Her Majesty the Queen v. Ahmed

[Indexed as: R. v. Ahmed]

Ontario Reports

Court of Appeal for Ontario

G.J. Epstein, Pepall and van Rensburg JJ.A.

January 27, 2017

136 O.R. (3d) 403 | 2017 ONCA 76

Case Summary

Criminal law — Terrorism offences — Sentencing — Accused involved in terrorist group with connections to Al-Qaeda and Taliban — Accused aware that co-accused had obtained components for IEDs and intended to use them in Canada — Group having no concrete plans — Co-accused sentenced after joint submission to 24 years' imprisonment for possessing explosive substances with intent to endanger life in association with terrorist group — Accused sentenced to five years' imprisonment for conspiracy to facilitate terrorist activity and seven years consecutive for participating in activities of terrorist group — Sentences for terrorism offences must be consecutive whether arising from same or different events but principle of totality still applies to sentencing for such offences — Sentencing judge declining to delay parole eligibility — Crown and accused appealing sentence — Accused's sentence affirmed on appeal.

The accused was convicted, after a trial before a judge and jury, of conspiracy to facilitate terrorist activity and participation in the activities of a terrorist group, and was acquitted of possessing explosive substances with intent to endanger life in association with a terrorist group. He was involved for about six months before his arrest in a terrorist group with connections to Al-Qaeda and the Taliban. He was aware that another member of the group, Alizadeh ("A"), had attended a terrorist training camp in Afghanistan, where he learned to construct remote-controlled improvised explosive devices ("IEDs"), that A possessed a President's Choice bag containing components for IEDs, and that he intended to assemble the components into detonators for use in Canada. At the time of his arrest, the accused was in possession of that bag and its contents. However, the group had no concrete plans for terrorist activity in Canada. The trial judge found that the accused's actual position in the group was subordinate to that of A. The accused raised money for the group with the intention that it be sent to foreign terrorists to purchase shoulder-mounted weapons. The accused was 26 years old at the time of his arrest, had no criminal record and had been on bail for four years. The trial judge found that he posed a very low risk to reoffend. He reviewed the sentencing precedents submitted to him, including the sentences of various members of the "Toronto 18", and concluded that the accused's culpability was more comparable to the subordinate "camp plot" offenders than the "bomb plot" offenders in those cases. He noted that the "camp plot" offenders had received sentences of between six years and five months' imprisonment and ten years' imprisonment. He considered the most important benchmark to be A's sentence of 24 years' imprisonment, imposed after his guilty plea to a charge of possessing explosive substances with intent to endanger life in association with a terrorist group. The trial judge sentenced the accused to five years' imprisonment for conspiracy to facilitate terrorist activity and seven years consecutive for participating in the activities of a terrorist group. He declined to delay parole eligibility. The Crown appealed, seeking a sentence of 20 years and a delay in parole eligibility, and the accused each sought leave to appeal the sentence, seeking a five- to eight-year sentence.

Held, leave to appeal should be granted; appeal and cross-appeal should be dismissed.

The trial judge did not err in his assessment of the gravity of the offences. It was open to him to find that A was the true leader of the group and that the accused was a follower, not the instigator. He did not commit the error of downplaying the seriousness of the offences by focusing on the degree of readiness of the group rather than on the accused's level of commitment to violent jihad. The trial judge was aware that the accused's six-month course of conduct was not a momentary lapse in judgment. His reference to the lack of concrete steps taken by A was made within his parity analysis to distinguish the accused's conduct from the "bomb plot" offenders in the Toronto 18. It was appropriate for him to note the lack of concrete steps as a point of departure in considering his parity analysis with the bomb plot cases. The trial judge did not err in his application of the parity principle when he compared the accused to the subordinate members of the Toronto 18 camp plot or when he compared the accused's conduct and culpability with that of A.

It was open to the trial judge to find that, having regard to the seriousness of the offences and the accused's conduct, the role of rehabilitation was less important than deterrence and denunciation in fixing an appropriate sentence. He did not entirely discount the significance of evidence of the accused's rehabilitation. He did not err in concluding that the accused's relative youth and lack of a criminal record, while mitigating factors, were subordinate to the principles of denunciation and deterrence. In finding that the accused was remorseful, the trial judge did not simply rely on the opinion of an expert witness whose report was based on factual underpinnings which were contrary to the trial judge's own findings on a Gardiner hearing. Rather, the trial judge approached the expert's evidence with caution, recognizing that his opinions were informed in part by what the accused told him and it was incorrect to say that the trial judge accepted the expert's opinion uncritically. The trial judge considered evidence other than the expert's opinion in arriving at his own conclusion that the accused posed a very low risk to reoffend, including 75 letters from friends and family, and the accused's in-court statement, which the judge accepted as a genuine expression of remorse.

The trial judge did not err in his approach to the totality principle by fixing on a global sentence of 12 years and then allocating five years to the conspiracy to facilitate offence and seven years to the participating in a terrorist group offence, instead of first fixing an appropriate sentence for each offence without regard to totality, and then looking at the total sentence to assess whether or not it was excessive.

The accused's arguments that the convictions were duplicative and that the judge should have considered that the total maximum sentence to be 14 years and then reduced that sentence based on the accused's role, age and remorse. If the charges were duplicative, then the Kienapple principle would have precluded entering multiple convictions for the same act. In this case, although the two offences arose out of the same events and shared some common elements, they were not so linked as to warrant the application of the Kienapple principle. Given the requirement under s. 83.26 that consecutive sentences be imposed for terrorism offences arising out the same event, it would have been an error had the judge approached the sentencing in the manner now suggested by the accused. The totality principle is a check on the ability of the Crown to raise the sentence merely by laying multiple terrorism offences arising out of the same events.

The trial judge did not make findings of fact inconsistent with the accused's acquittal on the explosives charge. The accused testified about his intention to destroy the contents of the President's Choice bag which may have given rise to a reasonable doubt that he had the required mental element to prove that charge, intention -- namely, whether he intended to endanger life or cause serious damage to property at the direction of, or for the benefit of, a terrorist group. However, in his findings on the Gardiner hearing, the trial judge was not satisfied, on a balance of probabilities, that the accused possessed the explosives in the bag for a non-dangerous, innocent purpose and therefore the accused failed to establish the mitigating fact; a finding not inconsistent with the Crown's failure to prove the intent required for a conviction on the explosives charge.

The trial judge should not have referred to the deemed aggravating factor under s. 718.2(a)(v) of the Criminal Code that the offences were terrorism offences. However, that error had no effect on the sentence which he imposed.

The trial judge did not err in concluding that the objectives of specific and general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act.

Authorities Cited

Cases:

R. v. Gaya, 2010 ONCA 860, 272 O.A.C. 242, 266 C.C.C. (3d) 428; R. v. Jewell, [1995] O.J. No. 2213, 83 O.A.C. 81, 100 C.C.C. (3d) 270; R. v. Khalid, 2010 ONCA 861, 103 O.R. (3d) 600, 272 O.A.C. 228, 266 C.C.C. (3d) 405; R. v. Khawaja, [2012] 3 S.C.R. 555, 2012 SCC 69, 301 O.A.C. 200, 290 C.C.C. (3d) 361; R. v. Lacasse, [2015] 3 S.C.R. 1089, 2015 SCC 64, 24 C.R. (7th) 225, 333 C.C.C. (3d) 450; R. v. Adams, 2010 NSCA 42, 291 N.S.R. (2d) 206, 255 C.C.C. (3d) 150; R. v. Ahmad, 2010 ONSC 5874, [2010] O.J. No. 6372; R. v. Ahmed, 2014 ONSC 5367, [2014] O.J. No. 4395; R. v. Alizadeh, 2014 ONSC 5421, 116 W.C.B. (2d) 96; R. v. Amara, 2010 ONCA 858, 266 C.C.C. (3d) 422, 275 O.A.C. 155; R. v. B. (R.), 2013 ONCA 36, 114 O.R. (3d) 465, 104 W.C.B. (2d) 1321; R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797; R. v. Chand, 2010 ONSC 6538, [2010] O.J. No. 6370; R. v. Draper, 2010 MBCA 35, 253 C.C.C. (3d) 351, 251 Man. R. (2d) 267; R. v. E. (M.), 2012 ONSC 1078, 100 W.C.B. (2d) 610; R. v. Gardiner, [1982] 2 S.C.R. 368, 140 D.L.R. (3d) 612, 68 C.C.C. (2d) 477; R. v. Gerk, 2016 ABCA 162, 130 W.C.B. (2d) 374; R. v. Hutchings, 2012 NLCA 2, 316 Nfld. & P.E.I.R. 211, 282 C.C.C. (3d) 104; R. v. K. (R.), [2005] O.J. No. 2434, 199 O.A.C. 323, 198 C.C.C. (3d) 232; R. v. Kienapple, [1975] 1 S.C.R. 729, 44 D.L.R. (3d) 351, 15 C.C.C. (2d) 524; R. v. Lloyd, [2016] 1 S.C.R. 130, 2016 SCC 13, 27 C.R. (7th) 205, 334 C.C.C. (3d) 20; R. v. M. (C.A.), [1996] 1 S.C.R. 500, 194 N.R. 321, 105 C.C.C. (3d) 327; R. v. McLean, 2016 SKCA 93, 484 Sask. R. 137, 132 W.C.B. (2d) 96; R. v. Punko, 2010 BCCA 365, 291 B.C.A.C. 95, 258 C.C.C. (3d) 144; R. v. Sher, 2014 ONSC 4790, [2014] O.J. No. 4372; R. v. Smickle, 2013 ONCA 678, 304 C.C.C. (3d) 371, 297 C.R.R. (2d) 49, 311 O.A.C. 288; R. v. Smith, 2011 ONCA 564, 283 O.A.C. 18, 274 C.C.C. (3d) 34; R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99, 229 C.C.C. (3d) 331; R. v. Woolridge, 2016 ONCA 302, [2016] O.J. No. 2120; R. v. Wozny, 2010 MBCA 115, 262 Man. R. (2d) 75, 267 C.C.C. (3d) 308

