Her Majesty the Queen - v. -, 2018 SKPC 11

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 011 Date: January 26, 2018 Informations: 36657969 , 46623212 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Imran Khan Appearing: C. Carlson For the Crown B. Pfefferle For the Accused SENTENCING DECISION D.C. SCOTT , J [ 1 ] Imran Khan was found guilty, after a trial, of the following offences: 1. Possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act ( CDSA ); 2. Possession of methamphetamine for the purpose of trafficking contrary to s. 5(2) of the CDSA ;

3. Possession of property or proceeds obtained by the commission of a crime exceeding $5000, contrary to s. 354 and s. 355(1) of the Criminal Code . He also pleaded guilty to failing to attend court on October 5, 2015, contrary to s. 145(2) (

b) of the Criminal Code . Circumstances of the Offence [ 2 ] At trial, I found Mr. Khan had participated in a commercial dial-a-dope operation jointly with Benjamin Pearson, Jesse Secher and others. I found Mr.

Khan was in possession of seized cocaine and methamphetamine for the purpose of trafficking and in possession of cash which was obtained by the commission of an offence. [ 3 ] On October 20, 2015, Saskatoon Police Service officers entered with a search warrant, three Saskatoon locations referred to in the admission of facts at trial as the “7 th Street Apartment ” , the “ Willis Crescent Residence ” and the “ storage locker ” . On the same day, police were also involved in a takedown of a Buick Verano. [ 4 ] The Verano and the Willis Crescent Residence had been rented by Imran Khan.

It was apparent from the evidence that Benjamin Pearson was occupying the Willis Crescent Residence. He also rented the 7 th Street Apartment. At the time of the police takedown, Jesse Secher was the driver of the Verano; the vehicle was also occupied by two passengers, Valcamp and Laronge. [ 5 ] The following was seized from the Willis Crescent Residence: 1. 136 grams of cocaine 2. 45.8 grams of methamphetamine 3. 158.8 grams of phenacetin (a cutting agent) 4. $32,000 cash Cash in the amount of $320 was seized from the Verano. [ 6 ] The expert, Cst.

Ferguson, testified that the total value of the methamphetamine seized as packaged would be $2,250. The total dollar value of the cocaine as packaged would be $13,980 - $15,620. [ 7 ] During the short time Mr. Khan was in Saskatoon, being approximately three to four months, he rented a number of vehicles, including the Buick Verano. Mr. Khan signed a one-year lease on the Willis Crescent Residence only 1 ½ months before returning to British Columbia from Saskatoon.

The bulk of the drugs and cash seized from the Willis Crescent Residence were located in a suitcase safe inside a bedroom closet along with identification belonging to Pearson. The Verano that he rented was left behind for Pearson’s use. As such, Mr. Khan made available to the commercial operation, the Willis Crescent Residence and the Verano vehicle, both rented by him. [ 8 ] Pearson and Secher pleaded guilty to charges related to these circumstances. Certified copies of their certificates of conviction were filed at trial. Crown Position on Sentence

[ 9 ] The Crown submits the range of sentences for offences such as this is between 18 months and 4 years. The Crown is seeking a penitentiary sentence of 4 years for Mr. Khan, given his level of participation compared to Secher and Pearson. [ 10 ] Secher received a sentence of 2 years’ incarceration, after pleading guilty on the day of trial to counts 1 and 2 on Information 36657969, possession for the purpose of trafficking cocaine and possession for the purpose of trafficking methamphetamine.

He had no criminal record at the time of the offences. [ 11 ] Pearson received a sentence of 3 years, after a joint submission. The Crown suggested that the sentence was discounted considerably because of an early guilty plea to the same three charges for which Mr. Khan was found guilty, being possession for the purpose of trafficking in cocaine and methamphetamine and possession of cash obtained by crime. At the time of the offences, Mr. Pearson had a youth record involving four weapons offences, for which he received a sentence of deferred custody.

As an adult, his record had six entries, with a gap of four years. He had been the subject of two conditional sentence orders, one for possession of marijuana for the purpose of trafficking. Defence Position on Sentence [ 12 ] The defence has acknowledged the sentencing range, but asked that I impose a jail sentence at the middle or lower end of that range. [ 13 ] The defence submitted that any sentence for Mr. Khan should be similar to that of Pearson and Secher, taking into account the principle of parity.

