minicounsel

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

DATE: February 9, 2022 Belleville ON

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

M.S., a young person

Before: Justice E. Deluzio

Heard on: July 28, 2020, May 12 2021, May 13, 2021, May 19 2021, May 20 2021, May 26 2021, May 29 2021, June 4, 2021, January 28, 2022

Reasons for Sentence released on: February 9, 2022

Counsel: Tom Lemon and Tim Radcliffe....................................................... counsel for the Crown Sean Ellacott.......................................................................... counsel for the accused, M.S.

Deluzio J.:

1On July 28, 2020, M.S. a young person, entered pleas of guilty to the following offences, which occurred between December 29, 2018 and January 22, 2019 in the City of Kingston:

Knowingly facilitating a terrorist activity contrary to Section 83.19 of the Criminal Code:
Counselling a person or persons to deliver, place, discharge or detonate an explosive or other lethal device in or against a place of public use with intent to cause death or serious bodily injury contrary to section 431.2 of the Criminal Code, which offence was not committed, and did thereby commit an offence contrary to section 464 (a) of the Criminal Code:
Making or having in his possession or under his care and control an explosive substance with intent thereby to endanger life or to cause serious damage to property contrary to section 81(1) (d) of the Criminal Code and
Doing anything with intent to cause an explosion of an explosive substance that was likely to cause serious bodily harm or death to persons or was likely to cause serious damage to property contrary to Section 81(1) (a) of the Criminal Code:
Failing to Comply with a Judicial Interim Release Order contrary to section 139(1) of the YCJA.

2M.S. was born […], 2003. When he committed these offences he was 15 years old. He was just days past his 16th birthday when he was arrested on January 28, 2019. M.S. has spent most of the past three years in custody. He is now 19 years old.

Details of the Offences

3These offences are detailed in a lengthy agreed statement of facts filed as an exhibit on the date of M.S.’s guilty plea. The following is a brief summary:

4Between December 20, 2018 and January 28, 2019, M.S. created a PowerPoint presentation in Arabic detailing the instructions to build a successful pressure cooker bomb. He translated the presentation into English, and then he disseminated it on the internet.

5A confidential human source contacted the FBI, and an FBI undercover officer began communicating with M.S. under the guise of being a lone actor terrorist residing in the State of Virginia, U.S.A. M.S. sent bomb making instructions to this UCO to further the cause of the Islamic State. He instructed the undercover officer, who he believed was a lone wolf jihadist, to place the bomb in a bar or in a public place in order to kill infidels.

6M.S. manufactured an explosive substance called triacetone triperoxide, also known as TATP. He intended to use this explosive substance to make a pressure cooker bomb that would explode in a public place or would be placed under a police or military vehicle. The purpose of making these bombs was to act in support of the jihadist cause.

7Following his arrest, police found bomb making materials in his bedroom and various searches and notes on his phone about jihad and killing infidels.

8M.S.’s cell phone was seized and searched following his arrest. In addition to the communications detailed above there were numerous online searches for chemicals and items M.S. discussed in his communications related to bomb making.

9In M.S.’s bedroom, in the home he lived in with his family, police found various chemicals and materials referred to by M.S. in his online communications about bomb making. In a backpack in M.S.’s room police found a pill bottle containing a substance that tested positive for calcium hypochlorite, oil and other chemicals. Some chemicals found in M.S.’s possession had already been mixed together creating an explosive substance.

10M.S. has admitted that his intent was to commit a terrorist act because he believed that United Nation countries, including Canada, were responsible for the atrocities he saw and experienced in Syria. Prior to his arrest M.S. had not decided where he would detonate a bomb but thought it would be a police or military target.

11Had authorities not intervened to arrest M.S. when they did, there was a significant risk to public safety.

12After his arrest on January 28, 2019, M.S. was detained for several months, before he was released on April 3, 2019 following a bail hearing. He was ordered to reside under house arrest, and subject to electronic ankle monitoring.

13Less than three weeks after his bail release, M.S. deliberately removed his ankle bracelet, in breach of his release conditions. He was re-arrested on April 21, 2019 and he has been in custody since that time.

Background and Personal Circumstances of M.S.

14M.S. was born in Aleppo, Syria. He is the youngest of 8 siblings. He has six older sisters and one older brother.

15M.S. and his family lived in Aleppo where M.S. attended school until grade 4. The city of Aleppo became a war zone in 2012. Before the military conflict in Aleppo M.S.’s family had lived a stable and comfortable life. His father had a professional degree and worked as a lawyer and several of his siblings were also well educated, some had married and had families of their own.

16Due to the civil unrest M.S.’s father was no longer able to attend court or work as a lawyer and he started a small business selling gasoline from fuel drums, primarily for cars, to support his family.