Statutes:

Criminal Code, R.S.C. 1985, c. C-46, ss. 81(1)(a), (d), 83.2, 83.18(1), 83.19(1), 83.26, 465(1)(c), 718.1, 718.2(a)(i), (v), (b), (c), 724(2)(b), (3)(e), 726, 743(2), 743.6(1.2)

Corrections and Conditional Release Act, S.C. 1992, c. 20

Counsel

Douglas G. Curliss, Q.C., for Her Majesty the Queen

Frank Addario and Andrew Burgess, for Misbahuddin Ahmed

Judgment

VAN RENSBURG J.A.:

A. Overview

[1] Both the Crown and the offender, Misbahuddin Ahmed, seek leave to appeal a 12-year sentence imposed for terrorism-related offences.

[2] Mr. Ahmed was tried by judge and jury on three charges of terrorism offences, arising out of his activities during a six-month period in 2010, as part of a terrorist group in Ottawa, that involved his co-accused, Hiva Alizadeh, and his close friend Dr. Khurram Syed Sher.

[3] Mr. Alizadeh pleaded guilty to a charge of possessing explosive substances with intent to endanger life or cause serious damage to property for the benefit or at the direction of, or in association with, a terrorist group (Criminal Code, R.S.C. 1985, c. C-46, ss. 81(1)(d) and 83.2). He was sentenced after a joint submission to 24 years' imprisonment: R. v. Alizadeh, 2014 ONSC 5421. Dr. Sher was acquitted of conspiracy to facilitate terrorist activity (ss. 465(1)(c), 83.19): R. v. Sher, 2014 ONSC 4790.

[4] Mr. Ahmed was convicted of conspiracy to facilitate terrorist activity (ss. 465(1)(c) and 83.19(1)) and participation in the activities of a terrorist group (s. 83.18(1)). He was acquitted of an offence under s. 81(1)(d).

[5] The offence of conspiring to facilitate terrorism is punishable by up to 14 years' imprisonment. Participation in the activities of a terrorist group is punishable by up to ten years' imprisonment. Sentences other than a life sentence must be consecutive to one another for terrorism offences arising from the same event or series of events: Criminal Code, s. 83.26.

[6] Mr. Ahmed was sentenced to a global sentence of 12 years' imprisonment, less one year for pre-sentence custody and bail conditions. He received five years on the conspiracy to facilitate terrorist activity count, and seven years consecutive on the participation in the activities of a terrorist group count. The trial judge made an order under s. 743.6(1.2) of the Criminal Code that parole eligibility could be determined under the Corrections and Conditional Release Act, S.C. 1992, c. 20 (and not subject to his serving at least one-half of the sentence).

[7] The Crown seeks leave to appeal sentence, asking for the substitution of a 20-year sentence and that parole eligibility be delayed. Mr. Ahmed also seeks leave to appeal sentence, asking for the substitution of a five to eight-year sentence.

[8] In R. v. Khawaja, [2012] 3 S.C.R. 555, 2012 SCC 69, the Supreme Court noted that "the temptation to fashion rigid sentencing principles applicable to terrorism offences as a distinct class should be avoided" (at para. 115). Accordingly, the standard of review on this sentence appeal is the same as in all other sentencing appeals: absent an error in law or principle that has an impact on sentence, this court may not interfere with the sentence unless it is demonstrably unfit: R. v. Lacasse, [2015] 3 S.C.R. 1089, 2015 SCC 64, at paras. 11 and 44. A sentence will be accorded appellate deference unless the sentencing judge has erred in principle; failed to consider a relevant factor; or erred in his or her consideration of an aggravating or mitigating factor, and in all cases only where such an error had an impact on the sentence imposed: R. v. Woolridge, 2016 ONCA 302, at para. 8.

[9] The Crown argues that the sentence imposed was not fit as the trial judge erred in his assessment of the seriousness of the offence and Mr. Ahmed's actions. Further, it contends that there were reversible legal errors in the trial judge's application of the principles of totality and parity, and that he made palpable and overriding errors of fact in finding that Mr. Ahmed was remorseful and had good rehabilitative prospects. The Crown also argues that the trial judge erred in the determination under s. 743.6(1.2) with respect to Mr. Ahmed's parole eligibility.

[10] In his cross-appeal, Mr. Ahmed argues that the trial judge erred in law in his application of the principles of parity and rehabilitation, in using the fact that this was a terrorism offence as an aggravating factor, and in refusing to find that Mr. Ahmed's possession of explosive components at the time of his arrest was for a non-dangerous purpose.

[11] I note parenthetically that the Crown's appeal in substance asserts that the trial judge erred in undervaluing the seriousness of Mr. Ahmed's offences and his culpability, while Mr. Ahmed points in the other direction, saying that the trial judge sentenced him too severely without adequate regard to the mitigating factors. Each argues that this court should set aside the sentence and impose a sentence directly in line with what was sought at first instance.

[12] For the reasons that follow, I would dismiss the appeal and cross-appeal. In my view, the 12-year global sentence imposed on Mr. Ahmed for the two terrorism-related offences in respect of which he was convicted, reveals no reversible error, is entitled to deference and in all the circumstances was a fit sentence. Further, there is no reason to interfere with the trial judge's disposition concerning Mr. Ahmed's parole eligibility.

B. Reasons for Sentence

[13] Because of the broad-based attacks on the trial judge's sentencing decision advanced by both parties, including assertions that he erred in law and in the weight he gave to various factors, it is helpful to begin with a brief summary of the evidence at the sentencing hearing, and of the trial judge's comprehensive reasons for sentence.

[14] The sentencing followed Mr. Ahmed's trial by judge and jury. Mr. Ahmed was convicted on July 11, 2014 after a lengthy trial. He had been on bail for approximately four years, and he spent a total of 140 days in custody. The sentencing hearing took place on October 14 and October 15, 2014. In the interim, there was a Gardiner hearing (2014 ONSC 5367) in which the trial judge made findings as to relevant facts disclosed by the evidence at trial, including aggravating facts (on a standard beyond a reasonable doubt) and mitigating facts (on a balance of probabilities): Criminal Code, ss. 724(2)(b) and 724(3)(e); R. v. Gardiner, [1982] 2 S.C.R. 368 (the "Gardiner findings").

[15] The sentencing proceeded on the basis of the Gardiner findings, a pre-sentence report ("PSR"), the expert report and oral evidence of psychologist Dr. Wagdy Loza (called by the defence), an outline of the offender's education and employment, and letters of support from Mr. Ahmed's friends and family. Mr. Ahmed did not testify at the sentencing hearing; however, he made an in-court statement, pursuant to s. 726 of the Criminal Code.

