SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
MOHAMMAD KHAN
REASONS FOR SENTENCE
BEFORE THE HONOURABLE REGIONAL SENIOR JUSTICE M.K. FUERST
on January 12, 2017,
at NEWMARKET, Ontario
APPEARANCES:
A. Ghosh Counsel for the Federal Crown
K. Byers Counsel for Mohammad Khan
CITATION: R. v. KHAN, 2017 ONSC 610
THURSDAY, JANUARY 12, 2017
REASONS FOR SENTENCE
Fuerst J.: (Orally)
Mr. Khan pleaded guilty to possession of cocaine for the purpose of trafficking. I conducted a plea inquiry before he entered his guilty plea, and again today after the facts were read in. Defence counsel, Mr. Byers, stated on the record that he conducted a s. 606 inquiry.
The facts presented in support of Mr. Khan’s guilty plea, and which were signed by him, are set out in Exhibit 1. In essence, Mr. Khan admitted that he used his father’s vehicle to take two suitcases to the parking lot of a Canadian Tire store. The suitcases contained packages of cocaine weighing a total of two kilograms. He went into the store and remained there while other individuals smashed a window of the vehicle and removed the suitcases.
Mr. Khan asserted and the Crown did not contest that he was told the suitcases contained $500,000 cash. The element of knowledge, which is an essential element of the offence, is satisfied by Mr. Khan’s specific admission that although he was suspicious that the suitcases contained cocaine, he made a conscious decision
not to make inquiries that could satisfy his suspicion, including inspecting the contents of the suitcases, because he did not want to know the truth about what was inside them. In other words, he admits that he was wilfully blind.
Mr. Khan is 36 years old. He has a dated and unrelated criminal record for fraud and related offences. He is married, with an eight year old daughter and a three month old son. He came to Canada with his parents when he was 11 years old. He finished high school and obtained a job as a machine operator in a factory. In 2008, the factory closed, leaving him unemployed with a wife and one young child to support. That is the backdrop to his commission of this offence, which occurred in 2009.
Mr. Khan was released on bail, but fled the country in 2011 and remained at large in Pakistan for several years. In August 2016, he voluntarily returned to Canada and surrendered to the police. The primary motivation for his return was that his mother had been diagnosed with advanced lung cancer in both lungs. For compassionate reasons, he was again released on bail.
Mr. Khan’s father testified on the sentencing hearing that he too is in ill health. A doctor’s letter confirms that he has mobility problems and is limited in his daily activities.
Mr. Khan expressed to me that he committed the offence when he was young and stupid. He now deeply regrets it.
On behalf of the Crown, Mr. Ghosh seeks a sentence of five and a half years in jail, a DNA order and a s. 109 order. On behalf of the defence, Mr. Byers seeks a sentence of four years in jail.
I have considered the principles of sentencing set out in s. 718 of the Criminal Code. Although I do not lose sight of the fact that Mr. Khan is, essentially, a first offender, the objectives of deterrence, both general and specific, and denunciation are paramount in a case like this where the quantity of drugs was substantial.
There are significant aggravating factors. They include:
The nature of the drug, as cocaine.
The large amount of the drug.
The fact that Mr. Khan was, for whatever reason, assisting a person or persons involved in the commercial drug trade at a high level.
The fact that after being released on bail, Mr. Khan fled the country and remained at large for years.
In mitigation, Mr. Khan is essentially a first offender. He has strong family support, which bodes well for his rehabilitation. His role was that of a delivery person, and it is not suggested that he stood to benefit as a seller of the cocaine. Although it was not by any standard an early guilty plea, nor one that was entered in the face of a viable defence, he pleaded guilty, which is a sign of remorse and willingness to accept responsibility for his actions. He returned to Canada voluntarily, knowing that he would be apprehended on his return. He expressed remorse to me in court. His parents have significant health challenges and the knowledge that they, along with his young family, will be deprived of his help while he is in jail is a personal penalty that he will have to bear.
In R. v. Bryan, 2011 ONCA 273, the Court of Appeal for Ontario expressed that the normal range of sentence for a first offender convicted of possession of trafficking of slightly more than one pound of cocaine is five to eight years. I am unable to accept Mr. Byers’ submission that a sentence of four years in jail is appropriate for Mr. Khan, given the significantly larger amount of cocaine that he possessed, and the fact that he fled the country while on bail.
Mr. Khan, please stand. I sentence you to five years in jail. I impose a s. 109(2)(a) weapons prohibition order for 10 years and a s. 109(2)(b) order for life. I order that you provide a sample of bodily fluids for DNA analysis. I recommend that you be considered for any early release program that may be available.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Tracey Beatty, *certify that this document is a true and accurate transcript of the recording of R. v. Mohammad Khan in the Superior Court of Justice held at 50 Eagle Street West, Newmarket, Ontario, on January 12, 2017 taken from Recording No. 4911_401_20170112_084943_10_FUERSTM.dcr which has been certified by D. Letts in Form 1.
Tracey Beatty, ACT ID #7742765329
January 25, 2017
Transcript Ordered: January 17, 2017
Transcript Completed: January 25, 2017
Ordering Party Notified: January 25, 2017
(*this certification does not apply to these Reasons for Sentence which were judicially edited)