17M.S. witnessed gunfire and bombings. He lost friends and family members including his Grandmother. He saw people he knew being injured and killed. He survived two aerial bombings on two consecutive days. The first bomb landed next to his father’s business. Another bomb landed beside his grandmother’s house.

18To escape the conflict, M.S. and his family moved from Aleppo to a village outside of Aleppo, named Telkrah where M.S. continued to attend school, completing grades 5 and 6. In 2014, the family moved to Ankara Turkey, where M.S.’s father was employed as a Director of a Syrian school. While the family lived in Turkey M.S., who was 11 received some homeschooling and sometimes attended the school where his father was the director. During the family’s time in Turkey M.S. also worked as a child labourer in a clothing factory.

19In October 2016 M.S. immigrated to Canada with his parents and most of his siblings. M.S. was 14 years old when he and his family arrived in Kingston, Ontario. M.S. was enrolled in school, starting in Grade 8, and studied English as a second language. He was in his grade 10 year when he was arrested.

Pre-Sentence Reports and Assessments

20After M.S. entered his guilty pleas, and was found guilty on July 28, 2020, the sentencing hearing was adjourned to allow for the completion of several court ordered pre-sentence reports and assessments. M.S. has co-operated with the preparation of the following reports:

Pre-Sentence Report dated September 24, 2020 prepared by youth probation officer Rhonda L. McColl.
Psychological Assessment dated October 8, 2020 prepared by Dr. Robert Rowe, Clinical and Forensic Psychologist.
Psychiatric Report dated October 6, 2020 prepared by Dr. Johanne Roberge.
Forensic Psychiatric Report and Risk Assessment dated April 17, 2021 prepared by Dr. Peter I. Collins, Forensic Psychiatrist.

The Sentencing Hearing

21When this sentencing hearing began on May 12, 2021, the main issue for the court was whether M.S. should receive a youth sentence or an adult sentence.

22At M.S.’s first court appearance, and again prior to his guilty pleas being entered, the Crown gave notice to M.S. and to the court that the Crown intended to seek an adult sentence of life in prison. The offence of counselling a person to discharge an explosive device carries a maximum adult sentence of life in prison. The offences of Facilitating Terrorist activity and making an explosive device both carry maximum adult sentences of 14 years.

23The Crown did indicate, however, that the Crown would re-assess its position on sentence once all the evidence had been heard at the sentencing hearing.

24M.S. elected to plead guilty and proceed to a sentencing hearing before the Ontario Court of Justice.

25The Sentencing hearing proceeded over 7 days, on May 12, 13, 19, 20, 26, 28 and June 4, 2021. The court heard testimony from 9 witnesses including Lisa Clark and Rhonda McCall from Youth Probation Services, Dr. Robert Rowe, clinical and Forensic Psychologist, Alex Cyck and Buraidah Razack of Project Reset, Dr. Peter Collins, Forensic Psychiatrist; Imam Ramzy Ajem, Network of Reintegration & Muslim Mentorship (NORMM), Dr. Ana Wing, Neurologist, and A.S. (M.S.’s sister.)

26Both Dr. Rowe and Dr. Collins were both extensively examined and cross-examined on their assessments and specifically their opinions regarding the future risk M.S. poses to commit further acts of violent extremism.

27The court also heard from multiple witnesses about M.S.’s participation in two programs, Project Reset and NORMM, which are focused on disengaging individuals from extremist-based violence, through mentorship and counselling with a view to the rehabilitation and reintegration of these individuals into the community.

28On the last day of the sentencing hearing, June 4, 2021, counsel jointly proposed that the sentencing hearing be adjourned to allow M.S. to continue to participate in programming with Project Reset and NORMM.

29Between June 4, 2021 and January 28, 2022 four progress reports were prepared by youth probation and provided to the court and counsel. These reports detail the significant rehabilitative efforts and positive progress M.S. has been making with respect to engaging in counselling and mentorship programs with Project Reset and NORMM, his behaviour and educational accomplishments within the youth detention center; and his daily, positive contact with his family.

30On January 27, 2022, the Crown formally changed its position, and now jointly submits with the Defense that M.S. should be sentenced to the maximum youth sentence of three years, in addition to the three years M.S. has already spent in custody.

The Section 34 Assessment and Psychological Report of Dr. Rowe Dated October 8, 2020

The Section 34 Assessment and Psychological Report of Dr. Rowe

31At the sentencing hearing Dr. Rowe was qualified as an expert witness in clinical and forensic psychology entitled to give opinion evidence in the area of risk management for child, adolescent and adult populations with respect to determining their risk for general and social behaviour and criminal and violent recidivism.

