R. v. Khan, 2019 BCPC 300

Citation: R. v. Khan 2019 BCPC 300 Date: 20191205 File No: 174452-3-C Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHAN MOHAMMAD KHAN REASONS FOR SENTENCE OF THE HONOURABLE JUDGE E.C. BLAKE Counsel for the Crown: Mr. T. Corsi Counsel for the Accused: Mr. C. Mackie Place of Hearing: Victoria , B.C. Date of Hearing: November 19, 2019 Date of Sentence: December 5, 2019 INTRODUCTION [ 1 ] Mr. Khan has pled guilty to the following two offences:

1. trafficking in a controlled substance, contrary to section 5(2) of the Controlled Drugs and Substances Act ; and 2. assault with a weapon, contrary to

section 267 (

a) of the Criminal Code . [ 2 ] Both offences arise out of circumstances which took place in Victoria on June 26, 2018. [ 3 ] The Crown submits that the appropriate global sentence for the two offences would involve a period of four and a half years of incarceration, consisting of a two year sentence on the trafficking charge and a two and a half year consecutive sentence on the charge of assault with a weapon. In fairness, the Crown made that submission at a time when the second guilty plea involved a charge of robbery.

The plea on that charge was subsequently amended in Court to be a plea to the charge of assault with a weapon, but I did not seek further sentencing submissions from Crown Counsel after the amendment. [ 4 ] The Crown concedes that the global sentence must in any event be reduced to take into account the time which Mr. Khan has already spent in custody. It is agreed that Mr. Khan has spent 232 days in custody already and that he is entitled to a credit of 348 days, slightly less than a year, as a result. [ 5 ] The defence submits that the time which Mr.

Khan has already spent in custody should suffice in terms of incarceration, to be supplemented now by a lengthy period of probation. [ 6 ] Counsel’s sentencing submissions thus diverge widely from one another. In the circumstances, I considered it best to reserve my decision on sentence after hearing submissions on November 19, 2019. Since that date, I have spent considerable time reviewing the authorities and other materials that counsel provided to me, and reflecting upon the matter generally. These are my Reasons after giving the matter my full consideration.

ANALYSIS [ 7 ] It is well-established that when determining an appropriate sentence the Court should consider the general nature of the offences charged, the particular circumstances under which the offences were committed, and the individual circumstances of the accused person. I propose to generally follow that method of analysis here, recognizing that all of the discussion takes places against the background of the sentencing principles set forth in sections 718 to 718.2 of the Criminal Code . In

summary, those provisions direct the Court to consider general and specific deterrence from further wrongdoing, denunciation of the accused for the offences committed, and the rehabilitation of the accused. Careful balancing of those factors is intended to help secure the protection of the public. [ 8 ] First, then, I must consider the general seriousness of the offences committed. [ 9 ] There is no doubt that the offences in this case are of the utmost seriousness. With respect to the trafficking charge, the maximum penalty that the Court could impose is life imprisonment.

Leaving aside the issue of differential parole eligibility, there is no more serious penalty in Canadian criminal law. [ 10 ] With respect to the offence of assault with a weapon, the maximum penalty provided by law is 10 years of imprisonment. It too is a serious matter. [ 11 ] With respect to the offence of trafficking, it is important to bear in mind that the drug in this case was heroin combined with fentanyl. The pernicious effects of the drug fentanyl, in particular, are so well known and documented judicially that extensive elaboration on the point is not necessary here.

I will content myself with simply referring to the words of Harris, JA in R. v. Smith , 2017 BCCA 112 , at paragraph 48 : …. [F]entanyl is a scourge. It poses intolerable risks of accidental overdosing because it is so much more powerful than morphine.

Illegally manufactured fentanyl can be particularly and unpredictably potent, even tiny amounts of fentanyl mixed into other drugs such as cocaine or heroin may be fatal; often street drugs have fentanyl cut into them, and it is practically impossible for drug users to recognize whether the drugs they buy contain fentanyl. [ 12 ] In view of the crisis of fentanyl abuse in the community, the Court in Smith directed that the courts in this province should consider a range of 18 months to three years incarceration as a starting point in cases of fentanyl trafficking, even at the so-called “street level.” The Court recognized that sentences could be higher than the three year upper level of the range in serious cases, but also could be lower in cases where there are “exceptional circumstances”. [ 13 ] The phrase “exceptional circumstances” was authoritatively interpreted in this province in R. v.

