CITATION: R. v. Ahmad, 2010 ONSC 5874 COURT FILE NO.
: CRIMJ(F)2025/07 DATE: 20101025
SUPERIOR COURT OF JUSTICE
B E T W E E N: HER MAJESTY THE QUEEN ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
Jason Wakely and Sarah Shaikh, for the Crown
- and FAHIM AHMAD
Dennis Edney and Bella Petrouchinova for Fahim Ahmad
HEARD: September 27 and 28, 2010
REASONS FOR SENTENCE
F. DAWSON J.  The issue before the court is the determination of a fit sentence for Fahim
Ahmad who stands convicted of three terrorism offences. The convictions are the result of a change of plea entered by Mr. Ahmad in the midst of his jury trial. Following almost two years of pre-trial motions, jury selection commenced on March 21, 2010. The Crown opened to the jury on April 12. The change of plea came on May 3 after 13 days of evidence had been called before the jury.
The first conviction under count one is for participating in or contributing
to the activities of a terrorist group for the purpose of enhancing the ability of the terrorist group to facilitate or carry out a terrorist activity, contrary to s. 83.18 (1)(a) of the Criminal Code. That offence is punishable by up to 10 years imprisonment. The second conviction under count two is for importing firearms into Canada contrary to s. 103 of the Criminal Code for the benefit of, at the direction of, or in association with a terrorist group, thereby committing an offence contrary to s. 83.2 of the Criminal Code. That offence is punishable by up to life imprisonment. The third conviction pursuant to count four is for knowingly instructing six named individuals to carry out an activity for the benefit of, at the direction of or in association with a terrorist group contrary to s. 83.21 (1) of the Criminal Code. That offence is also punishable by a sentence of up to life imprisonment. Pursuant to s. 83.26 of the anti-terrorism provisions of the Criminal Code, sentences, other than a life sentence, must be consecutive to one another for offences arising from the same series of events, as these do.  The terrorist group in question is specified in the indictment as consisting
of Fahim Ahmad and others. It is indisputable that Fahim Ahmad was the original leader of the group.
Factual Background  On November 17, 2005 the Canadian Security Intelligence Agency
(“CSIS”) advised the Royal Canadian Mounted Police (“RCMP”) that Fahim Ahmad posed a threat to the security of Canada. CSIS identified Mr. Ahmad as a threat when they were engaged in a large scale project to gather intelligence on Sunni Islamist extremism in Canada.  As part of that project CSIS had developed a confidential human source
who later agreed to become an agent of the RCMP, have his identity disclosed and testify. That person was Mubin Shaikh who, when still a CSIS operative, was tasked to meet with a number of individuals expected to be attending a public presentation on November 27, 2005 at the Taj Banquet Hall in Toronto. There Mr. Shaikh met Fahim Ahmad, Zakaria Amara and a number of other young men.  Before the night was out Mr. Shaikh had learned that Fahim Ahmad and
Zakaria Amara had already planned to hold a terrorist training camp in a relatively remote area north of Toronto. The training camp was to be the first step in bringing a group of young men to a state of readiness to conduct armed terrorist attacks against targets in Canada described by Mr. Ahmad as “critical infrastructure”. He also learned that Mr. Amara was in possession of a 9 mm handgun with bullets described as “cop killers”. Mr. Amara showed the magazine from the handgun to Mr. Shaikh only after obtaining permission to do so from Mr.
Ahmad. It was clear that night, as it was over the following months, that Zakaria Amara was the second in command and treated Fahim Ahmad as his Amir. That night, in Mr. Ahmad’s presence, Mr. Amara provided Mr. Shaikh with certain fundamentalist literature and told him to study it. Mr. Shaikh was recruited by Mr. Ahmad to assist in acting as a trainer at the forthcoming camp on the basis of Mr. Shaikh’s professed views on jihad and past military experience.  Targets for potential terrorist attacks were identified in subsequent
meetings involving Mr. Ahmad, Mr. Amara and Mr. Shaikh that took place prior to the commencement of the training camp. They included the building housing CSIS’s office in downtown Toronto, the CBC building in downtown Toronto, Parliament, unspecified military bases and a nuclear power plant. Mr. Ahmad also claimed that he previously had a stash of assault rifles buried in a park but said they had been stolen. He advised Mr. Shaikh that two men who were illegally importing firearms for him from the United States had been apprehended at the border and sent to jail, something which was quite true and supports the conviction on count two. Mr. Ahmad repeatedly expressed that it was religiously permissible to attack targets in Canada because Canada was attacking Muslims in Afghanistan.  The training camp was held near Washago, Ontario from December 18 to
30, 2005. Mr. Shaikh was in attendance and the RCMP had the camp under
surveillance. Parts of a video of activities at the camp taken by Zakaria Amara were later recovered by the police. A total of 14 young men attended the training camp at one time or another, with a core group of nine who were present throughout. Although the group was ill-prepared for winter weather they participated in marches in formation while wearing camouflage clothing, ran obstacle courses while under fire from snipers using paintball guns and simulated taking a hill. There was also training with a 9 mm semiautomatic handgun. A black flag bearing the Islamic Creed was displayed at the camp. Such flags are often associated with terrorist groups.  Mr. Ahmad acted as the leader throughout the winter training camp. He
used his laptop computer to show the participants part of a video lecture series entitled “The Constants of Jihad”. He told those assembled that they were like Al Qaeda; not part of that group but that they held the same beliefs. He gave a motivational speech, some of which was captured on the recovered video of camp activities, in which he advised those present that they had to be part of a “covenant” to “bring down Rome”, meaning the United States and its allies.  Over the following months Mr. Ahmad continued to profess the same
