R. v. Khaliq, 2023 BCPC 32

Citation: R. v. Khaliq 2023 BCPC 32 Date: 20230203 File No: 30643-2 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. SHAHZAD KHALIQ BAN ON PUBLICATION s. 486.4 (1) of the Criminal Code of Canada ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. PATTERSON (Via Videoconference) Counsel for the Crown: T.E. Barnett Counsel for the Defendant: B. Crampton Place of Hearing: Prince Rupert , B.C. Date of Hearing: June 16, 2022 Date of Judgment: February 3, 2023

[ 1 ] THE COURT: These are my reasons for sentence. I reserve the right to order transcripts and edit them to ensure proper structure, grammar, and readability. I also reserve the right to add citations and quotes from any caselaw I refer to in my decision. The result and substance of my decision will not change. [ 2 ] Like in my reasons for judgment published in R. v. Khaliq , 2022 BCPC 132 , I must be explicit and blunt so that everybody can understand how the court has reached the sentencing decision in this case.

Therefore, some of the details within my decision are graphic and may be challenging to listen to. Still, by stating them, no disrespect in any way, shape, or form to the victim, V.W., or the defendant, Shahzad Khaliq, is meant. [ 3 ] On June 6, 2022, I found 32-year-old Khaliq guilty of the sexual assault of the adult victim, contrary to s. 271 of the Criminal Code . Brief Facts [ 4 ] On the evening of October 24, 2020, K.M. invited the defendant, Khaliq, to attend a house party at her residence in Prince Rupert, British Columbia.

Khaliq had been communicating with K.M. through Plenty of Fish Messenger, but they had not personally met. In addition to K.M., five other people were in the residence, including the victim. Khaliq had never met or communicated with any of the other people at the party, including the victim. He drove his company van, which had a working GPS on board, to the house party. [ 5 ] The party's purpose was to celebrate the victim's decision to change careers. The party had a 1980s theme and was to be a girls' night out.

During the course of the party, the women played music, danced, and shared discussions about work, fishing, and guys. They put on 1980s-style music, smoked some marihuana, and played drinking games. [ 6 ] Khaliq arrived at the party around 9:26 p.m. With one exception, he was friendly and pleasant to the partygoers. For the most part, during the approximate two hours and 10 minutes that he was at the party, Khaliq sat on the couch and occasionally engaged in casual conversation with the other partygoers, including the victim.

Khaliq told them where he worked, a bit about his background, and how he would be returning to Pakistan in a few days. As a religious man, he declined to drink alcohol and did not take

part in the smoking of marihuana. [ 7 ] As the evening progressed, at one point, Khaliq found himself sitting on the couch beside K.M.. He leaned over and kissed her very forcefully on the lips, an action she did not appreciate or ask him to do. K.M. told Khaliq, "No, I'm not interested," and then she moved away from him. [ 8 ] Except for Khaliq, who, for religious reasons, did not drink alcohol, everyone at the party continued drinking alcohol throughout the night. The victim became intoxicated during the party from consuming a mixture of beer, wine, vodka, and marihuana.

She believes somebody may have slipped her a drug, but there was a lack of evidence at trial for me to find that it happened beyond a reasonable doubt. [ 9 ] Not feeling well, at approximately 11:30 p.m., the victim decided to leave the party. She announced her intention to walk home as she lived only a few blocks from K.M., and the walk would take her under five minutes. At the same time, Khaliq decided to leave the party. Concerned about the victim's level of intoxication, K.M. and another woman at the party insisted that Khaliq, who was sober, should drive the victim home.

Khaliq agreed. [ 10 ] Before Khaliq left the party with the victim, he was given her address, and her friends gave him instructions on where the victim lived. He was told, "You go to the bottom of the hill. You turn left. About a minute down the street, there is a set of townhouses, and she lives right there." Khaliq took out his mobile telephone.

He saved the victim's address as a message on his telephone, but he did not use a map feature on his telephone before leaving the party to confirm his route to the victim's townhouse despite knowing that his cellular data was not working in Prince Rupert and that he would be unable to access the Internet on his telephone unless he has connected his telephone to Wi-Fi or a hotspot. [ 11 ] Upon departing from K.M.’s house with the victim in the back seat of his van, instead of driving the victim directly to her townhouse, Khaliq became lost, and he drove a considerable distance around Prince Rupert.

He eventually stopped the van on Shawatlans Road, a lonely stretch of road in the industrial district of Prince Rupert, a significant distance and the wrong direction from the site of the party and the victim's residence. According to the van's GPS, the van stopped on Shawatlans Road for approximately 12 minutes. During the stop on Shawatlans Road, Khaliq sexually assaulted the victim. [ 12 ] In giving her evidence, the victim made it clear that at no time did she ask Khaliq for sex or want to have sex with him, not vaginal intercourse, not anal intercourse.