[16] The trial judge began his reasons for sentence by incorporating the Gardiner findings and by referring to the circumstances of the offences. They included the following:

Mr. Ahmed was involved in a terrorist group with Mr. Alizadeh and Dr. Sher for a period of about six months before his arrest. Mr. Ahmed knew from March 6, 2010 onwards of Mr. Alizadeh's desire to form a terrorist group in Ottawa dedicated to facilitating violent Jihad, and to conduct attacks in Canada. Mr. Ahmed knew Mr. Alizadeh had attended a terrorist training camp in Afghanistan, where he learned to construct remote-controlled improvised explosive devices ("IEDs"), and that Mr. Alizadeh had sworn an oath of loyalty to Al-Qaeda and the Taliban. Mr. Ahmed was aware that Mr. Alizadeh was in contact with terrorists in Afghanistan and Iran, and that he was attempting to arrange IED training for Mr. Ahmed. Mr. Ahmed wanted to attend a terrorist training camp of this kind in Afghanistan or Pakistan.

Mr. Ahmed knew that Dr. Sher harboured violent Jihadist views, and that he was in contact with a member of the Taliban or Haqqani network, who had offered to arrange terrorist training for Dr. Sher.

Mr. Ahmed shared radical Jihadist propaganda with Mr. Alizadeh and Dr. Sher.

Mr. Ahmed solicited money from Dr. Sher and another person, and in May 2010 he gave Mr. Alizadeh $1,000 of his own money and another $1,000 from Dr. Sher, with the intention that the money be sent to foreign terrorists to purchase shoulder-mounted weapons, such as rocket-propelled grenades.

Mr. Ahmed arranged and hosted a meeting on July 20, 2010 for the purpose of recruiting Dr. Sher to join him and Mr. Alizadeh in their terrorist ambitions. At the meeting, Mr. Ahmed agreed, albeit reluctantly, to lead the terrorist group.

On July 30 and August 2, 2010, Mr. Ahmed gave Mr. Alizadeh $500, knowing that the money would be sent to foreign terrorists to purchase grenades. He also received money from Dr. Sher for the purchase of grenades.

Mr. Ahmed knew that Mr. Alizadeh possessed a President's Choice bag containing components and instructions for constructing remote-controlled IEDs, and that Mr. Alizadeh had obtained these items at a terrorist training camp where they had been custom designed by an expert bomb maker. He knew that Mr. Alizadeh intended to assemble the components into detonators for use in Canada, and that Mr. Alizadeh had videos showing step-by-step instructions on how to construct explosives.

At the time of his arrest, Mr. Ahmed was in possession of the President's Choice bag and its contents. The trial judge rejected the contention that Mr. Ahmed's acquittal on the third charge meant that he possessed the bag with his stated intention of disposing of its contents. He concluded that neither the Crown nor the defence had proven the purpose for which Mr. Ahmed possessed the explosive devices.

Mr. Ahmed believed it was his duty to assist violent Jihadist causes. He supported the Taliban. He wanted the Taliban to defeat the Karzai government and the United Nations mandated coalition forces that supported the Karzai regime. He believed it was morally legitimate for the Taliban to kill Canadian soldiers in Afghanistan.

[17] After outlining his findings respecting the circumstances of the offences, the trial judge turned to the expert evidence of Dr. Wagdy Loza, a clinical psychologist in the Canadian penitentiary system, and an expert in assessing the dangerousness of offenders. Dr. Loza assessed Mr. Ahmed's psychological functioning, mental and emotional stability and the probability of violent and non-violent recidivism. He ultimately concluded that Mr. Ahmed posed a low risk for committing any further offence related to terrorism.

[18] The trial judge observed that Mr. Ahmed, in speaking with Dr. Loza, downplayed his culpability, and offered explanations for his conduct that were inconsistent with the Gardiner findings. The sentencing judge disagreed with Dr. Loza in several respects. For example: contrary to Dr. Loza's observations, Mr. Ahmed was, at the time of the offences, committed to violent Jihad and "far more a willing co-conspirator than a passive receptor of Mr. Alizadeh's radical Jihadist philosophy" (at para. 44). Further, the trial judge disagreed with Dr. Loza's characterization that certain statements amounted to expressions of remorse.

[19] Notwithstanding his criticisms of Dr. Loza's observations, the trial judge observed that it would be folly to summarily dismiss his opinion altogether. The trial judge concluded that in the four years since his arrest, Mr. Ahmed had learned his lesson and he agreed with Dr. Loza that Mr. Ahmed was at a very low risk to reoffend and become involved in any further terrorist activity. He reached this conclusion on the basis of his "own observations of Mr. Ahmed during the course of the trial, including his unerring politeness and dignified bearing during the course of a long and probing examination in-chief and cross-examination, [and] his heartfelt expression of remorse which brought many in the courtroom to tears" (at para. 51).

[20] The trial judge then turned to Mr. Ahmed's personal circumstances. He was born in Pakistan, lived for eight years in Saudi Arabia and immigrated with his family to Canada when he was 14. He completed his schooling and received some post-secondary education, eventually graduating from a diagnostic imaging program. He also travelled to Syria where he said he learned to speak and read Arabic in order to assist in reading the Qu'ran. At the time of his arrest in 2010, Mr. Ahmed was 26 years old, married with three young children and was working as an imaging technician at a hospital in Ottawa. He had no prior criminal record. While on bail, Mr. Ahmed completed a number of educational courses, including credits toward a bachelor's degree in accounting. He enjoyed positive relationships with numerous Christians in his community. He had 75 letters sincerely expressing support for him.

[21] The trial judge discussed the principles of sentencing. He noted the observation of the Supreme Court in R. v. Khawaja that the general principles of sentencing, including the totality principle, apply to terrorism offences. He also noted that denunciation and deterrence are the primary considerations in sentencing terrorism offenders.

[22] The trial judge identified two relevant aggravating factors from the Criminal Code that he concluded were present in this case: first, that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, or religion (s. 718.2(a)(i)); and second, that the offences were terrorism offences (s. 718.2(a)(v)). The trial judge also noted the gravity of the offences and the length of Mr. Ahmed's involvement as aggravating factors.

[23] As for Mr. Ahmed's prospects for rehabilitation, the trial judge referred to Khawaja, where the Supreme Court held that, for terrorism offences, it remained within the trial judge's discretion to decide the weight of rehabilitation on a case-by-case basis. He concluded that Mr. Ahmed's rehabilitative prospects were promising, although he noted, "[i]ndividual rehabilitation is of little weight in fashioning appropriate sentences [in terrorism cases]" (at para. 81).

[24] While the trial judge noted this court's caution in R. v. Khalid, 2010 ONCA 861, 103 O.R. (3d) 600, with respect to using youth as a mitigating factor, he nevertheless concluded that Mr. Ahmed's relatively young age and lack of criminal record were mitigating factors that merited consideration. However, these considerations were subordinate to the principles of denunciation and deterrence.

[25] Under the heading "Parity", the trial judge reviewed the sentencing precedents put to him by counsel, including the sentences of the various members of the "Toronto 18". He concluded that Mr. Ahmed's culpability was more comparable to the subordinate "camp plot" offenders than the "bomb plot" offenders in those cases. They received sentences between six years and five months and ten years. The trial judge was of the view that, had the sentencing judges in these cases had the benefit of this court's decisions in Khalid and R. v. Gaya, 2010 ONCA 860, 272 O.A.C. 242, these offenders would have received higher sentences.

[26] The trial judge considered the most important benchmark to be Mr. Alizadeh's sentence of 24 years, after a guilty plea and joint submission. The trial judge considered Mr. Alizadeh's actions in connection with the terrorist group, and noted that unlike Mr. Alizadeh, Mr. Ahmed had not been convicted of the more serious bomb-making charge, and that any leadership role he assumed was limited.

[27] The trial judge took into account the principle of totality. He noted that, while the legal requirements of each count were different, the factual foundation was "exactly the same" (at para. 108). He concluded the sentence of 20 years sought by the Crown would effectively punish the offender twice for the same conduct and would "constitute an inappropriate punishment" (at para. 109).

[28] The trial judge imposed a global sentence of 12 years, which he allocated as five years for conspiracy to facilitate terrorism and seven years for participating in the activities of a terrorist group. The trial judge also noted that, but for the fact that he was convicted of terrorism offences rather than some other serious offence, Mr. Ahmed would likely have been considered an appropriate candidate for a conditional sentence. He gave Mr. Ahmed 12 months' credit -- seven months for pre-sentence custody and five months to account for his bail conditions.

[29] Mr. Ahmed's parole eligibility was left to be determined in accordance with the Corrections and Conditional Release Act.

C. Issues on Appeal

[30] The Crown advances six grounds of appeal; Mr. Ahmed argues four. Some of the issues are overlapping. I have grouped the issues as follows:

1. Did the trial judge err in his assessment of the gravity of the offences and the offender's actions? Did the trial judge err in his application of the parity principle?