Analysis [ 14 ] The purpose, principles and objectives of sentencing are set out in s. 718 of the Criminal Code . [ 15 ] The fundamental principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 16 ] The objective of sentencing is to denounce; to deter; to separate offenders, where necessary, from society; to assist in rehabilitation; to provide reparations to victims; and to promote a sense of responsibility and acknowledgement of harm done. [ 17 ] A sentence should be similar for similar offences committed by similar offenders in similar circumstances.

Restraint should be exercised when considering imprisonment. [ 18 ] In addressing the principle of parity, both Crown and defence referred to the sentences of Secher and Pearson. The Crown submitted that Mr. Khan’s sentence should exceed that of Pearson. Defence submitted that Mr. Khan’s sentence should be in the range of that imposed on Secher and Pearson. As mentioned, Pearson’s sentence was the result of a joint submission.

I am unaware whether the same holds true for Secher. [ 19 ] In the recent decision of R v MacLeod, 2018 SKCA 1 , [ MacLeod ], our Court of Appeal held that the sentencing judge, in arriving at a sentence for Mr. MacLeod, over-emphasized the sentences of two co-accused made under joint submissions.

Relying on the analysis in R v Anthony-Cook, 2016 SCC 43 , [2016] 2 SCR 204, Caldwell JA stated that because “a joint submission is not directly evaluated for its fitness under the fundamental principle of sentencing, the sentence imposed on a co-accused under a joint submission loses much of its value as a comparator when it comes to the sentencing of any co-accused who has not entered into a joint submission”: para 21.

[ 20 ] At para 35, the Court in MacLeod stated that an “emphasis on sentence parity leading to the imposition of the same sentence on all co-accuseds when the individual circumstances and the principles and objectives of sentencing militate in favour of disparate sentences amounts to an error in principle.” The Court of Appeal determined the fit sentence for Mr. MacLeod without reference to the joint submissions. [ 21 ] Accordingly, I will determine the appropriate sentence for Mr.

Khan without considering the sentences imposed on Secher and Pearson. [ 22 ] The range of sentences for offences of the type in the present case is within 18 months to two years, although there are exceptions, as illustrated by the following cases. [ 23 ] In R v Chung , 1993 ABCA 52 , [ Chung ] the Alberta Court of Appeal held that a sentence of 30 months incarceration was a fit sentence for a courier in a dial-a-dope operation with only a small quantity of drugs found on his person.

The Court stated that such a sentence is warranted for those who lend themselves to the operation of a distribution scheme by not only supplying, but knowingly delivering hard drugs via a commercial trafficking system devised to minimize individual responsibility and culpability in a scheme of collective illegality. [ 24 ] In R v Patryluk , 2002 SKCA 33 , 217 Sask R 309 , the offender, who pleaded guilty to bringing marijuana and cocaine to Saskatchewan from Vancouver for resale in order to pay off a debt, was sentenced to 18 months in jail.

The Court of Appeal stated that possession of drugs for the purpose of trafficking constitutes a grave offence with a high level of personal responsibility, particularly where the offence was commercially motivated. [ 25 ] In R v Tran , 2007 BCCA 405 , 245 BCAC 171 , [ Tran ] , the offender, with a record for three prior narcotics-related convictions, engaged in a dial-a-dope operation purely for profit, was found guilty of possession for the purpose of trafficking cocaine and sentenced to incarceration for two years less one day. [ 26 ] In R v Dubai , 2008 SKCA 49 , 310 Sask R 85 , the offender plead guilty to possession for the purpose of trafficking 27.9 grams of cocaine and 500 ecstasy pills and was sentenced to 18 months imprisonment.

The offender had a limited record, was employed, had good references, and was not drug-addicted. [ 27 ] In R v Aube , 2009 SKCA 53 , 324 Sask R 303 , each of the three offenders was sentenced to 18 months ’ imprisonment after pleading guilty to trafficking cocaine and one-year, consecutive, for trafficking for the benefit of a criminal organization. All three were street-level dealers. Two had no prior convictions and one had only minor offences on his record. All three expressed their remorse.

The Court of Appeal noted the range of sentencing for trafficking in cocaine is 18 months to four years and emphasized the importance of denunciation and general deterrence in sentencing for these offences. [ 28 ] In R v Shawile, 2012 SKCA 51 , 393 Sask R 211 , the offender, with a limited criminal record, who plead guilty to one count of trafficking 53 grams of cocaine and having proceeds of crime of $895 cash in his jacket pocket was sentenced to 18 months in jail.

