'No doubt' Saanich man knew about cocaine in van, house: judge says
Nov 10 2012
A 37-year-old Saanich man has been convicted of conspiracy to traffic cocaine and possession of cocaine for the purpose of trafficking.
B.C. Supreme Court Justice Robert Johnston found Asif Khan conspired to traffic cocaine in late September 2008 with his co-accused, Jarrod Francis Nicol and Jason Conrad.
Johnston convicted Khan on two counts of possession of cocaine for the purpose of trafficking, but stayed one of the charges on the legal principle that prevents an accused from being convicted for more than one offence arising from the same set of facts. Johnston acquitted Khan on a charge of possession of ecstasy for the purpose of trafficking.
Last month, Nicol was sentenced to five years in prison after pleading guilty to trafficking cocaine in September 2008. Conrad was sentenced to five years for the same offence in May.
Khan's lawyer, Geof Simair, will set a date for his sentencing hearing on Nov. 21.
Khan came to the attention of police investigating large-scale cocaine traffickers on Vancouver Island. Police were authorized to intercept communications between Nicol and Conrad. They also had them under surveillance between Aug. 16 and Sept. 30, 2008, Johnston said.
At the time, Khan was renting a house at 857 Royal Oak Dr. with another man. Nicol lived next door.
Four days before his Sept. 28 arrest, Khan was seen with Nicol more than once. He was also seen entering Nicol's residence without knocking, Johnston said.
On Sept. 27, police saw Khan and Nicol leave their homes and travel in separate vehicles to the Swartz Bay ferry terminal and take the ferry to the Lower Mainland. Police believed Nicol and Conrad had arranged for Nicol to obtain a significant quantity of cocaine and this was the reason for the trip, Johnston said.
Police continued their surveillance of Khan and Nicol on the Lower Mainland. The next day, they saw them catch the ferry at Tsawwassen back to Swartz Bay.
Khan was arrested in his car on the Pat Bay Highway. Police found 8.75 kilograms of cocaine in his car. Nicol was also arrested. No significant quantities of drugs were found in his car.
During his trial, Khan did not argue that he had no knowledge of the cocaine, Johnston noted.
"On the evidence, I have no doubt that Mr. Khan knew of the presence of cocaine in his van and had it under his control on Sept. 28, 2008," Johnston said.
Within hours of Khan's arrest, police searched his house and found 0.5 kg of cocaine in an ensuite bathroom, accessible only through Khan's locked bedroom.
Johnston said he had no doubt Khan knew of the presence of cocaine in the ensuite bathroom.
Johnston, who read transcripts of all the intercepts between Conrad and Nicol, said he found little to implicate Khan.
"All of this leads me to conclude that Mr. Khan's role in all of this enterprise was no more than a courier, a carrier, employed or utilized by Mr. Nicol to carry a large quantity of cocaine in Mr. Khan's vehicle so that Mr. Nicol could travel close by to keep an eye on his valuable cargo while remaining with ostensibly clean hands," he said.
However, Khan knew he was carrying the drugs, which implies he agreed to carry the drugs, Johnston said.
"I find that intention was formed and that agreement was concluded some time on the afternoon of Sept. 27, 2008," Johnston said, adding, "I also find Mr. Khan and Mr. Nicol had common intention to transport the cocaine from the Lower Mainland to the Victoria area and that falls under the definition of trafficking."
Johnston found the Crown did not prove beyond a reasonable doubt that Khan had control of a significant quantity of ecstasy found in a locked safe in a padlocked utility room in his house. The room was believed to be a processing lab for drugs.