ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-21-0174 (London) DATE: 20240222 Delivered: Orally and in Writing – February 22, 2024

BETWEEN:

HIS MAJESTY THE KING

– and –

Nathaniel Veltman Offender

Counsel: Jennifer Moser and Fraser Ball, Counsel for the Provincial Crown Sarah Shaikh and Kim Johnson, Counsel for the Federal Crown Christopher Hicks and Peter Ketcheson, Counsel for the Offender

HEARD: January 4-5, 23, 2024

ruling on sentencing issues

pomerance, RSj.:

[1] On June 6, 2021, five members of the Afzaal family went for a walk on a warm summer evening in London, Ontario. Neither they, nor anyone else, could have anticipated the terrible fate that awaited them. That same evening, the offender left his apartment with the intention of finding and killing Muslims. He stopped shortly thereafter to put on combat gear – a military-style helmet and bulletproof vest. He then drove his truck along various city streets until he spied the Afzaal family standing at an intersection. He believed them to be Muslim based on the clothing that they wore. He drove by the family of five on the opposite side of a four-lane boulevard, stopped, and then turned around to drive back towards them. He accelerated as he approached the intersection. He drove into the victims at full speed, without touching the brakes. He killed four members of the Afzaal family: Talat Afzaal, Salman Afzaal, Madiha Salman and Yumnah Afzaal. The youngest of the victims, Fayez Afzaal, was just nine years old. He miraculously survived the attack but continues to suffer from physical and psychological injuries.

[2] This event sent ripples of fear and devastation throughout the London community and beyond. The offender did not know the victims. He had never met them. He killed them because they were Muslim. The offender was a voracious consumer of extremist right-wing internet content, including content on the “dark web”. He became obsessed with manifestos written by other mass killers and videos depicting their crimes. Inspired by those individuals, the offender began planning a deadly attack against Muslims in March of 2021. He bought a large truck and equipped it with a heavy grill guard. He tinted the windows. He purchased combat gear. He researched the speeds at which a vehicle was most likely to kill a pedestrian. He put his plan into action when he encountered the Afzaal family. He murdered four beloved members of the London community, and forever changed the life of the young boy who survived.

[3] On November 16, 2023, a jury found the offender guilty of four counts of first degree murder, and one count of attempted murder. In the wake of those verdicts, I must now decide the following issues:

a. I must determine the findings of fact that are necessarily inherent in the jury’s verdicts;

b. Where there is ambiguity, I must evaluate the evidence and arrive at my own findings of fact;

c. I must determine whether the verdicts of guilt for first degree murder were based on a finding of planning and deliberation, or a finding of terrorist activity, or both;

d. I must determine the sentence to be imposed for the crime of attempted murder.

THE PUBLICITY CONUNDRUM

[4] I have chosen not to name the offender in these reasons, nor to recite the hateful statements that he shared with police and recorded in his own manifesto. This is because, for reasons I will soon articulate, I find that the offender’s actions constitute terrorist activity for the purposes of s. 231(6.01) and s. 83.01 of the Criminal Code, R.S.C. 1985, c. C-46 (“Criminal Code”). I am announcing this finding now, at the outset of these reasons, because it sets the parameters for how I will proceed.

[5] The prosecution of terrorism offences presents a conundrum. On the one hand, it is in the public interest to prosecute terrorist activity to the full extent of the law. It is also in the public interest that such prosecutions be open and accessible to the public. The open court principle is a cornerstone of our democracy.

[6] Yet, the prosecution of such crimes, with attendant media coverage, invariably publicizes the ideologies that have inspired the terrorist crimes. Open trials create the potential for glorification of the offender’s actions in the dark recesses of the internet and notoriety in the rest of the public domain.

[7] Those who commit terrorist offences hope for such publicity. They plan for it. This case is no exception. In his statement to police, the offender made it clear that he wanted the world to know what he had done and why he had done it. This was part of the plan. He wanted to intimidate the Muslim community. He wanted to follow in the footsteps of other mass killers. He wanted to inspire others to commit murderous acts. These objectives can only be achieved if the offender has an audience.

[8] This explains why the offender did not seek to evade detection – he planned for his apprehension and intended that it be as public a spectacle as possible. While the offender tried to distance himself from the crimes in his trial testimony, his earlier reactions reflected a mix of relief, excitement and pride. He insisted that a taxi driver that he encountered at the Cherryhill Village Mall take a video. He proselytized his views at length when speaking to the police. He wanted to know if police would release his statement to the media. He was seeking a place in the spotlight.

[9] I note the thoughtful words of Molloy J. in R. v. Minassian, 2021 ONSC 1258, a case in which an offender, motivated by “incel” ideology, drove a van into a number of pedestrians in Toronto:

[2] Throughout this trial, I have understood the need for these proceedings to be public and transparent. I have also recognized the crucial role of the media to keep the public informed, particularly during the pandemic when it was not easy for members of the public to attend the trial in person. That said, I am acutely aware that all of this attention and media coverage is exactly what this man sought from the start.

[4] In this case, and at this juncture, all I can do is to refuse to actually name the accused in my Reasons for Judgment. It is my hope that his name would no longer be published by anyone else either. That is not an order I will make, it is merely a wish, perhaps a naïve one. However, for purposes of this decision, I will refer to the accused as John Doe.

[10] In this case, as in Minassian, the words and actions of the offender have been made public through the trial process. This is as it must be. In an earlier ruling, I dismissed a Crown request for a publication ban on certain evidence, reasoning that it was not my role to curate the marketplace of ideas. I ruled that, though some individuals might misuse the information emanating from the trial, this was not a reason to deprive the broader public of that information.

[11] I stand by my earlier ruling. The media was given open and generous access to the trial proceedings, and all of the trial exhibits, just as they were given access to the proceedings relating to sentence. Journalists have acted professionally and responsibly in their coverage of this case. There is always a danger that corrosive evidence will be celebrated by those who sympathize with the offender. However, we must court that risk in order to guarantee the public’s right to know what takes place in Canadian courtrooms. This is not only good policy, it is a constitutional imperative protected by s. 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”).

[12] We are now at the sentencing hearing. The offender no longer enjoys the presumption of innocence. I have found that his actions constitute terrorist activity. By not referring to the offender by name, and by not restating his views, I am trying to reduce the potential use of these proceedings as a platform for the ideology that spawned the violent acts of June 6, 2021. This may be a largely symbolic gesture in the end, but symbolism is important. Denunciation – a fundamental sentencing principle – has its own symbolic quality, aimed at denouncing conduct that deeply offends collective moral values. That goal is very much engaged in this case.

[13] The point is this. The events of June 6, 2021, have caused many to question their safety when going about their daily business on the streets of London, Ontario and beyond. It is my hope that this sense of fear and intimidation will not be the lasting legacy of this case. It is my hope that the judicial process will, through denunciation of the offender’s actions, send a different message to the community; namely, that there is no place in Canadian society for the hatred and racism that spawned the offender’s actions on June 6, 2021. Because these views have no place in Canadian society, they will be given no place in these reasons.

FINDINGS OF FACT

PROCESS

[14] Juries do not give reasons for their verdicts. Therefore, I must determine what the relevant facts are for purposes of sentencing. This process is guided by ss. 724(2) of the Criminal Code, which provides that the Court:

(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and

(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

[15] In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 14 and 15, the Supreme Court of Canada described this judicial task as follows:

[14] … This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand. Two principles govern the sentencing judge in this endeavour. First, the sentencing judge “is bound by the express and implied factual implications of the jury’s verdict”. The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty”, and must not accept as fact any evidence consistent only with a verdict rejected by the jury.

[15] Second, when the factual implications of the 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. In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven”. To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities. It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues. Following these principles, the trial judge in this case was required to find facts, consistent with the jury’s manslaughter verdict, to the extent that this was necessary to enable him to sentence Constable Ferguson. The sentencing inquiry was shaped by s. 236(a)’s prescription of a four-year mandatory minimum sentence. The only issues were whether the sentence should be more than four years, as the Crown contended, and whether the facts of the case were such that a four-year sentence would be grossly disproportionate, as Constable Ferguson contended.

[Citations omitted].

[16] Guided by these principles, I will set out findings in two categories. First, I will address the findings that are necessarily inherent in the jury’s verdicts. Thereafter, I will address the findings that are of a more ambiguous nature, by engaging in my own assessment of the evidence led at the trial. In the latter instance, I will apply the time-honoured principles that govern factual and credibility determinations at trial. Since the accused testified and the defence called other exculpatory evidence from its expert psychiatrist, Dr. Julian Gojer, I am obliged to apply the well-known framework set out by the Supreme Court in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742.

[17] My assessment will restrict itself to the evidence that was actually presented to the jury. I will not consider those aspects of the evidence that were edited from the proceedings to preserve the offender’s right to a fair trial.

