COURT FILE NO.: 16-30357
DATE: 2018/06/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ALI OMAR ADER
Applicant
Croft Michaelson, Timothy Radcliffe, Xenia Proestos, for the Crown
Samir Adam, Tyler Botten for the Applicant
HEARD: In Ottawa on March 28, 2018
R. Smith J.
SENTENCING DECISION
[1] Ali Omar Ader (“Ader”) was convicted of taking Amanda Lindhout (“Amanda”) and Nigel Brennan (“Nigel”) hostage in Somalia for 15 months contrary to s. 279.1 of the Criminal Code. Ader performed an important role in the hostage taking by communicating and negotiating the ransom demands on behalf of the hostage takers. He also threatened to kill the hostages if the ransom was unpaid. Both Nigel and Amanda were held in deplorable conditions where they were shackled and held in small dark, dirty, mold and rat infested conditions for approximately 12 of the 15 months of their captivity. Amanda received even more brutal and depraved treatment as she was repeatedly beaten and sexually assaulted.
[2] Denunciation and deterrence of this conduct are the overriding sentencing principles in this case based on the offenders’ important role, the length of the hostage taking and the horrendous treatment of the hostages.
A. Circumstances of the Offence
[3] Amanda and Nigel were taken hostage by a group of armed gunmen on August 23, 2008 as they left Mogadishu to visit a displaced person’s camp on the outskirts of the city. The hostages were held in horrendous conditions as described above for 15 months and Amanda was repeatedly physically and sexually assaulted over this lengthy period.
[4] Ader agreed to act as the translator and to negotiate the ransom on behalf of the hostage-takers in return for a share of the ransom proceeds. He was paid $10,000 from the ransom proceeds for his assistance.
[5] While Ader was not involved in physically or sexually assaulting Amanda, he did threaten to kill the hostages on several occasions if the $1.5-2 million dollar ransom was not paid. He also participated in making a video of the hostages in the desert surrounded by young men with assault rifles with their faces covered by scarves. The hostages were seated on the ground and were forced to recite a script. The video conveyed the message that the hostages would be killed unless the governments paid the ransom. He arranged for the video to be published on Al Jazeera television.
[6] Ader actively participated as the negotiator for the hostage-takers for a ransom where the hostages were held in captivity for 15 months in terrible conditions. Ader was aware that Amanda’s health and condition had deteriorated as a result of being tortured and he used this fact to try to pressure her parents into paying the ransom quickly.
B. Impact on Victims
[7] Amanda was held hostage in unimaginable conditions for 15 months while being repeatedly physically and sexually assaulted. This has had a horrendous impact on her as set out in her Victim Impact Statement. She now suffers from PTSD, anxiety and depression. Her life has been seriously impacted by this ordeal. She is a remarkable survivor and I hope her healing process continues. Nigel was also held hostage for 15 months in terrible conditions. This has had a severe impact on him as set out in his Victim Impact Statement and a severe financial impact on his family, who raised the money to secure the release of the hostages. He suffers from PTSD, anxiety and depression as a result of being held hostage in these terrible conditions.
C. Offenders Circumstances
[8] Ader is approximately 40 years of age and was 32 years of age at the time of the offence in 2009. He has five young children and he is married. His first wife died in 2012.
[9] Ader does not have a criminal record in Canada. He obtained a bachelor’s degree from university and he worked as a teacher in Somalia before his involvement in the hostage-taking.
D. Positions of the Crown and Defence
[10] The Crown is seeking a sentence between 15-18 years in prison less credit for the time already spent in custody before sentencing. The defence submits that a custodial sentence in the range of 10-12 years would be appropriate in all of the circumstances.
[11] The Crown also seeks an order that the offender serve half of his sentence before becoming eligible for parole under s. 743.6(1) of the Criminal Code. However, the Crown did not argue their position vigorously and such an order is opposed by the defence.
[12] The Crown and defence agree that there will be a DNA order under s. 487 along with a lifetime weapons ban under s. 109(3) of the Criminal Code. They also agree that as of March 28, 2018 Ader had spent 1021 days in custody and that he is entitled to credit on a 2:1 basis.
E. Mitigating Factors
[13] The following are the mitigating factors for Ader:
(a) He has no prior criminal record in Canada;
(b) He has expressed remorse for his actions in court; and
(c) He did not participate in the sexual or physical assaults of the hostages, but he was aware that Amanda was being tortured and was ill while held in custody.