The offender ’ s motivation in that case was also monetary, but there were a number of mitigating factors related to his personal circumstances. [ 29 ] In R v McIntyre , 2012 SKCA 111 , 405 Sask R 28 , the 25 year-old offender pleaded guilty to one count of trafficking in cocaine and one count of possession of proceeds of crime. His sentence of 14 months incarceration was reduced to 10 months on appeal for a number of reasons.

He was young, had an insignificant criminal record, was a street-level dealer acting in large part to feed his habit, had been a productive member of society, and after being charged and while in custody attended addictions and cultural programming to turn his life around. [ 30 ] In R v Bear , 2016 SKCA 140 , where a 50 year-old female offender with an extensive, drug-related record plead guilty to four counts of possession for the purpose of trafficking and possession of the proceeds of crime, the Court of Appeal imposed a

global sentence of 4 years and 6 months incarceration, after applying the totality principle. The Court held that because the offences involved hard drugs of substantial quantity, they were considered serious and warranted a substantial period of incarceration. Mitigating were the guilty pleas, the offender ’ s personal circumstances and her addiction issues. Personal Circumstances of the Offender [ 31 ] Mr. Khan is now 27 years of age; he was 25 years old at the time of the offences. [ 32 ] Mr.

Khan testified at the trial that he was born in Ontario and moved to British Columbia with his parents, who are from India. Defence counsel referred me to a sentencing decision of Judge Field of the British Columbia Provincial Court, dated February 2, 2016, in relation to Mr. Khan containing detailed information regarding his personal circumstances. [ 33 ] In that decision, Judge Field noted as follows. Mr. Khan has a supportive, close-knit family. His parents and brother reside in Richmond, B.C. His parents own a wholesale distributing business selling merchandise to dollar stores.

At the time, both brothers were educated and gainfully employed. Mr. Khan completed a Business Administration program from Kwantlen College. At that time, he had been working in the family business and with Handyman Services. Mr. Khan was considered by the owner of that business to be a valued and dependable employee. [ 34 ] As well, at the time of Judge Field’s decision, Mr. Khan was completing Grade 12 math so that he could pursue a degree in electrical engineering at the British Columbia Institute of Technology. He has worked as an apprentice for an electrical company. Mr.

Khan testified that he has also been employed in the construction industry. [ 35 ] Judge Field referred to a number of letters provided to the Court from friends, family and others. No such letters were provided to this Court in support of Mr. Khan at sentencing. [ 36 ] Defence counsel informed this Court that any references in Judge Field’s decision to a long-term relationship and child were no longer applicable, as the couple unfortunately lost their child due to a miscarriage and the relationship has since terminated. [ 37 ] While a regular drug user, most recently of cocaine, Mr.

Khan does not consider himself drug-addicted. Criminal Record [ 38 ] Mr. Khan’s criminal history began in 2012 and is related to the offences for which he is being sentenced. [ 39 ] In May 2012, he was sentenced to a 3-month Conditional Sentence Order for trafficking in a scheduled substance under s. 5(1) of the CDSA and possession of a scheduled substance for the purpose of trafficking under s. 5(2) of the CDSA . [ 40 ] In December 2012, he was fined $150 for possession of a scheduled 1 substance. Mr.

Khan testified that the substance involved was marijuana. [ 41 ] In June 2013, he was fined $1,000 for obstruction contrary to s. 129 (

a) Criminal Code . [ 42 ] In February 2016, he was sentenced to 22 months in jail for possession of a scheduled substance, MDMA, commonly known as ecstasy, for the purpose of trafficking contrary to s. 5(2) of the CDSA . Mr. Khan had been found guilty on

November 27, 2015 for this offence, which occurred in December 2012. [ 43 ] I note that the offences for which Mr. Khan is being sentenced in the present case occurred in October 2015, while the ecstasy matter was still proceeding in the courts in British Columbia. [ 44 ] In March 2017, he was sentenced to 7 days consecutive to 6 days pre-sentence custody for failing to comply with a recognizance contrary of s. 145(3) of the Criminal Code . Pre-Sentence Custody [ 45 ] According to the Crown, Mr. Khan spent seven actual days on remand and is entitled to enhanced credit of 10.5 days.

It is proposed that those days be applied to the offence of failing to attend court on October 5, 2015 on Information #46623212. [ 46 ] During the trial of this matter, he was a serving prisoner in relation to the February 22, 2016 sentence of 22 months. Mitigating and Aggravating Factors [ 47 ] Mitigating circumstances: - Mr.