Voong , 2015 BCCA 285 . At paragraph 59 of that decision, the Court said this: Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence.

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. However, Parliament, while not removing non-custodial sentence for this type of offence, has concluded that CSO sentences are not available.

Thus, it will be the rare case where the standard of exceptional circumstances is met. [ 14 ] There are some obvious difficulties applying this passage in Voong to an individual case. [ 15 ] First, it must be said that the Court in Voong appears to begin its remarks by suggesting that “exceptional circumstances” must be found before imposing any sentence outside the proposed range.

Later in the paragraph, however, the Court appears to be linking its remarks about “exceptional circumstances” entirely to non-custodial sentences, suggesting at least by implication that some lesser standard than “exceptional circumstances” may be used to justify a sentence that is lower than the stated range, but still involves

incarceration. [16] It seems to me, with the greatest of respect, that the only way to apply Voong is to proceed on the basis that exceptionalcircumstances must be found before any sentence outside the stated range should be imposed, but that the circumstances must be evermore unusual and compelling the farther the sentencing judge strays from the range. [17] A second problem that arises when applying Voong is that the term “exceptional circumstances” is itself so loose. That is notintended in any way as a criticism of the Court of Appeal.

The term must remain loosely defined if it is intended to cover the infinitevariety of situations that may present themselves to a sentencing judge. Monnin, JA made that point in the decision of R. v. Tran, 2015MBCA 120 , [2015] MJ No. 324 (CA), at paragraphs 17 and 18: [17] The reliance on “exceptional circumstances” in dealing with sentences is not a new concept, but it is one that remains somewhatnebulous and devoid of a precise definition. The dictionary

definitions of “exceptional” or “exceptional circumstances” use a number of synonymous terms in their description. Black’s Law Dictionary, 6th ed., sub verbo “exceptional circumstances” provides the followingdefinition of “exceptional circumstances”: “Conditions which are out of the ordinary course of events; unusual or extraordinarycircumstances.” [18] However, simply stating this definition is far easier than ascertaining the true nature and meaning of that phrase. [18] I have read with interest the national review of case authorities that is set forth in Tran.

I have also read the various cases whichcounsel helpfully provided to me during submissions in the case at bar. I refer specifically to the cases of R. v. Rutter, 2017 BCCA 193,R. v. Harrison, 2018 BCSC 2056 and R. v. Joon, 2017 BCPC 301.

Each of those cases contains a lengthy analysis of the recentjurisprudence interpreting the phrase “extraordinary circumstances” in the context of sentencing for drug offences. [19] In the final analysis, though, it seems to me that the term is best understood as simply referring to a collection of mitigatingfactors which, when taken together, greatly outweigh the aggravating features of the case.

It may be helpful to isolate specific instancesin which “extraordinary circumstances” have been found to exist, but the exercise of applying one case to another will ultimately provefutile since no two cases are ever identical. Suffice to say that any collection of mitigating factors must be highly compelling before itwill have the effect of moving a sentences outside the range suggested in Smith. The range suggested in that case is, after all, intended toestablish the norm.

It will have utterly failed in its purpose if it is too easily cast aside by alleged examples of “exceptionalcircumstances”. [20] Having considered the general seriousness of the offences before me and the usual range of sentence that is applicable, I turn tothe specific circumstances under which the offences occurred here. [21] Fortunately, counsel are in general agreement in their submissions about what happened involving Mr. Khan on the morning ofJune 26, 2018. At about 11 a.m. that day, he was seated on a wall in an area of Victoria which is notorious for drug abuse.