views on many occasions. Often his statements were captured electronically pursuant to a series of judicial authorizations that permitted the interception of private communications. By this means and through the continued efforts of
Mubin Shaikh the authorities developed a formidable volume of evidence against Fahim Ahmad. This evidence showed that he and three others travelled to the small town of Opasatika about 10 hours north of Toronto for the purpose of evaluating a rural property that was for sale there. The property had been located by Zakaria Amara and was being considered as a possible safe-house, a base for training and a place to store weapons.  The evidence also shows that Mr. Ahmad and Mr. Amara were scheming
about ways to raise money for the purpose of violent jihad. Mr. Ahmad attended a meeting with a man called “Talib” who was engaged in bank and mortgage fraud based on identity theft and the use of fictitious identities. Mr. Ahmad and Mr. Amara also spoke of a promotional video based on the training camp footage that was being produced under Mr. Amara’s direction. It was to be used for recruiting, to assist in raising money and to impress certain Imams and others who might support their cause. Two such videos were eventually made and one was transmitted to an associate of Mr. Ahmad's in England. That video was later recovered by the West Yorkshire Police in an investigation that led to the arrest and conviction of one of Mr. Ahmad’s associates, Aabid Khan, on terrorism charges in the United Kingdom. In addition, it is admitted that Mr. Ahmad had been instrumental in sending Jahmaal James to Pakistan for the purpose of receiving paramilitary training that was to be used for the benefit of Fahim
-7Ahmad’s group. That training never took place because Mr. James became seriously ill after arriving in Pakistan. The plan had been for Mr. James to
connect with Aabid Khan, who was to travel from England to arrange the training. There is evidence that police in the United Kingdom knew or believed that Aabid Khan was a facilitator who arranged for terrorist training in Pakistan and Afghanistan. Aabid Khan was also known as Abu Omar.  As time progressed Fahim Ahmad and Zakaria Amara had a falling out.
Mr. Amara came to believe that Mr. Ahmad had been untruthful about certain things, such as Mr. Ahmad’s claim that he had travelled to Iraq and spoken with armed dissidents there who had told him to return to Canada where he could be a lion. Mr. Amara was also upset because Mr. Ahmad had sent one of the videos overseas when it still contained a view of Mr. Amara’s face. Mr. Amara felt that Mr. Ahmad was too overt and not careful enough about their activities from a security standpoint. This culminated in a formal split between the two leaders at the end of March, 2006.  Mr. Ahmad and Mr. Amara then pulled away from one another, each with
their own group of followers. Mr. Amara and his group were based in Mississauga and focused on the development of truck bombs. Significantly, their targets continued to include the buildings that housed CSIS’s offices and the CBC in downtown Toronto. Mr. Ahmad and his followers spoke of obtaining
assault rifles and carrying out attacks, and a further amateurish training camp was held.  The RCMP quickly determined that from the end of March, 2006 on it was
the group led by Mr. Amara that posed the greater threat. Unlike Mr. Ahmad, Mr. Amara went about his business quietly and made real progress towards the production of truck bombs. Mr. Ahmad appears to have struggled on quite ineffectively. Mr. Shaikh, who remained close to Mr. Ahmad, came to believe that Mr. Ahmad was an exaggerator who talked a good game and expressed grandiose ideas but who had not been able to develop any real operational capability. Although Mr. Ahmad spoke of previously having had a stash of assault rifles, and claimed that a shipment of AK-47s had been sent from Mexico and would be available as soon as a further sum of approximately $6,500 was raised, Mr. Shaikh doubted those claims were true.  However, the evidence shows that Mr. Dirie, who was serving a
penitentiary sentence for illegally importing handguns for Mr. Ahmad and the group, was working at obtaining more firearms through connections he was making in the penitentiary. There is also evidence to support the conclusion that Mr. Ahmad’s group had made a connection with three “Jamaican converts” to Islam who were armed and ready to act as part of the group.
On June 2, 2006 the members of both groups were arrested. Collectively,
they came to be known in the media as the “Toronto 18”. Those who the Crown determined to proceed against have now all entered pleas of guilty or have been convicted after trial. In terms of the sentences that have been imposed on those convicted to date it is apparent that those involved in the bomb plot led by Zakaria Amara have received the longest sentences. The sentences imposed so far on the young men who remained with Fahim Ahmad have been less severe, reflecting that they were not involved in the bomb plot. However, as of this date, none of the accused who have been sentenced who remained with Mr. Ahmad after the split were in a leadership position.  It is significant that Mr. Ahmad was the original leader of the group and
Mr. Amara clearly regarded him as such. The evidence demonstrates that Fahim Ahmad was the driving force behind recruiting and indoctrination. He prepared and distributed collections of fundamentalist Islamic videos advocating violence towards and hatred of non-believers in Islam, and depicting atrocities against Muslims and retaliating violence against western forces in Iraq and Afghanistan. Some of the material he distributed called for violence in North America.  I would add that Mr. Ahmad and Mr. Amara were well aware that they
were under scrutiny by CSIS and probably the police. For example, it is apparent that Mr. Ahmad and Mr. Amara believed their telephones were being intercepted.