32During his testimony Dr. Rowe explained that the testing instruments he used with M.S. were predictive of general criminal recidivism and risk of future violence for young offenders. M.S.’s scores on these assessments placed him in the low or low moderate risk for future violence and antisocial behaviour.

33Dr. Rowe assessed M.S.’s risk for violent extremism based on broad factors that are typically endorsed in the literature as related to violent extremism and thought to increase risk. He did not use any of the newer tests (such as the TRAP -18 used by Dr. Collins) that have been developed to test for future risk of violent extremism because he was concerned that these newer tests do not have enough data to support their use specifically as predictive instrument risk assessments.

34At page 9 of his report, Dr. Rowe lists the factors he took into consideration when assessing the risk M.S. poses for future extremist actions: “M.S. is male, young and single. There is no evidence presented that he had direct contact with any extremists, especially while residing in Canada. He perceived that there had been a widespread and global injustice towards his country and people. There was little doubt that M.S. seemed overly sensitive to perceived injustices. Specifically, he argued that global powers that were supposed to help often hurt civilians and innocent people through indiscriminate bombings. M.S.’s communication suggested consideration of martyrdom but this was not clear. M.S. declared not ever wanting to die for any cause. As such some of these previous statements were inferred as important as a means of creating an identity or building credibility within an extremist group. There was little to indicate that M.S. was looking for personal status. He argued that he did not want others to believe that he was not committed to the cause, even if he had some doubts. Given the lack of coherent arguments at times and rambling explanations M.S.’s sense of identity surrounding these issues may have been in flux. Both M.S. and his parents provided no sense that M.S. had rejected Canadian values or experienced substantial injustices or unfair treatment within Canada. There seemed to be no ill will or vitriol directed at Canada and its political decision makers. There was limited evidence at this time that M.S. has adopted a fundamental shift in his thinking since his arrest. Although he contended that his thinking displayed in the online communications was how he “used to be” no explicit rejections of violence, his vision of the enemy or the perceived injustices he utilized to rationalize his actions seems to have been substantially modified at this time. On the other hand, he has enduring positive family and community support.

35It was Dr. Rowe’s opinion, at the time of his report, that M.S. poses an elevated risk for future violent extremism.

Forensic Psychiatric Report of Dr. Peter Collins Dated April 17, 2021

Forensic Psychiatric Report of Dr. Peter Collins

36Dr. Peter Collins was qualified as an expert witness at the sentencing hearing to give opinion evidence in the area of threat assessment for violent crime including violent extremism.

37Among his numerous and extensive qualifications, Dr. Collins is a consultant forensic psychiatrist with the Integrated National Security Investigation Team, and a consultant psychiatrist to the Provincial Anti-Terrorism Section. Dr. Collins has also been consulted on National Security files across Canada and worked with criminal justice agencies in Canada, the U.S. and 23 countries internationally.

38Dr. Collins conducted two in person interviews with M.S. for a total of 5 hours. During these interviews M.S. told Dr. Collins that after losing his grandmother and friends in the conflict in Syria he came to believe that all member nations of the United Nations were responsible for the war in Syria and these deaths. He also came to believe that the citizens of these countries were also responsible. Since Canada is a member of the United Nations, M.S. saw Canada as responsible for the unrest in all the war-torn countries in the middle east.

39M.S. also told Dr. Collins that when he first visited extremist sites his interest was in explosives, but that while communicating with individuals on these sites he came to believe in what he was hearing and then adopted the extremist thinking that the West needed to be punished.

40M.S. admitted to Dr. Collins that his intent was to commit a terrorist act. M.S. told Dr. Collins that he considers terrorism to be a “mind-set”, that he believed the Islamic State (ISIS) ideology and that after making and testing the explosive device, he was going to assist a person who was living in the U.S., to complete a terrorist act based on his recipe for the explosive. M.S. explained to Dr. Collins that he wanted to “stand up” against the United Nations because he came to believe these nations were responsible for the atrocities committed in Syria. He believed that since he was a Muslim he had to fight against western society.

41Dr. Collins writes in his report: “He also stated that nobody was injured or killed through his actions…. In retrospect M.S. wishes he would have taken school more seriously and this would have prevented him from visiting extremist sites and pursuing terrorist activities. M.S. has no grievance towards Canadian society. He wants to stay in Canada, complete his schooling, work and eventually have a family. He has no intention of ever returning to the Middle East and believes his life would be in danger if he did so.

42Dr. Collins used the Terrorism Radicalization Appraisal Protocol – 18 (the “TRAP-18), to assess M.S.’s future risk of violent extremism. He described the TRAP -18 as a “structured professional judgement instrument used in the risk assessment of individuals of concern for acts of terrorist violence regardless of specific ideology”.