An undercoverpolice officer, Constable Robinson, came and sat beside him. After a moment, Mr. Khan asked the officer if he wanted anything.Constable Robinson responded by saying that he wanted to buy some fentanyl, although he initially made his request in street languagewhich Mr. Khan did not understand. [22] Ultimately, Mr. Khan agreed to obtain some fentanyl for the undercover officer. He walked a short distance away and spoke toa supplier. As a result, he was able to provide Constable Robinson with .2 grams of heroin combined with fentanyl.

He received $95 forthe drug, and promptly gave the money to the supplier. [23] The drug which Constable Robinson purchased contained 4.8% fentanyl. The fentanyl content is higher than is often found inthe downtown area of Victoria and certainly enough to be lethal. Indeed, Mr. Khan warned the undercover operator to be careful with hispurchase, since the drug was so powerful. I do not consider Mr. Khan’s warning to be a mitigating factor. If anything, it is to the oppositeeffect, since it indicates that Mr.

Khan knew full well the nature of the drug that he was selling and was clearly alert to its potentiallylethal effects. [24] After the sale was completed, the sequence of events took an unusual twist. It appears that by mistake Mr. Khan had actuallygiven Constable Robinson a second small bag of drugs together with the item which the officer had purchased. As the officer waswalking away, Mr. Khan discovered his error and asked for the second bag back. Although he was aware of what had happened,Constable Robinson refused to give the second bag back. He denied that he had it. [25] Mr. Khan persisted, however.

When the undercover officer continued to insist that he had no more drugs than he hadpurchased, Mr. Khan prevailed upon him to help him in looking on the ground to see if they could find the second bag. Unsuccessful inthat endeavour, he asked Constable Robinson to cut him off a piece of the drug that he had bought. The officer refused. [26] At this point Mr. Khan was becoming desperate. He pulled a knife out of his backpack and demanded either the return of hisdrugs, or a portion of the drugs which the officer had purchased. Finally, Constable Robinson relented and turned over a portion of thedrugs to Mr. Khan.

Mr. Khan did not make physical contact with the knife but used it as a threat in order to achieve his purpose ofobtaining or retrieving some drugs. [27] The interaction between Mr. Khan and Constable Robinson ended at that point. The undercover officer walked away and Mr.Khan was kept under surveillance for some time that day before he was arrested. He was then searched and it was determined that he didnot have any significant amounts of money on his person, nor any weigh scales, cell phones or other items usually associated with theregular conduct of the business of drug trafficking. [28] Mr.

Khan did have paraphernalia on his person consistent with drug usage. Counsel agree that Mr. Khan was a serious addict atthe time. They also agree that he was relatively unsophisticated as a drug trafficker, but would make a sale of the sort that occurred herein order to obtain small amounts of money to sustain his own drug habit.

[ 29 ] The circumstances that I have described do reveal specific features that are both aggravating and mitigating for sentencing purposes. Clearly, the drug transaction was a small one and did not involve a sale made to a vulnerable member of the community. At the same time, though, Mr. Khan brought a knife to the scene, giving rise to exactly the sort of physical dangers that arrive in the drug- trafficking world. [ 30 ] Mr.

Khan actually used the knife immediately after the transaction had been completed, but the circumstances under which he did so are bizarre. [ 31 ] During submissions, I made several inquiries of Crown counsel as to the undercover officer’s perspective in deliberately attempting to deceive a drug seller who had inadvertently oversupplied him. My more immediate reaction was that the officer’s actions were so dangerous as to be foolhardy.

It occurred to me that an undercover operator dealing with small-time drug sellers on a regular basis would be alert to the real possibility that the seller was in fact a struggling addict himself, whose reaction to the theft of his drugs would be swift and quite likely violent. [ 32 ] On more careful reflection, I understand more clearly the predicament in which the officer found himself. He would quite naturally resist the notion of providing anybody with the drug fentanyl, even if he was just returning it to its “owner”.

He would be concerned about the consequences if the “owner” should use the drug in such a way as to kill himself, or sell it on to someone else. [ 33 ] With the benefit of hindsight, I suppose that the best course of action would have been for the officer to have arrested Mr. Khan on the spot. In the heat of the moment, he did not, and the unfortunate stalemate that developed between the two men led to a very dangerous situation. I do not doubt that Mr.