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Indeed they were. Mr. Ahmad, Mr. Amara and the others were aware that they were being followed by CSIS employees. They took counter-measures. Mr. Ahmad seems to have been concerned that his computer activities were being monitored. He took steps to use his computer in ways designed to avoid monitoring. One of Mr. Ahmad’s associates found a miniature camera in an exit sign outside the door to Mr. Ahmad’s apartment. Mr. Ahmad believed it had been placed there by the authorities as indeed it had been. Mr. Ahmad was undeterred by any of this.  By April, 2006 Mr. Ahmad learned that two men who had visited him in
Toronto had been arrested in Atlanta, Georgia. He expressed concern that this could lead to his apprehension. Those men have since been convicted of terrorism offences in the United States. Pre-Trial Custody  Mr. Ahmad has been in custody since his arrest on June 2, 2006.
Consequently, he has spent approximately four years and four and one-half months in custody. Some of that time has been spent in administrative segregation and most of it at the Don Jail in Toronto. These circumstances could require the court to become involved in a time consuming determination of whether there should be enhanced credit for pre-trial custody. However, Crown and defence counsel have canvassed this aspect of the matter and have agreed
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that the customary two days credit for each day in pre-trial custody should be applied. I will follow that approach. Therefore, whatever sentence I arrive at will have eight years and nine months deducted from it on this basis. The Positions of the Crown and Defence  The Crown submits that if it were not for Mr. Ahmad’s guilty plea, late
though it was, and his relative youth and lack of criminal record, a life sentence would be appropriate. However, having regard to those factors the Crown seeks a sentence of 18 years in totality from which time spent in pre-trial custody should be deducted. The Crown submits that as the leader of the original group Mr. Ahmad must bear some responsibility for the bomb plot that eventually fell under the complete direction of Mr. Amara after the group split at the end of March, 2006.  The Crown acknowledges that Fahim Ahmad had not gotten to the point
where he was preparing detailed attacks on any of the targets he had identified and in this sense he had achieved less than Mr. Amara had by the time of the arrests. On the other hand, the Crown emphasizes that Mr. Ahmad’s goals, which involved armed assaults, required that he recruit, indoctrinate and arm a group of fighters before developing concrete plans for specific attacks. Money had to be raised to acquire weapons. The Crown emphasizes that Mr. Ahmad had taken concrete steps in all of these areas. He was himself armed and it is
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confirmed that Ali Dirie was illegally importing firearms from the United States for Mr. Ahmad. Mr. Ahmad had also sent Jahmaal James to Pakistan for training. He met with Talib to try to raise money. He also had a plan to raise money by means of a credit card fraud. He held two training camps to try to identify suitable persons to engage in the attacks. He made recruiting videos and engaged in real efforts to radicalize Muslim youth. He was serious. Once he had a group of armed men available to him he intended to commit indiscriminate mass murder for political, ideological and religious purposes.  Mr. Ahmad submits that a sentence in the range of 10 to 12 years is an
appropriate sentence with the time spent in pre-trial custody to be deducted from that quantum. This would result in a sentence of approximately one year and three months to three years and three months remaining to be served after allowance for pre-trial custody.  Mr. Ahmad submits that the Crown is taking a “one size fits all” approach
to sentencing in terrorism cases and stresses that the court must impose an individualized sentence based on a careful assessment of the seriousness of what actually occurred having regard to the principles of sentencing. Mr. Ahmad’s counsel submits that Mr. Ahmad is really a pathetic figure who grossly exaggerated his connections, abilities and intentions in order to lift himself up and achieve some status and attention that he would not otherwise have in life. He
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submits that Mr. Ahmad was living in a fantasy world. He was unemployed, had a young family and no money. He did not have the means to develop operational capability. He points out that Mr. Ahmad spoke of targets but that there is no evidence of any concrete planning to attack any of them. Mr. Ahmad’s reference to some targets was fleeting: he would mention them once and then never mention them again. The two training camps were amateurish. He submits that Mr. Ahmad can bear no responsibility for the bomb plot Mr. Amara was working on. Mr. Amara’s efforts to obtain bomb making chemicals and a warehouse in which to build the bombs all took place after the split, as did perfection of the detonators. He emphasizes that even Mr. Shaikh came to believe that Mr. Ahmad lied, exaggerated and was essentially incompetent. The Offender  Fahim Ahmad was born in Afghanistan on August 10, 1984 and is
currently 26 years of age. He was 21 years of age at the time of his arrest. He is an only child. When he was one year of age his parents fled to Pakistan to escape compulsory military service, the Soviet war in Afghanistan and to secure a better future. Fahim Ahmad remained in Pakistan until his family moved to Canada in October, 1994 when he was ten years of age.  Mr. Ahmad’s parents are well educated and held good jobs in Pakistan.