F. Aggravating Factors
[14] The following are aggravating factors:
(a) The horrendous circumstances of Amanda and Nigel’s confinement are an important aggravating factor. While Ader did not participate in the sexual or physical assaults, he was aware that Amanda was sick and was being physically and emotionally abused. He continued to demand that a ransom be paid in these circumstances.
(b) The hostages were held in captivity for 15 months which is a very lengthy period of time. At no time did Ader disassociate himself from the hostage-taking. He continued to participate willingly for this lengthy period knowing that the hostages continued to be held in terrible conditions.
(c) Both Amanda and Nigel were severely traumatized by being held hostage for 15 months. The Victim Impact Statements read into court by both Amanda and Nigel set out the horrendous impact the hostage-taking has had on their lives.
(d) Ader continued to demand over a million dollars as ransom from Amanda’s mother knowing that she did not have this amount of money. He accused Lorinda of playing games and told her that while he was a civilized and educated man, the captors were not and they knew how to shoot.
(e) Ader never expressed remorse while the hostages were being held. He attempted to contact Amanda several months after her release to try to negotiate the sale of her letters she had written in captivity. He ultimately e-mailed the letters to her without payment after he believed a book deal was a possibility.
(f) He was not involved in the original planning of the hostage-taking but he prayed the “Istikhara Prayer” before deciding to participate. His decision to participate in the hostage-taking for a share of the proceeds was an informed and deliberate choice.
(g) Ader was motivated to participate in the hostage-taking by greed, namely for a share of the ransom proceeds. He ultimately received $10,000 for his services.
(h) Hostage-taking is a significant crime and a threat to the international community which deserves significant punishment. Canada has signed the International Convention Against the Taking of Hostages. The circumstances of this international hostage-taking were terrifying for the hostages and their families.
G. Legal Principles and Caselaw
[15] In R. v. Downey, 2010 ONSC 1531 at para 26 the court set out the principles of sentencing in s. 718 of the Criminal Code and stated as follows:
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions… The purpose is achieved by blending the various objectives identified in s. 718. The proper blending of those objectives depends on the nature of the offence and the nature of the offender.
[16] The principles of deterrence and denunciation set out in s. 718 of the Criminal Code are paramount in a kidnapping and hostage-taking case such as this. In R. v. Cook, 2014 MBCA 29, at para. 48, the court stated that hostage-taking cases constitute violent attacks on the personal liberty of the victims and often become a precursor to other violent acts once the victim is in captivity.
[17] At para. 49 of Cook supra, the Manitoba Court of Appeal stated as follows:
Because kidnapping is a grave and heinous crime that can be difficult to solve, sentences must reflect society’s concerns about, and contempt for, such interference in personal liberty and the resulting trauma. The objectives of denunciation and deterrence should be given primary consideration in sentencing kidnapping offenders, particularly where the manner of the commission of kidnapping creates fear to public perceptions of community safety; for example, in circumstances such as the abduction of a child or a stranger for a violent purpose, such as a sexual assault, or a kidnapping done for profit.
[18] In Cook supra the Manitoba Court of Appeal also stated as follows at para. 53:
The range of sentence for the “classic” premeditated kidnapping for ransom, where the victim is confined for a lengthy period of time and where he or she is bound, gagged or blindfolded, is between ten years and life imprisonment.
[19] In R. v. Thind, 2011 ONSC 6635, affirmed 2013 ONCA 719, the Ontario Court of Appeal quoted Hill J. with approval at para. 44 where he stated that “kidnapping for ransom is a particularly despicable specie of the crime warranting sentences of imprisonment of 10 to 20 years”.
[20] In R. v. Li (2002), 2002 CanLII 18077 (ON CA), 156 O.A.C. 364 (ONCA) the Ontario Court of Appeal reduced a sentence of life imprisonment to 14 years where the offender participated in the kidnapping of three individuals who were held captive for 22 days.
[21] In R. v. Hu, 1995 CanLII 2836 (BC CA), [1995] B.C.J. No. 1632 (BCCA) a similar sentence of 14 years was imposed by the British Columbia Court of Appeal for a 7 day kidnapping and hostage-taking for ransom.