43Dr. Collins writes that the TRAP-18 “offers a useful approach of assessing and treating individuals of national security concern”. He testified that he has used the TRAP-18 to assess individuals who have already committed terrorist offences and people who have been arrested for planning terrorist acts. Dr. Collins has significant experience working with the TRAP-18. He was consulted during the development of the TRAP-18 and has used the TRAP-18 approximately 20 times

44Dr. Collins concludes in his report that M.S. “can be gauged as low risk because he no longer harbours a personal grievance towards Western society or has a moral outrage or perception of injustice regarding the treatment of civilians in Syria. He is no longer framed by an extremist ideology. This was not true prior to his arrest”.

45In the Opinion section of his report at page 10 Dr. Collins writes: “M.S. denies maintaining any radical beliefs. Although he still externalized the blame on others for being on a pathway to violence and adopting extremist beliefs, he is remorseful for the actions that led to his arrest. He is also remorseful for the emotional and financial strain his arrest has been to his family. At the present time, he is at low risk for engaging in extremist activities if he was in the community”.

46At the sentencing hearing Dr. Collin’s testified that it is his opinion that M.S. was being honest and genuine about where his belief system is now.

47In his overall assessment of risk, Dr. Collins also took into account M.S.’s medical condition of Multiple Sclerosis and considers this a “major risk reducing factor”, since the unfortunate prognosis associated with this illness is that the illness is going to impact M.S. physically, but it will also negatively impact his cognition and memory.

48Dr. Collins stressed in his report and while testifying that “low risk does not mean no risk” and that once M.S. is out of custody, his access to the internet should be monitored since social media is a key amplifier for domestic violent extremism.

49Dr. Collins also endorsed the two programs for M.S. that had already been put in place by youth probation at the time of the sentencing hearing.: a Countering Violence Extremism program, and spiritual counselling and mentorship with a local Imam.

Project Reset and NORMM

50Since March 2020, M.S. has been participating in a program called Project Reset, offered through the John Howard Society of Ottawa. Project Reset is a program designed to disengage youth planning to commit or who have already engaged in hate motivated violence due to their political, ethnic or ideological cause. M.S. has regular phone meetings with his Project Reset caseworker.

51Buraidah Razack, a caseworker at Project Reset testified at the sentencing hearing. He described Project Reset as an initiative dedicated to disengaging individuals from extremist-based violence. The program works directly with individuals to develop interventions to address risk factors associated with extremist violence. M.S. meets regularly with Buraidah Razack, a case worker from Project Reset. M.S. accepted services with Project Reset in February of 2020 and he has been meeting regularly with his Project Reset caseworker, Buraidah Razack, since that time. Project Reset has been providing updates to probation that have been reflected in the Progress Reports. Mr. Razack describes M.S. as co-operative and engaged.

52Through Project Reset, M.S. was referred to Imam Ramzy Ajem, who runs the Network of Reintegration and Muslim Mentorship program (NORMM). NORMM is a community project aimed at reducing the risk of religiously motivated violence in the Muslim community through individualized programming, counselling, and mentorship. NORMM is recognized by the corrections, justice and social welfare sector for the successful rehabilitation of radicalized individuals. Imam Ramzy is the founder of NORMM.

53M.S. has been participating in regular meetings with Imam Ramzy and with a NORMM mentor. The focus of the NORMM program is rapport building and spiritual counselling. M.S. has weekly 2 hour video meetings with his mentor as well as weekly 40 to 60 minute sessions with Imam Ramzy.

54Imam Ramzy describes NORMM as a specialized program for young people like M.S. He explained that the program is established with an individual client over time to develop a rapport that allows the individual to be brought back to normalization “through authenticity and sincerity, foundationally understanding the underpinnings of the theology and culture rather than challenging the deradicalization notion which allows people to uphold or defend their incorrect beliefs and behaviours”. He explained that his primary approach is to build a relationship of trust, and to eventually build that relationship to a comfort zone where “we are able to discuss the main issues”. Imam Ramzy has worked with other clients convicted of terrorism offences and had successfully reintegrated several people into the community.

55Imam Ramzy testified on May 28, 2021, during the sentencing hearing. By that time M.S. had been assigned a mentor from NORMM, and he was seeing this mentor weekly. Imam Ramzy had met in person with M.S. twice and engaged in 5 video calls with him. Imam Ramzy testified that he was still building a trusting relationship with M.S. and that M.S. had expressed interest in receiving guidance and counselling from him. Imam Ramzy was reluctant to divulge the methods used by NORMM when working with clients, but he explained that NORMM’s approach with M.S. will involve spiritual counselling and mentorship.