His father was employed as a civil engineer and his mother as a teacher.
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However, after arriving in Canada his parents had difficulty having their credentials recognized and both ended up working double shifts in minimum wage jobs to make ends meet. In a letter to the court Mr. Ahmad’s father has expressed regret that he and his wife were unable to spend more time with their son.  By all accounts Fahim Ahmad was a good student, received good grades
and was interested in sports. While in school he worked part-time at Walmart and at a fast food restaurant. After the 9/11 attacks the accused felt his friends were treating him differently. He began to spend increasing amounts of time at the mosque. Mr. Ahmad advised the presentence reporter that his parents were secular Muslims and discouraged the close and ongoing attachment he was developing to the Islamic faith. In a letter the accused has written to the court he advises that he increasingly turned to elders at the mosque for advice. He also says that as he became more attached to the mosque he distanced himself from his friends.  According to the presentence report, when Mr. Ahmad was at the
mosque he began to interact with individuals who believed Islam was under attack and that Muslims everywhere needed to stand up for their faith and for those Muslims whose countries were being attacked by the United States and its allies.
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At the same time Mr. Ahmad began to spend more time on the internet,
including sites making claims that atrocities were being committed against Muslims by western forces overseas. He became convinced it was his duty to assist the Afghani people and his faith by becoming involved in the conflict.  Mr. Ahmad met his wife Mariya Mohammed on an Islamic internet forum
called “Clear Guidance”. Ms. Mohammed has written to the court explaining that she now feels the forum should have been called “Misguidance”. The content on that site incited young Muslims to hate “non-believers” and promoted violence against them. As a result of connecting on this internet site the couple decided to marry. Mr. Ahmad was 18 and Ms. Mohammed was 16. Mr. Ahmad says that elders at the mosque recommended the marriage. The parents on both sides were opposed but the marriage proceeded. The couple had not met in person prior to the wedding.  The couple initially resided with Mr. Ahmad’s parents in Mississauga but
there was friction due to the couple’s religious beliefs and practices. Within three months they moved into the home of Ms. Mohammed’s parents in Toronto. This resulted in Mr. Ahmad’s attendance at a new mosque which placed an emphasis on Islamic fundamentalism.
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Around this time Ms. Mohammed became pregnant. When the baby was
born she suffered from postpartum depression. Mr. Ahmad resorted to the mosque more frequently to find a harbour from the stress. Soon Ms. Mohammed was pregnant again and again she experienced postpartum depression when their second child was born.  The presentence report indicates that around this time Mr. Ahmad met an
older man with connections in Afghanistan who spoke of guns and training. The accused decided he wanted to take concrete action. Based on the evidence I have already reviewed it appears that he then did so. The Post Arrest Period  According to the presentence report Mr. Ahmad has clearly expressed
“regret over involvement in the activities before the court”. He claims to have reevaluated his goals and his understanding of the Islamic faith. The accused has also expressed these sentiments in some detail in his letter to the court. He explains how his interaction with inmates of various faiths at the Don Jail played an influential role in this process. He now claims to be tolerant of other religions and respectful of the beliefs of others. In her letter to the court Mariya Mohammed indicates that she and Mr. Ahmad have both changed their views and together made the decision to have their children enrolled in public school
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instead of Islamic school. This is advanced as concrete evidence of their change of views.  Mr. Ahmad’s father-in-law has also provided a letter to the court. He
brought his family to Canada from Dubai in 2002. He has explained how he was originally opposed to Fahim Ahmad’s marriage to his daughter. However, over time he saw that Mr. Ahmad was kind and caring towards his daughter. Despite being ashamed of what Mr. Ahmad was a party to he explains that he and his wife are relieved and pleased that Mr. Ahmad has now taken responsibility for his actions. He expresses the view of his family that Fahim Ahmad possesses goodness and essential humanity and has learned from his experience. He pledges the continuing support of his family to assist the accused once he has paid his debt to society. In the meantime he is supporting his daughter and her two children.  It is clear from all of the letters that Mr. Ahmad has the continuing support
of his wife and both of their families. The Psychiatric Evidence  Mr. Ahmad has presented the court with a lengthy report prepared by Dr.
