LENIENCY FOR A DRUG TRAFFICKER

The Clash Over Sentencing For An Afghan Man Traumatized By Torture Could
Reach The Supreme Court

Athree-inch scar over Abdul Momen Shahnawaz's abdomen marks the spot where
a frustrated Afghan jailer slashed him with a bayonet during his three-year
detention.

Lifting his shirt to reveal it recently, Mr. Shahnawaz described how he
also endured daily beatings, electric shocks and being suspended by his
feet. Once, he was strangled so severely with a scarf that blood vessels
burst in his eyes, leaving one of them blind.

But mental scars are what lie at the heart of a debate which has brought
several Ontario judges into fierce conflict and may soon have the same
effect on the Supreme Court of Canada.

At stake is whether Mr. Shahnawaz, a convicted heroin trafficker, will
serve a conditional sentence of 17 months house arrest or whether he must
instead spend six years in a prison cell.

Those supporting his position -- including psychiatrists, two judges and
prominent criminal lawyer, Edward Greenspan -- say a prison sentence would
be cruel beyond measure and probably drive Mr. Shahnawaz half-insane.

"It is outrageous, it is merciless and it smacks of injustice," Mr.
Greenspan said in an interview. "Based on this man's background, he
deserves leniency and compassion."

The Ontario Court of Appeal offered Mr. Shahnawaz neither. Last fall, a 2-1
majority overturned his sentence and instead tripled the Crown's request
for a a two-year prison sentence.

Judges Louise Charron and Coulter Osbourne said the conditional sentence
had been "manifestly unfit" for an offence that normally warrants 9 to 12
years. Mr. Justice John Laskin disagreed vociferously, saying prison would
be "a far more severe punishment" for Mr. Shahnawaz than the average person.

"Mr. Shahnawaz was profoundly psychologically damaged by his experiences in
Afghanistan," he said. "Because of what he has gone through, he is severely
cognitively impaired. He lives with constant stress. He cannot participate
in many aspects of normal life. He and his family live on social
assistance, and he is likely incapable of work."

In a brief asking the Supreme Court to hear Mr. Shahnawaz's appeal, his
current lawyer, Andras Schreck, says his client's mental condition ought to
be taken into account.

"The Court of Appeal's judgment is likely to have a profound effect not
only on the applicant, but on many other mentally ill accused who find
themselves before the courts," it says.

Mr. Shahnawaz was 17 years old when pro-Russian Afghan soldiers seized him
from his family's rural farm in search of information about his brother, a
fighter in the mujahedeen guerrilla movement.

Thrown in a subterranean chamber in the Khad prison with 25 or 30 other
captives, Mr. Shahnawaz lived in constant fear of the relentless torture
sessions.

"Ask me, beat me, ask me, beat me," the soft-spoken man said in an
interview. "Other people, too. They bring them back covered in blood. I saw
people shot with guns. I saw them die. Every night-time, I heard people
screaming."

After three years in detention, Mr. Shahnawaz was conscripted into the
army. He escaped, made his way to a refugee camp in India and immigrated to
Canada in 1991. His parents, a sister and brother have since been killed in
shootings or bomb explosions.

A father of four children under 11, Mr. Shahnawaz worked briefly in a
butcher's shop in Winnipeg. He quit because of frequent pain and illness.

"He has bad ulcers from the torture and severe migraines from head
injuries," said George Tsimiklis, Mr. Shahnawaz's trial lawyer. "He can't
handle any noise."

Arrested in 1997 on four counts of trafficking heroin to an undercover
police agent, Mr. Shahnawaz spent seven months in pretrial custody.
According to psychiatric testimony, his flashbacks were so intense that Mr.
Shahnawaz felt as if he were back in the Khad prison.

Mr. Shahnawaz recalls waking up screaming or suffering chest pains while
awaiting his trial. He said some fellow-inmates assumed he was insane.
Others verbally abused him for ruining their sleep.

Psychiatrist Donald Payne testified at Mr. Shahnawaz's trial that few of
the 1,400 torture victims he has dealt with were as profoundly scarred by
their experiences.

Mr. Shahnawaz testified that he delivered the heroin, worth about $227,500
in street value, under pressure from an Afghan acquaintance. Superior Court
Judge Anne Molloy was doubtful about this. She concluded instead that Mr.
Shahnawaz was instead "a dupe or pawn in the hands of unscrupulous,
high-level drug dealers."

Judge Laskin agreed. "It is simply unrealistic to believe that a person as
cognitively impaired as Mr. Shahnawaz could be at anything other than the
lowest levels of the heroin trade," he said.

Mr. Shahnawaz is free on bail pending the Supreme Court's decision on his
appeal application. "Night or day, I cannot sleep," he said. "It is in my
mind all the time."