2. Did the trial judge err in his approach to rehabilitation, remorse and the risk of reoffending? Did he under or overemphasize these factors, as well as the offender's age?

3. Did the trial judge err in his application of the totality principle?

4. Did the trial judge err in making findings of fact inconsistent with Mr. Ahmed's acquittal on the explosives charge?

5. Did the trial judge err in using the fact these were terrorism offences as an aggravating factor?

6. Did the trial judge err in his determination of the period of parole ineligibility for Mr. Ahmed?

(1) Issue 1: Did the trial judge err in his assessment of the gravity of the offences? Did he err in his application of the parity principle?

[31] The Crown submits that the trial judge erred in his assessment of the gravity of the offences. The Crown says that the judge misapprehended the evidence about Mr. Ahmed's level of culpability and, in particular, erred in treating him as less culpable than his co-conspirator, Mr. Alizadeh.

[32] The Crown also argues that, in determining a fit sentence for Mr. Ahmed, the trial judge erred in comparing him to the subordinate "camp plot" offenders (in the Toronto 18 cases). By virtue of this comparison, the trial judge imposed too low a sentence on Mr. Ahmed. Mr. Ahmed's actions were more comparable to Ahmad, who led the "camp plot", and those of certain "bomb plot" offenders.

[33] Mr. Ahmed asserts that, while the trial judge was correct in comparing his conduct to that of the "subordinate camp plot" offenders, this ought to have attracted a sentence in the five to eight-year range, and the trial judge erred in imposing a significantly higher sentence than most of the "camp plot" members received.

[34] Mr. Ahmed submits that, while the trial judge was correct to regard Mr. Ahmed as less culpable than Mr. Alizadeh, he erred in using that sentence as a benchmark, where Mr. Alizadeh was sentenced to a more serious offence that was subject to a maximum life sentence.

(a) Did the trial judge err in his assessment of the seriousness of the offences?

[35] I deal first with the Crown's argument that the trial judge undervalued the seriousness of the offences and Mr. Ahmed's conduct, in particular, in relation to the conduct of his co-accused Mr. Alizadeh. The Crown points to the evidence that Mr. Ahmed had agreed to become the leader of the terrorist group and that he shared Mr. Alizadeh's commitment to violent Jihad.

[36] Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Typically, the assessment of the seriousness of an offence and an offender's conduct involves findings of fact that attract a standard of deference: R. v. Gerk, 2016 ABCA 162, 130 W.C.B. (2d) 374, at para. 26; R. v. McLean, 2016 SKCA 93, 132 W.C.B. (2d) 96, at para. 34. A legal error may exist where the trial judge's assessment of the conduct is contrary to, or not supported by, the evidence.

[37] In Khawaja, for example, McLachlin C.J.C. noted that it was an error for the trial judge to have "devalued the seriousness of the appellant's conduct in a way that was inconsistent with the evidence" (emphasis added) (at para. 117). The trial judge characterized Khawaja's level of involvement in the offences as being of a "low order" compared with that of others in the terrorist group. This court (at 2010 ONCA 862) and the Supreme Court said this finding was unreasonable, as it was contrary to the evidence of what the appellant had done to help the terrorist group perpetrate mass violence: helping to finance a terrorist group; offering the group training in electronics; building devices intended to serve as remote triggers for IEDs; and going to Pakistan to train for combat in Afghanistan, all while encouraging and applauding violent Jihad (at para. 118).

[38] In this case, there is no indication that the trial judge devalued Mr. Ahmed's culpability in a way that was inconsistent with the evidence. The trial judge carefully described Mr. Ahmed's conduct. He noted that Mr. Ahmed consumed and shared radical Jihadist propaganda, was looking to attend a terrorist training camp abroad, and had taken active steps as part of the terrorist group, including recruiting Dr. Sher, and raising money for weapons. The trial judge accepted, contrary to what Mr. Ahmed told Dr. Loza, that, at the time of the offences, Mr. Ahmed was fully committed to violent Jihad, and that his involvement in the offences was not a momentary lapse in judgment but continued for more than six months.

[39] By contrast, the trial judge characterized Mr. Alizadeh as the primary instigator. He sought to establish a terrorist group dedicated to facilitating violent Jihad, he travelled to Afghanistan to receive weapons training, including training on how to assemble and detonate remote-controlled IEDs, and he smuggled bomb-making components and instructions as well as Jihadist propaganda videos into Canada. He used propaganda videos to radicalize Mr. Ahmed. Mr. Alizadeh was in regular contact with terrorists in Afghanistan and Iran, and raised and sent money to insurgents on two occasions. He possessed detonator components, intending to assemble them into a triggering device and he attempted to arrange terrorist training for Mr. Ahmed.

[40] I reject the Crown's assertion that the trial judge erred in finding that Mr. Alizadeh was the true leader of the terrorist group, notwithstanding Mr. Ahmed's election as leader at the July 2010 meeting. While the trial judge rejected the suggestion that the election of Mr. Ahmed as leader was "a laughing matter", he nevertheless characterized him as reluctantly agreeing, and he stated that any leadership role assumed by Mr. Ahmed was limited. The findings about Mr. Ahmed's and Mr. Alizadeh's respective roles, and the conclusion that Mr. Ahmed was not the instigator, but a follower, were open to the trial judge, and amply supported by the evidence of their conduct during the six months of their involvement together in the terrorist group. And, contrary to the Crown's submission, I do not agree that Mr. Ahmed's culpability should be measured solely on whether he was as committed as Mr. Alizadeh was to violent Jihad (the trial judge's reasons suggest he was very committed). Rather, the proportionality principle dictates that the offender's role in the terrorist group and his actions are of key importance.

[41] The Crown also argues that the trial judge downplayed the seriousness of the offence by focusing on the degree of readiness of the terrorist group rather than on the offender's level of determination. The Crown relies on the decision in Khawaja as support for this proposition. In Khawaja, this court found that the sentencing judge erred in holding that Khawaja's co-conspirators were "way out in front of him" when they all had the same level of subjective determination, as this factual finding was not borne out on the record (at para. 194). The Supreme Court in Khawaja agreed that the trial judge "effectively devalued the seriousness of [Khawaja's] conduct in a way that was inconsistent with the evidence" (at para. 117).

[42] The trial judge in this case did not commit the error alleged by the Crown. His reference to the lack of concrete steps taken by Mr. Ahmed was within his parity analysis to distinguish Mr. Ahmed's conduct from that of the "bomb plot" offenders in the Toronto 18. Unlike Khawaja, the issue is not that Mr. Ahmed lagged behind Mr. Alizadeh in terms of "realizing their violent plans" (C.A. Khawaja, at para. 196). Rather, the trial judge found that there were no concrete plans: "[Mr. Ahmed] and Mr. Alizadeh had not identified specific targets, nor acquired bomb-making chemicals" (at para. 90). As a result, their actions were less serious than the actions of the bomb plot offenders who had identified targets and had a scheme that was "thoroughly researched and meticulously planned": R. v. Amara, 2010 ONCA 858, 266 C.C.C. (3d) 422, at para. 9. It was appropriate for the trial judge in this case to note the lack of concrete steps as a point of departure from the bomb plot cases.

[43] At no point did the trial judge compare the degree of readiness and the subjective determination of Mr. Ahmed and Mr. Alizadeh. The comparison between the co-conspirators in this case focused on Mr. Alizadeh's role as the "real leader" and his conviction for the more serious bomb charge. Again, these are proper points of comparison: R. v. Chand, 2010 ONSC 6538.

[44] Absent a legal error, including a material misapprehension of the evidence, the determination of the seriousness of the offence and the offender's culpability was within the proper purview of the trial judge. Even if this court had a different view as to the respective levels of culpability of Mr. Ahmed and his co-accused, this alone would not justify interference with the trial judge's assessment: Gaya, at para. 18.

[45] As such, I would reject this argument by the Crown. There was no reversible error in the trial judge's assessment of the gravity of the offences and Mr. Ahmed's participation in them.

(b) Did the trial judge err in his application of the parity principle?

[46] The parity principle requires, to the extent possible, consistency in sentencing offenders in comparable circumstances. Section 718.2(b) of the Criminal Code provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. It is a fundamental principle of justice that like cases be treated alike: R. Cross, Punishment, Prison and the Public: an assessment of penal reform in twentieth century England by an armchair penologist (London: Stevens & Sons, 1971), at p. 167.

[47] The trial judge considered the various sentencing precedents respecting terrorism offences. He appended to his reasons a chart summarizing the cases, including the charges and maximum penalties available, relevant facts and whether the offender had pleaded guilty. Ultimately, the trial judge determined that there were two key comparators for Mr. Ahmed's culpability.