The Progress Reports

56After the last witness testified, Crown and Defense counsel jointly proposed that the sentencing hearing be adjourned so that M.S. could continue to participate in the counselling programs already in place through Project Reset and NORMM.

57It was agreed, when the sentencing hearing was adjourned, that counsel and the court would receive progress reports from the youth probation officers working with M.S., detailing M.S.’s level of engagement, co-operation and progress with Project Reset and NORMM, his ongoing contact and involvement with his family, and his engagement, co-operation and involvement in counselling, academic and extracurricular programming within the detention facility.

58Since the adjournment of the sentencing hearing the court has received four of these progress reports dated July 20, 2021, September 21, 2021, November 8, 2021 and January 26, 2022. The progress reports detail M.S.’s increasing level of engagement and positive progress with Project Reset and NORMM, and within the youth detention facility where he has been participating in various counselling and extracurricular programming, and pursuing his education.

59In the first report dated July 20, 2021 Imam Ramzy reported that he was meeting virtually with M.S. once pre week for 40 minutes in addition to M.S.’s weekly video sessions with his NORMM mentor. He described M.S. as “engaged and involved with both counselling sessions” and explained that M.S. was “getting more comfortable with questioning and challenging in counselling sessions”.

60In the second report dated September 21, 2021, Ms McCall describes M.S.’s weekly sessions with Imam Ramzy as a “very positive bright point” in M.S.’s week.

61The third report dated November 8, 2021 indicates that M.S. “continues to be engaged, positive and cooperative with his counsellors from NORMM. The report also confirms that the NORMM counsellors are optimistic because M.S. “has become more open and engaged in the process”. M.S. told Ms McCall that he continued to enjoy his meetings with both Project Reset and NORMM, that he liked the routine and structure of this programming and that he looked forward to the regular sessions with his counsellors and mentors.

62The input from Imam Ramzy as reflected in the final progress report dated January 26, 2022 remains positive, but also highlights that the work with M.S. is just beginning. Imam Ramzy reported that M.S.’s “level of engagement has been good and that he has demonstrated clear signs of interest and understanding… he’s asking questions, He’s genuine. He’s doing the readings”. However, Imam Ramzy also reported that “more time and deeper work is required to address foundational misconceptions”.

63The progress reports confirm M.S.’s consistent and ongoing commitment to his education. He completed his Grade 12 requirements as of August 20, 2021 and graduated from high school. Since then he has been completing college prep courses and investigating post secondary education programs.

64M.S.’s behaviour while in custody has also improved significantly, according to the reports. While early reports from Brookside where M.S. was first detained detailed incidents of peer conflict, derogatory comments directed at staff, and refusing staff direction, progress reports filed since July 2021, consistently describe M.S. as a “model resident”.

65M.S. has done particularly well since being transferred to Kennedy House when Brookside detention center closed. Staff at Kennedy House where he is detained describe M.S as “intelligent, motivated to succeed, and engaged in counselling and academia”.

66Ms. McColl notes in her report dated November 8, 2021 that M.S. had achieved the “platinum level” of behaviour which is the highest level a youth can achieve for positive behaviour at Kennedy House. She writes that M.S. “exemplified positive behaviour, attends school, attends to his chores and routines, and has never caused any problems at Kennedy House”.

67There have been no behaviour reports since September 21, 2021 and sources indicate that his peer and staff interactions have all been positive. He is noted as being “one of the most appropriate youths in the facility at this time”. The most recent progress report dated January 26, 2022 confirms that M.S. remains on “platinum level and continues to actively participate in counselling, academic and extracurricular programming within the detention center.

68While Covid 19 restrictions have limited M.S.’s opportunities for in person visits, M.S. has maintained daily phone contact with his family throughout his detention. He also has weekly video calls with his parents. M.S.’s family is a strong source of support for him. Both Dr. Rowe and Dr. Collins identified the strong, supportive relationship M.S. has with his family as a significant protective factor in their assessment of future risk.

69In June of 2020, approximately 18 months into his detention, M.S. was hospitalized at Sick Kids in Toronto for 12 days. He had been experiencing a variety of serious health issues including numbness in his legs, paralysis, and dizziness. He was ultimately diagnosed with a rare form of Multiple Sclerosis called Tumefactive Multiple Sclerosis. This diagnosis affects only 1 or 2 out of every 1000 people with Multiple Sclerosis and is considered a more aggressive form of the disease. M.S. has already been significantly impacted by this disease. He sometimes requires the aid of a walker. M.S. is currently under the care of Dr. Anna Wing, a neurosurgeon, who testified at the sentencing hearing. She advised that M.S. currently receives a drug infusion every six months and that these infusions have been working well to control M.S.’s symptoms. M.S’s physical health is considered stable at this time.

