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Digest: R. v. Ahmed

[2017] O.J. No. 384

Ontario Court of Appeal
G.J. Epstein, S.E. Pepall and K.M. van Rensburg JJ.A.

January 27, 2017.
(117 paras.)

   Criminal law — Sentencing — Criminal Code offences — Offences against public order — Offences in relation to terrorism — Particular sanctions — Imprisonment — Consecutive sentences — Sentencing considerations — Aggravating factors — Mitigating factors — Deterrence — Denunciation — Rehabilitation — Time already served — Totality principle — Pre-sentence report — No previous record — Sentence imposed on co-accused — Sentencing precedents or starting point — Maximum or minimum sentence available — Seriousness of offence — Age of accused — Procedure — Appeals — Appeal by Crown and cross-appeal by offender from 12-year sentence imposed for terrorism-related offences dismissed — Offender, age 26, formed relationship with Afghanistan-trained extremist and formed group to further Jihadist cause and commit terrorist attacks within Canada — He contributed money, hosted recruitment meeting, and was arrested in possession of unassembled explosive devices — Offender convicted of conspiring to facilitate terrorism and participation in terrorist group activities — No error was established with respect to application of totality or parity principles, or assessment of offender's relative moral culpability and rehabilitative potential — 12-year sentence was demonstrably fit — Criminal Code, s. 718.2(a).

   Appeal by the Crown and cross-appeal by the offender, Ahmed, from a 12-year sentence imposed for terrorism-related offences. The offender supported the Taliban and believed it was his duty to assist violent Jihadist causes. He fostered a relationship with Alizadeh, who had attended a terrorist training camp in Afghanistan and sworn an oath of loyalty to Al-Qaeda and the Taliban. Alizadeh sought to form an Ottawa-based terrorist group that would conduct attacks in Canada. The offender solicited money from his father-in-law and another individual, Sher, for Alizadeh to send to foreign terrorists to purchase weapons. The offender knew that Alizadeh possessed components for making remote controlled explosives and intended to assemble them for use in Canada. The offender hosted a meeting with Alizadeh and Sher in which they attempted to recruit Sher for a terrorist group led by the offender. All three individuals were arrested shortly thereafter. The offender was arrested in possession of explosive devices, but neither the Crown nor the defence was able to prove the purpose for which the devices were possessed. Alizadeh pled guilty and received a 24-year sentence pursuant to a joint submission. The offender was convicted of conspiring to facilitate terrorism and participating in the activities of a terrorist group. Sher was acquitted. The offender, age 26 at the time of the offences and age 30 at the time of sentencing, had no prior convictions. The Crown sought a 20-year sentence. The defence sought a sentence of five to eight years. The offender was sentenced to 12 years' imprisonment, less one year credit for time served. The sentence was comprised of five years for conspiracy, plus seven years' consecutive for participation. The Crown appealed and the offender cross-appealed, with each reiterating their respective positions taken at the initial sentencing.

   HELD: Appeal and cross-appeal dismissed. The trial judge did not err in the assessment of the gravity of the offences by undervaluing the offender's culpability relative to that of Alizadeh. The conclusion that the offender was a follower rather than an instigator was amply supported by the evidence of their conduct during the group's six-month existence. The trial judge did not err in the application of the parity principle in identifying a range of sentences based on those received by subordinate offenders in the Toronto 18 terrorist plot, and in light of subsequent developments in the jurisprudence. The trial judge did not err in analyzing rehabilitation, remorse, and risk of reoffending. The offender's relative youth and lack of prior convictions were properly subordinated to the principles of deterrence and denunciation. The weight given to the foregoing factors was within the sentencing judge's purview and was entitled to deference. No misapprehension of the extensive evidence of the offender's rehabilitative potential was established. The trial judge did not err in the application of the totality principle, as the sentence imposed reflected and did not exceed the offender's moral culpability. Although the trial judge ought not to have mentioned the statutory aggravating circumstances regarding terrorism in addition to the seriousness of the offences, there was no impact on the sentence imposed, which was demonstrably fit. There was no basis for interference with the judge's decision declining to increase the parole ineligibility period. Sentence: five years' imprisonment for conspiracy to facilitate terrorism; six years' consecutive for participating in terrorist group activities.