[48] First, the trial judge considered the sentences received by members of the "Toronto 18". He described how the members of the "bomb plot" took concrete steps towards detonating three truck bombs at specific identified targets. Subordinate members of the bomb plot group received sentences ranging from 18 years to life, while Amara, the leader, received a sentence of life imprisonment (upheld on appeal in R. v. Amara, leave to appeal to S.C.C. refused). The trial judge noted that Mr. Ahmed's acquittal on the bomb-related charge and the lack of concrete steps towards an attack distinguished his conduct from that of the bomb plot offenders. He described Mr. Ahmed's situation as more comparable to that of the subordinate members of the "camp plot". The camp plot members planned to conduct armed terrorist attacks against targets described as critical infrastructure. They were involved in arranging terrorist training and setting up a training camp in Ottawa. Its leader, Ahmad, was sentenced to 16 years, while five other members of the group received sentences of between six years and five months and ten years, some after pleading guilty.

[49] The trial judge reviewed the circumstances and sentences in each case. He noted that the sentences imposed in the camp-plot cases would likely have been higher had the sentencing judges had the benefit of this court's decisions in Khalid and Gaya (increasing their sentences by six years each, after concluding that the sentencing judge had overemphasized mitigating factors).

[50] The trial judge noted that perhaps the most important benchmark was the sentence given to Mr. Alizadeh, who pleaded guilty to a single charge of possessing explosive substances with an intent to endanger life in association with a terrorist group, and received a sentence of 24 years following a joint submission. Mr. Ahmed, in comparison, was not convicted of the more serious charge and any leadership role he assumed was limited.

[51] The Crown submits that the trial judge erred in comparing Mr. Ahmed's culpability to that of the subordinate members of the "camp plot" in the Toronto 18 cases, rather than that of the leader, Ahmad. This is premised on the argument that Mr. Ahmed's level of culpability was close to that of Mr. Alizadeh, based on his close association with Mr. Alizadeh who planned to construct explosives, his determination and commitment to violent Jihad, and his assumption of a leadership role. I have already rejected that argument, and concluded that there was no error in the trial judge's assessment of the respective roles of Mr. Ahmed and Mr. Alizadeh and their culpability, which was based on the evidence. Therefore, I would not give effect to the Crown's argument that the trial judge erred in his parity analysis when he compared Mr. Ahmed to the subordinate members of the Toronto 18 camp plot, rather than to its leader Ahmad.

[52] On the issue of parity, Mr. Ahmed asserts that, after correctly comparing Mr. Ahmed's level of culpability to that of the subordinate "camp plot" offenders in the Toronto 18, the trial judge erred in imposing a much higher sentence than those offenders received. Mr. Ahmed says that it was wrong for the trial judge to assume that the sentences for such offenders would have been higher in light of Khalid and Gaya where this court increased the sentences for two Toronto 18 bomb plot offenders. He argues that the Supreme Court in Khawaja stepped back from the "hardline" approach in those cases. Further, Mr. Ahmed seeks to distinguish his conduct from that of some of the members of the "camp plot" who participated to a more significant degree in terrorist group activities.

[53] I would not give effect to these arguments.

[54] The trial judge gave careful consideration to the sentencing precedents. It was reasonable for him to consider the sentences other terrorism offenders had received in light of subsequent developments in the case law, including the fact that the sentences for Khalid and Gaya were increased on appeal. Because Khalid and Gaya were sentenced first (with Khalid as the first guilty plea among the Toronto 18 offenders), their sentences informed the approaches of the parties and the sentencing judges in the other Toronto 18 cases. The trial judge also noted that, although the Supreme Court in Khawaja differed from this court in terms of its articulation of certain sentencing principles, it upheld the significant increase in sentence in that case, and emphasized the importance of denunciation and deterrence. Further, after Khawaja was decided by the Supreme Court, Khalid and Gaya were denied leave to appeal to that court.

[55] And, while there were no doubt differences between Mr. Ahmed's conduct and that of individual members of the "camp plot", the trial judge considered the specific facts of each case and there was no error in principle in his reference to the range of such sentences as an appropriate comparator. Moreover, the choice of sentencing range is not in itself a reviewable error: Lacasse, at para. 51; R. v. Lloyd, [2016] 1 S.C.R. 130, 2016 SCC 13, at para. 52.

[56] For these reasons, I see no reversible error in the trial judge's application of the parity principle, in particular in identifying a range of sentences based on sentences given to the subordinate "camp plot" offenders in the Toronto 18, in light of subsequent developments in the jurisprudence, and in comparing Mr. Ahmed's conduct and culpability with that of his co-conspirator, Mr. Alizadeh.

(2) Issue 2: Did the trial judge err in his approach to rehabilitation, remorse and the risk of reoffending? Did he under or overemphasize these factors, as well as the offender's age?

[57] Both the Crown's appeal and Mr. Ahmed's cross-appeal take issue with the trial judge's treatment of the mitigating factors of rehabilitation, remorse and the offender's position as a relatively youthful first offender.

[58] The trial judge concluded that Mr. Ahmed's prospects for rehabilitation were "promising". He nevertheless stated that "[i]ndividual rehabilitation is of little weight in fashioning appropriate sentences" in terrorism cases (at para. 81).

[59] Mr. Ahmed says that the trial judge's approach to this issue reflects an error in law, as the Supreme Court specifically rejected the principle the trial judge articulated about the role of rehabilitation in terrorism offences. Mr. Ahmed also contends that a reduced sentence was warranted, having regard to the strong evidence of his rehabilitative potential. Finally, Mr. Ahmed argues that the trial judge failed to consider the principle that rehabilitation is the most important sentencing factor for youthful first offenders.

[60] The Crown asserts that there was no error in the trial judge's statements of legal principle, including with respect to youthful first offenders convicted of terrorism offences. The Crown, however, submits that the trial judge misapprehended the evidence when he concluded that the appellant had good rehabilitative prospects, was at a low risk to reoffend and expressed remorse. Even if there was evidence of remorse, the Crown argues the trial judge gave too much weight to remorse and Mr. Ahmed's age in sentencing.

(a) Did the trial judge err in law in his comments about the role of rehabilitation in sentencing in terrorism offences?

[61] The trial judge's statement [at para. 81] that in cases of terrorism, "[i]ndividual rehabilitation is of little weight in fashioning appropriate sentences", read in isolation, is inconsistent with what the Supreme Court said in Khawaja, at para. 124. However, when read in the context of his other accurate statements of the law and the trial judge's actual treatment of the evidence concerning rehabilitation, this is not a reversible error. Rather, he decided that, having regard to the seriousness of Mr. Ahmed's offence and his conduct, the role of rehabilitation was less important than deterrence and denunciation in fixing an appropriate sentence.

[62] In Khawaja, the Supreme Court rejected the view expressed by this court that "rehabilitation as a mitigating circumstance is significantly reduced in the context of terrorism offences, given the unique nature of the crime and the grave and far-reaching threat that it poses to the foundations of our democratic society": C.A. Khawaja, at para. 201. Rather, McLachlin C.J.C. noted that "[t]he terrorism provisions catch a very wide variety of conduct, suggesting that the weight to be given to rehabilitation in a given case is best left to the reasoned discretion of trial judges on a case-by-case basis" (at para. 124).

[63] In this case, the trial judge referred to these principles from Khawaja and in particular that the role of rehabilitation was for his reasoned discretion. He also referred to other passages in Khawaja in which the Supreme Court emphasized the importance of the principles of denunciation and deterrence given the seriousness of terrorism offences.

[64] In my view, there was no error in the trial judge's approach to the weight to be given to evidence concerning Mr. Ahmed's rehabilitative potential. His reasons, read as a whole, demonstrate that he did not entirely discount the significance of such evidence. Rather, he used his reasoned discretion to conclude that denunciation and deterrence were more important factors than rehabilitation in sentencing Mr. Ahmed, having regard to the seriousness of the offences and Mr. Ahmed's conduct. The question of weight to be given to relevant sentencing factors is for the trial judge. An appellate court may not interfere simply because it might have weighed the relevant factors differently, unless the weighing was unreasonable: Lacasse, at paras. 49 and 78.

[65] I also specifically reject Mr. Ahmed's submission that rehabilitation ought to have been the primary consideration in his sentencing because he was a relatively youthful first offender, and that the trial judge ignored this factor. While sentences imposed on young first offenders will often stress individual deterrence and rehabilitation, the importance and weight of other factors increases with the seriousness of the crime: R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99, at paras. 41-42; R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797, at para. 5; and Khalid, at para. 43. And, as this court noted in Khalid, in terrorism cases, youth and the lack of criminal antecedents, while relevant considerations, must be viewed through a different lens, as youthful first offenders are attractive recruits to sophisticated terrorists: at para. 47.