The Joint Position

70At the last court date, at the outset of his sentencing submissions, Mr. Lemon advised the court that the Crown is no longer asking the court to impose an adult sentence. There is now a joint position before the court that M.S. be sentenced to a maximum youth sentence of three years, in addition to the three years that M.S. has already served in a secure youth detention facility.

71Terrorism offences are considered among the most serious of Criminal Code offences.

72In R v Khawaja 2010 ONCA 862 the Ontario Court of Appeal allowed the Crown’s appeal of a 10 year sentence in addition to 5 years of pre-trial custody, imposed at trial following the accused’s conviction for five terrorism offences. The Ontario Court of Appeal imposed a life sentence, writing at paragraph 246: “when terrorists acting on Canadian soil are apprehended and brought to justice, the responsibility lies with the courts to send a clear and unmistakable message that terrorism is reprehensible and those who choose to engage in it here will pay a very heavy price.”

73The Supreme Court of Canada, in affirming the life sentence imposed by the Ontario Court of appeal wrote as follows: “the fact that sentences of over twenty years may be imposed more often in terrorism cases is not inconsistent with the totality principle. It merely attests to the particular gravity of terrorist offences and the moral culpability of those who commit them”. See: R v Khawaja (2012) SCC 69

74Given the serious nature of these charges, the length of time this matter has been before the court, the extensive negotiations and consultations that have occurred between counsel, and the careful and deliberate considerations the Crown has made before changing its position, it is worthwhile reviewing the test the Crown was required to meet in order to satisfy the court that M.S. should be sentenced as an adult.

75Section 72(1) of the YCJA provides as follows: “the youth court shall order that an adult sentence be imposed if it is satisfied that (a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and (b) a youth sentence imposed in accordance with the purposes and principles set out in subparagraph 3 (1)(b)(ii) and Section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.

76This is a two pronged test and both conditions must be met before an adult sentence can be imposed. The Crown bears the onus of rebutting the presumption of diminished moral blameworthiness to which M.S. is constitutionally entitled, and establishing that a youth sentence would not be of sufficient length to hold M.S. accountable for these very serious offences.

77Although there is no doubt that M.S.’s age and immaturity made him more vulnerable to being influenced by the violent extremists he was communicating with on the internet, and definitely played a part in his impulsive decision to remove his ankle bracelet, there is much evidence suggesting that M.S. played an active, assertive role by translating and disseminating his bomb making recipe and encouraging acts of violence by others. Despite his young age when he committed these offences, M.S. was not just a passive participant or a target for older, more sophisticated online extremists.

78M.S.’s moral culpability for these offences is high. The Crown would likely have been successful in rebutting the presumption of diminished moral blameworthiness or culpability of M.S. in this case.

79However, I accept the joint submission that the maximum youth sentence of three years, taking into account the three years that M.S. has already spent in custody (but not crediting that time against the sentence), is of sufficient length to hold M.S. accountable.

80Section 38(1) of the YCJA provides that “the purposes of sentencing under section 42 (Youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long term protection of the public”.

81In R v A.O. 2007 ONCA 144, the Ontario Court of Appeal considered the significance of the sentencing principle of accountability within the context of a crown application for an adult sentence and found that the concept of accountability is equivalent to the adult sentencing principle of retribution. At paragraph 47 the court quotes Justice Lamer in R v M.(C.A.) (1996), 105 C.C.C. (3d) 327 (S.C.C.): “In our view, for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributive sentence, the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct. ..we see no other rational way for measuring accountability”

The Evidence of Rehabilitation

82It is clear from a review of the Ontario trial and appellate adult terrorism sentencing decisions released following the Ontario Court of Appeal decision in R v Khawaja, that all of the general principles of sentencing apply in terrorism cases, including the significance of rehabilitation as a mitigating factor.

83However, as Justice Code writes in R v Esseghaier 2015 ONSC 5855, “the rigid ideological belief systems that often motivate terrorist offences can give rise to an inference of ongoing dangerous. This in turn can place an evidentiary or tactical burden on the defence to lead convincing evidence at sentencing showing that the accused is no longer committed to violent jihad and terrorism”.

84An appropriate and just sentence in this case must balance the serious risk posed by violent extremism and the severe harm to the public that M.S. could have caused, while still taking into consideration M.S.’s young age when he committed these offences, and the significant rehabilitative efforts and progress M.S. has made while in detention for the past three years.

