COURT FILE NO.: CR-19-00000347-000 DATE: 2021-10-20

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NADEEM IMTIAZ AHMED

Counsel: M. Asma and D.M. Garg, for the Crown P. Genua, for Mr. Ahmed

HEARD: July 6, 2021

REASONS FOR SENTENCE[^1]

SCHRECK J.:

[1] Following a judge-alone trial, Nadeem Imtiaz Ahmed was convicted of two counts of fraud over $5000 and one count of knowingly using a forged document. Those charges arose out of loans Mr. Ahmed and another individual, Wajid Ali Khan, obtained from two private lenders over the course of several years. While the exact amount of the frauds cannot be ascertained, the amounts were significant. No restitution has been made.

[2] Mr. Ahmed is 52 years old and has no criminal record. Although he has resided in Canada for over 20 years, he is not a Canadian citizen or a permanent resident and the convictions make him liable to deportation. The Crown submits that the appropriate sentence in this case is a term of imprisonment for three years. Counsel for Mr. Ahmed submits that a conditional sentence is appropriate.

[3] Mr. Ahmed is sentenced to a term of imprisonment for two and a half years. The following reasons explain why.

I. FACTS

A. The Offences

[4] The facts giving rise to the convictions are outlined in detail in my reasons for judgment and I do not intend to repeat them in detail here.[^2] Briefly, between 2009 and 2012, Mr. Ahmed borrowed significant amounts of money from two private lenders, Anil Kumar Kingrani and Sunil Bhardwaj. Most of the loans were unsecured but personally guaranteed by another individual, Wajid Ali Khan, an established businessman and former Member of Parliament whom the lenders believed to be trustworthy.

[5] Mr. Ahmed and Mr. Khan offered Mr. Kingrani land in Alberta as security for some of the debt. Later, they persuaded him to exchange the Alberta land for land in Pakistan which they told Mr. Kingrani was being developed and which they purported to transfer to him.

[6] Mr. Bhardwaj agreed to extend unsecured loans to Mr. Ahmed and Mr. Khan. He said he did so on the understanding that the money was to be invested in land deals in Pakistan which he was assured would be profitable. Later, he was shown certain letters by Mr. Khan which purported to be from a bank in Pakistan and which stated that Mr. Ahmed had assets worth millions of dollars. Those letters persuaded him to loan more money to Mr. Ahmed and Mr. Khan.

[7] Ultimately, significant portions of the debts incurred by Mr. Ahmed and Mr. Khan were never repaid. Mr. Kingrani was unable to realize on the security of the Pakistani lands, the value of which had been misrepresented, and the bank documents shown to Mr. Bhardwaj turned out not to be genuine.

B. The Offender

[8] As mentioned, Mr. Ahmed is 52 years old. He was born and grew up in Pakistan. According to the Presentence Report (“PSR”), he described his upbringing as “excellent.” He obtained a university degree in Pakistan and worked as a manager at an airline company. He married in 1992. He and his wife left Pakistan for Canada in 2000, apparently because of some sort of political persecution of his family because of his father’s role in the military.

[9] In Canada, Mr. Ahmed made a living operating various businesses, including a convenience store and a car rental company. He also purchased, renovated and sold houses and for a time managed a car wash and gas station. In addition to this, he was involved in various business ventures in Pakistan. At the time of sentencing, he was unemployed and being supported by his family in Pakistan.

[10] The author of the PSR interviewed several of Mr. Ahmed’s friends and associates, all of whom spoke highly of him. None of them believed him to be guilty of the charges he was convicted of.

[11] There was evidence at trial which suggests that Mr. Ahmed may have a gambling problem, although he denied this to the author of the PSR. However, during the periods when he was obtaining the loans giving rise to the convictions, he frequently gambled at casinos and incurred net losses amounting to over $300,000.

II. ANALYSIS

A. General Sentencing Principles

(i) Sentencing Objectives and Proportionality

[12] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718(a) to (f), including denunciation, general and specific deterrence and rehabilitation. As the Ontario Court of Appeal recently observed in R. v. Morris, 2021 ONCA 680, at para. 58:

Those objectives will not necessarily point toward the same sentencing disposition. The individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender.

[13] While there will rarely be only one possible fit sentence, s. 718.1 of the Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37; R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 30.

(ii) Gravity of the Offence

[14] The gravity of an offence is a function of the type of offence and the circumstances in which it was committed. Assessing the gravity of the offence will require a consideration of a number of factors, including the blameworthiness of the requisite mens rea, the normative wrongfulness of the conduct, the harmfulness of the conduct and the penalties set out in the Criminal Code: Morris, at paras. 67-68; Friesen, at paras. 75-76.

