Court Information

Court: Ontario Court of Justice Court File No.: 17-15008072-02 Date: May 9, 2019 Location: Toronto Region – Old City Hall

Parties

Between: Her Majesty the Queen

— And —

Ryan Khan

Judicial Officer and Counsel

Before: Justice H. Pringle

Heard on: November 16, 2018 and April 16, 2019

Reasons for Judgment released on: May 9, 2019

Counsel:

• Amanda Webb, for the Crown
• Graham Zoppi, for the accused

Judgment

PRINGLE J.:

Factual Overview

[1] Ryan Khan was brought up in a stable, loving environment. He graduated high school successfully, took courses at Trent College for business marketing, and has been regularly employed since his teenaged years. He was an obedient and affectionate son, as his parents' letter to the court established. Now 31 years old, Mr. Khan has a young son himself. By all accounts, he has been a devoted, involved father to this boy. But over the past three years, Mr. Khan's loved ones began to notice changes in his personality. They have since linked those personality changes to a serious cocaine addiction.

[2] Mr. Khan's former partner, the mother of his son, explained that "[f]or Ryan to fall this deep into an addiction was perplexing to me as he has never not been there when I needed him. I can only think maybe he felt too much pressure or maybe even the death of his close uncle and brother could have possibly attributed, but none the less that is not an excuse."

[3] Mr. Khan's niece is, herself, an addictions and mental health worker. Over the past year, she too noticed "symptoms of addiction to cocaine. He started engaging in behaviour that didn't reflect who he is as a person. Unfortunately, Ryan fell victim to drugs like many other young Black men. As an addictions worker, I often place emphasis on addiction as a disease and believe it does not define Ryan as a person".

[4] It seems uncontroversial that this cocaine addiction led Ryan Khan into the court system. Like his family, I do not know why he began using cocaine, but I do find that his addiction led him from use of the drug to selling it. In the fall of 2017, Mr. Khan sold cocaine to an undercover officer on four separate occasions. He sold 1.51 grams for $100, 3.32 grams for $200, 6.74 grams for $400, and 20.05 grams for $900. The transactions took place in public. He was arrested and police buy money was found in his pockets. An additional $120 found on him was not proceeds of crime.

[5] Police executed a search warrant on Mr. Khan's residence and found 18.63 grams of cocaine, $1900, two digital scales and drug packaging materials inside his bedroom. The $1900 included some unquantified amount of proceeds of crime. He was arrested and has been subject to a surety bail, without incurring further charges and without breach, since then.

[6] Early in the court process, Mr. Khan expressed the wish to resolve his case once in-patient rehabilitative treatment had been arranged. Although preliminary hearing dates were set, his instructions remained consistent and, on November 16, 2018, he pled guilty to trafficking cocaine and possession of cocaine for the purpose of trafficking it. His sentencing hearing was adjourned to permit him to enter a residential treatment addictions program. I understood some time would pass prior to sentencing, to provide time for Mr. Khan to arrange funding for this treatment.

[7] In February 2019, Mr. Khan entered the residential treatment program at New Port Centre. A letter from his Addictions Counsellor, Katie Bala, has confirmed the successful completion of this program. Ms. Bala added that, upon discharge, Mr. Khan remained motivated to maintain his recovery, and that professional supports were in place for him in the community. Mr. Khan's niece, and his parents, have also confirmed his resolve, upon completing rehabilitative treatment, to remain sober.

[8] So, too, has Mr. Khan himself. As of April 16, 2019, he was 103 days sober. His words acknowledged his drug addiction and the "disappointment and shame" he feels at breaking the law. He said, "Leading up to being arrested I let my addiction control me. However, standing before you, I am making the choice to control my addiction, and that means it is not who I am, nor will I ever let it define me again".

Section 718 Sentencing Principles

[9] General deterrence and denunciation are the primary sentencing principles. There is good reason for that. Every drug transaction that Mr. Khan engineered created a victim, much like himself. Drug trafficking gives birth to new addictions and deepens existing ones. Mr. Khan was lucky to have the resources and support to go to rehabilitative treatment. So many others are not as fortunate. They lose their homes, their friends, their jobs, their self-worth, and turn to crime to feed that incessant hunger.

[10] As an addict trafficker, Mr. Khan knows the misery cocaine exacts on the lives of others and the harm it does to our community as a whole. The sentence I impose must send the message that cocaine trafficking, in these amounts, will be met by incarceration. Because of the importance of general deterrence and denunciation, the Court of Appeal for Ontario set a general range of 6 months to 2 years less one day in R. v. Woolcock, [2002] O.J. No. 4927.

[11] That said, the error in Woolcock was the failure of the lower court to give proper effect to the offender's rehabilitative prospects. Clearly, while sentencing drug traffickers, judges must not lose sight of the principle of rehabilitation. In R. v. Shahnawaz, [2000] O.J. No. 4151, the Court of Appeal said that offending rooted in addiction, coupled with successful addiction treatment, can properly elevate the focus on rehabilitation even in serious drug cases:

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.

