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.