[15] As a general rule, the weight to be attached to the objectives of general deterrence and denunciation will increase as the gravity of the offence increases: Morris, at para. 69. However, this does not mean that other objectives such as rehabilitation should become unimportant or should be ignored.

(iii) Degree of Responsibility of the Offender

[16] The degree of responsibility of the offender requires a consideration of the offender’s moral blameworthiness in the context of the offender’s background, life experiences and personal characteristics: Morris, at para. 88; Friesen, at para. 91.

B. Aggravating and Mitigating Factors

(i) Aggravating Factors

(a) Magnitude and Complexity

[17] Section 380.1 of the Code sets out a number of factors which, if present, will be considered as aggravating. The first of these, in s. 380.1(a), is “the magnitude, complexity, duration or degree of planning of the fraud committed was significant.” While the frauds in this case were not overly complex, they did involve a degree of planning and the conduct occurred over a significant period of time.

[18] The exact amount of the fraud was not proven and counsel disagree on whether this constituted a “large-scale fraud” as that term is used in some of the appellate sentencing decisions that create a sentencing range of three to five years for frauds that fall into that category: R. v. Dobis (2002), 2002 32815 (ON CA), 58 O.R. (3d) 536 (C.A.), at paras. 36-42; R. v. Bogart (2002), 2002 41073 (ON CA), 61 O.R. (3d) 75 (C.A.), at para. 30; R. v. Leo-Mensah, 2010 ONCA 139, 101 O.R. (3d) 366, at para. 11; R. v. Drabinsky, 2011 ONCA 582, 107 O.R. (3d) 595, at paras. 160-161; R. v. Khatchatourov, 2014 ONCA 464, 313 C.C.C. (3d) 94, at paras. 37-45; R. v. Davatgar-Jafarpour, 2019 ONCA 353, at paras. 34-35; R. v. Chung, 2021 ONCA 188, at paras. 136-137; R. v. Scholz, 2021 ONCA 506, at para.18.

[19] Crown counsel submits that this was a “large scale fraud” and the appropriate sentence must therefore be in the three-to-five-year range. Counsel for Mr. Ahmed submits that because the exact amounts were not proven, this cannot be described as a “large scale fraud.”

[20] The amounts in this case were significant and I agree that this can be described as a “large scale fraud.” It follows from this that the three-to-five-year range applies. I will consider the effect of this range later in these reasons when I consider sentencing ranges and the principle of parity.

(c) Impact on the Victims

[21] Section 380.1(1)(c.1) provides that it is an aggravating factor if “the offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation.” The Crown submits that this factor exists in this case because both complainants prepared victim impact statements in which they described the financial impact of the frauds and described the stress they were experiencing as a result of having lost money.

[22] I do not doubt that the offence had a significant impact on Mr. Bhardwaj and Mr. Kingrani. However, s.380.1(1)(c.1) requires that I consider that impact “given their personal circumstances, including their age, health and financial situation.” In this case, neither victim is particularly vulnerable, nor did Mr. Ahmed exploit any of the personal characteristics, except perhaps their greed. Both victims loaned money to Mr. Ahmed at interest rates that were outrageous and, in the case of Mr. Kingrani, illegal. It is well known that interest rates generally reflect the lender’s views of the risk inherent in the loan. Both victims knew that there were risks in lending the money, but did so despite the risk in the hope of significant profits. Accordingly, while impact on the victims in this case is a factor to be considered as it is in any case, in my view it is not one that should be given a great deal of weight.

(d) Taking Advantage of Regard in the Community

[23] Section 380.1(1)(d) states that it will be an aggravating factor if “the offender took advantage of the high regard in which the offender was held in the community.” There is no question that Mr. Ahmed took advantage of the reputation of Mr. Khan, a former Member of Parliament.

(e) Abuse of Trust Relationship

[24] I do not accept that Mr. Ahmed exploited his relationship with the victims or abused a relationship of trust. To the extent that either victim trusted Mr. Ahmed, they did so with significant reservations, as reflected in the very high interest rates they charged.

(ii) Mitigating Factors

(a) Lack of Criminal Record

[25] Mr. Ahmed has not prior criminal record. This is a significant mitigating factor.

(b) Immigration Consequences

[26] Mr. Ahmed is not a Canadian citizen or even a permanent resident but, rather, a foreign national. By virtue of both s. 36(1)(a) and s. 36(2)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, the fact that he had been convicted of an indictable offence with a maximum penalty in excess of 10 years renders him inadmissible to Canada and subject to removal and s. 64 states that he has no right of appeal from a removal order. This is a relevant collateral consequence, provided that the ultimate sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 13.

