment while incarcerated, his condition would likely deteriorate.

[64] Dr. Helen Meier, a staff psychiatrist at Mount Sinai Hospital in Toronto, visited Mr. Shahnawaz twice while he was in jail. Dr. Meier concurred that imprisonment would aggravate his post-traumatic stress disorder. She offered this grim prognosis:

Incarceration has already had an effect on Mr. Shahnawaz's psychiatric condition. He suffers the exacerbation of the Post-Traumatic Stress Disorder, which has followed his imprisonment and torture in Afghanistan. Mr. Shahnawaz now suffers from major Depression. Continued incarceration without the appropriate treatment, which includes counselling in addition to medication, would probably lead to an increasing intensity of PTSD and severity of Depression. This may include suicidal risk, as there is the sense of shame and grief over the effective loss of his children. Increase in the pressure of thoughts may reach psychotic proportions where there may be dissociation from reality.

[65] The psychiatric evidence, supported by the trial judge's observations, unequivocally shows that incarceration would be a much more severe punishment for Mr. Shahnawaz than for an ordinary person. Many courts, including this court, have recognized that a reduction from the customary range of sentence is justified where a sentence within the range would be "much more severe punishment" for the accused than for most people. In R. v. Wallace (1973), 1973 CanLII 1434 (ON CA), 11 C.C.C. (2d) 95 at p. 100 (Ont. C.A.), a case relied on by Molloy J., this court reduced a 10-year sentence for robbery and assault causing bodily harm to four years because the accused was a paranoid schizophrenic. Brooke J.A. wrote:

It is plain that a sentence the length of that imposed was very much more severe punishment for this man than for a normal person, because of the terror that he experiences, the danger of self-destruction and the loss of amenability to treatment as well as the fact it is unlikely he can achieve an early release because that treatment which he is in need of must be deferred because of the sentence he must serve.

Mr. Wallace's situation differed from that of Mr. Shahnawaz. Mr. Wallace's psychiatric condition contributed to the offences he committed. Mr. Shahnawaz's did not. Charron J.A. criticizes Molloy J.'s reliance on Wallace, stating that the trial judge did not appreciate the significance of this distinction. I disagree. Molloy J. expressly adverted to the distinction and relied on Wallace only for the proposition, affirmed by many other courts, that the impact of incarceration on an accused may affect the fitness of the sentence and may warrant departing from the customary range. See R. v. Fireman, 1971 CanLII 450 (ON CA), [1971] 3 O.R. 380, 4 C.C.C. (2d) 82 (C.A.); R. v. W. (A.G.), 2000 CanLII 5641 (ON CA), [2000] O.J. No. 398 (C.A.); R. v. R. (A.) (1994), 1994 CanLII 4524 (MB CA), 88 C.C.C. (3d) 184, 92 Man. R. (2d) 183 (C.A.); R. v. Moncini (1975), 1975 CanLII 1461 (BC CA), 23 C.C.C. (2d) 452, [1975] 4 W.W.R. 509 (B.C.C.A.); Leger v. R. (1979), 10 C.R. (3d) S-25 (Que. C.A.).

[66] Indeed, my colleague recognizes this proposition as well because she would reduce the sentence to six years, well below the customary range for the amount of heroin trafficked. We are then left with a question of degree, and of deference. Charron J.A. says that the trial judge overemphasized Mr. Shahnawaz's personal circumstances. I say that the trial judge's emphasis was within the realm of reasonableness. Unquestionably, the crime of heroin trafficking is among the most serious in our society. It is rightly condemned by our courts. But I doubt that any of us fortunate enough to live in a civilized society can ever fully comprehend the horrific treatment Mr. Shahnawaz must have suffered and its devastating effect on him. As Twaddle J.A. said in R. v. R. (A.), supra, at p. 192 C.C.C.: "Justice without clemency, in appropriate circumstances, is injustice." See also R. v. Shaw, [2000] O.J. No. 2646 (S.C.J. per Hill J.).

[67] The second consideration relied on by Molloy J. was Mr. Shahnawaz's moral culpability for his crimes. The trial judge found as facts [at para. 18] that Mr. Shahnawaz's involvement in drug trafficking was likely "at the lowest levels", that as a delivery man, he "was likely no more than a dupe or a pawn in the hands of unscrupulous high-level drug dealers" and that he was not paid for what he did.

[68] On appeal, the Crown accepted these findings of fact. Charron J.A., however, contends that they are speculative, based mostly on inferences from an absence of evidence. Respectfully, I disagree with her. It is simply unrealistic to believe that a person as cognitively impaired as Mr. Shahnawaz could be at anything other than the lowest levels of the heroin trade. And, as the trial judge pointed out, a thorough search of Mr. Shahnawaz's house turned up no evidence of drug dealing, but instead revealed a family living an extremely modest lifestyle with virtually no assets. Therefore, I see no justification for doubting the trial judge's factual findings.