FINDINGS

[18] The starting point for factual determinations is obviously the jury verdicts. The following findings are necessarily inherent in the verdicts:

1. The offender had the requisite intention for murder when he drove into the Afzaal family.

2. The murders were either planned and deliberate, or terrorist activity, or both.

3. The offender intended to kill Fayez Afzaal when he drove into the Afzaal family.

[19] Sometimes, a pattern of verdicts offers a narrow sightline into the jury room. Here, the verdict on attempted murder tells us how the jury viewed the offender’s mental state for first degree murder. It tells us that the jury found an intention to kill, rather than a mental state rooted in recklessness.

[20] The mens rea for murder is established upon proof of either an intention to kill or an intention to cause bodily harm that an accused knew was likely to kill and was reckless whether death ensued.

[21] By way of contrast, there is only one mental state that allows a verdict of guilty for attempted murder, that being an intention to kill. Because the jury found an intention to kill Fayez Afzaal, one can reasonably infer that they found an intention to kill all five victims. There were five separate victims, but only one unlawful act. Logically, it follows that the jury found one intention.

[22] The verdicts also signal the jury’s rejection of the core defence evidence, entered through the testimony of the offender and Dr. Gojer. The offender testified that, when he put his foot on the gas pedal, he was not thinking about the likelihood that he would cause death. He said that he was responding to an overwhelming compulsion to put his foot on the gas and was seeking relief from debilitating urges and compulsions that had plagued him for some time. Dr. Gojer testified that the offender may well not have appreciated the consequences of driving into the victims, based on the interaction between his mental disorders and his consumption of magic mushrooms some 40 hours earlier.

[23] I will have more to say about the evidence of the offender and Dr. Gojer. For now, it suffices to note that the jury clearly rejected the central features of this defence evidence.

[24] Counsel for the offender argues that, while the jury clearly rejected some aspects of the defence evidence, it cannot be presumed that the jury rejected all aspects of the defence evidence. It is true, of course, that a jury may accept all, part or none of a witness’s testimony. Given the factual matrix of this case, and the evidence presented at trial, it is difficult to reconcile the verdicts with even a partial acceptance of the defence evidence. To the extent that there is ambiguity, it falls to me to make the findings necessary for the sentencing hearing. I will turn to that now.

FACTUAL FINDINGS OF THE COURT

[25] I do not propose to provide an exhaustive recitation of the evidence in this ruling. It was thoroughly canvassed in my final instructions to the jury. I will instead focus on what is directly pertinent to the issues at hand: the determination of whether this was terrorist activity and the determination of penalty on the conviction for attempted murder.

[26] The case for the Crown was compelling, if not overwhelming. The offender, through his own words and actions, provided the necessary ingredients for findings of guilt.

[27] The offender’s actions speak to the force of his intentions. He drove his truck through the streets of London wearing combat gear and carrying various weapons. He had previously seen people he perceived to be Muslim on the streets in Toronto and in London and had thought of driving into them. When he saw the Afzaal family, he decided to finally put his plan into action. Driving at full speed, without touching the brakes, he aimed his large truck, equipped with a grill guard, at innocent victims he had never met, intending to kill them because he believed them to be Muslim. He sped off to the Cherryhill Village Mall, where he coerced a taxi driver into calling the police. Mere moments after the deadly attack, he told the call taker that he “did it on purpose” and that the police should come to arrest him. He appeared happy and giddy at the scene. He flashed the “OK” hand signal at an officer, later telling the police that this was a symbol of white nationalism.

[28] There is every indication that the offender was anxious to take responsibility for what he had done. There is every indication that he not only foresaw the consequences of his actions, but set out to achieve those very consequences when he drove into the victims.

[29] Indeed, that is what the offender told police. His statements expressly confirmed what his actions implied, namely, that this was a deliberate and planned attack carried out with an intention to kill. Indeed, the statements go much further to establish his underlying motives, his animating ideology, and his ulterior intention to intimidate a segment of the population. The statements contain all of necessary ingredients for findings of first degree murder. The offender testified that the statements did not reflect his genuine beliefs. I will address that testimony below.

FINDINGS REGARDING THE OFFENDER’S STATEMENTS

[30] The offender spoke with a London Police Service Detective Micah Bourdeau on the night of his arrest and again later the next morning. He spoke of the attack and its motivation in detailed and enthusiastic terms. He told Detective Bourdeau that he had planned the attack for months, that he set out to kill Muslims in order to send a brutal message to “Muslim grooming gangs” in the United Kingdom. He told Detective Bourdeau that a second, “bonus” consequence would be to inspire other young men to engage in similar attacks against Muslims, using their vehicles as weapons. The offender spoke at length about his political views, his antipathy toward Muslims and other groups of individuals. He confessed to an act of terrorism and told Detective Bourdeau that his actions were “100 percent politically motivated”. He denied being affected by magic mushrooms. He denied that he would raise an “insanity” defence at trial.

[31] At trial, the offender tried to distance himself from his statements. He testified that he did not mean what he said to Detective Bourdeau. He testified that the statement did not reflect his genuine thoughts and beliefs. He claimed that, after his arrest, he was in a dream like state – feeling “depersonalized and derealized”. According to him, as he paced in his cell, he tried to come up with a way to justify what he had done. He testified that he decided to regurgitate material he had read on the internet.

[32] Did the jury reject this aspect of his testimony? The defence argues that, while the jury rejected the core features of the defence, it is possible that the jury accepted that the offender planned and deliberated the murder of Muslim people as a way to satisfy his obsessive urges to kill rather than the reasons that he outlined to Detective Bourdeau. To the extent that ambiguity resides in the jury verdicts, I will offer my own assessment of the evidence as it relates to the offender’s statements.

[33] The offender’s assertion that he made up the content of his statements, in the hours following his arrest, is not credible. First, the very notion that the offender had to justify his actions to police is suspect. By the time he spoke to Detective Bourdeau, he had consulted with duty counsel. He knew that he had the right to remain silent. This point was reinforced several times by Detective Bourdeau, and the offender repeated back his understanding of the caution. In other words, the offender knew that he knew that he could opt to say nothing at all. Yet, he chose to speak at length.

[34] The statements themselves belie the suggestion that the offender was just making up excuses. The video recording depicts the offender as someone who is anxious to speak, and does speak, for lengthy uninterrupted periods about his political views and the evolution of his beliefs. He is confident and at times passionate in his assertions. It is as though he has been anxiously awaiting the opportunity to share his world view. He did not engage with others before the attack for fear that he might be placed on a watch list. Here, finally, was his chance to share; the culmination of months of planning and preparation; the final step in his desire to carry out a public act of violence and intimidation.

[35] I will not go on at length about this. If a picture is worth a thousand words, a video says even more. I appreciate that demeanour can be misleading. Yet, the offender’s appearance and manner of speaking suggests that he was entirely conscious and aware, confident, and anxious to preach. He appears to be excitedly speaking his own mind, telling Detective Bourdeau what he did and why he did it. As for content, the statements have an autobiographical character. They are detailed and personal. They are extensive. The offender’s ideas are presented in an organized and coherent fashion. The offender exercised his own control over the interview, identifying which questions he would and would not answer. These are not the statements of someone reaching for excuses or parroting someone else’s ideas.

[36] There is also an inherent contradiction in the offender’s testimony. On the one hand, he testified that he did not believe what he told police. On the other hand, he claimed that he reached for those views in an effort to “justify” what he had done (though he also testified that his acts could not be justified). Yet, someone who did not believe those assertions could not see them as justification for anything at all, let alone a murderous attack on innocent victims. In other words, his attempt to distance himself from the content of his statements contained an implicit agreement with the content.

[37] It is true that the offender’s conditions while in detention were far from ideal and less than comfortable. He had not had a great deal of sleep. He was placed in a dry cell with a cement slab for a bed, and without a pillow or blanket. He was questioned late at night and again the next morning, with fingerprints taken between those two interviews. In an earlier ruling, I found that these conditions, while less than optimal, fell far short of being oppressive. They did not affect the voluntariness of the offender’s statements. Nor does the defence evidence support the offender’s claim that his statements were the result of oppressive circumstances. The offender, in his own testimony, said that he was quite capable of stringing together disparate threads of content from the internet to present a narrative to police. While I reject the truth of that testimony, it bears noting that, on the offender’s own testimony, the conditions of confinement did not prevent him from having a clear and operating mind.

[38] Finally, the statements were not the only evidence documenting the offender’s world view. Before committing the attack, before speaking with police, he had set down his views in a document entitled, “A White Awakening” (“the manifesto”). This document did not expressly advocate violence, though it vilified various groups, including Muslims, in repugnant derogatory language. It spoke of making life uncomfortable for Muslims so that they leave the country. It borrowed from the language of the manifesto written by the offender’s malevolent hero, the man responsible for a mass killing in Christchurch, New Zealand.