[12] In addition to general deterrence, specific deterrence, and denunciation, the sentence I impose on Mr. Khan must protect society, promote a sense of responsibility in him, reflect the harm that he has done to our community by selling cocaine, and assist in his rehabilitation.

Other Sentencing Principles

[13] I must apply the principle of restraint here, particularly given the fact that Mr. Khan is a first offender of prior good character. His offending is out of character, when considered against the backdrop of his upbringing and his adult life. But Mr. Khan's sentence must also be similar to those imposed on similar offenders for similar offences. The following cases have assisted in assessing the quantum of cocaine involved, and the multiple acts of trafficking.

[14] In R. v. Apan, [2018] O.J. No. 4516, London-Weinstein J. imposed 90 days, intermittent, after taking into account the equivalent of 30 days pre-sentence custody. The offender had no related criminal record and pled guilty to possession of 51.9 grams of cocaine, bagged in 48 separate baggies ready for sale, for the purpose of trafficking. Mr. Apan was not an addict and was not a first offender, but had significant rehabilitative potential.

[15] In R. v. Johnson, [2015] O.J. No. 2819, Hill J. imposed 90 days jail, intermittent, upon a first offender who pled guilty. A conditional sentence was also imposed for possession of proceeds. The offender had trafficked powder cocaine to an undercover officer on four separate occasions, with the final sale being 12.45 grams of powder cocaine for $700.

[16] He was not an addict, as Hill J. observed, but had offended during a financially desperate time and had shown remarkable rehabilitative potential. Hill J. also noted that in R. v. Speziale, 2011 ONCA 580, the Court of Appeal described 14.87 grams of cocaine as a "small amount of cocaine". He qualified this observation, adding that in Speziale, the offender had not engaged in multiple acts of trafficking.

[17] I must consider, in assessing what kind of offender Mr. Khan was, the reason why he engaged in drug trafficking in the first place. I accept that, while Mr. Khan must have profited from his drug trafficking, his offending sprung from the need to feed a very deep addiction to powder cocaine.

[18] There is a direct connection between this addiction and the drug trafficking here. In my opinion, this reduces Mr. Khan's level of moral blameworthiness. As Green J. held in R. v. Azeez, [2014] O.J. No. 3091 at para. 25:

Addicts are neurologically rewired by their dependence. As said in R. v. Preston, 79 C.R. (3d) 61 (B.C. C.A.), "heroin addicts must variably support [their] addiction with some form of criminal activity". Their crimes – typically burglaries, soliciting, drug store robberies and, most frequently, street-level trafficking – are driven by the need to finance their pharmacologically induced cravings. They do not have the same degree of moral liberty as those who deal drugs for purely commercial motives and, as courts have long recognized, their moral blameworthiness is accordingly attenuated.

[19] In R. v. Khan, [2019] O.J. No. 283, a suspended sentence and probation was imposed where 1.08 grams of powder cocaine was trafficked on a single occasion. The defendant had a prior related possession conviction, but his offending was driven by a deep-set gambling addiction. He had made great rehabilitative strides, and at para. 42, North J. observed:

In some circumstances, addiction can be a relevant consideration in sentencing. Where an addiction is directly connected to the commission of an offence, the moral blameworthiness of the offender may be "significantly reduced". Addiction may be one factor that provides support for a sentence that is "markedly more lenient than usual starting point ranges" as 'the intensity of the message of deterrence and denunciation is properly blunted in circumstances of offending causally linked to illness.' However, health or addiction issues "cannot generally be used to avoid what is otherwise a fit and proper sentence."

Aggravating and Mitigating Factors

[20] While none of the s. 10 CDSA or s. 718 CCC aggravating factors are present here, there are factors which do serve to aggravate sentence. The quantum of cocaine is one such factor. About 30 grams, in total, was sold to the undercover officer, and another 18 grams was found in Mr. Khan's home. While Mr. Khan was obviously a street level dealer, and the transactions started off small in nature, the quantum increased exponentially by the final sale.

[21] Money was found in his house, some of which was not proceeds of crime but some of which was. The nature of the drug is aggravating. Cocaine poisons the mind and the body, as Mr. Khan well knows. Worse still, he trafficked this poison, in increasing amounts, to the undercover officer on no less than four separate occasions.

[22] There are many mitigating factors here, too. Mr. Khan pled guilty. This is always an expression of remorse, of regret, and of assuming responsibility. I know, from the Judicial Pretrials held before me, Mr. Khan has always intended to plead guilty after residential addictions treatment. Funding and wait lists caused some delay, but his instructions never wavered. Because of this, the timing of his guilty plea remains mitigating. At age 31, he is a first offender.

[23] The defence materials establish a wealth of community support encircling Mr. Khan. Family and friends are aware of his criminal behaviour. They make no excuses for it and they are willing and able to assist him in rehabilitating himself. Several of the letters referenced Mr. Khan's expression of remorse for his actions. Mr. Khan gives back to his community by volunteering with youth. He works 44 hours per week with [vetted] as a handyman. His work ethic is obviously strong and he is up for promotion.