Julian Gojer, a qualified forensic psychiatrist. Although the report is 27 pages in length only about two pages deal with diagnosis and risk assessment and
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management. The balance of the report is a recitation of the presentence report, the letters of support, and details provided by Fahim Ahmad that are similar to those provided by Mr. Ahmad in his letter to the court.  Dr. Gojer concludes that Fahim Ahmad does not suffer from any mental
illness or personality disorder that can account for the belief system Mr. Ahmad developed or the actions he has taken. In other words, Dr. Gojer confirms that those are simply the product of Mr. Ahmad’s considered religious and political views.  Dr. Gojer was cross-examined about how these conclusions might be
helpful to the court in fashioning a proper sentence. He stated that the only significance was that the court would know that there was no mental illness or personality disorder to stand in the way of efforts to rehabilitate Mr. Ahmad.  Dr. Gojer also agreed that there is consensus amongst those who have
studied the matter that terrorists do not generally act as a result of mental imbalance, psychopathy or psychopathology. Therefore, the absence of mental illness or personality disorder is not helpful or predictive in determining whether Mr. Ahmad is likely to continue to pursue terrorist activity in the future.  In addition, Dr. Gojer agreed that the scientifically reliable psychological
instruments he used during his assessment of Mr. Ahmad have not been
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standardized on a terrorist population and are therefore not predictive. The newest instrument Dr. Gojer applied is called the Violent Extremist Risk Assessment (VERA). It is intended to be used on extremists. However, it has not yet been standardized and is not currently accepted as scientifically reliable. Dr. Gojer explained how he used it as a guide during his interview with Mr. Ahmad. He testified that he accepted as accurate Mr. Ahmad’s answers to the questions he posed in using the VERA and used that information to support his conclusion that overall Fahim Ahmad is a low risk to engage in future terrorist activity.  The VERA calls for the interviewer to rate the subject as “low, medium,
high” in relation to a number of issues listed under each of five categories. The categories and the issues within the categories are listed on a one page chart. The last line on the page is titled “Final Judgment” and calls for the interviewer to check off “low, medium or high” in relation to the subject’s future risk, presumably after looking over the similar ratings for the various relevant issues that appear above on the chart.  No doubt there is need for the development of instruments such as the
VERA. I am concerned in this case, however, with the reliability of such instruments and the approach taken by Dr. Gojer to predicting whether Fahim Ahmad is likely to engage in dangerous activity in the future. These concerns
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extend to my overall assessment of the weight I am prepared to place on Dr. Gojer’s opinion.  Dr. Gojer agreed in cross-examination that his opinion and his entire
report is based on a single interview of the accused that was 2 ½ hours in length, a single interview with Mr. Ahmad’s wife, and a single interview with the family, combined with a review of the presentence report, the letters before the court and a transcript of Mr. Ahmad’s guilty plea. Dr. Gojer did not familiarize himself with the extensive evidence against Mr. Ahmad. Although use of the VERA required him to exercise his judgment and rate Mr. Ahmad’s responses, he agreed that he did not challenge Mr. Ahmad’s statements and was in no position to evaluate Mr. Ahmad’s responses against the actual evidence in the case. He did not read the “Fall of Rome” speech. He did not read any of the wiretaps, or view or read any of the extremist or violent material that Mr. Ahmad identified with and used in his attempts to radicalize and recruit Muslim youth. Mr. Ahmad advised Dr. Gojer that he was interested in launching attacks in Afghanistan and that it was Mubin Shaikh’s idea to hold a training camp in Ontario. This is contrary to the evidence. Dr. Gojer agreed that if he was provided with unreliable information that could affect his opinion. Consequently, it appears to me that there are fundamental underlying problems that make it very difficult for the court
- 21 to place much weight on Dr. Gojer’s report or his conclusion that Mr. Ahmad poses a low risk to engage in further terrorist activity. The Principles of Sentencing  Section 718 of the Criminal Code provides that the purpose of sentencing
is to contribute, together with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions with one or more of the following objectives: a. to denounce unlawful conduct; b. to deter the offender and other persons from committing offences; c. to separate offenders from society, where necessary; d. to assist in rehabilitating offenders; e. to provide reparations for harm done to victims or the community; and f. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.  Section 718.1 of the Criminal Code describes the fundamental purpose of
sentencing as follows: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. Pursuant to s. 718.2 of the Criminal Code a sentence should be increased or reduced having regard to
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aggravating or mitigating circumstances. Several circumstances are listed, but the list is not closed. Other factors may be considered as well.  Two factors are listed as aggravating in s. 718.2 (a)(i) and (v) of the
Criminal Code that are present in this case. Under the first, there is evidence that what occurred here was motivated by bias, prejudice or hate based on national or ethnic origin and religion. Under the second, these are clearly terrorism offences. These are aggravating circumstances that I am directed to take into account in determining a fit sentence.  As previously indicated, s. 83.26 of the Criminal Code requires that
unless I impose a life sentence I must impose consecutive sentences for the offences in question. A life sentence is not in issue here. The Crown agreed to seek a maximum sentence of 18 years as part of a negotiation that induced Mr. Ahmad’s guilty plea. It was understood that Mr. Ahmad would seek a lesser sentence. In these circumstances binding authority mandates that I should sentence within the range suggested by counsel unless I am of the view that to do so would be contrary to the public interest or would bring the administration of justice into disrepute: R. v. Cerasudo (2001), 151 C.C.C. (3d) 445 (Ont. C.A.); R. v. Dorsey (1999), 123 O.A.C. 342 (C.A.). In my view, in the circumstances of this case sentencing within the range suggested by counsel would not be contrary to the public interest or bring the administration of justice into disrepute.
