R. v. Khan Date:, 2016 BCPC 168

Citation: R. v. Khan Date: 20160202 2016 BCPC 0168 File No: 57233-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. IMRAN KHAN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE FIELD Counsel for the Crown: Federal Crown: M. Wiancko Counsel for the Accused: K. Filkow Place of Hearing: Richmond , B.C. Date of Judgment: February 2, 2016

[ 1 ] THE COURT : This is an oral decision of the court, and I earlier advised counsel of my consideration with respect to all their submissions. [ 2 ] On November 27, 2015 Mr. Khan was convicted of possession for the purpose of trafficking in MDMA, contrary to s. 5(2) of the Controlled Drugs and Substances Act . The charge arose out of a project called Project E-Naysayer. NARRATIVE: [ 3 ] In December 2012, the Richmond Organized Crime Unit began investigating a drug trafficking line named the Jason line. [ 4 ] The operation called E-Naysayer was preceded by information provided to Cpl.

Hsieh in December 2012 by another officer that a Richmond drug trafficking group was selling cocaine and heroin in Richmond. [ 5 ] Two months later, two other investigations provided further similar reliable information. [ 6 ] On December 4, 2012, undercover police officers were introduced to the line, making several purchases of drugs from three individuals, including Mr. Mohammed, Mr. Ameeri and Mr. Khan. [ 7 ] Search warrants were applied for to be executed January 31, 2013, at 2366 McKessock Drive, where Mr. Khan resides with his family, and another residence at 8910 Citation Drive, where Mr. Ameeri resides.

The method of entry was a dynamic entry, utilizing the ERT squad. A voir dire was held. The court concluded the entry met constitutional standards. [ 8 ] Police believed the investigation revealed that Mr. Khan's residence was a stash house associated with the Jason line. [ 9 ] This belief was primarily based on the extensive surveillance of the residence, number of undercover buys associated with Mr. Khan's home, presence of other targets who frequented the residence, and Mr.

Khan's fingerprints found on the bag associated with an undercover buy of cocaine. [ 10 ] The execution of the search warrant resulted in the following seizures set out in the following Admissions of Fact. That is the background of this case. Now, this is what was seized, and the Admissions of Fact was filed as an exhibit in these proceedings. 1. All the exhibits seized were located in bedroom number 1. 2. Imran Khan resides in bedroom number 1. 3. The police located the following items in bedroom number 1: (

a) A grey electronic safe inside the closet. Inside the safe the police located a plastic Ziploc bag containing 65.2 grams of powder, phenacetin, $3,275 in Canadian currency, and a plastic Ziploc bag containing four metal objects; (

b) Three red MDMA pills with smiley faces on the floor behind the nightstand; (

c) Black password-protected iPhone on top of the nightstand; (

d) An invoice for physiotherapy and other documents in the name of Imran Khan on the floor beside the bed; (

e) A digital scale with batteries on the floor at the foot of the bed; (

f) A plastic Below the Belt shopping bag located under the bed. The following items were found in the bag: 1. A plastic Ziploc bag containing 806.9 grams of red MDMA tablets with smiley faces. Cst. Cheung estimated the total number of pills by weighing several tablets and noted their weight to be approximately .25 grams. Using the weight to extrapolate the total number of pills, Cst. Cheung estimated there to be approximately 3,227 pills; 2. There was a plastic Ziploc bag marked P+Coffee containing 77 grams of a white powder of a substance that is unknown; 3.

A plastic Ziploc bag containing 200.6 grams of white powder MDMA with a purity level of 31 percent. Now, that was denied under oath. A finding otherwise was made during the trial; (

g) One glass Pyrex dish and two glass measuring cups contaminated with a white powder under the bed. [ 11 ] The police took samples of all the substances seized. [ 12 ] The MDMA pills from behind the nightstand, the pills from under the bed and the powder MDMA were tested and determined to be the subject of the charge. [ 13 ] The suspected phenacetin was tested and determined to be phenacetin, and Imran Khan possessed all of the items referred to in paragraph 11, except for the heroin. Now, that is set out in the admissions that were filed.

Acknowledging he knew the tablets were MDMA, he testified to having no knowledge that the 209 grams found in the bag analyzed MDMA. A finding of fact determined otherwise.

