ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13043/12

DATE: 2013-10-21

BETWEEN:

HER MAJESTY THE QUEEN

– and –

LLOYD ALLEN CHAREST

Defendant

K. Saliwonchyk, for the Crown

G. Wright, for the Defendant

HEARD: October 21, 2013

Justice B. Glass

REASONS FOR SENTENCE

[1] On August 14, 2013, I released the reasons for finding Mr. Charest guilty of four counts on an indictment. Those counts were accusations that the Defendant had committed four offences involving an alleged hoax of terrorist activity (section 83.231(1)(a) ), fabricating evidence ( section 137 ), public mischief ( section 140 (1) (c) ), and obstructing a peace officer in the execution of his duty ( section 129 (a) ).

Outline of Background Facts

[2] In my judgment, I provided an outline of the factual background for these counts. I have included them again here.

[3] The focus of this trial is an alleged terrorist action towards the Pickering Nuclear Plant run by OPG, i.e. Ontario Power Generation. A report by the Defendant to a person who worked at Pickering regarding finding on an internet site an image of the Quran and drawings of plans of the nuclear generating plant fire plans and words to the effect that the time was now to act as Allah’s will.

[4] The Defendant had had access to computers from the plant to work on them. He lived at the residence of an employee at the plant. The employee worked with security at the Pickering Nuclear Generating Plant. Mr. Charest reported what he had found and the employee contacted security personnel for OPG. The employee, Ted Brown, is a father figure for him.

[5] When the employee saw the images, he recognized the Pickering Nuclear Plant and asked whether this was a joke prior to making contact with the Plant.

[6] The police became involved in the investigation. During the early police involvement, the officers questioned whether this was legitimate or a hoax. An audio-recorded interview with the Defendant lasted over an hour in July 2010. The interviewing officer asked questions that raised the possibility that Mr. Charest had fabricated information. In other words, the time to call off a hoax was then, early in the process. There was no change of heart by Mr. Charest.

[7] During the July 2010 interview, Detective Traviss did not want to start the laptop computer of the Defendant but preferred to take it to the police office. It turned out that the police could not activate the laptop because of password protection. When Detective Traviss was leaving the residence, Mr. Charest spoke words to the effect that anyone trying to open the computer would have trouble even though he told the officer that the laptop was not password protected.

[8] The police then engaged forensic investigators to check the Defendant’s laptop computer along with the DVD he had copied. The forensic investigation revealed that the procedures described by Mr. Charest did not occur as he had reported. For example, he referenced two Jihadist groups who are enemies and who would not act together. One is Sunni and the other is Shiite. Detective Mokdad, as an expert in Middle East Muslim extremist politics, explained how the two Islamic groups do not work together. The Defendant claimed to have pulled the image of the Quran from a website and that image had a large attachment of more than 70 million bytes showing many images of the Pickering Nuclear Plant fire plans. Sergeant Wiegers determined that this did not occur. The image of the Quran was inserted after he claimed to have located it. The image of the Quran had imbedded within it the Pickering Nuclear Generating Station fire plans. I am satisfied that Mr. Charest was lying to Mr. Brown, OPG employee and the police. His story simply does not fit with what the police discovered during their investigation.

[9] Mr. Charest claimed to have been alerted to this information from an online acquaintance, Striker, who could not handle the large information. Mr. Charest claimed to have conducted a rebooting process with his desktop and laptop computers so as to engage more power. This process was referenced to be Frankensteining. That just did not occur according to Sergeant Wiegers, the forensic computer expert who testified. The bottom line from Sergeant Wiegers is that Mr. Charest’s computer was not shut down and rebooted as professed. In fact, the computer had last been shut down on June 19, 2010 so that periods of inactivity would have been times when the computer simply was in sleep mode or a lock mode. The websites could not be accessed as claimed by the Defendant. The analysis of the laptop of Mr. Charest indicated that the image of the Quran had been placed on the computer and then the over 1000 images related to the Pickering Nuclear Plant had been dragged onto the computer within the image of the Quran. The initial work had been done on the desktop computer of the Defendant and transferred to his laptop computer.

[10] In other words, the description given by Mr. Charest was not only incorrect, it was false. The police had another interview with the Defendant prior to laying charges, but he chose not to enlarge on what had happened when he allegedly discovered this information. When he was asked during the trial why he had not corrected Detective Traviss about being able to gain access to the computer without a password, his best answer seems to have been that he was not prepared to assist the police. Later, when challenged about the information, he continued to take the position that he was not prepared to help the police. He appears to have realized that he had dug himself into a corner and chose to say no more about his alleged discovery.

[11] When confronted with challenges in cross-examination to the effect that his testimony contained gaps of sensible reasoning, he at the most would accept that some suggestions for those gaps were possibilities.

[12] In February 2011, the Defendant was charged with the counts now on the indictment.