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Consequently, I will be imposing fixed term consecutive sentences within the suggested range.  The “totality principle” of sentencing found in s. 718.2 (c) of the Criminal
Code provides that where consecutive sentences are imposed the combined sentence should not be unduly harsh. Therefore, it is apparent that I must have regard to the overall length of the sentence that is appropriate and adjust the sentences for the individual offences to achieve that result in order to ensure that the totality principle is not violated: R. v. Jewell (1995), 100 C.C.C. (3d) 270 (Ont. C.A.). Analysis  The crimes Mr. Ahmad has been convicted of are preparatory crimes. As
I observed in my pre-trial ruling upholding the constitutional validity of the antiterrorism provisions of the Criminal Code, Parliament has recognized the harm that is inherent in such preparatory acts, and decided to criminalize such conduct in the hope that the authorities will be able to intervene at an early stage and avoid the devastation that is associated with completed acts of terrorism: R. v. Ahmad (2009), 257 C.C.C. (3d) 199 (Ont. S.C.J.). In order to criminalize such preparatory conduct in a constitutionally permissible fashion Parliament ensured that a high level of intent and criminal purpose must be established in order to obtain a conviction. Mr. Ahmad’s convictions embody the finding of a specific
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intent to advance the objectives of his terrorist group. He expressed the objectives of the group repeatedly. He was dedicated to preparing a group of young men to undertake attacks that would involve firearms and explosives, although the emphasis was placed on attacks using firearms.  What was contemplated was the eventual infliction of death, serious
injury and extensive property damage for the purpose of intimidating the public, all of which was justified on political, religious and ideological grounds. In circumstances such as these the principles of denunciation and general and specific deterrence must come to the forefront in sentencing, together with the need to protect the public by removing the offender from society. While mitigating factors such as youthfulness, lack of a criminal record and the prospect of rehabilitation must still be taken into account, they must play a subordinate role.  In addition, there can be no doubt that terrorism offences tend to
undermine our democratic way of life. Democracy flourishes because it tolerates and values a diversity of views and protects the rights of those who hold views at odds with the views of the majority. Such tolerance and recognition of the value of diversity is founded on the principle that members of our society will not seek to effect change by violent means. Those who turn to terrorism to effect change break this fundamental compact. They are not only a threat to the physical safety of the populace but to the foundational principles of our civil society. Those who
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pursue terrorism seek to make all of us less free. This is another reason why denunciation, deterrence and protection of the public must be treated as the predominant principles of sentencing.  I do not see this approach as being at odds with the premise advanced by
counsel for Mr. Ahmad. In applying this approach I accept Mr. Edney’s submission that the sentence must be based on what Mr. Ahmad actually did and must take into account the evidence that he was not very effective in pursuing his despicable goals. As counsel argues, and I agree, the fundamental principle of sentencing as articulated in s. 718.1 of the Criminal Code requires this.  Two concepts are embodied in that eloquently simple principle. The first
is that the sentence must be proportionate to the gravity of the offence. It is here that the nature of the offence is felt. By their nature, terrorism offences will almost always be viewed as gravely serious. The pursuit of plans to unleash indiscriminate killing and mayhem must surely fall close to the top of any scale that measures the gravity of offences. But the second part of the principle is equally important: the sentence must also be proportionate to the degree of responsibility of the offender.  Determining the degree of responsibility of the offender is more
challenging in this case. That is because there is no doubt that while Mr. Ahmad
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ultimately proved to be ineffectual in achieving his goals he was quite successful at motivating others to pursue terrorist activities. For example, it is very clear that Zakaria Amara initially treated Mr. Ahmad as his leader. The plan to build and detonate bombs was part of the overall discussion that took place while Mr. Ahmad was still the leader of the entire group. Mr. Amara had started to work on a radio frequency remote control detonator well before the group split in two. Mr. Amara reported his progress building a detonator to Mr. Ahmad and the two discussed it. At least two of the locations where Mr. Amara subsequently planned to detonate large truck bombs were originally identified as targets when Mr. Ahmad was in charge of the entire group. For these reasons I agree with the Crown that Mr. Ahmad must bear some responsibility for the bomb plot that continued to blossom under Mr. Amara’s direction after the group split into two groups.  In addition, I cannot overlook the fact that Mr. Ahmad must bear
considerable responsibility for embroiling other young men in his hateful pursuits. The wiretaps and other intercepts are replete with Mr. Ahmad fostering his views, instilling hatred and justifying terrorist acts in Canada on religious grounds. Mr. Ahmad is substantially responsible for virtually ruining the lives of a number of other young men who became involved in terrorist activities and now stand convicted of terrorism offences as a result of Mr. Ahmad’s proselytizing. Although
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the training camps had some amateurish aspects to them they were one of the primary means by which Mr. Ahmad brought others into his fold.  While Mr. Ahmad’s claim that he had acquired a stash of assault rifles
that were subsequently stolen, or that he was about to receive a further shipment of AK-47s were never verified, I am in no position to say that those claims were untrue. While I accept that there was an element of grandiosity and exaggeration inherent in Mr. Ahmad’s statements and activities he acknowledges that he had Mr. Dirie illegally import firearms for his group and that he was instrumental in sending Mr. James to Pakistan for terrorist training. I do recognize the “exaggeration factor”. But there is also hard evidence of things that Mr. Ahmad actually accomplished that were in furtherance of his objectives. I ultimately base my sentencing determination on the hard facts. My view of Mr. Ahmad’s stated abilities and ambitions are tempered by my awareness and acceptance that he was prone to grandiosity and exaggeration. I observe that there is no indication from Dr. Gojer that this was symptomatic of any underlying psychopathology.  With respect to the claim that Mr. Ahmad was in some respects
amateurish and ineffectual, history has shown that amateur terrorists have often succeeded in causing great harm and have certainly put many at risk of great harm. Mr. Ahmad’s activities created a grave risk and substantially heightened the likelihood that devastating acts of terrorism would be carried out in Canada.