CROWN'S SUBMISSION ON SENTENCING: [ 14 ] Mr. Khan is subject to a mandatory minimum sentence of one year in custody (see s. 5(3)(a)(

i) of the Controlled Drugs and Substances Act ) and pursuant to s. 8 of the Act , Mr. Khan was served on April 13, 2013 with notice of this application. [ 15 ] Crown seeks a sentence of three years' jail, a mandatory firearms prohibition for life pursuant to s. 109(1) (

c) and 109(3) of the Criminal Code , forfeiture of the seized money, $3,275, pursuant to s. 16 of the Controlled Drugs and Substances Act , a DNA order pursuant to s. 487.051(3) (

b) of the Criminal Code , the victim fine surcharge pursuant to s. 737 of the Criminal Code. [ 16 ] Mr. Filkow seeks the mandatory minimum sentence of one year proscribed by law. [ 17 ] In support of the Crown sentencing position. CRIMINAL RECORD AND THE MANDATORY MINIMUM SENTENCE REQUIREMENT: [ 18 ] The Crown alleges that Mr. Khan had three prior convictions: (

a) May 17, 2012, he was convicted of being in possession for the purpose of trafficking in a controlled substance and trafficking in cocaine, contrary to s. 5(1) and 5(2) of the Controlled Drugs and Substances Act for which Mr. Khan was sentenced to a three-month conditional sentence order. The offence date was September, 2009. (

b) On December 20, 2012 he was convicted of possession of a controlled substance, marihuana, contrary to s. 4(1) of the Controlled Drugs and Substances Act for which Mr. Khan was sentenced to pay a fine of $150. The offence date was August 20, 2011. (

c) On June 12, 2013 he was sentenced on a charge related to personation with intent to avoid arrest, contrary to s. 403(1) (

d) of the Criminal Code for which Mr. Khan received a $1,000 fine . The offence date is March 14, 2012. [ 19 ] The Crown further makes reference to the following: BAIL BREACHES PURSUANT TO

SECTION 524 OF THE CRIMINAL CODE : [ 20 ] The Crown alleges that on two occasions that Mr. Khan failed to report as directed to his bail supervisor, and on September 30, 2014, Mr. Khan failed to report as directed. The court executed an outstanding arrest warrant and made a 524 breach finding on October 24, 2014, and Mr. Khan's bail was revoked and the Crown consented to his release on similar conditions, and then on November 5, 2015, Mr. Khan failed to report as directed. AGGRAVATING FACTORS: 1. Prior to November 2012, MDMA Ecstasy was enumerated as a

Schedule 3 drug; it is now listed as a

Schedule 1 drug with other listed serious drugs; heroin, cocaine and methamphetamine; 2. Mr. Khan's prior conviction for a designated offence is an aggravating factor. He was convicted in 2012 of possession for the purposes of trafficking (see s. 10(2)(

b) of the Controlled Drugs and Substances Act ). This occurred nine months prior to this incident and approximately four months after completing a conditional sentence order. Crown submits this bears directly on the issue of specific deterrence; 3. The value and profitability of the amount of drugs and powder found in the possession of Mr. Khan. Mr. Khan is not drug-addicted. The evidence in chief and cross-examination of the expert revealed, depending on purity (MDMA powder at 31 percent) the value upon sale, whether bulk or street or in pubs, was between $17,200 and $104,000. The cash found in Mr.

Khan's safe was $3,275, and is some evidence or indication that he was profiting from the offence. Mr. Filkow submits there were several different possibilities regarding valuations, and that is set out in my Reasons for Judgment dated November 27, 2015 in Richmond, file 57233-1, and he submits that the value could be as low as $12,700; 4. The quantity of the drugs seized. There were 3,227 tablets of MDMA and 200.9 grams of powder MDMA, approximately one kilogram. There was enough supply for 11 years; 5. Exposing family and residents and neighbours to the potential dangers associated with drug trafficking; 6.

Though it is very difficult to draw inferences regarding how or what method was to be utilized for distribution, the facts demonstrate his involvement was not secondary or minimal to the business of possessing this

Schedule 1 drug for the purpose of trafficking. THE HISTORY RELATING TO THIS FILE: [ 21 ] Mr. Khan has been on bail for three years. The trial continued over one-and-a-half years. The offence date is three years old. [ 22 ] Mr. Filkow submits the two breaches, failure to report, are incidental considering the gap in time.

[ 23 ] His prior drug designated offence of being in possession for the purpose of trafficking in cocaine took place approximately five- and-a-half years ago. [ 24 ] The mitigating factors in this case are the following: 1. Mr. Khan has substantially complied with bail conditions; there are no outstanding charges; 2. The offence occurred approximately three years ago; 3. The prospects towards rehabilitation about to be referred to are positive; and 4. He was 21 years of age at the time of this offence. MR. KHAN'S BACKGROUND: [ 25 ] At the time of this offence, Mr.

