ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-40000623-0000

DATE: 2015/07/10

BETWEEN:

HER MAJESTY THE QUEEN

– and –

AHMED KHAN

Respondent

Daniel DeSantis, for the Crown

Christi Hunter, for Ahmed Khan

HEARD: June 30, 2015

REASONS FOR SENTENCE

A.J. O’marra J.

[1] Ahmed Khan was found guilty after trial by jury on two counts of sexual assault. On November 16, 2013 he sexually assaulted K.U. and then on November 17, 2013 he sexually assaulted M.K., both students at Seneca College residing at the Seneca Newham Campus Residence. Mr. Khan was a student at Seneca College and a visitor to the College residence on the weekend during which the offences occurred.

[2] He is here today to be sentenced.

Circumstances of the Offences

i) Sexual Assault of K.U.

[3] The offender and victims were students at Seneca College at the time the offences occurred. The victims resided in the College residence and were good friends with each other. Mr. Khan was unknown to them and lived off campus in downtown Toronto. It was common for students living in the co-ed residence to have parties in each other’s suites on weekends with visitors sometimes attending. The students were housed in suites. Each suite contained a kitchen, sitting area and two bedrooms.

[4] On Friday, November 15, 2013, Mr. Khan signed in as a visitor to the College residence. That evening K.U. and a number of her friends were in M.K.’s room on the eighth floor drinking alcohol and waiting for others to arrive. Later, after the other friends arrived they left M.K.’s suite to go to K.U.’s on the fifth floor. Enroute their group met two strangers, one of whom was Mr. Khan. He approached K.U. and struck up a conversation. Flattered by his attention she gave him her telephone number. They moved to her suite where she and Mr. Khan began to dance and kiss in her bedroom. At one point while they danced he picked her up which made her feel uncomfortable. She told him to put her down, which he did. She was intoxicated, but aware of what was happening. She felt as though she was being pushed to do things by Khan. She told a male friend, Matthew, present in the kitchen area of the suite that she did not want to be left alone with him.

[5] Shortly afterwards, the people who had gathered in her suite started to leave to go to the floor lounge. She went to her bedroom to turn off the music and to clean up. Mr. Khan followed her back into the bedroom and shut the door behind him. As he did so, she said “no”, she wanted to leave. He pushed her back onto the bed and he lunged on top of her, pinning her down with his body weight. Realizing she was in trouble she tried to use her telephone to call a friend for help. She kept saying to him throughout “let’s go, I don’t want to do this”. He reached down with one hand between their bodies and slid it under the waist band of her pants and underwear and groped her vaginal area. At that point, she was able to slide out from under him and run from the room.

[6] She went to the lounge area where she saw her friends. Upset she asked why they had left her behind. She did not say anything to them about what had happened because she felt they did not care. They all then went to another student’s room, followed there by Mr. Khan. K.U. told another male friend that she felt uncomfortable about Khan and he said that he would act like her boyfriend in order to get rid of him. She told Khan that she was talking with someone else, she had a boyfriend and he should leave, which he did.

[7] Later that morning she spoke with M.K. and told her everything that had happened to her and that she was upset by it. She did not report what had happened rationalizing she had not been “raped”. She wanted to just forget about it.

[8] Khan remained in the residence and the next morning sent a series of texts to K.U. to meet. She made it explicitly clear that she did not want to have anything to do with him.

ii) Sexual Assault of M.K.

[9] The next evening, Saturday, November 16, 2013, M.K. was hanging out in K.U.’s room with others drinking wine. She testified that she had consumed about half a bottle of wine that evening. Later, feeling tired she returned to her room on the eighth floor. Shortly after arriving at her room she went to a neighbour’s room, Nidal Al-Hamarneh to have a cigarette in his room because he permitted smoking. While visiting with Al-Hamarneh they were joined by another neighbour, Illia Gladush. They hung out in Mr. Al-Hamarneh’s bedroom and chatted for a while. Just after 1:00 a.m., November 17, Al-Hamarneh left the room to meet a friend and bring him back to the room. M.K. testified that she was not concerned being left alone with Mr. Gladush as he was a neighbour she recognized from the eighth floor.

[10] A short time later, Gladush went to the door and opened it letting in Mr. Khan. M.K. thought she recognized him as the person from the night before who had been with K.U., but was not sure. She asked him if he had been at the residence Friday night. He said he had not so she thought it was a different person.