[39] The offender acknowledged in his testimony that some parts of this document reflected his genuine views, but claimed that other parts did not. He testified that he was writing the document to sort out his own thoughts, and that it was written just for his own consumption, or that of an imaginary listener. However, the content of the document would suggest otherwise. It is written in the first person. It lauds the creation of an all-white society. It is ideologically consistent with what the offender told the police.

[40] It is significant that this manifesto was written before the offender spoke to police. The final installment was written on June 1, 2021, some days before the attack. This also contradicts the offender’s testimony that he just made up his statement in the hours following his arrest. He had expressed similar ideas days before. Viewed together, the offender’s police statements and the manifesto portray a compelling picture of the offender’s thoughts and motivations at the relevant time.

[41] During submissions on sentencing, defence counsel argued that the fact that the accused never shared the manifesto confirms the offender’s assertion that it was merely a vehicle for sounding out random thoughts and ideas for himself and perhaps an imaginary audience. Therefore, I should accept the offender’s testimony about the manifesto.

[42] It is true that the offender kept his thoughts and plans to himself. He refrained from sharing his writing. However, as he told police, there was good reason for this. He told Detective Bourdeau that he refrained from posting his views for fear that he might be placed on a watch list. He did not want his plan to be foiled. This makes sense. The offender exemplified the prototypical ‘lone wolf’. Not sharing the manifesto or joining any online extremist groups must be understood within that context.

[43] Once the offences were committed, the offender’s desire for secrecy lifted. The Crown argued that the offender staged his apartment in order to ensure that police would find the manifesto. The offender did tell Detective Bourdeau that, once they searched his apartment, they would have the answers. He also told Detective Bourdeau that he was prepared to throw his life away when he set out to conduct the attack. The offender did not expect to come back to his apartment after the attack. It is a reasonable inference that he intended that police would find the manifesto and publish it.

[44] In short, I find that the offender’s statements to police and the ideas recorded in the manifesto were not simply things that the offender made up or was trying on for size. These were statements of the offender’s own belief system. They were not part of a feigned or concocted justification; they were, in the offender’s mind, the justification for what he had done. This has clear implications for the definition of terrorist activity, which I will address in due course.

FINDINGS REGARDING MENTAL DISORDERS

[45] The defence has asked that I consider the offender’s mental disorders as mitigating factors on sentence. At trial, the offender described various mental disorders that he claimed to have struggled with over the years, the most significant being Obsessive Compulsive Disorder (“OCD”) and Autism Spectrum Disorder (“ASD”). These disorders were said to cause him to repeatedly access content on extremist websites. He testified that his disorders, and his isolation during the COVID-19 pandemic, caused him to go down the “rabbit hole” in which he would read and watch the same content over and over again. As noted earlier, the offender testified that when he put his foot on the gas and drove into the victims, he was trying to stop the compulsive behaviour that was causing him to repeatedly access this content on the darkest recesses of the internet.

[46] This testimony was supported by Dr. Gojer, who diagnosed the offender with various mental disorders.

[47] The jury clearly rejected the notion that the offender’s actions were motivated by compulsion that blinded him to the consequences of his actions.

[48] Should I nonetheless consider the offender’s mental disorders as mitigating factors on the sentence for attempted murder? While Dr. Gojer diagnosed various conditions, his expert opinion was based exclusively on the offender’s uncorroborated statements. The offender described a strict upbringing with a cold and punishing mother, a childhood of isolation and angst, and an intense struggle with the Christian fundamentalist religion foisted upon him as a young man. There was no information to confirm any aspects of these accounts. This was largely because the offender forbade Dr. Gojer from speaking to his mother or siblings to verify his story. He refused to permit Dr. Gojer access to counselling records from his youth. During his testimony, he similarly declined to name the doctor who had treated him when he was young.

[49] The absence of confirmatory evidence does not foreclose my acceptance of evidence. It is merely a factor to consider. However, that factor takes on greater weight when one considers that the offender actively prevented contact with collateral sources. I would not go so far as to draw an adverse inference against the offender on this basis alone. However, it raises questions about whether he was a truthful historian.

[50] There are other considerations. Dr. Gojer’s diagnoses were not replicated or confirmed by those working in his facility. He himself did not see signs of certain disorders, basing his diagnosis exclusively on what the offender told him.

[51] The defence argues that it has proved the offender’s mental disorders on a balance of probabilities. That is the standard of proof applicable to mitigating factors that are in dispute. However, for the reasons cited above, the defence has not met that standard. Nor has the defence established the relevance of the alleged disorders. The fact that an offender suffers from an illness may, in some cases, bear on sentence, but there is no inevitable correlation between illness and mitigation. In some cases, illness may detract from moral blameworthiness, but that is not the case here. Even if the offender has, in the past, struggled with OCD and the symptoms of ASD, the jury, by its verdicts, found that these disorders did not interfere with his ability to plan and carry out the murders.

[52] It is true that the offender repeatedly accessed extremist websites. He repeatedly read and watched content on the internet that promoted hate and incited violence. However, it does not follow that the offender was driven by mental illness to do so. It is equally plausible to infer that the offender entered this “rabbit hole”, as he described it, because this content was of interest to him. The internet is an almost-infinite library of content catering to every topic imaginable. The offender’s obsession with extremist content reflected his subjective preferences. His so-called compulsion to review this material may speak to the lure of the content more than it does the impact of any mental disorder.

[53] Are there aspects of Dr. Gojer’s testimony that I should accept for the purpose of sentencing? I will turn to that now.

Dr. Gojer’s Testimony

[54] At trial, I made various rulings regarding Dr. Gojer’s testimony. I was concerned about how his evidence unfolded. More specifically, Dr. Gojer’s evidence raised three species of concern:

a. The opinion in his report was not the opinion presented to the jury;

b. He was selective in choosing what information he would rely upon; and

c. The opinion offered at trial qualified as novel science, a fact that he failed to disclose to the court.

[55] I do not propose to set out an exhaustive history of Dr. Gojer’s evidence. The details can be found in the various rulings delivered during the trial. However, as it is my role to make findings of fact, it is appropriate to summarize some of the issues here.

[56] At the close of the Crown’s case, the defence announced its intention to call Dr. Gojer as a defence witness. A voir dire was held at that time to assess qualifications and other pre-conditions for admissibility. The subject of the voir dire was Dr. Gojer’s opinion as stated in the report that he furnished to defence counsel. This report was not of particular benefit to the offender. In essence, it said that, because of his mental disorders, and his consumption of psilocybin, the offender was unable to resist giving into his homicidal desire to kill Muslims. On its face, this is an affirmation, rather than a denial, of criminal intent.

[57] Defence counsel assured me at that time that a proper defence would emerge from the evidence in due course. I did not wish to force the offender to disclose his strategy and therefore admitted Dr. Gojer’s evidence on the basis of what I was told by defence counsel.

[58] Following my ruling, the defence called its first witness. It was not Dr. Gojer, but the offender himself. The offender testified for several days, after which Dr. Gojer took the witness stand.

[59] Dr. Gojer offered the jury a very different opinion than that in his report. Much later in the proceedings, Dr. Gojer testified that his report was never intended to reflect his trial opinion. He said that the report was written solely to alert the defence that there was no basis for a not criminally responsible defence under s. 16 of the Criminal Code. He said that he could not form a final opinion until he heard the offender testify. Yet, Dr. Gojer never disclosed those contingencies during the original voir dire. If the report did not reflect Dr. Gojer’s trial opinion, there was no reason to subject it to an admissibility hearing.

[60] The crux of Dr. Gojer’s trial opinion was that the offender may well have been in a depersonalized and derealized state when he drove into the Afzaal family, and that he may not have appreciated the consequences of his actions. In arriving at this opinion, Dr. Gojer focussed on exculpatory features of the case, but appeared to ignore other more incriminating features. For example, during their first meeting, the offender told Dr. Gojer that, on June 6, 2021, he had gone out with the intention of finding Muslims to kill. That statement was not admissible at trial for its truth, but it was relevant to the evaluation of Dr. Gojer’s opinion. It was part of the factual material that was available for the expert’s consideration. Yet, Dr. Gojer made no mention of this statement until he was confronted with it in cross-examination. It did not factor into his trial opinion. When asked why he had not mentioned it, he said that he was waiting for someone to ask him the right question. That is not the response that one would normally expect from a witness who owes a duty of impartiality to the court.

[61] Finally, it came to light late in the course of his testimony that Dr. Gojer’s trial opinion was rooted in novel science. That is, it was an opinion that was not grounded in settled or accepted scientific findings. The offender told Dr. Gojer, as he told the jury, that he had consumed magic mushrooms some 40 hours before committing the offences. Dr. Gojer testified that the after-effects of psilocybin can last as long as 40 hours or more, and that the interaction of those effects with the offender’s mental disorders could have affected his ability to understand the consequences of his actions. As it turned out, his opinion about the effects of psilocybin had little support in the scientific literature.