She completely refuted the suggestion that she did or said anything to make Khaliq think she wanted sex with him. She also called it "extremely unlikely" that while she was nodding off, unconscious, or experiencing a blackout, she would have said anything to Khaliq to indicate that she wanted to have vaginal or anal intercourse with him. [ 13 ] Khaliq got out of the van to urinate. While he did so, the victim also left the van and started to walk away. Khaliq went to the victim and brought her back to the van.

With her back towards him and the sliding passenger side door for the van open, he pulled her pants down and inserted his penis into her vagina. He also, at some point during the assault, inserted his penis into her rectum. He did not use a condom, and he ejaculated. [ 14 ] After the stop on Shawatlans Road, Khaliq continued driving to find a Wi-Fi source so that he could connect his telephone to it to map the victim's townhouse location and finish driving her home. He eventually stopped at P.J.'s corner store, where he spoke to a man outside the store.

The man agreed to allow Khaliq to use his telephone as a hotspot, so that Khaliq could get Internet on his telephone. At the same time, the victim got out of the van, went into P.J.'s, and subsequently refused to continue the journey with Khaliq, who departed alone in the van.

[ 15 ] Within a couple of minutes of Khaliq leaving P.J.'s, the intoxicated victim vomited inside the store. The store clerk called the police. The police arrived at P.J.'s approximately 15 minutes after midnight. The distraught victim went outside and called her roommate, who subsequently travelled with his girlfriend to P.J.'s, where he met the victim and afterwards brought her home.

Later the same day, the victim told her roommate and his girlfriend that after leaving the party with Khaliq, she had been taken out onto the highway and been raped "up the bum." [ 16 ] After his arrest by police, Khaliq provided two different accounts of what occurred with the victim. He gave a third version of what happened in his testimony at trial. I expressly rejected his evidence regarding the sexual activity that occurred during the 12 minutes on Shawatlans Road. I found Khaliq's version of events to be made up and simply unbelievable.

Discussion [ 17 ] Determining a fit sentence is a highly individualized process that requires carefully balancing the factors, objectives, and principles set out in s. 718 , 718.1 , and 718.2 of the Criminal Code as well as in the common law.

Section 718 of the Criminal Code says the following: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 18 ]

Section 718.04 of the Criminal Code says the following: When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [ 19 ]

Section 718.1 of the Criminal Code says: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 20 ]

Section 718.2 of the Criminal Code has other sentencing principles, including, A court that imposes a sentence shall also take into consideration the following principles … (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation … (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 21 ] I note that Khaliq is not an Indigenous offender. Sentences Sought [ 22 ] The prosecution is seeking a jail sentence of three years plus ancillary orders. Khaliq is seeking a sentence of two years less a day, followed by a probation period. Caselaw [ 23 ] I have been provided with caselaw from counsel, including R. v.

Jajja , 2022 BCSC 467 ; R. v. G.M. , 2015 BCCA 165 ; and R. v. Corneau , 2022 BCSC 1185 . [ 24 ] In the G.M. decision, our Court of Appeal confirmed that in sentencing cases for sexual assault involving intercourse, the sentencing range is two to six years in jail. I accept that for our sentencing today, the objectives of denunciation and deterrence are paramount, and I am required to give them primacy as per G.M. in paragraphs 17 and 18 .

[ 25 ] As has been noted in numerous decisions at every court level, determining a fit sentence is a highly individualized process. It requires not only consideration of the principles of sentencing set out in s. 718 to 718.2 of the Criminal Code , but a consideration of the collateral consequences of the sentence to the defendant. Collateral consequences are consequences for the particular offender, in this case, Khaliq, which may be taken into account as personal circumstances. They are not mitigating factors because they do not relate to the offence's gravity or the offender's degree of responsibility.

Instead, the relevance of the collateral consequences flows from the principles of individualization and parity and the objective of rehabilitation in appropriate cases. Impact on the Victim [ 26 ] In the specifics of this case, the offence has had a profound impact on the victim. Exhibit 1 on the sentencing is a Pre-Sentence report prepared by Dong Nguyen. As part of that Pre-Sentence report, Nguyen had the opportunity to interview the victim. I am going to quote from that report: V.W. advises that she continues to suffer from the psychological effects of the offence.

Her immediate family is dispersed throughout the country, and she has been unable to confide in and have their support. She has been able to rely on emotional support from a nearby aunt which has helped her but is unsure if this is sufficient. She has desires to talk to her mother about what happened, but the feeling of burdening her family with her victimization deters her from connecting with anyone. V.W. suffers from depression and anxiety because of the offence, and informs her social relationships have all been affected for the worse.