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It is also important to acknowledge the harm that Fahim Ahmad has
caused to the Muslim community, the vast majority of whom are peaceful and law abiding people who participate in and contribute substantially to the success of our country. It is that community that acutely feels the unfortunate wariness and mistrust of Muslims that can be generated in the wider community by the acts of those like Fahim Ahmad.  I turn now to one of the most difficult aspects of this sentencing. I have
before me heartfelt letters written by Mr. Ahmad’s father and father-in-law. I also have a thoughtful letter from Mariya Muhammad explaining how she and her husband have had an ongoing dialogue and together come to the realization that the religious views they previously held were wrong. Mr. Ahmad himself has written a detailed and thought provoking letter. These letters describe Mr. Ahmad in his personal life as a caring person with underlying humanity. They portray a young man who experienced some isolation in his upbringing and explain how he became radicalized. They make references to Mr. Ahmad’s two young children and to his young wife who has been left to raise their children without their father. The letters claim that Mr. Ahmad has seen the error of his ways, has become more tolerant, and is now committed to moving forward in his life in a manner that reflects this more moderate and tolerant stance.
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While denunciation, deterrence and protection of the public must
predominate in determining a fit sentence, some weight and consideration must be given to Mr. Ahmad’s lack of criminal record and his prospects for rehabilitation. I accept that Fahim Ahmad’s parents and his in-laws are sincere in the comments expressed in the letters they have written to the court. I also accept that Fahim Ahmad has the continuing support of his wife. One cannot help but have sympathy for her situation raising two young children on her own. I accept that Mr. Ahmad is very concerned for his children. It also seems to me that his expression of a change of religious views and expression of remorse is worthy of consideration, although I also say at once that it is difficult to readily accept such assertions from someone who has recently advocated hatred of non-Muslims and justified terrorist acts on a religious and political basis. I would note that Mr. Ahmad did not testify at the sentencing hearing and his claims to reformation have not been tested by cross-examination.  Mr. Ahmad was youthful when he formulated his extremist views. He is
now 26 years of age. Perhaps his emergence from youth to adulthood has caused his fervour to soften. One thing is clear: I am not dealing with someone who remains openly defiant and who blatantly continues to advocate the rightfulness of his past actions and ideas. Only time will tell whether Mr. Ahmad has truly renounced his former views.
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Fahim Ahmad has no criminal record and I take that into account. I also
take his plea of guilty into account. However, in determining the weight to give to the guilty plea as a sign of remorse I cannot overlook the fact that it came some 13 days into the evidence at trial and only after Mr. Ahmad’s counsel had completed his vigorous cross-examination of Mubin Shaikh. The guilty plea was made at virtually the last moment and in the face of an overwhelming Crown case. Nonetheless, the plea did simplify the trial of the remaining accused. I must give the guilty plea some weight as a mitigating factor although I give it far less weight than I would have had it been made at an earlier date.  By way of offering some explanation for the lateness of the plea, Mr.
Ahmad points to the fact that the Deputy Attorney General of Canada preferred a direct indictment before the preliminary inquiry was complete. He submits this negatively impacted his ability to assess the case against him prior to trial. However, I would observe that Mr. Ahmad’s counsel had also completed his cross-examination of Mr. Shaikh at the preliminary inquiry before the direct indictment was preferred. Very full disclosure was also made in this case at an early date. Little weight can be given to the submission that Mr. Ahmad did not have an adequate opportunity to evaluate the strength of the Crown’s case prior to the commencement of the trial. In any event, such a submission is at odds with
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the notion that a guilty plea will often lead to a reduction of sentence because it is an acknowledgment of responsibility and an indication of remorse.  In arriving at the determination of a fit sentence I am mindful of the
principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances: s. 718.2 (b) of the Criminal Code. There are very few Canadian precedents to consider on this point. I have considered the reasons of Rutherford J. in R. v. Khawaja (2009), 248 C.C.C. (3d) 233 (Ont. S.C.J.). I have reviewed and considered all of the other authorities provided by counsel including the cases from Australia and the United Kingdom that have been cited. Amongst the foreign authorities I have found the judgment of Bongiorno J. of the Supreme Court of Victoria in R. v. Benbrika,  VSC 21 to be of assistance due to some similarities with this case. The English case of R. v. Barot,  EWCA Crim 1119 (Crim. Div.) is factually different but highlights the unique nature of terrorist offences and discusses important sentencing considerations at paras. 45 and 54-62.  Of considerable importance is the formulation of a sentence that is
consistent in a proportional sense with the sentences imposed on other accused persons involved in this case. In this regard I note that Mr. Amara received a life sentence for leading the bomb plot: R. v. Amara, 2010 ONSC 441. Saad Khalid, who was to deliver one of the bombs but was not in a leadership role, was
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sentenced to the equivalent of 14 years having regard to a substantial period of pre-trial custody. Saad Gaya, also involved in the bomb plot but to a slightly lesser degree than Mr. Khalid, received an effective sentence of 12 years. All of those sentences were imposed by my colleague Durno J. based on guilty pleas entered prior to the commencement of trial. All of those sentences are under appeal by either the Crown or defence and although the appeals have been argued judgment by the Court of Appeal remains under reserve.  Amin Durrani was part of Mr. Ahmad’s group. He attended both of the
training camps and travelled to Opasatika to evaluate the potential safe house. He was sentenced to 1 day in jail plus probation after serving almost three years and eight months in pre-trial custody. On the basis of “two for one” credit for pretrial custody this is the equivalent of a sentence of almost seven years and six months. Jahmaal James received the same sentence in circumstances that were almost identical to Mr. Durrani’s in terms of pre-trial custody. Ali Dirie received an effective sentence of nine years having regard to the effects of pre-trial detention. Those sentences were all imposed by Durno J. following pleas of guilty. They are not under appeal to my knowledge.  I previously sentenced Asad Ansari to one day in jail to be followed by
three years probation. Having regard to pre-trial detention, for which I gave two for one credit, this was an effective sentence of six years and five months. Mr.