[62] The novelty of the opinion came to light when the Crown, in preparing for cross-examination, asked Dr. Gojer to produce the studies that he relied upon because they were not referred to in his original report. Various academic articles were produced piecemeal over the course of several hours. Those articles did not offer direct support for Dr. Gojer’s trial opinion. Most of the articles dealt with selective serotonin reuptake inhibitors, or “SSRIs”, an entirely different type of drug. One survey offered scant support for Dr. Gojer’s opinion, but was based on self-reports to an on-line survey and therefore had methodological limitations. These issues were effectively canvassed by Crown counsel in her cross-examination of Dr. Gojer.

[63] For all of these reasons, I attach no weight to the testimony of Dr. Gojer’s testimony in arriving at my own factual determinations.

CONCLUSION ON MENTAL DISORDERS

[64] I find that the offender was not acting out the symptoms of his mental disorders when he committed the crimes before the Court. He was not acting under the effects of psilocybin that had left his body some 40 hours earlier. He was not labouring under some irresistible psychiatric compulsion to act beyond his conscious control. The offender was in full control of his faculties when he drove into the Afzaal family. He was a deliberate conscious actor who had planned a murderous rampage for months, and who took steps to ensure that he would kill Muslims in as brutal a manner as he could. The offender chose to stop the rampage after attacking the Afzaal family only because he decided that was “enough”. At that point, he staged a public surrender and carried out the last stage of his plan; the articulation of the motivations and viewpoints that led him to act as he did.

[65] I will now turn to the foundation for first degree murder, and the question of whether this was terrorist activity.

FIRST DEGREE MURDER

[66] The jury was presented with two alternate bases upon which they could find the offender guilty of first degree murder: planning and deliberation under ss. 231(2) and terrorist activity under ss. 231(6.01) of the Criminal Code. When presented with alternate bases of liability, jurors do not have to agree on which one leads to a verdict of guilt, so long as they are all satisfied that guilt has been proved beyond a reasonable doubt. It follows that we do not know, and are not at liberty to know, whether the jury found there to be planning and deliberation, or terrorist activity, or both. We know from the verdicts that at least one of these bases for liability was proved beyond a reasonable doubt.

[67] It falls to me as the trial judge to make my own findings about whether terrorist activity was proved beyond a reasonable doubt.

PLANNING AND DELIBERATION

[68] I will first observe that the jury was presented with overwhelming evidence proving that the murders were planned and deliberate, including the following:

1. The purchase of the truck;

2. The purchase and installation of a grill guard;

3. The tinting of the truck’s windows;

4. The purchase of a helmet and bulletproof vest;

5. The donning of a homemade t-shirt with a painted Crusader’s cross;

6. The placement of weapons in the vehicle;

7. The previous drive to Toronto to look for Muslims;

8. The research of vehicle speeds and the likelihood that they would cause pedestrians’ deaths; and

9. The offender’s statement to police that he had planned the incident since March 2021 and that he had gone out to find Muslims to kill on June 6, 2021.

[69] As the Crown argued in its written submissions:

The attack itself was the offender’s ultimate public statement regarding his political and ideological views. The offender left his home intending to go to war. He set up his apartment so that the police would find what he left for them – including two USBs, a hard drive, the paperwork for the purchase of his truck, a paper with speeds of driving relating to the percentage of likelihood of death, and a cryptic note: “Canarmour: Someone is going to town”. Before leaving, he re-read Tarrant’s “The Great Replacement”. He put on his Crusaders t-shirt and left his apartment. While inside his truck, he dressed for battle, putting on his helmet and a bullet-proof vest. His weapons were within reach, including knives and an air-soft pistol that resembled a firearm. He then went hunting for Muslims to kill.

[70] The defence argues that there is no need to go beyond a finding of planning and deliberation; that this may represent the sole basis for the finding of first degree murder. However, this begs the question of just what the offender planned. At a bare minimum, his plan was to kill random individuals that he believed to be Muslim by driving his truck into them at full speed. If that is the plan, it is inextricably linked to terrorist activity. The evidence in this case does not logically permit a binary choice between one basis for liability and the other. To choose one is to choose both. If there was a plan, it was a plan to carry out terrorist activity. If there was terrorist activity, it was planned and deliberate.

[71] Of course, terrorist activity requires that certain legal elements be proved pursuant to s. 83.01 of the Criminal Code. I will address those elements now.

TERRORIST ACTIVITY

[72] The legal definition of terrorism is important as it sets the parameters for criminal liability. Courts have recognized the need to carefully circumscribe the activity that falls within the ambit of terrorism. In R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555, at para. 82 (“Khawaja SCC”), the Supreme Court stressed that terrorist activity does not capture “non-violent expression[s] of political, religious or ideological thought, belief or opinion.” Section 83.01 is only engaged where individuals “engage in one of the serious forms of violence … listed in s. 83.01(1)(b)(ii)”: Khawaja SCC, at para. 82.

[73] As the Supreme Court put it in Khawaja, at para. 44:

The Terrorism section of the Criminal Code, like any statutory provision, must be interpreted with regard to its legislative purpose. That purpose is “to provide means by which terrorism may be prosecuted and prevented”— not to punish individuals for innocent, socially useful or casual acts which, absent any intent, indirectly contribute to a terrorist activity. [Citations omitted, emphasis in original].

[74] In the recent case of R. v. O.S., 2023 ONSC 4142, at para. 69, Ahktar J. observed that:

[69] The criteria set out in section 83.01 of the Code are stringent and set a high threshold for a finding of terrorism. All of the criteria must be met. This high bar means that not every act of harm carried out for a religious, political, or ideological purpose will be deemed to be terrorism within the Criminal Code. Parliament has clearly set out sufficient safeguards in s. 83.01 to prevent acts that are not terrorist offences from being charged or prosecuted under that section.

[75] In my instructions to the jury, I tried to define the legal elements of terrorist activity in a way that would facilitate juror comprehension. This was, in many respects, a matter of first impression, as there was little precedent or authority on point. At trial, the Crown and defence approved the jury instructions. They have relied on those instructions when making their arguments on sentencing. For ease of reference, I will refer to some excerpts of the instructions below to set the boundaries of the debate.

POSITIONS OF THE PARTIES

[76] The Crown argues that the offender’s actions amply satisfy the requirements for terrorist activity. The offender is a self-described white nationalist and Christian who was “politically motivated one hundred percent”. He subscribed to an extremist right-wing ideology that calls for the creation of an all-white society. He chose to commit these offences in furtherance of that ideology, telling police he wanted the “world” to know why he did what he did. He hoped to inspire others and instill fear in the Muslim community, sending them a message to leave European-founded lands or they will be killed. The Crown says that all three elements are proved beyond a reasonable doubt on the evidence in this case.

[77] The defence argues that while the offender “held various opinions and beliefs about life, society, culture, people and institutions, there is a lack of evidence showing that these beliefs and thoughts were bound together in a meaningful fashion, or even approached constituting an ideology.” The defence similarly argues that the offender’s desire to exact revenge on “Muslim grooming gangs” is neither attached to an ideology, nor a sufficient basis for finding that the offender had the intention of intimidating a segment of the public. The defence position is that the offender held offensive racist views, but his motives and intentions did not rise to the level necessary to prove terrorism beyond a reasonable doubt.

THE LEGAL DEFINITION

[78] As it relates to the four counts of murder, the operative provision is s. 231(6.01) of the Criminal Code, which provides that:

Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an indictable offence under this or any other Act of Parliament if the act or omission constituting the offence also constitutes a terrorist activity.

[79] The Criminal Code defines the term “terrorist activity” in s. 83.01. The definition, edited for relevance, is as follows:

terrorist activity means

(b) an act or omission, in or outside Canada,

(i) that is committed

(A) in whole or in part for a political, religious or ideological purpose, objective or cause, and

(B) in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada, and

(ii) that intentionally

(A) causes death or serious bodily harm to a person by the use of violence,

(B) endangers a person’s life,

(C) causes a serious risk to the health or safety of the public or any segment of the public,

(D) causes substantial property damage, whether to public or private property, if causing such damage is likely to result in the conduct or harm referred to in any of clauses (A) to (C), or

(E) causes serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy, protest, dissent or stoppage of work that is not intended to result in the conduct or harm referred to in any of clauses (A) to (C),

and includes a conspiracy, attempt or threat to commit any such act or omission, or being an accessory after the fact or counselling in relation to any such act or omission, but, for greater certainty, does not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law.

[80] This definition reveals three essential elements of terrorist activity:

1. The motive clause (subparagraph 83.01(1)(b)(i)(a)) – where the act must be committed “in whole or in part for a political, religious or ideological purpose, objective or cause”.