[24] Finally, Mr. Khan has proved significant insight into his offending. He understood what needed to be done to address his offending. No doubt the residential treatment regime was more intensive than out-patient counseling. But Ryan Khan, today, has his cocaine addiction in check and is aware he must be constantly vigilant to maintain this. He continues his recovery work and has professional supports in place to help keep him sober. He has not proven rehabilitative potential. I find he has proven rehabilitation.

Balancing Principles and Factors

[25] Despite the mitigating factors, the aggravating factors here mandate incarceration. The amount of cocaine both sold and found, and the multiple acts of trafficking, make any non-custodial sentence unfit. The parties agree on this conclusion, but disagree on quantum.

[26] Ms. Webb argued for a sentence of eight months, within the Woolcock range. While relying on R. v. Stein, unreported, May 1, 2015, Ont. C.J., affirmed 2015 ONCA 720, to submit that in general a sentence of between 12-18 months would be fit for this offence, 8 months would be fit for this particular offender and his progress in addictions treatment. Meanwhile, Mr. Zoppi sought a sentence of between 60 to 90 days in jail, arguing a fit sentence in this case would fall outside the general Woolcock range given the presence of exceptional circumstances.

[27] In considering circumstances of the offender, I confess some difficulty in applying the Woolcock sentencing range to the actions of an addict trafficker. The appellant in Woolcock was not an addict trafficker: see para. 5. Moreover, there is a difference in moral blameworthiness between one who feeds an addiction by trafficking and one who engages in drug trafficking solely for greed. The latter offender falls into a category described by Code J. in R. v. Graham, 2018 ONSC 6817 at para. 46 where he said:

Another important feature of drug trafficking offences is that they are rationally premeditated commercial crimes driven by the profit motive. Because of the significant harms and violence associated with cocaine trafficking, and because it is a planned and premeditated commercial crime, the courts have repeatedly stressed that denunciation and deterrence are the most important sentencing principles in these cases.

[28] Meanwhile, many sentencing decisions have linked a person's decision to sell small quantities of drugs in order to feed their own addiction with a reduced moral blameworthiness: see, for example, R. v. Sharma, 2018 ONSC 1141; R. v. Khan [2019] O.J. No. 283; R. v. Dos Santos 2017 ONCJ 855. I fully agree with Green J.'s conclusion in R. v. Acorn, [2010] O.J. No. 1626 (Ont. C.J.) at para. 12:

User-dealers such as the offender – as opposed to those motivated by greed – are treated with some compassion by the law, particularly where, as here, they demonstrate insight into their condition and a genuine desire to reform.

[29] But even accepting the low end of range for an addict trafficker to be six months, Mr. Khan's case has been proven to be an "exceptional" one. A fit sentence for him must fall outside the Woolcock range: see, for example, R. v. Azeez; R. v. Voong, 2015 BCCA 285; R. v. Lazo, 2012 ONCA 389, R. v. Duncan, 2016 CarswellOnt 29 (C.J.); R. v. McGill, 2016 ONCJ 138, [2016] O.J. No. 1346 (C.J.); R. v. Thevarajah, 2016 ONSC 6739, [2016] O.J. No. 462 (S.C.).

[30] The evidence in this case mirrors the 'exceptional' factors set out, in a non-exhaustive list, by the B.C. Court of Appeal in R. v. Voong, at para. 59. Mr. Khan has no criminal record, has made demonstrably successful progress towards controlling his cocaine addiction, shows insight into his offending and its impact on society, is stably employed, and has expressed remorse to his family, his friends, to the court, and in the form of his plea.

[31] To be clear, it is not Mr. Khan's status as an addict trafficker which makes his case an exceptional one. Offending by addict traffickers is not, sadly, at all unusual in our courts. Mr. Khan's case is most exceptional because, as part of the combination of factors listed above, he proactively addressed the addiction at root of his offending and rehabilitated himself. As the British Columbia Court of Appeal held in Voong at para. 59:

There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence.

[32] I have reached this conclusion. It is no small feat to achieve sobriety after a sustained struggle with addiction. Mr. Khan has done that. He is re-building his relationships and making amends. He has the community supports to maintain sobriety. A lengthy jail sentence, separating him from his job, his family, his son, his sobriety supports in the community, would at this point be counter-productive to how far he has come. The public is best protected if Mr. Khan remains free from cocaine.

[33] The Crown's position is not unreasonable. But while it might be the right fit for this type of offence, it is not the right fit for this offender. In balancing all factors, and taking into account all principles of sentencing including restraint and incarceration as a last resort, I am imposing a sentence of 90 days incarceration for Mr. Khan on each count, to be served concurrently.

[34] In order that Mr. Khan keep his job and remain a constant financial and emotional support for his son, I will also order that this sentence be served intermittently. This is entirely appropriate given the age and character of the accused, the nature of the offences, the circumstances surrounding the commission of the offences, and the availability of appropriate accommodation to ensure compliance with the sentence. One year of probation will also be ordered.

Released: May 9, 2019

Signed: Justice H. Pringle