Khan pleaded guilty to the charge of failing to attend court on October 5, 2015; - He was a relatively young person at the time of the drug offences (25 years of age); - He has a supportive family; - He has a desire to go back to work; - His counsel advised he was a model prisoner while serving his sentence in the British Columbia institution. [ 48 ] Aggravating circumstances: - The offences involved hard drugs, which are highly addictive and dangerous, posing serious risk for users; - Substantial amounts of drugs and cash were seized; - Mr. Khan is not drug-addicted.

As such, I conclude his motivation was monetary; - Mr. Khan’s criminal record includes three drug-related convictions in the three years preceding the offences for which he is being sentenced. The substance involved in his 2012 convictions was cocaine;

- At the time of these offences, the ecstasy offence in British Columbia for which he was ultimately convicted was not yet concluded, although it occurred prior to the present offences; - The offences occurred in the context of a commercial dial-a-dope operation. [ 49 ] Courts have stated that possession of drugs for the purpose of trafficking in the context of a dial-a-dope operation is an aggravating factor: R v Franklin 2001 BCSC 706 , [2001] BCJ No 1084 (QL) . [ 50 ] The Court in Tran also found that a dial-a-dope operation is a more aggravated form of drug business.

By its nature it has a degree of sophistication and marketing to sustain the business, indicating a significant level of committed endeavour, and it poses extra difficulties for police investigation: Tran para 34 . Conclusion [ 51 ] The offences of possession for the purpose of trafficking substances such as cocaine and methamphetamine are grave, as demonstrated by a maximum sentence of life imprisonment. As the Court stated in Tran : Cocaine, as noted by courts repeatedly, is a highly addictive drug. On a daily basis courts see the negative toll it takes on people who use it.

By engaging in the business of dispensing cocaine in an operation such as this (meaning a dial-a-dope operation), Mr. Tran has lent himself to misery in his community. And he has done so for profit when he has been earlier warned by the courts, through his prior conviction and incarceration, not to do so. [ 52 ] The same comments hold true for methamphetamine.

The effect of trafficking in cocaine and methamphetamine on the community is severe and tragic, leading to addictions and crimes of violence and theft. [ 53 ] In this case, the commercial operation was relatively sophisticated, as indicated by the presence of numerous people with various levels of participation and more than one location of operation. Defence counsel argued this was not a sophisticated operation, the accused having rented the vehicles and apartment in his own name. I agree with the Court in Chung , that dial-a-dope operations are sophisticated in their simplicity. [ 54 ] Mr.

Khan’s degree of participation was high. He rented the Willis Crescent Residence and the Verano, thereby providing a place to store the drugs and cash and a means of moving the drugs around. This would have made Mr. Khan an integral person in the operation. [ 55 ] Mr. Khan’s record includes three drug-related convictions in the three years preceding these offences, one of which involved cocaine.

His record, coupled with the fact that the offences involve a commercial operation for the sale of two hard drugs leads me to conclude that a significant period of incarceration is warranted. [ 56 ] Denunciation and deterrence are the primary objectives when sentencing for offences of this nature. [ 57 ] Taking into account the serious nature and significant quantities of the substances being trafficked, the relative sophistication of the operation and Mr.

Khan’s significant involvement in it, his related record, his relative youth, family support and personal aspirations, I conclude that the appropriate global sentence on Information 36657969 is 42 months incarceration, to be apportioned as

follows: 42 months on count 1, less any remand credit to be determined at the time of sentencing; 2 years concurrent on count 2; and 2 years concurrent on count 4. [ 58 ] On Information 46623212, for failing to attend court on October 5, 2015, I accept the joint submission of counsel and impose a sentence of 10 days pre-sentence custody, already served. Ancillary Orders [ 59 ] Mr. Khan will pay victim surcharges in the total amount of $700. He will have six months following the expiry of this jail sentence to pay the surcharges in full. [ 60 ] In this case, a DNA order is discretionary. Mr.

Khan already has provided his DNA on two previous occasions according to Defence. I note in Judge Field’s decision that a DNA order was made. I see no need to order that a further sample of his DNA be provided. [ 61 ] Mr. Khan is already subject to a weapons prohibition under s. 109 of the Criminal Code . Defence counsel consents to a further life-time weapons prohibition under s. 109 , and I therefore make that order. ___________________________ D.C. Scott, J