2. The intention clause (subparagraph 83.01(1)(b)(i)(B)) – where the act is committed “in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security”.

3. The consequence clause (subparagraph 83.01(1)(b)(ii)) – where the act causes, harm, endangers life, causes a risk to health, property damage which results in death, bodily harm or endangers life or interferes with a disruption of an essential service.

a. Opening instructions

[81] My instructions to the jury on terrorist activity opened with the following:

You might each have an idea about what terrorist activity means. In general terms, terrorist activity is the deliberate use of violence, often against innocent victims, that is motivated by ideology and intended to instill public fear. Terrorist activity uses violence to coerce social change by threatening the collective peace that citizens normally enjoy in a free and democratic society. Terrorist activity is not exclusive to any particular political, religious or ideological viewpoints. Terrorist activity may be carried out by groups, or by individuals acting entirely on their own, so long as the legal requirements are met.

At the beginning of these instructions, I told you that [the offender] is not on trial for his beliefs, but rather, for his actions. His beliefs are relevant in determining why he acted as he did. His beliefs are important in assessing his state of mind and motivations for his actions. However, he is not being prosecuted solely because of his beliefs; nor can he be found guilty solely because of his beliefs. Beliefs, standing alone, are not terrorist activity. They can, however, lead to terrorist activity when they are the motivation for serious personal violence and is intended to adversely affect a segment of the public.

Terrorist activity is defined in the Criminal Code. For our purposes, there are three elements that must be proved. In order for a murder to be terrorist activity the Crown must prove the following beyond a reasonable doubt that:

the accused committed an act that intentionally caused death or serious bodily harm to a person by the use of violence,

the act was committed, in whole or in part for a political, religious or ideological purpose, objective or cause; and

the act was committed, in whole or in part, with the intention of intimidating the public, or a segment of the public, within or outside Canada, with regard to its security.

b. The Consequence Clause

[82] I then turned to the consequence clause. I put that element first, because the jury would have considered that issue when deliberating on the offence of murder. I instructed the jury as follows:

Did the accused commit an act that intentionally caused death or serious bodily harm to a person by the use of violence?

This is the act requirement. Terrorist activity requires an act of intentional violence, that caused death or serious bodily harm to a person or persons. The use of violence.

By the time you reach this question, you will have already considered whether the accused had the intention for murder, as I described it earlier. It is agreed by the lawyers in this case that, if you find that [the offender] had the intent for murder when he drove into the Afzaal family, this first requirement is satisfied and you should answer this question “yes”. You will then turn to the next question.

[83] There is little doubt that the Crown proved the necessary consequence for a finding of terrorist activity. The motive and intention elements are more contentious, and I will turn to those now.

c. The Motive Clause

[84] To prove terrorist activity, the Crown must prove that the act is one motivated, in whole or in part by a political, religious or ideological purpose. Terrorism requires proof of something more than passing thoughts or transient ideas. The motive must be rooted in a comprehensive philosophy of ideas; a lens through which the individual sees the world and their place within it. At the same time, there is no inherent restriction on the type of ideology that can ground a finding of terrorist activity. Terrorism is not the exclusive domain of any religious political or ideological group.

[85] In my instructions to the jury, I said the following about the motive clause:

Question 2: was the act committed, in whole or in part for a political religious or ideological purpose, objective or cause?

This is the motive requirement.

Ordinarily, the Crown is not required to prove the motive for a crime. For example, if someone shoots a person in the head, you might infer from that act that the person had the intent for murder; that, absent evidence to the contrary, the actor knew that death was a likely consequence. That tells you about intent. It does not tell you about motive. The person may have shot the gun because of a long-standing dispute, or because the victim was having an affair with their spouse, or for reasons that we never discover. The Crown does not need to prove why it happened. If the necessary intention is proved, the offence is murder.

Terrorist activity does require proof of motive. It is not enough to merely prove intent. The evidence must address why the person committed the act of violence. It is only terrorist activity if the Crown has proved beyond a reasonable doubt that the violence was, in whole or in part, motivated by a “religious, political or ideological purpose objective or cause”. This need not be the only motivation for the violent act, but it must, at least in part, be the reason for the violence. The question is why the person did what they did.

The religious, political, or ideological motive need not itself be inherently violent or expressly promote violence. It must however, at least in part, be the underlying motive for the act that is intentionally violent and that causes death or serious bodily harm.

In answering this question, you will consider the ordinary meaning of the words: political, religious and ideological. These concepts are separate from one another. However, they share a common feature. Each of them describes a world view – a lens through which a person understands the world around them, and their place within it.

A political purpose is one that relates to the government or public affairs of a country. It may, but need not, align with a formal platform endorsed by a particular group or political party. A person may adopt the political views of a group, or may form his own views about how society ought to operate.

Religion refers to matters of faith that define one’s place in the world and one’s relationship with a higher power. Religion may, but need not, manifest in outward practices. Religion refers to an internal system of beliefs – a comprehensive philosophy of faith and worship.

An ideology is a comprehensive set of principles, opinions and/or beliefs. An ideology means something more than a single belief, or a passing thought. It is a system of related opinions or beliefs about life, society, culture, people, or institutions. It is a set of ideas that are bound together in a meaningful fashion.

An ideology may be based on political or religious views, or it may not. For your purposes, ideology means something other than political or religious because those are mentioned as separate categories.

What is a purpose objective or cause? For the purposes in this case, these terms mean the same thing and are interchangeable. The question is why the accused did what he did. Was the accused motivated to act by reason of his political, religious, or ideological beliefs? If you find that he was motivated by one of those categories of belief, in whole or in part, you should find that this was his purpose, objective or cause.

[86] The defence argues that the offender had no ideology, that his beliefs amounted to a collection of unrelated and disconnected opinions. With respect, I cannot agree. It is true that the offender held antipathy toward any number of identifiable groups, including Muslims, Blacks, Jews, and abortion doctors. However, there is a discernable thread that knits his views together. His enmity toward Muslims and others flows from his adherence to white nationalism. The offender is an admitted white nationalist. He believes in the superiority of the white race and the related aspiration for an all-white society.

[87] The ideology that animates terrorist activity need not fall into a recognized category of beliefs and need not be promoted by a particular group. Justice Akhtar had the following to say about ideology in O.S., at paras. 26-27:

[26] The term “ideology” is defined in the Oxford English Dictionary as “a system of ideas and ideals, especially one which forms the basis of economic or political theory and policy:” or “the set of beliefs characteristic of a social group or individual”.

[27] The term “ideological” is broader than “religious” or “political”. “Ideological” is defined as “occupied with or motivated by an idea or ideas, esp. of a visionary kind; speculative, idealistic”, or “of, relating to, or based on ideology; relating to or concerned with ideas”. In turn, “ideology” is defined as “a systematic scheme of ideas, usually relating to politics, economics, or society and forming the basis of action or policy; a set of beliefs governing conduct”, or “a systematic body of concepts especially about human life or culture.”

[88] As I instructed the jury, the religious, political or ideological purpose must be something more than passing thoughts and ideas. The evidence establishes that the offender saw the world through the lens of a racist ideology that promoted the superiority of the white race. Whether one calls this a product of his religion, or his politics, or more generally, an ideology, the offender had radical beliefs about the workings and composition of society. He saw the world through the prism of racist dogma, and his consumption of extremist content on the internet fed the strength of his convictions. This system of beliefs was his motive for committing the crimes before the court.

[89] The requirement of an ideological motive was amply proved in this case.

d. The Intention Clause

[90] The final element inquires into the actor’s ulterior intention. Terrorist activity has a public dimension. The actor must have an intention that transcends the direct victims of the crime. The actor must intend to intimidate a segment of the population. This is, in some respect, the sine qua non of terrorism, whereby the harming of innocent victims is used to instill fear in the broader population, or a segment of it. In the context of terrorism offences, an act of murder is not an end in itself, it is a means by which to achieve a broader societal harm.

[91] My instructions to the jury on this element included the following:

Was the act committed, in whole or in part, with the intention of intimidating the public, or a segment of the public, inside or outside of Canada, with regard to its security?

This question asks about intention – but it is a different than the intention for murder. This requirement is sometimes called the “ulterior intention” requirement. Terrorist activity requires proof of an intention above and beyond that required for murder. Terrorist activity requires an intention to have a coercive effect on people other than the direct victims of the crime. You will recall my example of the person who shot a victim in the head. If the act was carried out to avenge a private dispute, the crime would not be terrorist activity, because it was carried out to achieve a private, rather than a public objective. Terrorist activity requires proof that the killing of the victims was not an end in itself, but rather, a means by which to achieve a broader societal objective. The Crown must prove beyond a reasonable doubt that the murder was intended to intimidate the public or a segment of the public as it relates to its security.