[66] I see no error in the trial judge's conclusion that Mr. Ahmed's relatively young age (26 years old) and lack of a criminal record were mitigating factors, but subordinate to the principles of denunciation and deterrence. Again, it was for the trial judge to make a reasoned determination for the role of rehabilitation in this case.

(b) Did the trial judge err in his assessment of the evidence of Mr. Ahmed's rehabilitative potential and remorse?

[67] The Crown submits that the trial judge misapprehended the evidence of rehabilitation and remorse, and gave these factors too much weight in sentencing Mr. Ahmed.

[68] First, there is the question of the trial judge's treatment of the evidence of Dr. Loza. The Crown says that the trial judge erred in relying on the opinion of Dr. Loza, when it was based on his interviews with Mr. Ahmed in which he continued to deny responsibility for the offences and minimized and downplayed his role. Further, some of the factual underpinnings of the psychologist's report were contrary to the trial judge's Gardiner findings. The Crown says that it is evident from the 37 paragraphs the trial judge devoted to Dr. Loza's evidence, that his evidence played a significant role in his conclusions about Mr. Ahmed's rehabilitative potential and ultimately in the sentence imposed.

[69] I disagree. The trial judge had no choice but to carefully consider Dr. Loza's opinion. His evidence, which was admitted without objection at the sentencing hearing, was relevant to (but not determinative of) the important question of Mr. Ahmed's likelihood to reoffend, and his level of continuing dangerousness. By contrast, in Khawaja, in the face of compelling evidence of dangerousness, the absence of evidence about the offender's probability of reoffending or rehabilitative prospects, was sufficient to justify a stiffer sentence: at paras. 123 and 124.

[70] The trial judge's reasons do not reveal the error alleged by Crown. The trial judge approached Dr. Loza's evidence with caution, recognizing that his opinions were informed in part by what Mr. Ahmed told him. The trial judge found that, contrary to Dr. Loza's observations, the evidence at trial clearly indicated that "Mr. Ahmed was, at the time of the offences, committed to violent Jihad" (at para. 39) and "far more a willing co-conspirator than a passive receptor of Mr. Alizadeh's radical Jihadist philosophy" (at para. 44). Nor did he accept the expert's opinion that Mr. Ahmed's statements to Dr. Loza represented an expression of remorse; rather, the trial judge characterized these statements as "an expression of regret for having become involved in a terrorist activity and being convicted by a jury for his involvement" (at para. 42). As such, the trial judge did not uncritically accept Dr. Loza's opinion; rather, he said it should not be rejected summarily, and went on to make his own assessment. This, in my view, he was entitled to do.

[71] The trial judge considered evidence other than Dr. Loza's opinion in arriving at his own conclusion that Mr. Ahmed was at a very low risk to reoffend and become involved in any further terrorist activity. The evidence included the 75 letters of support from family and friends, Mr. Ahmed's conduct during the course of the trial, and his in-court statement, which the trial judge accepted as a heartfelt expression of remorse.

[72] The Crown says that none of this evidence ought to have satisfied the trial judge that Mr. Ahmed was amenable to rehabilitation or expressed remorse. The Crown contends that the letters of support were from people who for the most part were unaware of Mr. Ahmed's terrorist sympathies and activities; the in-court statement did not amount to an unqualified acceptance of responsibility and renunciation of his terrorist sympathies, and in any event counted for little as it was offered only after conviction. And Mr. Ahmed's polite and dignified bearing in court was essentially irrelevant. The Crown says that in this case, as in Khawaja, there was simply no evidence on which the trial judge could reasonably conclude that Mr. Ahmed was unlikely to reoffend.

[73] I disagree. Ultimately, it was for the trial judge to make a reasoned assessment, based on the evidence, of Mr. Ahmed's prospects for rehabilitation and his likelihood to reoffend. Unlike in Khawaja, where there was no such evidence at all, there was considerable evidence that the court could consider, in addition to the circumstances of the offences, in assessing Mr. Ahmed's continuing dangerousness. A great deal of personal information was available through the PSR and the sessions with Dr. Loza. The letters of support contained significant details of Mr. Ahmed's community engagement and support, and, while expressing surprise at Mr. Ahmed's involvement in terrorist activities, did not deny the seriousness of his offences. There was evidence of Mr. Ahmed's educational pursuits and activities during the four years he was on bail. It was open to the trial judge to consider Mr. Ahmed's in-court statement to be a genuine expression of remorse, even if it was offered late in the day, and even if it did not contain a detailed admission of all that he had done and an unqualified renunciation of the beliefs that informed and led to the offences. The trial judge was able to consider all of this evidence, as well as the serious and disturbing evidence about Mr. Ahmed's involvement and participation in the offences, in his assessment of his likelihood to reoffend.

[74] I would therefore reject the Crown's submission that the trial judge misapprehended the evidence and that there was no evidence to support his conclusions as to Mr. Ahmed's rehabilitative potential. There is no basis to interfere with the trial judge's findings with respect to rehabilitation and remorse.

[75] In the alternative, the Crown also submits that even if there were evidence of remorse, the trial judge erred in the weight he gave to Mr. Ahmed's expression of remorse and his age as sentencing factors. The Crown says that, despite the trial judge's statements to the contrary, he must have given significant weight to these factors, because the sentence was so light, and because of the trial judge's comment that, but for the offences being terrorism offences, Mr. Ahmed would have been a candidate for a conditional sentence. This comment, says the Crown, informed the entire sentencing process.

[76] I disagree. First, there is nothing to support the Crown's assertion that the sentence was too light, which is premised on the earlier argument that I have rejected, that the trial judge undervalued the seriousness of the offences. The sentence of 12 years was informed by the sentences of similar offenders for similar offences and proportional to the gravity of the offences and Mr. Ahmed's culpability. Second, the reference to Mr. Ahmed's being a candidate for a conditional sentence simply confirms what the trial judge said about his rehabilitative potential, and that he was not dangerous. There is nothing in the trial judge's reasons to suggest that the "starting point" was a conditional sentence. To the contrary, the trial judge specifically emphasized the importance of the principles of deterrence and denunciation, he considered Mr. Ahmed's prospects for rehabilitation to be of little weight, and he concluded that as a result of the crimes Mr. Ahmed committed the "suggestion that Mr. Ahmed be given a conditional sentence to be served in the community simply cannot be entertained . . . [and he] must go to jail for a lengthy time" (at para. 79).

[77] Accordingly, I would reject this ground of the Crown's appeal.

(3) Issue 3: Did the trial judge err in his application of the totality principle?

[78] The issue of totality arose in this case because of the requirement in s. 83.26 of the Criminal Code that a sentence other than one of life imprisonment, imposed on a person for a terrorism offence be served consecutively to any other punishment imposed on the person "for an offence arising out of the same event or series of events".

[79] The totality principle is a particular application of the general principle of proportionality: C. Ruby, G. Chan and N. Hasan, Sentencing, 8th ed. (Markham, Ont.: LexisNexis, 2012) at 2.63. It requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender: R. v. M. (C.A.), [1996] 1 S.C.R. 500, at p. 531 S.C.R. Following M. (C.A.), the sentencing provisions in the Criminal Code were amended. Proportionality was included as the fundamental principle of sentencing (s. 718.1) and sentencing courts were instructed to take into consideration the totality principle when imposing consecutive sentences to ensure that the combined sentence is not unduly long or harsh (s. 718.2(c)). The totality principle applies in sentencing persons convicted of terrorism offences: Khawaja, at para. 126.

[80] The trial judge addressed the principle of totality, and applied it in the following way. First, he observed that, while the legal requirements of the two offences of which Mr. Ahmed was convicted were different, "the factual foundation for each count was exactly the same". He stated [at para. 108]:

In my view, where the same factual foundation forms the basis of liability on each count it would be an error in principle, not to mention manifestly unfair to the person convicted, to render a sentence that effectively punishes the offender twice for the same conduct. That, in effect, is what Crown counsel is urging me to do [in requesting a global sentence of 20 years].

He concluded that a sentence of 20 years would "constitute an inappropriate punishment", where "[t]he penalty would outstrip [Mr. Ahmed's] degree of culpability" (at para. 109). The trial judge then fixed a global sentence of 12 years, which he allocated to five years for the conspiracy to facilitate offence and seven years for the offence of participating in a terrorist group.