[69] The last consideration relied on by the trial judge was that Mr. Shahnawaz would likely not be rehabilitated if he were incarcerated. In her words [at para. 27]:

Based on the evidence before me, I find that incarceration was causing intense psychological suffering for Mr. Shahnawaz. As long as Mr. Shahnawaz remained in prison, there were no prospects of rehabilitation. Further, prolonged incarceration would make eventual rehabilitation upon release more unlikely, and perhaps impossible.

[70] In substance, Molloy J. made a finding that this court made nearly three decades ago in R. v. Fireman, supra, at pp. 85-86 C.C.C. [p. 383 O.R.]: that incarceration "would greatly reduce the chance of this man assuming a normal tolerable role on returning to his society".

[71] Overall, Molloy J. concluded that the principles of sentencing could be met by a conditional sentence. She held [at para. 33] that, taken together, the effect of imprisonment on Mr. Shahnawaz, his level of moral blameworthiness and his prospects for rehabilitation justified a conditional sentence:

I am satisfied that the principles of sentencing are met by a conditional sentence in this case. The principles of denunciation and general deterrence are not inconsistent with a conditional sentence: R. v. Wismayer (1997), 1997 CanLII 3294 (ON CA), 115 C.C.C. (3d) 18 (Ont. C.A.) at 36-40. This is particularly so where stringent conditions are imposed to reflect the gravity of the offence. Although some of the principles of sentencing might suggest a longer sentence and one which would be served in prison, those principles are outweighed, in my view, by the consideration of competing principles such as the personal circumstances of this offender, the prospects of rehabilitation, and compassion for the effect upon him of imprisonment in a penal institution.

[72] The trial judge did not ignore the competing considerations that would have justified a higher sentence. Toward the end of her reasons, she summarized the relevant factors [at para. 31]:

In this case, the factors supporting the imposition of a significant term of imprisonment are: the nature of the offence (including the fact that a large amount of heroin was involved); the presence of children at the scene of two of the offences; the avoidance of disparity of sentences for similar offences; and the principles of denunciation and general deterrence. The factors supporting a more reduced sentence are: the relatively low status of Mr. Shahnawaz in the drug world; the apparent lack of any profit to him from trafficking; the absence of any criminal record for this type of offence; the extreme effect of imprisonment on Mr. Shahnawaz because of his background and disability; and the impossibility of rehabilitation while he is in prison. In all of these circumstances, it cannot be said that imprisonment is the only reasonable sentencing option available. . . .

[73] In balancing these factors, Molloy J. chose to emphasize "the devastating consequences of imprisonment" for Mr. Shahnawaz, which she found to be out of proportion to his degree of culpability. She recognized [at para. 38] that by doing so the sentence she imposed was less severe than sentences given to other heroin traffickers:

My role as a judge is to impose a sentence which reflects society's condemnation of the crimes committed by Mr. Shahnawaz, which protects the interests of the community and which at the same time is directed towards the rehabilitation of Mr. Shahnawaz. I have attempted to balance these competing interests. However, there is no perfect solution here. The sentence imposed on Mr. Shahnawaz is less severe than the sentence imposed on others who have committed similar crime and there will no doubt be some who will consider that it does not adequately denounce his conduct. However, I have chosen to place more weight on the devastating consequences of imprisonment on this particular individual and to relieve his suffering which I consider to be out of proportion to his degree of culpability.

[74] An appellate court is not justified in interfering with a sentencing judge's discretion merely because it would have given different weight or emphasis to a relevant factor. The weighing of relevant factors, the balancing process, is what the exercise of discretion is all about. Only if the sentencing judge exercises that discretion unreasonably -- by, for example, overemphasizing one factor or not giving enough weight to another -- should an appellate court interfere. In this exceptional case, the trial judge did not exercise her discretion unreasonably. See R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 44 O.R. (3d) 263 at p. 273, 135 C.C.C. (3d) 41 at pp. 53-54 (C.A.). 2. The Crown's position on appeal supports a lenient sentence

[75] In this court, Crown counsel submitted that an appropriate sentence for Mr. Shahnawaz would be a maximum reformatory term of two years less a day in jail. This submission itself recognizes the profound impact of incarceration on Mr. Shahnawaz.

[76] This court, of course, is not bound by the Crown's proposed sentence. The court's sentencing jurisdiction under s. 687 of the Criminal Code gives it discretion to impose a sentence greater than that requested by the Crown. But this court cannot ignore the obvious, that this is an appeal by Crown counsel instructed by the Attorney General of Canada under s. 676(1)(d) of the Code. The Attorney General is responsible for enforcing and prosecuting our drug laws in the public interest. Through her counsel, she has determined that the public interest does not require Mr. Shahnawaz to serve a sentence longer than two years less a day. But for Crown counsel's appeal, this sentence would not even be before this court for review.