You will all be familiar with the word intimidate. To intimidate is to frighten or threaten someone, or to cause someone to act by means of pressure, threat, or fear. In this context, the intimidation must relate to security: the feeling of safety, stability and belonging that is ordinarily enjoyed by citizens in a free and democratic society.

[92] In his statement to police, the offender spoke of wanting to send a brutal message to “Muslim grooming gangs” in the United Kingdom, whom he said were raping young white females. He told Detective Bourdeau that the message had to be “brutal”, and that killing a child was a part of that intended brutality. As a secondary purpose, the offender hoped that his actions might inspire other young men to use their cars as weapons and kill Muslims.

[93] The defence argues that the offender did not act for the purpose of intimidating a segment of the population. The defence points to the fact that the offender did not disseminate his views to anyone, suggesting that he was not looking to intimidate anyone. Moreover, even if the offender did wish to send a message, a desire for revenge is not the same as a desire to intimidate a segment of the public.

[94] In my earlier reasons, I found that, while the offender did not disseminate the manifesto before the attack, it was his intention that the manifesto be made public afterwards. Further, and again as I ruled earlier, his secrecy does not detract from proof of terrorism. The offender was, in every sense, a lone wolf. He did not join any groups. He did not communicate his intentions to others. This was a tactical decision, as tactical as his purchase of the truck and combat gear. He did not want to be detected. He did not want to end up on a watch list. He did not want to see his murderous plot foiled.

[95] The offender did not just want to kill the Afzaal family, nor was this an isolated act of revenge against so-called Muslim grooming gangs. The offender wanted to commit a crime against all Muslims, by threatening their sense of safety and security. He wanted, as he put it in the manifesto, to make life difficult for Muslims so that they would leave the country. The defence argued that this was a vague and neutral suggestion that does not imply violence. I cannot agree with that characterization. When the manifesto is viewed in conjunction with the offender’s statements to police, and his actions, the desire to make life uncomfortable for Muslims is anything but neutral and non-violent.

[96] The offender attacked the Afzaal family, with the ulterior intention of intimidating others who shared their religion and background. This element is amply proved on the evidence in this case.

CONCLUSION ON TERRORIST ACTIVITY

[97] I have carefully considered the contrasting arguments of the Crown and the defence. I have considered the whole of the evidence and have applied the principles from W.(D.). Neither the testimony of the offender nor the testimony of Dr. Gojer raise a reasonable doubt in my mind on the question of whether this was terrorist activity. Based on the jury verdicts, and my independent findings, it is an inescapable conclusion that the offender committed a terrorist act. One might go so far as to characterize this as a textbook example of terrorist motive and intent. There is nothing nuanced about the offender’s statement to police. His words, and his actions in committing the crimes, compel the finding that the murders satisfy the requirements of s.231(6.01) of the Code, and that the attempted murder of Fayez Afzaal meets the definition of terrorist activity in s.83.01 of the Code. I have reached this conclusion after consideration of the evidence as a whole.

SENTENCE

[98] I will now turn to the question of sentence. There is no discretion as it relates to the sentence for the murders of Talat Afzaal, Salman Afzaal, Madiha Salman and Yumnah Afzaal. The convictions for first degree murder carry a mandatory statutory penalty of a life sentence with no eligibility for parole for 25 years. There is, however, a discretionary aspect to the sentence to be imposed for the attempted murder of Fayez Afzaal.

[99] The Crown seeks a life sentence for the attempted murder of Fayez, to run concurrently with the other penalties. The defence argues that a concurrent sentence of 10 years is appropriate.

[100] The finding of terrorist activity is statutorily recognized as an aggravating factor on sentence in paragraph 718.2(a)(v) of the Criminal Code.

[101] Before turning to the principles of sentencing, I wish to address the victim impact statements that were presented to the Court.

VICTIM IMPACT

[102] Two days were set aside for the introduction of victim impact statements. Seventy statements were read into the record, and many more were filed with the Court. I have listened to, read, and considered all of statements. The volume of statements reflects the breadth of impact that the offender’s actions have had, not only on the direct victims and their loved ones, but on the broader community. In addition to statements of individuals, several community impact statements were presented by a diverse selection of groups. Each statement is compelling on its own; read together, their power is undeniable. The statements offer a composite of grief and loss, but also, hope and resilience. They were written and delivered with honesty and grace. While they described impact, they also carried impact. It was deeply moving to receive the articulate, poignant accounts of so many of those who have been affected by these events.

[103] I will refer to the content of some statements in these reasons. My selection should not be seen to diminish the value of those not mentioned. All of them are important and I have read and considered each of them.

[104] Various themes emerge from the victim impact statements:

a. The loss of beloved members of the community;

b. The loss of a sense of safety and security; and

c. The recognition of community support.

[105] As one might expect, a dominant theme is the loss and grief experienced by those who knew and loved the Afzaal family. The statements are a testament to the extraordinary character, kindness, talent, and generosity of Talat, Salman, Madiha and Yumna. Their deaths have deeply affected the London community. They have been memorialized with the designation “our London family”.

[106] I note the following excerpts from victim impact statements:

Ayesha Shaukat (Talat’s daughter, Salman’s sister):

The mother [Talat], who was the epitome of love and kindness. Her kindness was boundless, a soothing balm in times of difficulty, a guiding light that enveloped all of us together. With unwavering strength, she faced challenges with resilience and grace. A woman of grace, compassion, and boundless love—the one whom I spoke to every single day, her every single call, which I awaited every morning.

Baheeja Ahmed (daughter of Madiha’s first cousin):

Bia Khala had the most contagious smile I've ever seen and a warm sweet laugh that still echoes in my ears. She had the kindest heart, ready to help anyone with anything.

Fatima Qidwai (Talat’s niece) and Ayub Qidwai:

Talat Afzaal, my dad’s sister, whom I call Tilo Phupho, … Having done a Masters in Fine Arts, she was an incredible painter; she mainly painted mountains and landscapes but started painting cartoons because it brought a smile to her grandkids faces.

Nohman A. Siddiqui (Madiha’s first cousin):

Yumnah was one beautiful, sweet, multitalented and creative young girl. She was a caring big sister and an obedient daughter. She really enjoyed the company of family and cousins and was very well liked by her friends. An ambitious and aspiring teenager; set herself higher goals. She was aiming for the skies and became a super star after her death.

Maryam Al Sabawi (friend of Yumnah’s since elementary school):

Yumnah was more than a friend to me, she was a confidant, a support system, a classmate, a study partner, a secret keeper, a giver of hope, and most importantly she was a constant reminder that good friends do exist. I miss Yumnah. Not a day passes that I do not think of her. I miss her contagious laughter, her smile, her kindness, her sense of humour. I miss going on walks with her, and I especially miss receiving her 3am texts about the most random things. I miss it all, big and small. What I would do to experience any of it again.

[107] More than one statement offered the thought that, if the offender had only stopped to speak to the family, he would have been utterly disarmed; that Salman would have invited him to their home for tea; that even a single conversation would have disclosed how special these people were and would perhaps have robbed the offender of his capacity to harm them.

[108] The attack that murdered multiple generations of the Afzaal family has cast a long shadow of grief. The victims were beloved members of the London community. They touched many lives and their deaths have pierced many hearts. They were hardworking, creative, productive, caring individuals, who were surrounded by loved ones whom they loved back. The memories and anecdotes recounted in statements allowed those of us in the courtroom to feel that, perhaps, in some small way, we had come to know the Afzaal family. If nothing else, we came to wish that we had the opportunity to know them.

[109] A second theme that emerges from the statements is the sense of fear and loss of security attendant upon these crimes. Earlier in these reasons, I found that the offender set out to instill fear in Muslims when he committed his crimes. Sadly, it appears that he achieved that goal, at least to some extent. The events of June 6, 2021, have caused individuals from various communities to fear for their safety on public streets and sidewalks. It has caused people to question their beliefs about what it means to live in Canada. Sadly, this event has caused even young children, classmates of Fayez, to question their ability to openly practise their religion.

[110] The third theme sounds a more positive note. The statements speak of the immense support offered to the family and to the Muslim community in the wake of these crimes. The offender did not sow seeds of discord and division. His actions have had a galvanizing effect, causing Canadians from all walks of life to unite in a stance against Islamophobia and other forms of hatred.

[111] I will return to the victim impact statements later in my reasons.

SENTENCE FOR ATTEMPTED MURDER OF FAYEZ AFZAAL

[112] The Crown argues that a sentence of life imprisonment should be imposed for the attempted murder of Fayez Afzaal. The defence resists life imprisonment, arguing that a sentence of 10 years is the more appropriate disposition. Clearly, whatever penalty is imposed, it will run concurrent to the life sentences imposed on the counts of first degree murder.

