R. v. Khawaja Date:, 2010 BCPC 408

Citation: R. v. Khawaja Date: 20101129 2010 BCPC 0408 File No: 54266-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. THAER KHAWAJA ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: K. Watson Counsel for the Defendant: P. Doroshenko Place of Hearing: North Vancouver , B.C. Date of Judgment: November 29, 2010 [ 1 ] THE COURT: Thank you. Just remain standing, Mr. Khawaja.

You have pled guilty now to the offence of assaulting both the officers, Constables Bramham and MacDonald, in the execution of their duty, and as you have just remarked they were in the execution of their duty at the time when they were dealing with you. They may have been directed to the wrong person initially, but you were obviously intoxicated and they had every right and duty to take you into custody as they did, partly for your own safety, perhaps, and partly for that of the other people present. [ 2 ] I notice they assessed it first as causing a disturbance. That may or may not have been the case.

It does not seem that you were charged with that ultimately, but of course, they were faced with a situation of almost lawlessness. There are people out in the streets drinking, and they have to make quick decisions in the heat of the moment. [ 3 ] You reacted badly to their decision, to say the least. I expect that when you hear it in light of day it is embarrassing to you. I would think it would be embarrassing for your father to hear as well how you behaved on the night in question, culminating in hurting Constable Bramham by kicking him in the mouth. You say you kicked at him.

I am prepared to accept that in the circumstances perhaps you did not intend the injury that was caused. The plea is appropriate, but you were kicking in his general direction. [ 4 ] Nonetheless, he was injured in a minor fashion, but he was injured, and then of course, spitting later on both of the officers is kind of despicable behaviour in my view.

[ 5 ] So all in all, I think your counsel in his able submissions has been both persuasive of the court and persuasive of his friend, the Crown counsel, in the position that she has taken, not opposing a conditional discharge, because when one hears the circumstances from start to finish, at first glance it appears to be a situation where somebody is acting in a very criminal fashion and maybe ought not to be entitled to the benefit of the discharge provisions. [ 6 ] But I am persuaded that you are, and that is for a number of reasons.

Putting a context to the events, you I think thought you were wrongly being dealt with for one reason or another. [ 7 ] You reacted badly because you were intoxicated. You are not a person who regularly drinks, as I understand it. You are otherwise a person of good character and an upstanding citizen. You are doing all right in school. You are working hard to put yourself through school. Your family suffered some setbacks, which may or may not have been operating on your mind on the night in question, and you have no previous criminal record.

So you are a person of good character apart from the anomalous circumstances of this particular incident, which I expect will not be repeated. [ 8 ] You have aspirations for the future. You do appear to be a good writer and you did well in an English course, and I expect that you will be admitted and do well in law school.

A criminal record would hinder you in that respect, and I think that it is clearly in your best interest that you not have a criminal record for that reason in particular, but in general as well because of your prior character. [ 9 ] As far as the public interest is concerned, that is the area that perhaps would have caused me some difficulty because of the way in which you dealt for a lengthy period of time with these police officers, but taking it in context in my view the public interest does not demand that you receive a criminal record. [ 10 ] So it will be a discharge.

First of all, it will be a probation order for a period of one year. You will be required by it to keep the peace and be of good behaviour and appear before the court as required. [ 11 ] In addition to the statutory conditions, you will report to the probation office at suite 100-233 West 1st Street in North Vancouver by 4:00 p.m. today and thereafter as directed, for the purpose of fulfilling the terms of your probation order. Those terms will be that you will provide the letter of apology that you have provided, so it does not need a deadline.

I will note that the letter of apology has been provided in court and can be conveyed to the police officers by the Crown, so I will not make that a condition of the probation order; strike that. It has been done and it is well written. It should be sufficient, I would think. [ 12 ] You will not attend in Whistler, the Resort Municipality of Whistler, B.C., for the one-year period, and that is by consent. Right, Mr. Doroshenko? [ 13 ] MR. DOROSHENKO: That's correct, Your Honour. [ 14 ] You are also going to perform 40 hours of community work service. I will give you till June 30th to do that.

In fact, actually since we have got you here I will give you till August 31st, because it might be difficult to get it all done during school time. August 31st, 2011. You can apply for an extension if you are not done by the end of August but not after the end of the probation order, so just be careful about getting the hours done. [ 15 ] You will not possess or consume alcohol for the one-year period of your probation.

I am going to put in this order a clause that if you have completed the community work service and have the recommendation of your probation officer you may apply to court for an early termination of your probation order, but not before May 31st, 2011, so that would be six months minimum on the probation order. Okay? [ 16 ] MR. DOROSHENKO: Thank you, Your Honour. [ 17 ] THE COURT: The victim fine surcharge is not waived. It will be $50. Time to pay? [ 18 ] MR. DOROSHENKO: Just a couple of months, Your Honour. [ 19 ] THE COURT: All right. Time to pay fine surcharge to February 28 th , 2011.

That is a $50 charge that goes automatically because it is assessed, and in fact in this case there were victims, and I think it is appropriate for you to pay it. [ 20 ] Apart from that I do not expect we will see you back again, except maybe to apply for early termination of your probation order. Other than that, good luck to you. [ 21 ] MR. DOROSHENKO: Thank you, Your Honour. [ 22 ] THE ACCUSED: Thank you. [ 23 ] MS. WATSON: Yes, thank you, and the Crown directs a stay of proceedings with respect to Count 1 and Count 3. [ 24 ] MR. DOROSHENKO: Thank you, Your Honour. [ 25 ] MS.

WATSON: Thank you. [ 26 ] THE COURT: Thank you. (REASONS CONCLUDED)