[81] The Crown says that the trial judge erred in his approach to totality: first, he should have fixed an appropriate sentence for each offence without regard to totality, and then he ought to have looked at the total sentence to assess whether or not it was excessive as to Mr. Ahmed's overall culpability, using the combined maximum sentences of 24 years as the standard. This, according to the Crown, is what is anticipated by s. 83.26 of the Criminal Code. The Crown contends that the trial judge, in invoking the totality principle before setting out the sentences for the individual offences, frustrated the will of Parliament expressed in the requirement to impose consecutive sentences, and in effect imposed the equivalent of a concurrent sentence.

[82] Mr. Ahmed submits that the trial judge correctly concluded that the factual foundation for the two offences was exactly the same in this case, and that the totality principle applied. In argument on the appeal, he went further and asserted that, because the charges were "duplicative", the appropriate sentence ought to have been based on a range of 0 to 14 years (the maximum sentence for conspiracy to facilitate), and then allocated between the two offences. Looked at this way, the sentence of 12 years was too severe.

[83] As I will explain, I see no reversible error in how the trial judge approached and applied the totality principle.

[84] First, I address the Crown's argument that sentences should initially be fashioned for each count and then subsequently adjusted (if necessary) in accordance with the totality principle. This approach has been endorsed in certain appellate decisions from other provinces: R. v. Punko, 2010 BCCA 365, 258 C.C.C. (3d) 144, at paras. 93-96, leave to appeal to S.C.C. refused; R. v. Hutchings, 2012 NLCA 2, 282 C.C.C. (3d) 104, at paras. 20-26, and 84; R. v. Adams, 2010 NSCA 42, 255 C.C.C. (3d) 150, at paras. 23-28; and R. v. Draper, 2010 MBCA 35, 253 C.C.C. (3d) 351, at para. 30. See, also, the trial level decision in Ontario in R. v. E. (M.), 2012 ONSC 1078, 100 W.C.B. (2d) 610, at paras. 63-69. The Crown says that, if the judge had first determined Mr. Ahmed's individual sentences for each offence, and then adjusted the sentence, looking to an available range of 24 years, he would have sentenced Mr. Ahmed to a much longer sentence of imprisonment.

[85] I disagree with the Crown's submission that the trial judge made a legal error in his application of the totality principle. The approach taken by the trial judge here is consistent with the decision of this court in R. v. Jewell, [1995] O.J. No. 2213, 100 C.C.C. (3d) 270. In Jewell, this court said that the trial judge should first identify the gravamen of the conduct giving rise to all of the criminal offences, and next determine the total sentence to be imposed. "Having determined the appropriate total sentence, the trial judge should impose sentences with respect to each offence which result in the total sentence, and which appropriately reflect the gravamen of the overall criminal conduct": p. 279 C.C.C. See, also, R. v. B. (R.), 2013 ONCA 36, 114 O.R. (3d) 465, at para. 30, where this approach to totality was followed; and R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34, at fn. 2, where this court, referring to the differing approaches in the appellate courts (citing Jewell, Adams and R. v. Wozny, 2010 MBCA 115, [2011] 2 W.W.R. 630), noted that the "proper approach to sentencing an offender for multiple offences is unsettled". Further, in R. v. Ahmad, 2010 ONSC 5874, at para. 73, the trial judge fixed a global sentence of 16 years, and then apportioned it among the three offences.

[86] I note that the trial judge approached the issue of totality in line with the Crown's submissions at trial. The Crown advised that if the trial judge determined that the "totality principle commands a certain sentence and that to exceed that sentence would be unfair, then [the trial judge should] impose that sentence and divide it up as between the two counts". And, in sentencing submissions, the Crown did not seek to apportion Mr. Ahmed's sentence between the two offences, but sought a global sentence of 20 years.

[87] I also reject the Crown's argument that, if the trial judge had taken a different approach (by fixing each sentence individually and then applying the totality principle to see if the sentences were fair), he necessarily would have imposed a higher sentence. What the Crown proposes would not have made a material difference given that the trial judge's focus was on the seriousness of the offences and Mr. Ahmed's conduct. He considered Mr. Ahmed's overall culpability, irrespective of the number of convictions on which he was to be sentenced.

[88] The trial judge was invited by the Crown to impose a sentence of 20 years, relying on the requirement to sentence consecutively. The trial judge concluded that this would "constitute an inappropriate punishment", where "[t]he penalty would outstrip [Mr. Ahmed's] degree of culpability" (at para. 109). The trial judge did not refuse to give effect to the requirement for consecutive sentences; rather, he correctly noted that totality remained an important consideration, and he applied it in imposing a sentence that reflected the gravity of the crimes committed and Mr. Ahmed's moral culpability.

[89] I turn to Mr. Ahmed's arguments respecting totality. As I have already noted, Mr. Ahmed initially took the position that there was no error in the trial judge's application of the totality principle. In argument on the appeal, however, he emphasized that because the charges were "duplicative", the trial judge, in applying the totality principle, ought to have based his sentence on a maximum available sentence of 14 years, in which case, reflecting his level of culpability, the sentence should have been only five to eight years.

[90] First, if the convictions were truly duplicative, the doctrine in R. v. Kienapple, [1975] 1 S.C.R. 729, which precludes multiple convictions for the same delict, would have been engaged, and Mr. Ahmed's argument about the maximum sentence being 14 years would prevail. The Kienapple rule was applied by the trial judge in Khawaja to stay the finding of guilt on a count where it related to the same conduct as another count -- the offender's involvement in the development of a specific weapon. In this case, although there was a factual nexus between the two offences, which arose out of the same events, and they shared common elements, there was not a sufficient legal nexus between the offences to warrant the application of the doctrine: See R. v. K. (R.), [2005] O.J. No. 2434, 198 C.C.C. (3d) 232, at paras. 27-40. Indeed, no one argued the Kienapple rule applied.

[91] While the trial judge described [at para. 108] "the [exact] same factual foundation" as forming the basis for liability on each count, this simply recognized that proof of the same factual circumstances, the same series of events, supported Mr. Ahmed's conviction for both offences. Section 83.26 of the Criminal Code mandates consecutive sentences, for offences "arising out of the same event or series of events", where otherwise consideration would have been given to the imposition of concurrent sentences. Concurrent sentences are typically imposed where the multiple charges are part of the same event or transaction, and are appropriate where the charges have a sufficiently close nexus, or where "the gravamen of the offences" is the same: Wozny, at para. 21. Here Parliament has directed that concurrent sentences are not available for terrorism offences arising out of the same events.

[92] I agree with the Crown that what Mr. Ahmed proposes, that the trial judge ought to have regarded the offences as duplicative, and considered Mr. Ahmed's maximum sentence as 14 years, would ignore the requirement under s. 83.26 for consecutive sentences for terrorism offences arising out of the same events. That is not what is required by the totality principle.

[93] Rather, the totality principle ensures that the focus is on the offender's actions, role in the offences and overall culpability, irrespective of the number of offences charged. I am sympathetic to the concern expressed by Mr. Ahmed's counsel both at trial and on appeal, that, because of the requirement for consecutive sentences, and the overlapping nature of many terrorism offences under the Criminal Code, the Crown could pursue a greater sentence in any particular case by laying multiple charges. While that is theoretically possible, the totality principle is a check on any such approach. Irrespective of the number of offences of which a terrorism offender is convicted, the sentence must reflect and not exceed the offender's overall moral culpability.

(4) Issue 4: Did the trial judge err in making findings of fact inconsistent with Mr. Ahmed's acquittal on the explosives charge?

[94] As Mr. Ahmed was acquitted of the explosives offence, it was necessary for the trial judge to make certain determinations of fact in relation to his involvement with bomb-making components that were in his possession at the time of his arrest. In his sentencing decision, the trial judge stated, at para. 9:

Mr. Ahmed knew that Mr. Alizadeh possessed a President's Choice bag containing components and instructions for constructing remote controlled IEDs that had been custom designed by an expert bomb-maker at the terrorist training camp attended by Mr. Alizadeh. Mr. Ahmed knew that Mr. Alizadeh intended to assemble the components in the bag into detonators for use in Canada.

[95] This paragraph reflects the findings in relation to Mr. Ahmed's knowledge of the contents of the bag and Mr. Alizadeh's intentions set out at para. 10 of the Gardiner findings.

[96] The trial judge went on to state, at para. 12:

Mr. Ahmed was in possession of the explosive devices contained in the President's Choice bag. Neither the Crown nor the defence has proven the purpose for which he possessed the explosive devices.