85M.S.’s guilty plea entered 18 months ago is a significant mitigating factor in this case and in my view the guilty plea must be regarded as contributing to the positive progress M.S. has made. The agreed statement of facts filed as Exhibit 1 in this hearing is 34 pages long. M.S.’s admission of responsibility for these offences, saved the court a lengthy and complex trial, but, more importantly, his guilty plea allowed the psychological and psychiatric risk assessments to take place from the starting point of the admissions that M.S. made with respect to the extremist ideology he ascribed to when he committed these offenses. Since the guilty plea, the programming funded by youth probation, including Project Reset and NORMM have been focused on targeting and changing M.S.’s ideological and religious beliefs.

86M.S. has now been working with both Project Reset and NORMM for over a year and the reports about his level of engagement are positive. The enthusiasm that M.S. has displayed towards his regular meetings with Imam Ramzy and with his NORMM mentor is a positive indicator of his commitment to his rehabilitation and reintegration into the community

87M.S.’s commitment to improve his education is also a positive sign that M.S. is looking towards a future as a contributing member of our community. He obtained his grade 12 diploma while in custody and he is now taking post secondary courses and considering various programs to advance his education.

88M.S.’s behaviour while in detention has been consistently positive and he is now described as a “model resident” at the highest behaviour level. He has maintained daily contact with his family members who are described as a strong and pro-social source of support for him.

89It is important to recognize that M.S. has managed to consistently engage with school and programming throughout his detention in the face of enormous obstacles. When M.S. entered custody, he had 8 high school credits. He has now completed 30 credits and graduated.

90M.S. has served most of his time in detention during a worldwide pandemic which has restricted his access to his family. His access to in person counselling and programming has also been very limited. Added to the challenges presented by the pandemic, M.S. has had to face a devastating Multiple sclerosis diagnosis without the physical presence of his parents and family members.

91Dr. Rowe determined that M.S. was at an elevated risk but his interviews with M.S. occurred much earlier than Dr. Collins interviews and Dr. Collins has specific expertise in the area of threat assessment in terrorism cases. Dr. Collins testified that in his opinion M.S. no longer ascribes to the extremist beliefs that motivated these offences

92Risk assessment is an inexact science. As Dr. Collins testified, he has assessed M.S. as low risk, for future acts of violent extremism but his assessment is valid for the time he conducted the assessment. Dr. Collins also clarified that “low risk does not mean no risk” and that M.S. will need to continue working with programming designed to target and change his ideological and religious beliefs, and he will need to be monitored in the community, particularly with respect to his online activities.

93The most compelling evidence before the court, supporting a youth sentence, is the evidence of what M.S. has done since his arrest, starting with his comprehensive and detailed guilty plea, and continuing with his co-operation with the pre-sentence report process. Most importantly M.S. has demonstrated his commitment to his rehabilitation and reintegration by making and sustaining positive progress while in custody, during a challenging pandemic and in the face of enormous health concerns. As his lawyer, Mr. Ellacott stated during his submissions “M.S. has provided the strongest evidence for this court, in understanding the wisdom of this joint position. He has been scrutinized and stress tested to an extent we wouldn’t have wished on anyone”.

The Youth Sentence

94The maximum youth sentence available for these offences is a sentence of 3 years custody and supervision. Section 42(n) of the YCJA requires that this sentence must be apportioned on a 2/3 to 1/3 basis with 2 years being served in custody and one year served under community supervision.

95Section 98 of the Youth Criminal Justice Act (“the YCJA”) does allow the Attorney General or the provincial director to apply to the youth court for an order requiring that a young person remain in custody for the last 1/3 of a youth sentence in certain circumstance where the court is satisfied that the young person is likely to commit a serious violent offence while serving the community based portion of a custodial sentence.

96Counsel have jointly submitted that the maximum three year youth sentence be imposed in addition to the three years that M.S. has already spent in secure detention.

97Section 38(3)(d) of the YCJA requires a sentencing judge to take into account the time spent in detention by the young person as a result of the offence. However, while a youth court judge must consider pre-sentence custody in sentencing, the youth court judge is not required to credit the time a young person has spent in custody. A youth court judge’s discretion includes the ability to award no credit for pre-sentence custody against a youth sentence particularly in the context of an application made by the Crown to sentence a youth as an adult. See: R v E.L., [2006] O.J. No 1517 (C.A.); R v D.W. 2008 ONCA 268; R v M.B. 2016 ONCA 760.

98In R v M.B., supra, Justice Pardu writes at paragraph 11: “The reasons why a sentencing judge might choose to exercise discretion in this manner are apparent, when considering the sentencing objectives under the YCJA. Youth sentencing judges are mandated under the YCJA to impose the least restrictive sentence capable of achieving the purposes expressed in the YCJA and to impose the sentence most likely to rehabilitate the young person and reintegrate him or her into society. Requiring youth court judges to give credit for pre-sentence custody could lead to a conclusion that the youth sentence would be of insufficient length to hold the youth accountable. The credit which will be given in a particular case is discretionary and is not a mechanical calculation. There are many ways that a youth court can “take into account” a youth’s pre-sentence custody.”