Khan was 21 years of age; he is now 25. [ 26 ] He is presently in a long-term relationship with Ms. Sidhu who provided an impressive letter of support. They are expecting their child in July 2016. She has been present throughout these proceedings, and in her letter makes reference to the fact that he has been very supportive of her, both mentally, emotionally and financially. [ 27 ] Mr. Khan has a supportive, close-knit family. His parents and brother reside in Richmond. The parents own a wholesale distributing business selling merchandise to dollar stores.

Both brothers are educated and are gainfully employed with no criminal records. [ 28 ] Mr. Khan has completed a Business Administration program at Kwantlen College. [ 29 ] He is presently working in the family business and at Handyman Services. The owner considers him a valued and dependable employee. They confirm if his sentence is in the range of 12 months, his position would again be available. [ 30 ] In addition, Mr. Khan is completing Grade 12 math in order to pursue a degree in electrical engineering at BCIT. Mr.

Khan has worked as an apprentice for an electrical company. [ 31 ] Several letters have been provided to me in consideration of the final disposition of this case; friends, parents, his girlfriend, Ms. Sidhu, her parents, his employer and his Imam. Overall, they confirm the following: - He is helpful and generous to others; - The charges and convictions have had a significant influence on his life.

He has re-evaluated his life decisions; - He is a dependable, hardworking employee; - Remorse; - Regrets the choices he has made in the past; - He has disassociated himself from the negative influence who were involved in unlawful activities. [ 32 ] In conclusion, Mr. Filkow submits Mr. Khan is an excellent prospect for rehabilitation. He submits that a sentence of one year is a significant step from a conviction of a three-month conditional sentence order. In support of Mr. Filkow's submission he relies on the following cases: R. v. Presidente , 2012 BCSC 1636 ; R. v. Dam , [2010] B.C.J. No. 2303 ; R. v.

Egorov , 2006 BCPC 516 ; R. v. Mannas , 2014 BCPC 192 ; R. v. Dickey , 2015 BCSC 1210 ; R. v. Bamdad , 2005 BCSC 755 , and R. v. Nesbitt , 2012 BCCA 243 . [ 33 ] The cases provided by Mr. Filkow set out a broad range of sentencing involving the exercise of judicial discretion balancing relevant factors to meet objectives and the principles of sentencing. [ 34 ] The emphasis is in an individualized process later to be referred to in assessing disposition. [ 35 ] The number of cases provided by counsel reflect principles that relate to the court ordering conditional sentence orders.

That sentencing option was then available, but not in this case. [ 36 ] The ranges of sentence dispositions provided by Mr. Filkow are from community-based sentences to two years in custody. [ 37 ] Some of the cases reflect unique circumstances, namely self-directed rehabilitation, youthful offenders, minimal aggravating circumstances, no criminal histories, some small quantities of drugs, and some drugs different than MDMA, and remorse. [ 38 ] Mitigating factors were the emphasis against ordering significant penalties for serious offences.

The Crown relies on the following cases to support its position that three years is the appropriate range. The cases referred to offences that occurred prior to the 2012 amendment to the Controlled Drugs and Substances Act moving MDMA from

Schedule 3 to

Schedule 1, recognizing the serious effect of the drug, emphasizing principles of deterrence and denunciation. 1. The case of R. v. Goubout , 2015 BCCA 168 . That case:

- He is 36 years of age; - Pleaded guilty to two counts of possession for the purpose of trafficking cocaine and Ecstasy, both designated offences; - There were two prior drug convictions for possession for the purposes of trafficking in 1997 and 2003; - Circumstances arose out of a controlled drugs delivery; - Recently supplied 2,000 MDMA tablets and 800 pills were left; - Other indicia of trafficking were found; - He purchased these pills for 50 cents and sold them for five dollars; - There was a history of involvement in illegal drug trading for years; - Supplying drugs as a mid-level trafficker; - He was sentenced to two years consecutive on each charge, not including the pre-trial detention. 2.

R. v. Kong , 2013 BCSC 878 . - Mr. Kong is 32 years of age; - Entered a plea of guilty to possession for the purpose of trafficking in Ecstasy and cocaine and other charges; - Police found 10,374 Ecstasy pills valued at $52,000; - Also found in the stash house was one kilo of cocaine packaged in ounce bags; - The court concluded this was a sophisticated drug trafficking enterprise associated with distribution; - Mr. Kong had a lengthy criminal record including a conviction for possession for the purposes of trafficking; - The sentence was three years concurrent to a five-year sentence for cocaine trafficking; 3.

R. v. Matwijec (10 August 2012), North Vancouver 54665-2C (BCPC), a decision of the Honourable Judge Milne; - Accused was 47; - No criminal record; - Had left the drug scene; - He trafficked to an undercover operator on two occasions; - He sold one kilogram on each occasion for $5500. He received $500 on each transaction; - The court considered this as a mid-level trafficking operation; - The court spoke of another factor of sending his girlfriend to the United States of America with Ecstasy in return for cocaine; - The court sentenced Mr. Matwijec to two years less one day. 4. R. v.