[11] Mr. Gladush, a student in the computer engineering program at Seneca, testified that he had met Ahmed Khan a couple of weeks before that weekend. He left the building with a friend of his, Anastasia when they met Khan and several others hanging around outside of the residence. They struck up a conversation and exchanged phone numbers. Mr. Khan called him later to tell Gladush he was interested in Anastasia and asked Gladush to set him up with her. He called him over the intervening weeks to see whether anything had occurred. Shortly after arriving in Al-Hamarneh’s room, Mr. Khan asked to speak with Mr. Gladush in the other bedroom in the suite and again asked about Anastasia. Mr. Gladush told him that she was not interested in him. Mr. Khan then asked him whether the Japanese girl in the other room was his girlfriend. He indicated that she was not. They returned to the bedroom where M.K. was and carried on a conversation for a few minutes. Mr. Gladush decided to leave to go back to his own room to sleep.

[12] Once Mr. Khan and M.K. were alone he asked her if she could dance to which she said “no”, which she though weird because there was no music playing. She became quite uncomfortable with the situation. Suddenly, he grabbed her by the arm and made her stand up from the bed and forced her to slow dance with him. He started to hug and kiss her and grabbed at her about the waist. M.K. realized he was the same guy from the night before with K.U. She became quite scared and confused. He pushed her onto the bed and pulled her pants and underwear off. He then vaginally penetrated her. Throughout M.K. said to him “I don’t want to do this, I don’t want to get pregnant.” He continued intercourse until he ejaculated in her.

[13] Nidal and his friend returned to the room and found M.K. sitting on the bed trying to cover herself and Mr. Khan standing nearby. M.K. could not speak. Nidal wanting to know what happened texted her, “tell me”. Khan left abruptly. She pointed to wet stains on his bed. He yelled and followed Khan out of the room. Khan fled the residence.

Circumstances of the Offender

[14] Mr. Khan was 20 at the time of the offences. He was born in Saudi Arabia and present in Canada on a student visa to attend Seneca College. He came to Canada to pursue his education on a scholarship supported by the Saudi Arabian government. Initially, he attended the college to upgrade his English language skills in order to proceed with an international business program.

[15] After he was arrested he was initially detained as a result of the charges. Subsequently, he was suspended by the College. During his time in custody, his student visa expired and appeal rejected. Counsel advised that he has, as a result, no status in Canada. Although there is no deportation order in place at present, pursuant to s. 36(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as a foreign national who has been convicted of “serious criminality” he is now considered inadmissible to Canada.

[16] Counsel filed three letters of support on behalf of Mr. Khan. The first is from his mother, Nahed Mohammed Asheq M. Abdullah in which she indicates she had great expectations for her only son when he came to Canada on a government scholarship to pursue a higher education. She acknowledged candidly that what he did was “despicable”, but hoped he would be sent back soon to Saudi Arabia “without any further punishment”. She has a number of health issues and wishes “an opportunity to guide her son correctly in her last days”.

[17] The second letter is from his mother’s cousin, Kashif Naveed, who writes that in his view “Ahmed has been a very kind and compassionate in his dealings with me and my family”. He has stopped going to parties and “is very respectful towards all women”. He concludes, “Ahmed has always been a bright student. I am very confident that if you allow him to turn back, he would not only complete his education but be a very productive member of society.”

[18] The last letter is from Bilal Ahmed, the husband of Humaira Shaheen, who acted as a surety for Mr. Khan when he was released on bail following approximately ten months in detention. Mr. Ahmed indicates that while he lived with them for the past nine months, they did not have any issues or complaints from him. He considers him a very honest and caring person.

[19] Mr. Khan, given an opportunity to address the court at the conclusion of counsel’s submissions, said simply that he wanted to go home and to see his mother because she was going through a lot. He made no expression of concern or remorse for the victims.

Victim Impact Statements

[20] Both victims prepared victim impact statements, filed with the court. M.K. was taken by police from the residence that night to the hospital where she underwent a sexual assault examination to permit the collection of vaginal swabs. Further, she received anti-pregnancy medication and underwent an arduous prophylactic HIV treatment. M.K. was unable to continue with her studies as result of the attack. She returned to her family in Japan, although she has returned to undergo further HIV testing to avoid the questions and great embarrassment she would encounter if such testing occurred in Japan. Further, she returned to testify at both the preliminary inquiry and trial in this matter.

[21] In her victim impact statement she wrote the following:

After crime, everything had changed. I couldn’t go to school at all because I was so scared to see guys anywhere around, so I couldn’t get out my room by myself. I was always asked my friend to come up to me and I finally could get out my room but only with my friend. It still took such a long time. When I heard a knock sound on the door, I always get scared and even couldn’t check my door. … I couldn’t go to the school so I couldn’t write the exam. This crime made my life really hard. My plan was, after I graduate Seneca, going to get job in Toronto and live there maybe forever but, I dropped out Seneca because my parents didn’t want me to go there anymore… I chose to drop out but after I drop out I couldn’t see my future