ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-30345
DATE: 20140819
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KHURRAM SYED SHER
Jason Wakely and Céline Harrington, for the Crown
Michael D. Edelson and Giuseppe Cipriano, for the Defence
HEARD in Ottawa: February 10-14, 18-20, 24-28, March 3, 2014
REASONS FOR JUDGMENT
HACKLAND J. (ORALLY)
Overview
[1] The accused Dr. Khurram Syed Sher is charged on a one count indictment with conspiracy to facilitate terrorism. Specifically, the accused is charged that he, “between February 1, 2010 and August 25, 2010 did conspire with Hiva Alizadeh (“Alizadeh”) and Misbahuddin Ahmed (“Ahmed”) and with persons unknown or unnamed at the City of Ottawa and elsewhere in Ontario and Canada to commit an indictable offence, to wit: knowingly facilitating terrorist activity contrary to section 83.19 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, thereby committing an offence contrary to section 465(1)(c) of the Criminal Code.
[2] The alleged conspiracy involved two other individuals Alizadeh and Ahmed, both residents of Ottawa. They are being tried separately. The Crown alleges that at a meeting at Ahmed’s Ottawa home on the evening of July 20, 2010 (lasting about 80 minutes and stretching into the early morning hours of July 21, 2010), the accused agreed with Alizadeh and Ahmed to form a group (a ‘jamaa’) to assist the mujahedeen in Afghanistan and to carry out nefarious activities in Canada and generally to promote violent jihad. This meeting was captured by an audio intercept from an electronic listening device (a ‘probe’) which had been placed by the RCMP in Ahmed’s residence pursuant to judicial authorization.
[3] The central issue in this case is whether the accused reached an agreement with Alizadeh and Ahmed to facilitate terrorist activity and if he spoke the words of agreement, was he sincere at the time he spoke those words. The credibility of the accused is at the centre of this case. To a considerable extent the probe captured what was actually said by all three men at the July 20, 2010 meeting. The words spoken by the accused suggest that he was sympathetic to violent jihad and was agreeable to forming a group to promote or support certain activities devoted to violent jihad. However the accused, who testified in his own defense, said that he was shocked and in reality disapproving of what was said by Alizadeh and Ahmed and was pretending to be interested and supportive in order to encourage Alizadeh to explain himself fully and to assess whether Alizadeh was serious. He said that once he had heard what Alizadeh had to say, he had no intention of joining his group or dealing with him in the future. The accused maintains that he is a believer in non-violence and does not nor has he ever supported violent jihad.
[4] Much of the evidence in this case was directed to what was said between these three men at their July 20, 2010 meeting at Ahmed’s home, as captured by the probe. The Crown’s position is that all three men meant what they said and clearly agreed to form a group to promote violent jihad (i.e. to facilitate terrorism). A second important focus of the evidence was the nature of the relationship between the accused and his friend Ahmed and what contacts and communications occurred between them, up to, and following the probe. As for Alizadeh, the evidence is clear that the accused never met or communicated with him until the July 20, 2010 meeting. They were complete strangers and this was their one and only meeting.
The Admitted Conspiracy
[5] The defence does not contest that Alizadeh and Ahmed were engaged in an ongoing conspiracy to facilitate terrorism. The RCMP had the two of them under close surveillance for months. Their telephones were monitored and electronic probes were placed in their homes. Alizadeh was subject to video surveillance at his Woodridge Crescent apartment building where he lived with his wife and two children. Alizadeh was unemployed and seemed to spend much of his time trying to raise money for several mujahedeen contacts he had in Pakistan and Afghanistan, including his brother Rizgar, a mujahedeen terrorist operating in Afghanistan.
[6] There were a number of surreptitious entries carried out by the RCMP in Alizadeh’s apartment. Large amounts of electronic data were copied including violent jihadist videos of all sorts depicting beheadings, detailed bomb making instructions, and digital recordings of speeches and writings of violent jihadist theoreticians such as Anwar Al-Awlaki. Even more ominously Alizadeh was found to be constructing electronic circuit boards for remote detonation of bombs. The RCMP was able to replace these circuit boards with non-functioning copies without Alizadeh detecting the substitution.
[7] The agreed evidence (exhibit 1) showed that Ahmed, a technician employed at an Ottawa Hospital, was a friend and close associate of Alizadeh’s and spent considerable time with him at his apartment. The probes demonstrate the interest and commitment both men had to the philosophy and the activities of violent jihad. The extensive materials filed on consent demonstrate that the object of their conspiracy was to facilitate violent jihad. Alizadeh and Ahmed believed that a global conflict was being fought between the fighters for Islam and the perceived enemies of Islam. They considered the fighters for Islam to be engaged in jihad, and they referred to them as the mujahedeen, or sometimes simply ‘the brothers’. Alizadeh and Ahmed agreed to support the cause of violent jihad in whatever manner they could. They planned for their support to take different forms, ranging from:
• sending their own money to the mujahedeen for the purchase of weapons;
• raising money from others to send to the mujahedeen;
• obtaining paramilitary training for themselves in the use of weaponry;
• obtaining training for themselves in the manufacturing and use of explosives;
• conducting reconnaissance in Canada on possible targets of attack; and
• recruiting other people to join their conspiracy.
[8] This extensive surveillance, involving over 80,000 interceptions, is also significant for what it does not disclose. As far as the extensive interceptions indicate, the accused is not discussed by either Alizadeh or Ahmed until the day before the three men met on July 20, 2010. As discussed below, I am satisfied and find as a fact that this ongoing conspiracy involving Ahmed and Alizadeh did not involve the accused, prior to the meeting at Ahmed’s home on July 20, 2010.
(Decision continues verbatim exactly as in the source through paragraph [79] and concluding lines.)
[79] The accused will be found not guilty.
Hackland J.
The Hon. Mr. Justice Charles T. Hackland
Given Orally: August 19, 2014
COURT FILE NO.: 10-30345
DATE: 20140819
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
KHURRAM SYED SHER
REASONS FOR JUDGMENT
Hackland J.
Given Orally: August 19, 2014