99The overriding principle of sentencing under the YCJA is that a youth sentence must hold a young person accountable through the imposition of meaningful consequences that promote the rehabilitation of the young person and his reintegration into the community. A youth sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person with a view to promoting the long term protection of the public. A maximum youth sentence of three years in this case accords with these sentencing principles.

100Therefore, I accept the joint submission of counsel and hereby sentence M.S. to a three year custody and supervision order. The first two years shall be served in a youth detention facility and the third year shall be served under supervision in the community subject to conditions.

101Because section 83.26 of the Criminal Code requires that the sentence M.S. receives on the section 83.19 offense shall be served consecutive to any sentence imposed, the sentence shall be reflected as a 2 year sentence of Count 1 and a 1 year consecutive sentence on Counts 2, 3 and 4, with Counts 2, 3, and 4, being concurrent to each other. 30 days concurrent on Count 5.

102There will be a DNA order and a two year weapons prohibition order pursuant to Section 51(1) of the YCJA. There will also be an order of Forfeiture for all the items seized by police during the execution of the search.

103In accordance with Section 94 of the YCJA this youth sentence shall be subject to annual review.

104While serving the community based portion of his sentence, M.S. shall be subject to the statutory conditions set out at Section 97 of the YCJA and the following additional conditions:

Abide by a curfew as may be set by your youth worker.
Present yourself at the door of your residence for the purposes of confirming compliance with a curfew that may be set by your youth worker.
Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by your youth worker and complete them to the satisfaction of your youth worker, including but not limited to spiritual counselling and mentoring through NORMM, other counselling and programs identified through Project Reset, and family counselling as directed by your youth worker.
Continue to pursue your education.
Do not possess or use any digital device that can access the internet without prior approval of your youth worker and permit any monitoring of the device as directed by your youth worker and sign all releases necessary for that purpose.
Do not leave the province of Ontario without the prior written approval of your youth worker.
Do not communicate, directly or indirectly, with H.A. or anyone identified in writing by your youth worker.
Sign all releases of information that will allow the youth worker to monitor your attendance and completion of any assessments or rehabilitative programs.
Do not possess or purchase a pressure cooker or any precursor chemicals that can be used to create explosives, without the written permission of your youth worker.

105M.S. you must understand that if you breach any of the conditions while you are under supervision in the community you may be brought back into custody and required to serve the rest of the second period in custody as well. Under other provisions of the Youth Criminal Justice Act, a court could require you to serve the second period in custody as well. The periods in custody and under supervision in the community may be changed if you are or become subject to another sentence.

106It is the strong recommendation of this court that youth probation services continue to find funding for the Project Reset and NORMM programs already in place and that this programming be available to M.S. throughout his entire sentence, including the custodial and community based sentence. These programs were identified by youth probation and in the court’s view they are integral to M.S.’s rehabilitation.

107M.S.’s commitment to pursuing his post secondary education should also be supported and funded while he is in custody. Both Dr. Rowe and Dr. Collins testified that M.S.’s educational goals and his future orientation towards post secondary education and career options, are seen as risk reducing factors.

108Lisa Clarke, Youth Probation Service Manager, testified at the hearing about a funding source she described as “exceptional case funding” which is available through a partnership between Justice Canada and the province of Ontario, and can provide additional funding in cases, such as this one, where intensive rehabilitative services are required. These exceptional funds should be made available to support M.S.’s continued access to specialized programming and services such as Project Reset and NORMM.

109I want to thank counsel for their hard work, and professionalism throughout this difficult case. And I want to acknowledge both Mr. Lemon and Mr. Radcliffe who were true to their words, and remained open to changing the sentencing position of the Crown, based on the evidence at the sentencing hearing, and the progress reports filed during the adjournment period. I also want to acknowledge the work that youth probation has been doing with M.S. including identifying and arranging the Project Reset and NORMM interventions, since M.S. first entered custody. Finally, I want to commend M.S. for his co-operation during the preparation of the various pre-sentence reports and assessments and his demonstrated commitment to working with the Project Reset and NORMM programs.

110As Dr. Collins reminded the court, “low risk does not mean no risk”, but I am satisfied that in this case, a maximum youth sentence of three years satisfies both the youth and adult sentencing principles, by holding M.S. accountable while reducing the risk of harm to the community. A youth sentence also maximizes the opportunities for M.S. to accomplish his rehabilitation and safe reintegration into the community.

Released: February 9, 2022 Signed: Justice E. Deluzio