Pubdate: Thu, 09 Nov 2000
Source: Toronto Star (CN ON)
Copyright: 2000 The Toronto Star
Contact:  One Yonge St., Toronto ON, M5E 1E6
Fax: (416) 869-4322
Website: http://www.thestar.com/
Forum: http://www.thestar.com/editorial/disc_board/
Author: Tracey Tyler, Legal Affairs Reporter

COURT SENDS AFGHAN TORTURE VICTIM TO PRISON

House-Arrest Term For Heroin Dealing Overturned On Appeal

In a decision that appears to have stunned and infuriated one of its 
own judges, Ontario's top court has ignored medical warnings and sent 
a victim of torture in an Afghanistan prison to a penitentiary for 
six years.

The Ontario Court of Appeal decided 2-1 Tuesday to set aside a 
17-month conditional sentence that kept Abdul Shahnawaz, 35, under 
house arrest and electronic monitoring for heroin trafficking.

The six-year prison term substituted by the court Tuesday is three 
times greater than the sentence crown lawyers had sought.

It also comes despite warnings by two psychiatrists that putting 
Shahnawaz behind bars will trigger damaging flashbacks of his three 
years as a political prisoner, when he was beaten, hung upside down, 
given electroshock and strangled until he became blind in one eye.

The doctors' evidence was given serious consideration by the trial 
judge last year in sentencing Shahnawaz. He had sold 650 grams of 
heroin to Toronto police undercover agents in four transactions, once 
with his 5-year-old son in the car and another with the drugs tucked 
under his baby in a carriage.

The trial judge, Madam Justice Anne Molloy, said while a nine-to 
12-year prison term would normally be appropriate, Shahnawaz deserved 
an exceptional sentence for two reasons.

Shahnawaz was likely an unpaid dupe working for higher-level dealers 
and imprisonment would cause him intense psychological suffering, 
given his history, she said.

But Madam Justice Louise Charron of the appeal court, in calling the 
sentence "manifestly unfit," said Molloy focused too much on 
Shahnawaz's personal circumstances.

Judge calls original sentence 'manifestly unfit' for the crime

"Rehabilitation as a goal of sentencing is not the restoration of an 
offender's physical and mental health, but his reinstatement as a 
functioning and law-abiding member of the community," she said, 
writing for Associate Chief Justice Coulter Osborne.

But in a strongly worded dissent, Mr. Justice John Laskin disagreed. 
"Nothing justifies this court increasing the length of the sentence 
asked for by the crown, let alone tripling it as my colleague 
proposes," he said.

Laskin agreed with Molloy that the case called for compassion and 
leniency. He said the effect of incarcerating Shahnawaz, his moral 
culpability and his prospects for rehabilitation if imprisoned 
justify the conditional sentence, which carried an additional two 
years of probation.

"I doubt that any of us fortunate enough to live in a civilized 
society can comprehend the horrific treatment Mr. Shahnawaz must have 
suffered," he said. "After his capture, Mr. Shahnawaz was subjected 
to treatment condemned by every free and democratic society in the 
world."

Laskin noted that Shahnawaz is severely cognitively impaired. He was 
described by Toronto psychiatrist Donald Payne, who has treated him 
for post-traumatic stress disorder since 1992, as among the worst 
functioning of the 1,400 torture victims he's treated.

Payne, along with Dr. Helen Meier, a psychiatrist at Mount Sinai 
Hospital, examined Shahnawaz in the Toronto (Don) Jail before 
sentencing and found the jail time had affected the man. Molloy 
noticed when Shahnawaz returned to court, he was trembling and 
couldn't make eye contact.

Shahnawaz was trembling and couldn't make eye contact

Ontario's correctional services ministry intervened on appeal, 
arguing trial judges shouldn't be allowed to order electronic 
monitoring for offenders on conditional sentences.

But the appeal court declined to address the issue.
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