[27] While I am considering immigration consequences under the heading of mitigating factors, collateral consequences are somewhat different than other types of mitigating factors, such as a lack of prior record. How collateral consequences should factor into the sentencing calculus was explained by Moldaver J. in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 48:

Though collateral consequences are not necessarily “aggravating” or “mitigating” factors under s. 718.2(a) of the Criminal Code -- as they do not relate to the gravity of the offence or the level of responsibility of the offender -- they nevertheless speak to the “personal circumstances of the offender” (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2(b) of the Criminal Code. The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer “like” the others, rendering a given sentence unfit.

(c) COVID-19

[28] I am advised that Mr. Ahmed will be fully vaccinated against COVID-19 by the time sentence is imposed. This of course does not mean that he cannot contract the disease or that it will not have severe symptoms if he does. However, it does afford him a significant degree of protection.

[29] Information I have been provided about federal correctional institutions in Ontario suggests that there are no COVID-19 outbreaks in any institution at the moment, although that could of course change. The vaccination rate among inmates in Ontario penitentiaries ranges from as low as 62% (Collins Bay Institution) to as high as 90% (Bath Institution), with an average of 75%.[^3] That average is lower than the vaccination rate among eligible residents of Ontario, which is currently 83%.[^4]

[30] The risk posed by COVID-19 to a penitentiary inmate is much less now than it was earlier in the pandemic. However, the trajectory of the pandemic remains somewhat uncertain and I accept that Mr. Ahmed’s incarceration will be made more difficult by public health restrictions: R. v. Ashton, 2021 ONSC 3994, at para. 54; R. v. Browne, 2021 ONSC 6097, at para. 110.

C. The Sentencing Range and the Principle of Parity

[31] As noted earlier, the sentencing range for “large-scale frauds” is three to five years. The principle of parity requires that similar cases should result in similar sentences: Friesen, at para. 31, Criminal Code, s. 718.2(b). The relationship between parity and proportionality was explained in Friesen, at para. 33:

In practice, parity gives meaning to proportionality. A proportionate sentence for a given offender and offence cannot be deduced from first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases. Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody the collective experience and wisdom of the judiciary. They are the practical expression of both parity and proportionality.

[32] At the same time, it is important to bear in mind that sentencing ranges are “guidelines, not hard and fast rules”: Friesen, at para. 37.

D. The Appropriate Sentence

[33] The principles of general deterrence and denunciation are paramount objectives in cases of significant fraud. However, these objectives are tempered by the principle of restraint, which requires that sentences of imprisonment be imposed only when necessary and then for as short a period of time as is necessary to give effect to the relevant sentencing objectives: Morris, at para. 130.

[34] The Crown seeks a sentence of three years, which it submits give adequate effect to the objectives of general deterrence and denunciation. I agree that a three-year sentence is proportionate to the gravity of the offence. However, in my view it would not be proportionate to the personal circumstances of the offender. Because of his conviction, Mr. Ahmed is subject to an unappealable order removing him from Canada, his home for over two decades. This is a situation where a sentence “would have more significant impact on the offender because of his … circumstances”: Suter, at para. 29. The sentence must be adjusted accordingly.

[35] In my view, a proper balancing of the aggravating and mitigating factors in this case results in a sentence of 30 months, which is sufficiently long to give effect to the relevant sentencing objectives while having regard for Mr. Ahmed’s personal circumstances.

[36] Because the appropriate sentence is longer than 24 months, a conditional sentence is not available.

E. The Crown’s Request For a s. 380.2(1) Order

[37] The Crown also seeks an order pursuant to s. 380.2(1) of the Criminal Code prohibiting Mr. Ahmed from “seeking, obtaining or continuing any employment, or becoming a volunteer in any capacity, that involves having authority over the real property, money or valuable security of another person.”

[38] I see no basis for making such an order. I heard no evidence that Mr. Ahmed ever had any employment which gave him authority over the property of others and even if he did, it played no role in the commission of these offences.

III. DISPOSITION

[39] For the foregoing reasons, Mr. Ahmed is sentenced to 30 months imprisonment on Count 1, 30 months imprisonment on Count 2, and 24 months imprisonment on Count 3. All sentences are to be served concurrently.

Justice P.A. Schreck

Released: October 20, 2021.

COURT FILE NO.: CR-19-00000347-000 DATE: 2021-10-20

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

NADEEM IMTIAZ AHMED

REASONS FOR SENTENCE

P.A. Schreck J.

Released: October 20, 2021.

[^1]: An abbreviated version of these reasons was delivered orally in court. In the event of any inconsistency between those oral reasons and these written reasons, the written reasons should be taken as correct. [^2]: R. v. Ahmed, 2021 ONSC 2971. [^3]: https://www.canada.ca/en/correctional-service/campaigns/covid-19/vaccine-csc/vaccine-table.html [^4]: https://covid-19.ontario.ca/data