[113] Proportionality is the overarching objective in sentencing. The sentence must punish no more than is necessary to reflect the gravity of the crime and the moral blameworthiness of the offender. In this case, the crimes are serious, and moral blameworthiness is high. The brutality of the crimes is self-evident. The offender used a newly-purchased truck as a weapon, equipping it with a heavy grill guard to maximize physical carnage. The act of driving at full speed into the victims was barbaric. Fayez did not die, but he suffered serious injuries that required surgery, hospitalization, and ongoing physiotherapy. It is difficult to imagine the scope of his psychological injury.

[114] The defence argues that, in determining the sentence for attempted murder, I must not consider, as aggravating, the fact that Fayez was orphaned by the attack. That it would amount to double punishment. The murders are subject to their own independent punishment and should not add to the punishment imposed for the attempted murder.

[115] There is a holistic quality to victim impact. It is difficult to parse out and isolate pieces of the picture. It may seem absurd to some to suggest that the Court should not consider the fact that Fayez has been orphaned by the offender’s actions. For Fayez, that is the feature of these crimes that will most affect his life going forward. Not surprisingly, in his own victim impact statement, Fayez identified the loss of his family as the chief source of his pain moving forward:

The offense has made me very sad at the fact I can’t talk to my family anymore and make new memories with them. I won’t be able to have fun with them anymore. I won’t be able to talk with Yumnah anymore, hug Ami, go to prayer with Baba, or make art with DadiJaan. I also wouldn’t be able to see Yumnah turn 18. I wouldn’t be able to see Ami and Baba as grandparents. I wouldn’t be able to go to school one day with Yumnah and admire the mural. I would not have to go to the graveyard and be sad about their deaths. I would have been able to go to more functions with my family like weddings were always the funnest with Yumnah and the cousins. I won’t be able to live with them anymore. Because of the offense, I was not able to live in the house I used to which also impacted me because that was the house I grew up in since I was three. I wouldn’t be able to have some of the delicious food that my family used to make like Yumnah’s pasta, Ami’s all around food (because nothing was better than the other), Baba’s butter chicken and Dadi-Jaan’s potato wedges. Now every time I go and see friends of Yumnah’s, it would not be because of Yumnah that I’d go. I’d be the one talking to them instead of Yumnah.

[116] I agree with the defence that the offender must not be punished twice for a single crime. Each murder leads to its own sentence, all to be served concurrently with one another. The sentence for attempted murder is not to be increased merely because it is temporally linked to other murders. However, I do not agree with the defence position that the attempted murder should be hived off and viewed in isolation. To do so, it to deny the raw reality of the event. The attempted murder was a part of a single act of terrorism that took four lives and fortuitously spared one. This is the context. The aggravating feature is not that others were murdered at the same time; it is that the offence against Fayez was part of the offender’s broader plan to murder Muslims and instill fear in the Muslim community. It is that the crimes – including the crime against Fayez – constituted terrorist activity.

[117] The Crown has referred to various cases in which attempted murders have led to life sentences. Of course, every case turns on its own facts. There are many aggravating factors to be considered in this case. These include the breadth and sophistication of the planning; the steps taken to increase the physical brutality of the incident; the fact that children were targeted and seen as “collateral damage”; the random selection of victims based on their ethnicity; and the motivation rooted in raw hatred and racism.

[118] These factors, standing alone, could well justify a life sentence. When one adds to the mix the elements of terrorism, the result is inevitable. The offender set out to disrupt the most basic of all human rights – the right to live life with a sense of peace and security. The brutality of the crime, its random character, the hatred that fueled it, and the consequences to not just Fayez, but the broader community, calls for the imposition of the strictest penalty known to Canadian law.

[119] I will address the implications of the terrorism designation for sentence in the reasons that follow.

SENTENCING FOR TERRORISM OFFENCES

[120] Unlike the sentence for attempted murder, the sentences for first degree murder are set by statute. The offender will serve a life sentence with no eligibility for parole for 25 years. The sentence for each murder will run concurrently. As it relates to those counts, the finding of terrorist activity has something of a symbolic character. It does not change the penalty, though it may have future implications for decisions of the Parole Board. Nonetheless, the finding of terrorism is important. That finding has a declaratory significance.

[121] The function of the criminal law is to maintain the safety, stability and peaceful development of the community. It does this by prescribing norms of conduct – norms that reflect the collective values and beliefs that shape society. It is a dynamic instrument for addressing social problems and, sometimes, promoting social change. In this way, the criminal law serves a communicative and educative function. It is the code of ethics that sets boundaries on behaviour. And it is a means by which to identify and denounce conduct that violates moral standards.

[122] This goal is particularly important when it comes to terrorist activity. Terrorist activity has a uniquely pernicious character. All crimes offend the social order; terrorist activity seeks to overthrow the social order. All crimes against individuals result in social harm; terrorist activity sets out to create social harm through crimes against individuals. The destructive force of terrorist activity can, like a cancer, metastasize and spread. It can paralyze the populace, by instilling fear and apprehension. Terrorist activity, and the hatred that spawns it, is anathema to the democratic ideals that define a free and democratic society.

[123] The preamble to the Anti-terrorism Act, S.C. 2001, c. 41, recognizes the threat of terrorism to the stability and welfare of the nation. It includes the following words:

Whereas Canadians and people everywhere are entitled to live their lives in peace, freedom and security … [and] acts of terrorism threaten Canada’s political institutions, the stability of the economy and the general welfare of the nation.

[124] At second reading for the bill that would eventually become the Anti-terrorism Act, then-Minister of Justice, the Hon. Anne McLellan, stated that, “[t]errorism seeks to undermine the rule of law and human rights. Terrorism seeks to undermine our values and way of life. Terrorism tries to turn one community against another, religion against religion, and race against race”: “Bill C-36, Anti-terrorism Act”, 2^nd reading, House of Commons Debates, 37-1, vol. 137 No, 95 (16 October 2001) at 6164.

[125] Since enactment of the terrorism provisions in the Criminal Code, various courts have commented on the uniquely serious nature of terrorist activity. Denunciation, deterrence and protection of society are the overarching objectives of sentencing in this context: see Khawaja SCC, at para. 130. Courts have spoken of the “horrific nature of the crime of terrorism itself” and the need to treat terrorist activity “with the deadly serious attitude that it deserves”: R. v. Khawaja, 2010 ONCA 862, 103 O.R. (3d) 321, at para. 238; R. v. Ahmed, 2014 ONSC 6153, 122 O.R. (3d) 675, at para. 79, aff’d 2017 ONCA 76, 136 O.R. (3d) 403. As the Court of Appeal for Ontario put it, “[t]errorists, like the appellant, pose an existential threat to the Canadian community and to the Canadian way of life”: R. v. Hersi, 2019 ONCA 94, 373 C.C.C. (3d) 229, at para. 54, leave to appeal refused, 2002 16725 (S.C.C.). The Court of Appeal went on to comment that “[terrorists] are not criminals in the normal sense. They are worse”: at para. 54. The trial judge in that same case observed that “terrorists are the worst kinds of cowards because they deliberately target innocent members of the public who are not prepared for combat”: R. v. Hersi, 2014 ONSC 4414, at para. 63.

[126] The offender’s actions in this case were marked by a cruel randomness and a random cruelty. So many statements introduced at the sentencing hearing spoke of the fear that many now experience just walking down the streets of their neighbourhoods. People are afraid that, because of how they look, or the clothes they wear, or the colour of their skin, they might be the target of a similar attack carried out with a vehicle. This fear is understandable. It is arguably a rational response to the events of June 6, 2021.

[127] I note the following excerpts from victim impact statements:

Umar Afzaal (Talat’s son, Salman’s brother) and Sana Afzaal:

Losing my family this way made me and my children fear for our lives. The simple act of walking outside has become difficult for us.

Mustafa Afzaal (Talat’s son, Salman’s brother):

The impact on us goes beyond personal suffering. It has impacted minds and hearts all over the world. I feel that the world is now unsafe, a contagion has been spread of cruelty that threatens the very essence of our shared humanity.

Hina Islam (Madiha’s aunt):

I have lived through a war, seen and experienced violence, but have never felt so vulnerable as I do now after this heinous attack. Perhaps its because I felt lied to as Canada welcomed diversity and promised safety to all. I feel short-sighted for my naivety in believing this promise.

[128] These events have robbed many young people of the ability to experience the innocence of childhood. I note the poignant words of Fayez’s classmates:

We are here today speaking as friends of Fayez Afzaal from the London Islamic School. Many people think that just because we are children, we do not understand what is going on. But it is very clear to us. The fallout of this attack sits deeply within our school community, leaving a lasting impact on our collective well-being.

[129] It is sobering to contemplate that persons who had no prior relationship with the offender were a target simply because of their ethnicity, disclosed by clothes that they wore.

[130] It is sobering to contemplate that others might perceive that something as simple as going for a walk on a warm day might lead to someone choosing to kill them because of their appearance or clothing or beliefs or ethnicity.