Khan’s decision to pull a knife on the officer quite clearly amounted to a serious criminal offence, but at the same time I cannot help but think that the episode with the knife might have been avoided entirely if the officer had acted in a different fashion by promptly arresting Mr. Khan when events began to get out of control. [ 34 ] It then remains for me to consider the personal circumstances of the accused person. [ 35 ] As I have already said, Mr. Khan was in the throes of a serious addiction in June 2018. He was 19 years of age at the time.

He had graduated from high school in exemplary fashion a year or two earlier but he had failed to move on. He had slipped into a life of drugs and it had subsumed him. [ 36 ] The drug lifestyle had already led Mr. Khan into some brushes with the criminal law before the matter occurred that is before me. He had a minor record in youth court, consisting of a threatening conviction in June 2017, a breach of the release order that was in place before that proceeding concluded, and then a breach of the conditions of the discharge that was granted to him once it did come to an end. [ 37 ] More importantly, Mr.

Khan was convicted in adult court on March 12, 2018 of the offence of assault. He was placed on probation for a period of 18 months. Significantly, therefore, he was on probation when the present offences occurred. He was also convicted of breaching the adult probation order on May 23, 2018, although I am told that the breach consisted of a minor curfew violation and led to a $75 fine. [ 38 ] The material that has been put before me indicates that Mr. Khan has always had a good and supportive family background. His family are distressed by the turn that his life has taken in the last two years.

I have had the benefit of reading a long and heartfelt letter from his sister, describing in a very articulate manner the shame and sadness felt by the family, and setting forth the ways in which they have tried to help. [ 39 ] Mr. Khan was initially released in this case, but he did not do well. His criminal record shows that on September 20, 2018 he was found in possession of a controlled substance, leading a conviction on a guilty plea entered less than a week later. He received seven days in custody for the offence. [ 40 ] Mr.

Khan then spent a long period of time in custody, apparently concentrating on trying to conquer his addiction by physically separating himself from his peers and from the lifestyle in which he had become embedded in the general community. His counsel submits that he has now been drug-free for many months, but unfortunately there is no objectively verifiable proof of that. He had apparently intended to enter a residential treatment program upon his release from custody in the spring of this year, but failed to do so as the result of some misunderstanding about the entry requirements. [ 41 ] Mr.

Khan has been subject to strict house arrest requirements since his release from custody on surety bail on May 10, 2019. According to his sister, who has acted as his surety, he has complied with the house arrest terms without fail, and I can accept that as a mitigating factor on sentence. [ 42 ] During his time on house arrest, Mr. Khan has helped his parents around the home and has renewed his religious or spiritual faith. Unfortunately, however, gainful employment seemed to have eluded him for the moment.

His brother is self-employed and offered to have the accused “shadow” him, but that did not work out as the accused felt that he could not maintain employment of that sort without running afoul of his house arrest conditions. I made inquiry of his counsel as to whether any thought had been given to adjusting the house arrest conditions to suit, but I did not receive a satisfactory answer. [ 43 ] Mr. Khan entered guilty pleas in this Court. He also spoke eloquently of his remorse for what he has done.

I was impressed by the fact that he spoke in terms of the harm that his actions could have on the community and the shame that he has brought upon his family, rather than dwelling upon the hardships he has brought upon himself. CONCLUSION [ 44 ] This is a sentencing case in which I am asked by the accused person to depart from the usual range of sentence mandated by the British Columbia Court of Appeal with respect to the offence of trafficking in a substance containing fentanyl. The Crown, on the other hand, submits that at a sentence toward the lower end of the established range is perfectly fitting.

I trust that I have made it clear in the

foregoing

summary of the facts and background circumstances that there are significant aggravating and mitigating features to consider when determining whether a departure from the established range is appropriate. [ 45 ] On the one hand, Mr. Khan plainly knew that he was dealing in a deadly drug when he engaged in the transaction with Constable Robinson. It is also significant that this was not his first foray into criminal behaviour.

