Court Information

Date: February 28, 2018

The Ontario Court of Justice

Her Majesty the Queen v. Salih Kadir

Before the Honourable Justice H. Brownstone

Location: Courtroom 112, Old City Hall, Toronto

Counsel:

• For the Crown: N. Kruger
• For the Accused: M. Schlefer

Reason for Sentence

BROWNSTONE, J.

ORALLY:

The accused was found guilty after a trial on November 3rd, 2017 of threatening death, arising from an incident at Queen's Park when he left two duffle bags unattended in front of the Whitney Block west doors, across the street from the Legislature building. He told the security officers that he was on a "trial run", and that he was there to "light a fire that will become a bigger one", and that the officers will be making "the ultimate sacrifice to protect the lives of the people inside the Legislature building".

He has been on remand since November 3rd, 2017 for the purposes of assessing his mental health and to determine whether he was not criminally responsible at the time that this incident occurred. The report, which is very comprehensive, from Waypoint is extremely troubling. It's troubling because clearly, Mr. Kadir -- who is by the way much more lucid and coherent today than I've ever heard him, but that's an aside -- the report seems to suggest that Mr. Kadir is suffering from one or more mental health problems which triggered that incident, these statements that he made.

Terrorism Designation

The Crown has asked the Court to find that this threat was an act of terrorism as defined in s. 83.01 of the Code, specifically 83.01(b), the definition of terrorist activity. The first component of that definition requires that:

The offence be committed in whole or in part for a political, religious or ideological purpose, objective or cause.

It is true that when one threatens to blow up a government building and, in particular the Legislature, it might be possible to infer some political or ideological cause because, as the Crown put it, it's inherently an act of terrorism to want to blow up the seat of government in this province. And if there were not the report from Waypoint, I might accede to such an argument.

But, the indication from the report is that this is a man who was suffering from mental health problems and is still suffering from mental health problems and the absence of any reference in what he said to the officers to suggest any ideological, political or religious purpose, objective or cause, combined with the obvious mental health problems that he's suffering from do not permit the Court to find that this is an act of terrorism. It would not be appropriate, in my view, to classify what he said and did that day as motivated by a terrorist objective. In my view, it was motivated by mental health difficulties as outlined in the report, so I do not find that this is an act of terrorism and I decline to add that factor as an aggravating factor.

Sentencing Factors

The factors I am taking into account are:

1. His age, he is 27
2. His record, all of his record except for the Alberta offences which occurred after this incident. I am entitled to consider that since being found guilty, there have been a number of offences -- actually, that's not true. There is also the attempt fraud from April 2014, which predated this incident as well.

In any event, I am entitled to, in fashioning a sentence, to consider what has happened to the accused since the date of the offence, but the only issue here is how much of his pretrial custody should be allocated to this offence. So, I am taking into account his age, his record, his mental health issues, his expression of remorse today and, first and foremost, the very, very serious circumstances of the offence.

Sentencing Principles

The principles of sentencing that are applicable here are denunciation, specific and general deterrence and, in this case, because of mental health issues, rehabilitation.

It is extremely difficult in a case like this where he's already served all of the time that's appropriate, and that's on consent of both the Crown and the defence, it is very difficult for the Court to achieve the objectives that I've just mentioned, the sentencing objectives, because all I have left is probation.

Custodial Sentence

In terms of what would be an appropriate sentence, well, I'm certainly not finding that he had the capacity to actually carry out his threat. There's no indication of that. There's no evidence of any affiliation with any organization that would want to blow up the Legislature or cause harm to the public and there's no indication that he was ever in possession of the kind of weapons that would have been necessary to cause the harm he threatened to commit.

And, so, had he been sentenced immediately on the day of the trial, I would have considered six months to be suitable. Six months is half of a year. It's a significant amount of time for someone who, up to that point, had never spent any time in jail. It would be a first jail sentence. The threat was communicated in such a way, as the Crown points out rightly, as to be planned and because of that, it carried more weight with the Court in terms of its seriousness; that this was a trial run, that he'd been there the day before, he had these bags there which could -- certainly led the officers to worry that there was an explosive in them.

And, so, in my view, given that the maximum sentence is 18 months, and this is his first jail sentence and that there is no indication that he was ever going to carry out these threats, I'm of the view that six months would be sufficient. And that's what I'm going to endorse on the record, six months time served. I don't agree that 12 months, although he served the equivalent of 12 months, I don't agree that the record should show 12 months because I think that would convey more planning and more deliberation, more of an intent to carry out a threat than what actually occurred here.

So, I am going to assess him as having served six months of pre-trial custody.

Probation

Now, probation; this person has a serious mental health problem. He has no family support at all. He has no job, no place to live and no treatment plan. This is clearly a case for probation. In fact, it's astonishing to me that his counsel would suggest otherwise, although I appreciate that likely was his instruction, but there's never been a stronger case for probation in my 23 years on the bench than this one.

He definitely needs someone to supervise him. I am encouraged that he's had probation numerous times and no breaches on his record. That suggests to me that he will go to see the probation officer and do what he's supposed to do, otherwise he's going to end up back in jail.

I also agree with -- well, I agree that more than one year is necessary. I think three years probation is pushing it just a bit. He has had probation before. In my view, two years is sufficient to hopefully stabilize him. So, not three years, two years probation.

Probation Conditions

The terms: he should report immediately and thereafter as directed, he should reside where directed by the probation officer, he should attend counselling and assessments as directed. I agree with defence counsel, there is not enough here for me to find that there is a substance abuse problem, but he definitely needs counselling and assessments as directed and also for mental health.

Counselling, assessments and treatment for mental health as directed and sign the necessary releases.

He is not to attend on the premises of any Ontario Legislative building, including Queen's Park and Whitney Block. I am not putting any exceptions. I see no reason for him to go there. If he wants to go there, he can apply to vary his probation. He is not to carry any weapons. He is not to apply for any firearms or weapons licence.

Because I've included a term that he's to reside where directed, I don't see the need to make reasonable efforts to seek and maintain housing because he's to reside where the probation officer directs him to live. In terms of employment or education, frankly, my suspicion is that there may be difficulties with employment. Based on that report alone, I would have expected him to be applying for ODSP because, in my view, there's enough in that report to suggest there's a mental health disability within the meaning of the ODSP legislation.

So, I'm not going to order him to seek and maintain employment because I don't know how employable he is. I think he needs to have a place to live and he needs to meet with the probation officer and he needs to get himself some social assistance because he's going to need some money, otherwise he's going to get in trouble and that's going to be enough for him.

DNA and Weapons Orders

DNA, the Crown is a hundred percent right, this is absolutely a case where there is a strong public interest in a person who threatens to blow up a government building, to have their DNA in the government data bank. There has never been a stronger case for DNA. His privacy interests were forfeited when he decided to threaten the people of Ontario. And the s.110 order for 10 years will also be ordered.

Certificate of Transcript: This document is a true and accurate transcript of the recordings in the Ontario Court of Justice held at 60 Queen Street West, Toronto, Ontario, taken from recording 4811_112_20180228_094806_6 BROWNSHA.dcr and certified in form 1 of those proceedings.