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Ansari had been released on bail prior to the start of the trial. He was convicted by the jury at trial.  The convictions registered against Durrani, James, Dirie and Ansari are
based on their activities with Mr. Ahmad. Those accused were not involved in the bomb plot with Mr. Amara. With the possible exception of Mr. Dirie, they did not play a leadership role of any kind in the group.  As a leader and the person who initiated all of the activities that have
given rise to these other convictions, it is fitting that Fahim Ahmad receive a sentence which reflects his leadership role. This suggests a more severe sentence than was imposed on the others I have mentioned who were exclusively involved in Mr. Ahmad’s group. While after the split the bomb plot posed a more immediate and grave threat than did the activities of Mr. Ahmad’s group that is offset considerably by Mr. Ahmad’s leadership role. I agree with the Crown’s submission that given his plea of guilty, late though it was, Mr. Ahmad should receive a lesser sentence than Mr. Amara. I am also influenced to that position by Mr. Ahmad’s ineffectiveness and by the fact that by the time of the arrests Mr. Ahmad’s plans had not progressed to the extent that Mr. Amara’s had.
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In my evaluation of the overall circumstances I am prepared to place
somewhat more weight on Mr. Ahmad’s prospects of rehabilitation than the Crown submits is warranted. Perhaps I am overly optimistic but I believe I see prospects for rehabilitation in the letters that have been filed with the court. I include Mr. Ahmad’s letter in this regard. However, as I have said, rehabilitation is a subordinate principle of sentencing in this case. Nonetheless, this aspect of the matter leads me to moderate the sentence sought by the Crown.  Balancing all the factors I have discussed as best I can it is my
determination that a total global sentence of 16 years is appropriate. Time spent in pre-trial custody will be deducted from that amount.  I would apportion that 16 years between the three counts as consecutive
sentences as follows. On count one; participating in or contributing to the activities of a terrorist group, the sentence is five years. On count two; importing firearms for the benefit of, at the direction of or in association with a terrorist group, the sentence is two years consecutive to sentences of even date. On count four; knowingly instructing the individuals named in that count to carry out any activity for the benefit of, at the direction of or in association with a terrorist group, the sentence is nine years consecutive to sentences of even date, but from which eight years and nine months shall be deducted as credit for pre-trial custody on a two for one basis, leaving a sentence of three months consecutive
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to be served on count four. This leaves seven years and three months to be served on what is effectively a 16 year sentence.  In addition, Fahim Ahmad is to be subject to a weapons prohibition order
under s. 109 of the Criminal Code for life. I also order that he provide a sample of his DNA for inclusion in the DNA data bank. Parole Eligibility  Pursuant to s. 743.6 (1.2) of the Criminal Code, when a judge imposes a
fixed term sentence of more than two years for a terrorism offence the court shall order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence, or 10 years, whichever is less, unless the court is satisfied that the expression of society's denunciation of the offence and the objectives of specific and general deterrence would be adequately served by the usual or lesser period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act, S. C. 1992, c. 20. Section 743.6 (1.2) directs the court to consider the circumstances of the commission of the offence and the character and circumstances of the offender in determining whether to deviate from the presumptive period of parole ineligibility.
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In view of Fahim Ahmad's leadership role as I have described it, and
having regard to the objectives and purposes of his terrorist activities and to the extent of those activities, I am not satisfied that there should be any deviation from the presumptive position created by s. 743.6 (1.2) of the Criminal Code. Consequently, Fahim Ahmad will be required to serve one half of the sentence I have imposed today before he is eligible to be considered for release on full parole.  I would like to thank counsel for their submissions, assistance and
___________________________ F. Dawson J.
Released: October 25, 2010
CITATION: R. v. Ahmad, 2010 ONSC 5874 COURT FILE NO.: CRIMJ(F)2025/07 DATE: 20101025
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: HER MAJESTY THE QUEEN and –
REASONS FOR SENTENCE
F. DAWSON J.
Released: October 25, 2010