Indeed, he was on probation at the time. [ 46 ] The trafficking transaction itself would have been relatively unremarkable were it not for the approach taken by the police officer once it became apparent that he had taken some of Mr. Khan’s own drug supply. That turn of events brought into play the knife which Mr. Khan had brought with him. Whatever I may think of Constable Robinson’s sense of judgment in failing to return the drugs, I cannot overlook the fact that it was Mr. Khan who brought the weapon to the scene.

The risk of violence, never far from the surface when serious drug trafficking is involved, would likely not have boiled to the surface in this case but for the presence of the knife. I note the specific provisions of subsection 10(2) (a)(

i) and 10(2) (a)(ii) of the Criminal Code which require me to consider the presence of the weapon and the threat of its use as aggravating features for sentencing purposes. [ 47 ] On the other hand, there are important features of this case which operate in Mr. Khan’s favour. First and foremost in my mind, he is a very young man with considerable potential for the future. He is not committed to a criminal lifestyle. He has the support of his family as he attempts to harness his potential after a seriously misguided period of drug dependency. I think it is important to note in this case that it was Mr.

Khan’s addiction that led him into the small-scale and unsophisticated drug deal that is before me. It was not greed for profit. To crush the life out of him now with a further lengthy jail term would be a mistaken overemphasis on the principles of deterrence and denunciation, in my view. I do acknowledge the primacy of those principles in a serious drug trafficking such as this, but that does not mean that rehabilitation must be disregarded. [ 48 ] Mr. Khan has admitted his wrongdoing and expressed his remorse to me in eloquent fashion.

I accept what is said on his behalf about his abstinence from drugs, although I am bound to say that I have nowhere near enough information to allow me to conclude that he has turned the corner for good. He has not completed any treatment program and he has not yet found his footing through employment or education so as to distract himself from the allures of the drug-centred lifestyle. I accept that he has taken important steps, but nothing more. [ 49 ] In all the circumstances, it is my view that Mr.

Khan’s case is exceptional enough that his sentence for trafficking should fall outside the range mandated by the Smith case, but not by a great margin. I am not satisfied that his case is so “extraordinary” that he could ever have avoided incarceration altogether and merely been placed on probation. [ 50 ] If it were not for the time that Mr. Khan had already spent in custody, I would sentence him to a period of 14 months of incarceration on the trafficking charge, rounded off to 420 days. He has served 232 days and is entitled to 348 days credit, leaving a balance of 72 days.

That is the sentence which I now impose on the trafficking charge. [ 51 ] The sentence which I have imposed means that Mr. Khan will be returned to custody for a short time. That will be difficult in light of the particular chronology of this case. Mr. Khan spent a considerable time in custody in late 2018 and early 2019, followed by a period of seven months at large up to today. It will not be easy to step back into a custodial setting at this stage. I understand that. [ 52 ] There are two reasons why it is appropriate that he do so, however.

First, it is my view that the 14 month sentence is the absolute minimum which I could impose in the circumstances of this case. I am not prepared to bend the sentencing range any further just to make the numbers work out conveniently for Mr. Khan. [ 53 ] Second, it is my view that a short stint in custody now will give him one last quick but meaningful reminder that life choices that result in jail terms are to be avoided in the future. [ 54 ] The sentence on the charge of assault with a weapon must clearly be concurrent, in my view. The two charges arise out of the same incident, generally speaking.

I have already taken the violent aspect of the trafficking incident into account when imposing sentence on the trafficking charge. To impose a consecutive sentence for the violent aspect of the matter which is reflected by the assault charge would be double counting. It is sufficient, in my view, that the record show that serious conviction without exacting a further price for it. [ 55 ] The sentence on the robbery count will be a concurrent term of 72 days.

The sentence on that count would have been 14 months (rounded to 420 days), but the credit of 348 days applies, leaving a balance of 72 days. [ 56 ] There will be a term of probation for a period of 18 months following the completion of the jail term. I will hear submissions from counsel regarding the terms of the probation order. [ 57 ] There will also be DNA Orders and firearms prohibition orders. I will hear submissions from counsel on those aspects of the matter as well. _____________________________ The Honourable Judge E.C. Blake Provincial Court of British Columbia