ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-30081
DATE: 2014/09/18
BETWEEN:
HER MAJESTY THE QUEEN
Plaintiff
– and –
Misbahuddin Ahmed
Defendant
Jason Wakely, Celine Harrington and
André Seguin for the Crown
Mark Ertel, Kirstin Macrae and Jon Doody for the Defendant
HEARD: September 15, 2014
FINDINGS OF FACT FOLLOWING A GARDINER HEARING
C. McKINNON J.
[1] Section 724(2)(a) provides that a sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty.” Section 724(2)(b) and (3)(e) provides that the judge “may find any other relevant fact that was disclosed by the evidence at the trial to be proven.” In the event facts are aggravating, the judge must be convinced of their existence beyond a reasonable doubt. In the event a convicted individual wishes facts to be found as mitigating, those facts must be proved on a balance of probabilities. When factual implications of a jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: see R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368; R. v. Brown, 1991 73 (SCC), [1991] 2 S.C.R. 518; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96.
[2] Mr. Ahmed was charged with three counts, briefly stated to be: conspiracy to facilitate a terrorist offence; facilitating a terrorist offence; and possessing explosive substances with intent to endanger life or cause serious damage to property for the benefit of or at the direction of, or in association with a terrorist group. Mr. Ahmed was convicted on the first two charges and acquitted on the third charge.
[3] To a large extent, I agree that the submissions set out in the Factum filed by the Crown setting out which facts they allege were proven at trial. Specifically, I would find the following facts to have been proved beyond a reasonable doubt.
[4] Mr. Ahmed believed that Muslims were oppressed in various parts of the world and that it was justifiable to engage in violence to resist this perceived oppression. Mr. Ahmed believed it was his duty to assist violent Jihadist causes. In particular, Mr. Ahmed supported the Taliban, a designated terrorist organization. He wanted the Taliban to defeat the Karzai government and the UN mandated coalition forces that supported the Karzai regime. He believed it was morally legitimate for the Taliban to kill Canadian soldiers in Afghanistan. He wanted the Taliban to establish control over Afghanistan and impose a theocratic system of governance known as a Caliphate and wished to see this system replicated in other countries. He viewed such a system to be ideal, and in accordance with his understanding of the Muslim faith.
[5] Mr. Ahmed had contempt for CSIS referring to them as “garbage”. He perceived the RCMP as being threatening. He was in possession of radical Jihadist propaganda collected in a “Research” folder. He shared this material with Mr. Alizadeh and Dr. Sher. He specifically provided Dr. Sher with certain of this extremist propaganda in January 2010 and May 2010. He also introduced Mr. Alizadeh to extremist propaganda stored on the archive.org website. Although it was legal to possess this material, I find that Mr. Ahmed shared the philosophy embraced by the material in his folder.
[6] Mr. Ahmed knew from March 6, 2010 onwards that Mr. Alizadeh sought to form a terrorist group in Ottawa dedicated to facilitating violent Jihad and he knew that Mr. Alizadeh wished to conduct attacks in Canada. He had been warned by his friend Awso Peshdary not to associate with Mr. Alizadeh because Mr. Alizadeh was an extremist, but he nonetheless persisted in fostering a close relationship with Mr. Alizadeh.
[7] Mr. Ahmed knew that Mr. Alizadeh had attended a terrorist training camp in Afghanistan where he learned how to construct remote controlled IED’s. He subsequently learned that Mr. Alizadeh had sworn an oath of loyalty to Al-Qaeda and the Taliban.
[8] In May 2010 Mr. Ahmed solicited money from Dr. Sher and his father-in-law, Mr. Amro, for the purpose of sending this money to foreign terrorists in order to purchase weapons. Mr. Ahmed provided Mr. Alizadeh with $1,000 of his own money and another $1,000 from Dr. Sher intending that the money be sent to foreign terrorists to purchase shoulder mounted weapons, such as RPG’s.
[9] Mr. Ahmed was aware that Mr. Alizadeh remained in contact with terrorists in Afghanistan and Iran. He knew that Mr. Alizadeh was in contact with them about arranging IED training for Mr. Ahmed. It is clear from the evidence that Mr. Ahmed harboured a continuing desire to travel to Afghanistan or Pakistan to attend a terrorist training camp where he would learn how to construct remote controlled IED’s.
[10] Mr. Ahmed knew that the items in the President’s Choice bag possessed by Mr. Alizadeh contained components and instructions for constructing remote controlled IED’s. He knew 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 had successfully detonated IED’s when he was in Afghanistan. He also knew that Mr. Alizadeh intended to assemble the components in the PC bag into detonators for use in Canada. Mr. Ahmed knew that Mr. Alizadeh possessed videos that gave step-by-step instructions on how to construct certain highly dangerous explosives.
[11] Mr. Ahmed knew that his close friend Dr. Sher harboured violent Jihadist views. Mr. Ahmed cooperated with Dr. Sher by providing him with violent Jihadist propaganda. Mr. Ahmed knew that Dr. Sher was considering travelling to Pakistan to attend terrorist training. Prior to the important July 20th meeting, he knew that Dr. Sher was in contact with a member of the Taliban or the Haqqani network, both designated terrorist entities who had offered to arrange training for Dr. Sher.
[12] 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 July 20th meeting, notwithstanding his stated reluctance, which was understandable given his other responsibilities, Mr. Ahmed agreed to lead the terrorist group.
[13] Mr. Ahmed knew that Mr. Alizadeh’s foreign terrorist contacts had requested money to purchase grenades and on July 30 and August 2, 2010, Mr. Ahmed provided Mr. Alizadeh with $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’s explanation that he was receiving a soccer jersey from Dr. Sher is incapable of belief. He knew he was receiving money to purchase grenades.
[14] Mr. Ahmed was in possession of explosive devices, namely the contents of the President’s Choice bag originally possessed by Mr. Alizadeh. Mr. Ertel argues that it should be found on a balance of probabilities that it was Mr. Ahmed’s intention to destroy these explosive devices. I am not persuaded on a balance of probabilities that this was his intention. I find that Mr. Alizadeh would never provide these explosive devices to Mr. Ahmed with the intention that they be destroyed. Mr. Alizadeh was a devoted, radical Jihadist who treasured these components. While Mr. Ahmed had ample opportunity to dispose of these items, as he testified his intention to be, and did not, it remains impossible to determine what his real intention was. The verdict of the jury acquitting him on the charge means that they were not satisfied beyond a reasonable doubt that he 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. Neither the Crown nor the defence has proven the purpose for which he possessed the explosive devices.
Mr. Justice Colin McKinnon
Released: September 18, 2014
COURT FILE NO.: 12-30081
DATE: 2014/09/18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Plaintiff
– and –
Misbahuddin Ahmed
Defendant
FINDINGS OF FACT FOLLOWING
A GARDINER HEARING
C. MCKINNON J.
Released: September 18, 2014