Pre-sentence Report

[13] The report the Defendant experienced some emotional problems after his parents separated when he was young. He has had a good relationship with the Browns who are in effect another set of parents. The person preparing the pre-sentence report noted that Mr. Charest was polite and co-operative for the preparation of the report. During his early years at school, Mr. Charest was a successful and good student. As his high school years progressed, his marks declined.

[14] Mr. Charest has worked in a landscaping business with his father previously. He worked for Mr. Brown, who no longer has a business because he sold and retired. The Brown business had been an electrical hot water heater business.

[15] Mr. Charest lives with the Browns. They are a positive feature in his life.

Mitigating Circumstances

[16] The Defendant is 23 years of age. He has no criminal record.

Aggravating Factors

[17] Mr. Charest is an adept person working with computers. He appears to have used that ability to attract the attention of OPG with the actions leading to these charges. The only natural conclusion is that he anticipated creating a job opportunity. The fraudulent nature of using his skills with computers carries with it a negative feature depending on peoples’ fears of terrorism.

Victim Impact Statement

[18] OPG filed Exhibit 1 in this sentence hearing. Upon reading it, one understands immediately that OPG treated the actions of Mr. Charest very seriously. They undertook a 7-month investigation involving the RCMP. Contact with the Ontario Integrated National Security Enforcement Team. Updated reports to the Canadian Nuclear Safety Commission were prepared. With 2 nuclear stations in Pickering and Darlington and a large population in the area, OPG did not take these offences for granted. OPG is very concerned that persons be discouraged from conducting themselves as Mr. Charest has done.

Sentencing Considerations

[19] Section 718 of the Criminal Code sets out the considerations for a court to follow. If the court is sentencing a person who is young and without a criminal record, the court will look to avoid a custodial sentence often because such a sentence is to be used for persons who have had chances in a criminal court setting. In other words, use a term of imprisonment more as a last resort than as a beginning step.

[20] This Defendant has been found guilty of activity that is within the scope of computer hacking and causing harm to others. In this case, creating a false circumstance for a terrorist activity against a nuclear power generating station and not abandoning such a course of conduct when given the opportunity enhances the seriousness of the actions. There can be no doubt that acting in a way that raises alarm bells about the security of a nuclear station is very serious.

[21] One can imagine that if a nuclear plant is at risk, and in this case when the Toronto 18 terrorist cell was in the news, would be cause for great concern. Not only was the nuclear plant at Pickering the focal point, but one must take into account that there is another nuclear generating plant within a few kilometres of Pickering. On top of that fact is the population in southern Ontario.

[22] This man had several opportunities to withdraw from his criminal conduct and admit to his actions. Mr. Brown, who is a father figure to him, asked from the beginning if this imagery was for real. And the security people for Pickering interviewed him. Then, the police gave Mr. Charest every opportunity to acknowledge that he had created the evidence. He was cautioned that he could be engaged in serious trouble if this was false information. Still, Mr. Charest continued to profess that all was true. He continued through the trial in proclaiming his innocence.

Sentence Submissions of the Crown

[23] The Crown has highlighted the serious features of these offences emphasizing that general and specific deterrence and denunciation carry a major part of the sentencing decision here. One picks up the need for these considerations when reading the Victim Impact Statement from OPG, filed as Exhibit 1.

[24] The Crown has provided copies of R. v. Khawaja, 2012 SCC 69, [2012] S.C.J. No. 69, R. v. Dhaliwal, [2011] O.J. No. 1055, and R. v. Lapoleon, [2008] B.C.J. No. 484. The focus of these cases is the treatment of terrorist-related offences as well as terrorist hoax offences by courts. In light of the seriousness of terrorism especially since September 11, 2001, courts ought not to minimize the actions of persons found guilty of such offences.

[25] As a result of these consideration, Mr. Saliwonchyk submits that a proper global sentence should be 12 months concurrent on counts 1, 2, and 3 and that count 4 should be a sentence of 3 – 4 months concurrent to counts 1, 2, and 3.

[26] Further, the Crown asks that the court consider a term of probation following the custodial sentence with terms requiring that Mr. Charest report to a probation office, remain away from OPG sites, not to distribute or make available any OPG floor plan, blueprint or architectural plan to any person, not communicate with any employee of OPG, take such counselling as required by the Probation Officer, live at a residence approved by the Probation Officer, and not possess or use any computer or device that may be used for internet communication because the tool for committing these offences was a computer.

[27] Mr. Saliwonchyk recommends that the court consider an order for community service.

[28] The Crown also asks the court to impose a weapons prohibition order pursuant to section 110 of the Criminal Code for a period of 5 years.

[29] Mr. Saliwonchyk takes the position that the principles of R. v. Kienapple, (supra) should not apply to any count on this indictment. He referred to R. v. Lapoleon (supra). The court there did not accept the suggestion by the Defendant there public mischief and conveying a terrorist hoax had the same actus reus.