[22] In R. v. Wong, 2008 BCCA 64 at para. 27, the British Columbia Court of Appeal emphasized that denunciation and deterrence were the most important principles in kidnapping for ransom cases because of the fear and terror caused by the offence and its lasting impacts. At para. 27 the BCCA states as follows:
The reason for this is that kidnapping strikes at the heart of the community’s sense of safety and security. It is an offence that is intended to incite fear and terror in not only the person kidnapped, but also his or her family and friends, many times using that fear to extort money in return for that person’s safe return. Even when the victim is released without having sustained any permanent physical injuries, the psychological and emotional scars may be slow to heal, if they ever do.
[23] In this case the impact on both Amanda and Nigel has been extreme. Because they were held in captivity and endured horrendous abusive treatment for a lengthy period of 15 months, they both suffer from PTSD and have other mental health problems.
[24] The defence does not dispute that the range of sentence for a serious kidnapping for ransom is in the range of 10-20 years. Not surprisingly, the defence seeks a prison sentence at the lower end of this range as opposed to the Crown who seeks a sentence at the mid to upper end of this range.
[25] The defence points to a number of cases where sentences of less than 10 years were imposed. In R. v. Blair 2007 MBQB 287, 2007 MJ No. 436 a sentence of 4 years imprisonment was imposed on a 19 year old who participated in the kidnapping and beating of the victim and where the victim was held for 4 hours.
[26] In R. v. Ribic 2005 OJ No. 4261 three UN soldiers were tied to poles at bunkers for 25 days and threatened with death unless the UN ceased bombing. The 21 year old accused was sentenced to three years in prison after serving three months pretrial custody. He had also spent five years on bail. Mr. Ribic was a participant in the Bosnian war in some manner while committing the offence.
[27] In R. v. Lewers 2012 OJ No. 4554 the accused was convicted of kidnapping and forcible confinement for 22 hours and sentenced to seven years and six months in prison. Lewers also had an extensive criminal record.
[28] In R. v. Tse 2010 BCJ No. 1769 the accused participated in kidnapping and unlawfully confining three individuals for almost a month. The accused obtained almost $1.3 million from the complainants’ families. He was sentenced to 12 years imprisonment. The facts in this case are the closest to the case before me, except that the period of confinement was much shorter than the 15 months. In addition, in the case before me the hostage-takers also sexually and physically assaulted and tortured Amanda in a very brutal fashion over a long period of time.
H. Sentence and Reasons
[29] The main applicable principles of sentencing in this case are to denounce and deter the commission of such a heinous crime. There is some possibility for rehabilitation for Mr. Ader but this principle is given much less weight given the seriousness of the offence and the fact that Ader will be deported and will not be eligible for parole in Canada.
[30] I am imposing a sentence on Mr. Ader of 15 years in prison for the following reasons: the period of incarceration is between those suggested by the Crown and the defence; the sentence falls within the range of 10-20 years for a serious kidnapping for ransom situation as set out in the above case law; the hostage-taking lasted for a lengthy period of 15 months; both hostages but particularly Amanda, were treated with extreme brutally for 15 months; Ader was motivated to participate in the hostage taking for profit; he did not participate in the sexual or physical assaulting of Amanda but he played an important role as the negotiator for the hostage-takers; he continued to demand a large ransom when he was aware that Amanda was being mistreated and tortured; and the hostage-taking has had a substantial negative impact on both Amanda and Nigel as set out in their Victim Impact Statements. I also find that this sentence satisfies Canada’s obligations under the International Convention Against the Taking of Hostages.
[31] I will not order that Ader serve one-half of his sentence pursuant to s. 743.6(1) of the Criminal Code before being released on parole as I am satisfied that a sentence of 15 years in prison is sufficient to denounce and deter his conduct.
I. DNA and Weapons Prohibition Order
[32] There will also be a DNA order under s. 487 and a lifetime weapons prohibition under s. 109(3) of the Criminal Code.
J. Credit for Time Served Before Sentence
[33] As agreed between the Crown and defence, Ader will receive a credit on a 2:1 basis for the time served before sentence as this offence was committed before the Truth in Sentencing Act was passed, which limited the credit for time served before sentencing to 1:5 to 1. The accused has served 1021 days as of March 28, 2018 and will have served 1102 days to June 18, 2018. He will, therefore, receive a credit of 2204 days for presentence custody.
The Honourable Mr. Justice R. Smith
Given Orally: June 18, 2018
COURT FILE NO.: 16-30357
DATE: 2018/06/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ALI OMAR ADER
SENTENCING DECISION
R. SMITH J.
Given Orally: June 18, 2018