Khamla (25 February 2009), Surrey 168306-4-C (BCPC). - Age 19; - Prior trafficking conviction as a youth; - He entered guilty pleas to several offences including possession for the purposes of trafficking in cocaine and Ecstasy and heroin and storing restricted firearms; - In addition, police seized 136.49 grams of cocaine and 11 grams of heroin, 660 Ecstasy pills and some drug paraphernalia; - Mr.

Khamla's house was used as a stash house for a dial-a-dope operation; - It was a sophisticated distribution business; - He was sentenced to two years on the drug count and one year consecutive for the weapons charge. 5. The next case cited by the Crown was R. v. Toor , 2006 BCCA 347 . - Age 21; - He had a lengthy criminal record including crimes of violence;

- Trafficking to an undercover operator; - The operation was for profit; - Mr. Toor had engaged in several drug deals in the past; - There was no related criminal record; - The operation was found to be highly sophisticated. Toor selected specific deals associated with trafficking; - He happened to be on early release at the time and this was considered an aggravating factor; - He was sentenced to 32 months in custody. [ 39 ] In R. v. Nasogaluak, 2010 SCC 6 , the court emphasized an individualized process in the final disposition of any case. The principles were re-emphasized in a case called R. v.

Voong , 2015 BCCA 285 , a decision made by Madam Justice Bennett. [ 40 ] The sentence should be fashioned to take into account the circumstances of the offence and offender, moral blameworthiness and principles of sentencing, proportionality of the offence and offender. This judicial discretion involves a balancing of a variety of factors that are not precise but meet the sentencing in pursuit. [ 41 ] Further, a range of sentence is no more than a guideline; it is not fixed, (see R. v. Nasogaluak , paragraphs 43 to 45 ), which were recently considered in the case called R. v.

Lacasse, 2015 SCC 64 . [ 42 ] The aggravating factors in this case are compelling. The serious nature of the drug, the quantity, the quality, potential profit, prior criminal history of a designated criminal offence, are very significant.

This offence took place four months after he completed a conditional sentence order for trafficking and being in possession for the purpose of trafficking in cocaine in December of 2012. [ 43 ] The cases provided by both counsel have a wide sentencing range of one to four years, dependent upon the specific facts, background of the offender, and the finding of facts, and the degree of blameworthiness.

The Crown's cases reveal that the higher range is associated with convictions on the same indictment to numerous charges, many aggravating factors, including prior drug-related convictions, a criminal history, lengthy involvement in drug trafficking, and a commercial component. The factors were often described by the courts as high level, sophisticated distribution businesses. [ 44 ] The charges in this case are serious. The potential harm to others is evident. MDMA has been moved from

Schedule 3 to

Schedule 1 of the CDSA . Notwithstanding, when I consider the age of Mr. Khan and his background, antecedents, support in the community, future positive prospects of rehabilitation, looking forward, some weight has to be attenuated to the principles of rehabilitation. [ 45 ] I have considered the circumstances of this offence, and the offender, aggravating factors, mitigating factors, the case law, the recent amendments recognizing MDMA as a

Schedule 1 drug, the principles of sentencing s. 718 to 718.2, deterrence, general and specific, and denunciation. [ 46 ] I am sentencing Mr. Khan to custody for a period of 22 months. [ 47 ] There will be some ancillary orders made. There will be an order made with respect to DNA. There will be a lifetime prohibition with respect to firearms. There will be a victim fine of $100, and there will be forfeiture of the monies that were seized. [ 48 ] MS. WIANCKO: Your Honour, may I just clarify with Mr. Registrar whether or not Count 2 – it's my recollection that Count 2 was stayed at the outset.

If I could just make sure that it says on the – [ 49 ] THE CLERK: In the log notes, Your Honour, it doesn't indicate that, but perhaps if you want to do that now [indiscernible] [ 50 ] MS. WIANCKO: We should probably just make it clear that the other count was stayed, just in case there are any questions, because I had some questions from the registry before on that. The Crown did, my understanding, stay it on the first day of trial, but if that isn't showing on the record, the Crown will stay the other count, the heroin count, now. [ 51 ] THE CLERK: That's Count 2. [ 52 ] MS.

WIANCKO: I don't have the Information in front of me, if I – we could just maybe double check. Yes, that's right. [ 53 ] THE COURT: The victim fine will be paid two months after he is released from custody. The victim fine is $100. (REASONS FOR SENTENCE CONCLUDED)