[77] Therefore, although this court has discretion to impose a greater sentence than the one Crown counsel asks for, we should exercise that discretion very sparingly. Unless the Crown's proposed sentence would bring the administration of criminal justice into disrepute, or would otherwise be contrary to the public interest, I do not think that this court is justified in going beyond it, let alone tripling it, as my colleague proposes. In this case, the Crown's proposed sentence for this offender is not contrary to the public interest, and it would not bring the administration of justice into disrepute. In the light of the Crown's position on appeal, I see no justification for increasing the length of the sentence imposed by the trial judge. See G.A. Martin, Report of the Attorney-General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (Toronto: Queen's Printer, 1993) at pp. 327-34.

[78] The trial judge's disposition and the Crown's position differ only on where the sentence should be served: in the community or in prison. In support of its argument for a jail sentence, the Crown submits that the trial judge erred by failing to find that the presence of Mr. Shahnawaz's children during two of the drug transactions was an aggravating factor. On one of the drug transactions, Mr. Shahnawaz took his young son with him; on another, he took two of his children, including one who was just a baby and he put the package of heroin under the baby in the carriage. Because of these incidents, the Crown contends that Mr. Shahnawaz used his children "as a tool to escape detection and to ensure the success of the transaction." The Crown made the same submission at trial and the trial judge rejected it. She said [at para. 20]:

. . . I agree that Mr. Shahnawaz put his children in harm's way and that in doing so he showed flagrant disregard for their well being. However, I am not satisfied that Mr. Shahnawaz was deliberately using his children as "cover". I think it entirely possible that his cognitive skills and coping mechanisms are so poor that he lacked the judgment to appreciate the serious danger involved for his children. Dr. Payne was of the view, based on his expertise and his experience with Mr. Shahnawaz, that this was a likely explanation for his conduct. . . . Based on the evidence of Mr. Shahnawaz, my observations of him in the courtroom, and the evidence of Dr. Payne and Mrs. Shahnawaz, I accept that Mr. Shahnawaz is a devoted father who is extraordinarily attached to his children. I recognize that his conduct with respect to the children on February 13 and March 25 would appear to be completely at odds with this conclusion. Nevertheless, I find it to be the case. In my opinion, the discrepancy between his love for h is children and his conduct is explainable only by his various psychiatric impairments. This still gives me cause for concern in fashioning an appropriate sentence, but I do not consider it to be an aggravating factor that would increase the length of the appropriate sentence.

[79] I see no basis to revisit these findings on appeal.

[80] Nonetheless, the Crown's submissions invite the question: should Mr. Shahnawaz be incarcerated, even for a reformatory term? In deciding where the sentence should be served, the Supreme Court of Canada's decision in R. v. Proulx (2000), 2000 SCC 5, 182 D.L.R. (4th) 1, 140 C.C.C. (3d) 449 is relevant. Proulx tells us that conditional sentences are available for any offence for which no mandatory minimum penitentiary sentence is prescribed, including trafficking in narcotics, even trafficking in heroin. See also this court's judgment in R. v. Wellington (1999), 1999 CanLII 3054 (ON CA), 43 O.R. (3d) 534, 132 C.C.C. (3d) 470 (C.A.). Proulx also tells us that a conditional sentence with strict conditions like the ones imposed on Mr. Shahnawaz is a punitive sanction that can achieve the objectives of denunciation and deterrence. Thus, I am not persuaded that Mr. Shahnawaz should be incarcerated, even for a reformatory term.

3. The sentence has been mostly served

[81] The trafficking incidents for which Mr. Shahnawaz was convicted took place over 31/2 years ago. He has now served one year of his 17-month conditional sentence. He has served that sentence under strict conditions, including house arrest. In the light of the significant punishment Mr. Shahnawaz has already received, incarcerating him now would not serve the interests of justice. See R. v. C. (D.W.), [2000] O.J. No. 3759 (C.A.). C. Electronic Monitoring

[82] Because I would dismiss the Crown's sentence appeal, the electronic monitoring condition imposed by the trial judge is not moot. However, I agree with Charron J.A.'s reasons on this aspect of the appeal. The important issues surrounding electronic monitoring raised by the intervenor should have been raised before the sentencing judge. Therefore, I too would dismiss the provincial Crown's motion to introduce fresh evidence.

D. Conclusion

[83] I would grant leave to appeal sentence but I would dismiss the Crown's sentence appeal. I would also dismiss the intervenor's motion to introduce fresh evidence.

Appeal allowed.