She finds herself unable to connect with others as she had before and maintaining friendships have been more difficult. V.W. had briefly tried counselling, but the cost of professional help was outside of her financial means. During the first year after the offence, she had missed a significant amount of work due to her mental state. This last year she has recovered somewhat and is currently working more which helps her cope. On the night of the offence, V.W. believes that she was also surreptitiously drugged by someone at the party and is skeptical of being so intoxicated with the amount of alcohol she consumed.

A further method of coping for V.W. was consuming more alcohol to build her tolerance, so that she would never find herself in such a situation again. She currently self-medicates with cannabis daily and believes her increase in usage is related to the offence. V.W. has received the Victim Impact Statement but has had difficulty filling out the papers and submitting them. V.W. expressed gratitude in having the interview with this writer and talking about what happened, and it imparted to this writer a feeling that she would greatly benefit from professional help to better understand her thoughts and emotions.

Regarding the offence, V.W. maintains that there was no possibility of consent, and she finds it absurd that Mr. Khaliq had justified himself to her with his ignorance of Canadian laws. Moral Blameworthiness [ 27 ] Although there was no finding of physical force in addition to the sexual assault itself, I did find that sexual assault is inherently violent, and a better term would be sexual violence. Khaliq exploited the victim's vulnerability. He disregarded her human dignity, autonomy, and right to make decisions for herself. He treated her as an object.

I find his moral blameworthiness at the high end of the scale. Aggravating and Mitigating Factors [ 28 ] The combination of the victim's extreme intoxication, which I found so severe that she would not be able to consent in law to any sexual activity, and Khaliq's sobriety, enhanced his prospects of evading detection. As such, I find his behaviour was predatory, and the proportionality principle weighs in favour of a severe sentence. I do not, however, accept the proposition that his lack of remorse and his continuing denial of sexually assaulting the victim is an aggravating factor for purposes of sentencing.

What is an aggravating factor, however, are the untruthful statements he made twice to the police while in custody and a third time when he took the witness stand during his trial. [ 29 ] In regards to mitigating factors, he does not have a criminal record. I accept what his counsel has told me, that being on bail and unable to return to Pakistan, where he was born and raised, to visit with his sick father, has been highly stressful and caused him great anxiety. His marriage broke down while he was in Canada, but it had no relationship to the crime for which he was convicted.

He has been homeless, having lost his job due to his conviction. While he is a dual citizen of Canada and Pakistan, and it has been suggested that deportation might be an option for the authorities, my understanding of the law is that it is not so. Sentence Imposed [ 30 ] Given the present case's circumstances, I cannot agree with defence counsel that a sentence in the provincial range would be appropriate. The circumstances of the present case are very similar to those in Jajja , where a three-year jail sentence was imposed.

In that case, there was the possibility of deportation, which I find is not possible in Khaliq's case. I appreciate what defence counsel has submitted about Khaliq wanting to return to Pakistan and live in Pakistan. I do not, however, consider that to be an appropriate reason to move out of a federal penitentiary sentence as per the recognized range of two to six years. [ 31 ] I will say this. Had the prosecution asked for more than three years in jail, I would have considered it very seriously.

I agree with the prosecution that three years' jail is the minimum that can and should be imposed in this particular case. Any lesser jail term would bring the administration of justice into disrepute. The harm done to the victim, in this case, is unimaginable. The horror of being an intoxicated single woman, getting a short car ride home, and ending up being sexually violated demands a significant sentence. [ 32 ] I am imposing a jail sentence of three years. [ 33 ] There will also be the following ancillary orders: i. A Sex Offender Registry Order made according to s. 490.012 of the Criminal Code .

You are required to comply with the Sex Offender Information Registration Act for 20 years. ii. A DNA Order. Count 1 on the court information is a primary designated offence. Pursuant to s. 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily substances from you. The samples will be taken from you while you are in custody, and you

must submit to the taking of the samples. iii. Pursuant to s. 109 of the Criminal Code , you are prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance for a period of 10 years following your release from prison. You are further prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. iv.

Pursuant to s. 743.21 of the Criminal Code , you are to have no contact or communication with V.M., directly or indirectly, while you are incarcerated. v. I order forfeiture of the items related to the sex assault kit, including the swabs, blood samples, and assorted clothing. The prosecutor can draft the forfeiture order and send it to Mr. Crampton for approval regarding content and form. I will then sign it. [ 34 ] Finally, I was struck by the reality that the victim has been unable to get counselling despite all of the monies paid by convicted persons as victim fine surcharges. Quite frankly, it is disturbing.

That said, I am a realist. Because of Khaliq's financial circumstances and the fact that he is now going to the federal penitentiary, I believe it would cause an undue hardship. Accordingly, pursuant to s 737(2.1) of the Criminal Code , I am ordering that he pay no victim fine surcharge. (REASONS FOR SENTENCE CONCLUDED)