Sentence Submissions of the Defendant

[30] Mr. Wright submits that Mr. Charest should not be sentenced to a term of imprisonment for 12 months. Rather, no more than half the request of the Crown should be considered. The Defence submits that counts 1, 2, and 3 be concurrent to each other and that count 4 be 3 – 4 months concurrent to the sentence for counts 1, 2, and 3.

[31] Defence submits that the principles of R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729 be applied to counts 1 and 3.

[32] The Defence does not object to a probation order; however, Mr. Wright submits that there is no foundation for a weapons prohibition order and requests that there not be a restriction on possessing or using a computer because that might impact on his ability to work.

[33] With respect to a consideration of community service work, Defence counsel points out that the Defendant lives in a rural area so that making a community service work order function might be difficult.

Analysis of the Sentence for Mr. Charest

[34] When the facts of criminal accusations overlap each other such that convicting and sentencing a person for the same conduct two or more times, the court should stay one or more of those guilty findings. The analysis of double jeopardy referenced in Kienapple (supra) reviews how not to overload sentences on an accused person.

[35] I conclude that Kienapple (supra) does not apply to counts 1 and 3 here. Each count has a different consideration for various actions of Mr. Charest. They are distinct and should be considered separately.

[36] In the case of Mr. Charest, at the end of the trial when submissions commenced, Mr. Wright acknowledged that a finding of guilty could be made for count #4 for obstruction of police while conducting an investigation. Mr. Wright narrowed the acknowledgement to Mr. Charest not telling Detective Traviss that the computer was password protected.

[37] Count #1 regarding creating a hoax of a terrorist activity with the image of the Quran and many images of the fire emergency plans for the nuclear generating plant have a distinct feature to the mischief allegation in count #3 which causes police to conduct an investigation.

[38] Count #2 is distinct because it involves making up evidence to be used in a judicial proceeding. I had noted in the reasons for judgment that there did not have to be a proceeding under way for section 137 of the Criminal Code. At the time of Mr. Charest’s case, there was a terrorist organization very much in the news in southern Ontario. That was the Toronto 18 group. This count is not an overlap with other counts on the indictment.

[39] The obstruct police accusation in count #4 is distinct because it is narrowed to misleading Detective Traviss that Mr. Charest’s laptop computer was not password protected.

[40] With respect to a global sentence, I am satisfied that it should be 12 months incarceration concurrent for counts 1, 2, and 3 and 4 months for count 4 concurrent to counts 1, 2, and 3. Such a sentence reflects the seriousness addressed by our courts for terrorist-related events. Although the Khawaja (supra) dealt with actual terrorist activities, the Supreme Court of Canada is clear in recognizing that to create a hoax of a terrorist activity is serious and not to be minimized.

[41] All too often today reports of people hacking computers are seen. Often, the perpetrator upon being apprehending suggests that no one was hurt. However, the potential for injury with a terrorism is significant. In this case, OPG operates both the Pickering and the Darlington Nuclear Generating Plants. They are relatively close to each other. Many people live in the area.

[42] OPG filed a Victim Impact Statement making a clear statement that this action by Mr. Charest was taken most seriously leading to an extensive investigation.

[43] During the trial, evidence was presented showing that special resources with the RCMP were used. Reports had to be made to the Ontario Integrated National Security Enforcement Team. Specialized police services were put into gear on the basis that this hoax was a real live threat. The cost of such an investigation is very extensive.

[44] Such actions by Mr. Charest require firm denunciation. A general message to the public that such activity will lead to more than a slap on the wrist. The pre-sentence report for Mr. Charest appears to leave the impression that the Defendant does not appreciate an insight into the seriousness of his actions, thereby leading to a need for specific deterrence.

[45] Rehabilitation might be of significance. That can be considered with counselling should that be handled by a probation order.

[46] 12 months incarceration should be imposed followed by probation for 2 years with the conditions set out below.

[47] I am not prepared to order that Mr. Charest be precluded from possessing or using a computer. One skill that he has is working with computers. If he is to be employed after being released from incarceration, he ought to have the opportunity to work lawfully with computers.

[48] No community service order will issue.

[49] A weapons prohibition order pursuant to section 110 of the Criminal Code for a period of 5 years is justified in light of these charges and convictions.

Conclusion

[50] For counts 1, 2, and 3, the sentence is 12 months incarceration concurrent to each other.

[51] For count 4, the sentence is 4 months incarceration concurrent to counts 1, 2, and 3.

[52] Following the sentence of incarceration, there will be a probation order for 24 months with the following terms:

(i) report to a probation officer as directed;

(ii) live at a residence approved by the probation officer;

(iii) remain away from any OPG site;

(iv) not to distribute or make available any Ontario Power Generation (OPG) floor plan, blueprint or architectural plan to any person;

(v) abstain from knowingly communicating with any employee of OPG;

(vi) a weapons prohibition order pursuant to section 110 of the Criminal Code for a period of 5 years.

Justice B. Glass

Released: October 21, 2013