[97] Mr. Ahmed asserts that the trial judge erred in his findings with respect to his involvement with the President's Choice bag containing bomb-making parts. He says that it was a necessary conclusion from his acquittal on the most serious offence, that he was holding the President's Choice bag for a non-dangerous purpose, namely, to dispose of it, as he had testified at trial. He says that the effect of the trial judge's findings would mean that the third and most serious offence would have been made out. The result, according to Mr. Ahmed, is that his overall culpability was overstated.

[98] I disagree. A required element of the explosives offence, that had to be proven beyond a reasonable doubt, was the intent to endanger life or cause serious damage to property for the benefit or at the direction of, or in association with, a terrorist group. The trial judge was unable to determine Mr. Ahmed's intent when he possessed the President's Choice bag. As the trial judge concluded, at para. 14 of his Gardiner findings, "[t]he verdict of the jury acquitting him on the charge means that they were not satisfied beyond a reasonable doubt that [Mr. Ahmed] had the intent to endanger life or cause serious damage to property or to enable another person to do so for the benefit of or at the direction of or in association with Mr. Alizadeh and his terrorist group". That Mr. Ahmed testified about his intention to destroy the contents may have given rise to a reasonable doubt as to his intention; however, the trial judge was not satisfied, on a balance of probabilities, that Mr. Ahmed possessed the explosives in the Presidents' Choice bag for a non-dangerous, innocent purpose. The failure to prove an alleged aggravating fact beyond a reasonable doubt does not require the trial judge to assume a version of facts most favourable to an accused. It was for the defence to establish on a balance of probabilities any mitigating fact relied on: R. v. Smickle, 2013 ONCA 678, 304 C.C.C. (3d) 371, at para. 18.

[99] The trial judge was correct to conclude that Mr. Ahmed's acquittal on the explosives charge simply meant that the jury found him not guilty. The trial judge properly recognized that Mr. Ahmed was not convicted of the third and most serious offence, relating to explosives, and this recognition informed his conclusions about Mr. Ahmed's overall culpability.

[100] I would accordingly dismiss this ground of appeal.

(5) Issue 5: Did the trial judge err in using terrorism as an aggravating factor?

[101] The trial judge referred to the aggravating factors present in this case, including two deemed aggravating circumstances from s. 718.2(a)(v) of the Criminal Code: first, that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, or religion (s. 718.2(a)(i)); and second, that the offences were terrorism offences (s. 718.2(a)(v)).

[102] Mr. Ahmed says that the trial judge erred in using as an aggravating factor the fact that these were terrorism offences, when involvement in terrorism was an essential element of each of the offences of which he was convicted.

[103] In Lacasse, the Supreme Court considered the sentence in an impaired driving case. Wagner J., for the majority, noted it was an error for the sentencing judge to identify as an aggravating factor the fact that the offender was intoxicated, when his intoxication was an essential element of the offence. Ultimately, however, this was not a reversible error as "the erroneous consideration of an aggravating or mitigating factor warrants appellate intervention only if it can be seen from the trial judge's [page431] decision that the error had an actual impact on the sentence". In that case, it was apparent that the judge attached no real weight to this factor; rather, he simply recited it in a list of aggravating factors (at paras. 44 and 83).

[104] Mr. Ahmed says that the trial judge's reference to this being a terrorism offence as an aggravating factor must have had a material impact on sentence because, in his submission, the trial judge imposed a sentence at the high end of the sentencing range.

[105] By contrast, the Crown asserts that, if the trial judge erred in referring to the fact that this was a terrorism offence as an aggravating factor, it had no material impact on the sentence.

[106] I agree with the Crown's position on this issue. Section 718.2(a) requires a court imposing a sentence to take into consideration the principle that "a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender", and deems as an aggravating circumstance "evidence that the offence was a terrorism offence". The inclusion of this statutory aggravating factor serves to underline the seriousness of terrorism offences: see Khawaja, at para. 130.

[107] In this case, while the trial judge mentioned the statutory aggravating circumstances, it is difficult to see how "evidence that the offences were terrorism offences" was used by him to increase Mr. Ahmed's sentence. The trial judge, in determining sentence, considered the range of sentences imposed in other terrorism cases, as well as the appellate decisions of this court and the Supreme Court of Canada. As the precedents were already terrorism cases, the seriousness of the offence was already built into the court's consideration of an appropriate sentence. Therefore, there is no indication he imposed a higher sentence as a result of the "aggravating circumstance" that was already present in all of the sentencing precedents he considered.

[108] Mr. Ahmed further submits that the statutory factor must have been taken into consideration because he was sentenced "at the high end" of the range (which he says was 0 to 14 years based on the maximum sentence for the participation offence). It is incorrect to say that the sentencing range here was 0 to 14 years in the absence of a finding that the Kienapple rule applied. Mr. Ahmed was convicted of two offences, which attracted consecutive sentences.

[109] Accordingly, while, in my view, the trial judge ought not to have mentioned the statutory aggravating circumstance as a factor in sentencing in addition to the seriousness of the offence, I am not persuaded that this had any effect on the sentence Mr. Ahmed received. I would therefore not give effect to this ground of appeal.

(6) Issue 6: Did the trial judge err in concluding that Mr. Ahmed's period of parole ineligibility would be determined in accordance with the Corrections and Conditional Release Act?

[110] The court is required to order that any offender sentenced to more than two years' imprisonment for a terrorism offence will be eligible for parole only after serving one-half of the sentence or ten years, whichever is less. An exception to this requirement applies where the court is satisfied "having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society's denunciation of the offence and the objectives of specific and general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act" (Criminal Code, s. 743.6(1.2)).

[111] The paramount principles to guide the court's determination are "denunciation and specific or general deterrence, with rehabilitation of the offender, in all cases, being subordinate to those paramount principles" (s. 743(2)). The onus is on the offender to establish the exception applies on a balance of probabilities: Khalid, at para. 30.

[112] In this case, the trial judge was satisfied that Mr. Ahmed met the onus. He concluded that the objectives of specific and general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act. He referred [at para. 115] to the "circumstances of the offences . . . and the character and circumstances of Mr. Ahmed, including the 75 letters of support and the opinion of Dr. Loza, added to [his] own belief [Mr. Ahmed] has renounced his terrorist sympathies and that he could be a force for good in de-radicalizing other would-be terrorists".

[113] In Khalid and Gaya, this court reversed the determination of the sentencing judge as to parole ineligibility. In each case, this court substituted an order requiring the offender to serve one half of his sentence before being eligible for parole, stating that the sentencing judge erred in underemphasizing the enormity of the respondent's crime and overemphasizing his rehabilitative prospects. This court held that, had the judge followed the approach he should have, he would have come to a different conclusion as to parole ineligibility (Khalid, at para. 60; Gaya, at para. 22).

[114] In this case, the Crown does not point to any error of law or principle with respect to the decision concerning parole ineligibility, other than its earlier argument that the trial judge undervalued the seriousness of the offence and Mr. Ahmed's conduct, and overemphasized his rehabilitative prospects and remorse. As I would reject such arguments for reasons I have already explained, I find there is no merit to this ground of appeal. The trial judge took into consideration the relevant factors and concluded that the expression of society's denunciation of the offence and the objectives of specific and general deterrence would be adequately served by not requiring Mr. Ahmed to serve one half of his sentence before eligibility for parole. There is no basis to interfere.

[115] Accordingly, I would reject this ground of the Crown's appeal.

D. Conclusion and Disposition

[116] As the Supreme Court emphasized in M. (C.A.), at para. 91, and in Lacasse, at paras. 1, 12 and 89, the determination of a just and appropriate sentence is a delicate matter. In each case, the trial judge's assessment of the evidence, as well as the various sentencing factors and their weight, are entitled to deference absent an error in principle that has a material impact on the sentence. In enacting the specific provisions in the Criminal Code, Parliament set out its commitment to a strong and effective response to terrorism offences. In Khawaja, the Supreme Court underlined, however, that the general principles of sentencing continue to apply to such offences. In this case, the appeal and cross-appeal took issue with the trial judge's application of many of the principles of sentencing. As I have found no error in principle and have concluded that the sentence imposed was not demonstrably unfit, there is no basis to interfere with the 12-year sentence Mr. Ahmed received, or the determination with respect to his parole ineligibility.

[117] For these reasons, I would grant leave to appeal sentence, and dismiss the appeal and cross-appeal.

Appeals dismissed.

Notes

1 The two charges were for developing a device to activate a detonator (under s. 81(1)(a) of the Criminal Code) and keeping an explosive substance under s. 81(1)(d).

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