[131] It is sobering to contemplate the impact of social media and other internet sources, including the dark web, in amplifying and spreading messages of hatred.

[132] On the last point, it bears noting that the offender in this case did not need to communicate with others; he did not need to commune with a group; and he did not ever need to leave his apartment in order to become wholly immersed in extremist doctrine.

[133] It is for others to address the complex problem of hate speech on the internet and its connection to violence. That is not my role. I will, however, observe that this case may stand as a cautionary tale. The phenomenon of radicalization is complex and multi-faceted. It is too simplistic to draw a straight line of causation between the offender’s actions and what he read on the internet. Nonetheless, on the evidence presented at trial, the offender drew much of his rage from internet sources, which he repeatedly accessed in the days and moments leading up to the attack. The tentacles of hate can reach a broad audience when they are merely a click away.

[134] This case also affirms, as noted earlier, that terrorism is not exclusive to any group or ideology. Right wing extremism is as potentially destructive of the social order as any other belief system promoting hate and violence.

[135] The defence argued that vengeance should have no place in the sentencing of the offender. I agree. The prototype of vengeance – an eye for an eye – has no place in a civilized sentencing process. However, other principles, such as retribution and denunciation do apply. On the surface, they might resemble vengeance, but they are fundamentally different in operation and effect. While vengeance is motivated by emotion and anger, retribution “represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender”: R. v. M.(C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 80 (“M.(C.A.)”). Denunciation “represents a symbolic collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined in the substantive criminal law”: M.(C.A.), at para. 81.

[136] Denunciation is particularly important where, as here, the crime strikes at the heart of foundational community values. It is the role of the court to not only condemn the offending acts, but to counter them with an affirmation of the positive values that define Canadian society. As Lamer C.J. put it in M.(C.A.), at para. 81:

Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code.

[137] In R. v. Biancofiore (1997), 1997 3420 (ON CA), 35 O.R. (3d) 782 (C.A.), at p. 792-3, Rosenberg J.A. noted the dual nature of denunciation:

[D]enunciation embraces two different but related concepts. A sentence with a denunciatory component satisfies the community's desire and need to condemn "that particular offender's conduct". A denunciatory sentence can also play a more positive role in a rational and humane sentencing regime by communicating and reinforcing a shared set of values.

[138] Terrorist activity stands in stark contradiction to all that we prize: our collective values of equality, tolerance, respect, and multiculturalism. Canada prides itself on recognizing the inherent dignity of all persons, whatever their ethnicity, religion or background. We welcome newcomers to Canada and applaud their contributions. We rejoice in diversity and inclusion. This is the ethos of our national identity.

[139] On its 20th anniversary, former Chief Justice of Canada, Beverly McLachlin, gave a speech in which she spoke of the Charter as an entrenched feature of the Canadian identity. She observed that it has come to capture the essence of what we, as a people, hold dear. As she put it:

[T]he Charter represents our own statement of values, made in Canada, by Canadians, to fit Canadians' sense of themselves; and … because the Charter, not by magic nor by accident but through the nation — affirming process that brought it into being and nurtured it over the past two decades, captures the essence of what we hold dear as a people:

1. respect for individual rights;

2. respect for the collective interest and harmony between individual freedom and the greater good of all;

3. respect for pluralism and a commitment to the fundamental equality of each and every one of us, religion, gender or ability.

See “Remarks of the Right Honourable Beverley McLachlin, P.C. – Canadian Rights and Freedoms: 20 Years Under the Charter” (17 April 2002), online: Supreme Court of Canada: <www.scc-csc.ca/judges-juges/spe-dis/bm-2002-04-17-eng.aspx>.

[140] Therefore, when hate-fueled violence is directed at some of us, it is a crime against all of us. It tears at the fabric of our society. I agree with the words of Madiha’s mother, Tabinda Bukhari, who offered the following words in a press conference after the verdicts: “[t]his was not just a crime against the Muslim community; this was an affront to the safety and security of all Canadians”: see Jane Sims, “Gasps, sobs of relief as Nathaniel Veltman convicted of first-degree murders” (16 November 2023), online: The London Free Press <lfpress.com/news/local-news/jury-finds-nathaniel-veltman-guilty-of-murder-in-afzaal-killings>.

[141] In R. v. Bissonnette, 2022 SCC 23, 414 C.C.C. (3d) 1 (“Bissonnette”), the offender attacked Muslim individuals praying at a mosque. While the offender was not charged with terrorism offences, his actions had similar effect. The Supreme Court of Canada commented on the aftereffects of the crime on the Muslim community, and on Canadians at large at para. 144:

…Fueled by hatred, [the offender] took the lives of six innocent victims and caused serious, even permanent, physical and psychological injuries to the survivors of the killings. He left not only families devastated but a whole community — the Muslim community in Québec and throughout Canada — in a state of anguish and pain, with many of its members still fearful for their safety today. And he left Canadians at large feeling deeply saddened and outraged in the wake of his heinous crimes that undermined the very foundations on which our society rests.

See also R. v. Sandouga, 2002 ABCA 196, 217 D.L.R. (4th) 303, at para. 26.

[142] The criminal law cannot singlehandedly solve social problems. That said, the trial process is one way of reclaiming the foundations on which our society rests. The prosecution of crime is a public statement of approbation. It is through the courts that society shows its abhorrence for certain conduct: M.(C.A.), at para. 81. I suspect that the trial proceedings in this case have been a source of trauma for many individuals, including those who loved the Afzaal family. It has undoubtedly been difficult to hear the details of the attack, and to hear the recital of the offender’s hateful views. However, it is hoped that the trial process might, in some small way, facilitate the healing process, by firmly denouncing the offender’s actions as an intolerable affront to our moral, ethical and legal standards.

[143] The court can express the collective values of the community; it is for the community to give active expression to those values. It has done so in this case. In the wake of these crimes, many have experienced pain, loss and fear. This case has demonstrated the fragility of our social order. Yet, it has also demonstrated the power of community. Many have come forward to support those affected by these crimes. The attack of June 6, 2021 has galvanized people from all walks of life and backgrounds, young and old, to unite in speaking out against Islamophobia and other forms of hate. People have attended vigils and have marched in solidarity with the Muslim community. There is a groundswell of support for initiatives that will prevent a recurrence of such crime.

[144] The community impact statement provided by Nuzhat Jafri, on behalf Canadian Council of Muslim Women, sends a strong message of hope:

The impact of the Afzaal Family murder has reverberated far beyond the London community. These events have been perceived by many in the community as an attempt to intimidate and terrorize, and a successful one at that. However, the unintended impact of this attack was the Canadian public finally understanding the violent consequences of decades of Islamophobic and racist vitriol in the public sphere.

In response, the outpouring of support and care from community members in London Ontario and beyond was felt deeply by Canadian Muslims. It was a powerful reminder that Canada is home, and no one has the right to threaten or intimidate us in our home. Sequentially, the recognition and action taken by governments, public officials and institutions has provided Canadian Muslims with the support we need to continue to organize and thrive. To this day, looking around London you will see the Our London Family signs. Reminders that our pain has not been forgotten by the City of London as a whole.

[145] Nothing can undo the harm and trauma flowing from the events of June 6, 2021. Nothing can compensate for the terrible loss of life and infliction of injury. Yet, there is perhaps some solace in knowing that the sprit of hatred that spawned the attack has been met with a spirit of compassion, unity and support.

[146] There is one final principle of sentence that must be recognized, namely the principle of rehabilitation. This principle does not dominate the sentencing equation. It is subservient in this case to other principles, such as deterrence, denunciation and protection of the public. However, it cannot be ignored. It can never be ignored because to do so is to deny the human dignity of the offender: see Bissonnette, at para. 85.

[147] As noted above, the crimes in Bissonnette were at the most serious end of the spectrum. The Supreme Court noted that the offences “were of unspeakable horror and left deep and agonizing scars in the heart of the Muslim community and of Canadian society as a whole”: Bissonnette, at para. 1. Nonetheless, it was critical, in the Supreme Court’s view, to recognize the offender’s capacity for reform and reintegration into society. As the Supreme Court put it, at para. 87, “the foundations of our criminal justice system … require respect for the inherent worth of every individual, including the vilest of criminals.” Even when deterrence and denunciation are paramount, the criminal justice system must preserve a place for rehabilitation.

[148] The offender in this case committed the vilest of crimes. He acted with moral depravity and callous brutality. Yet he, like all individuals, is entitled to the recognition of his dignity, and his capacity as a human being to change. The offender is a very young man. It will be for the parole authorities, at the appropriate time, to assess whether the potential for rehabilitation has been realized.

CONCLUSION ON SENTENCE

[149] For all of the reasons stated, I sentence the offender to a life sentence for the attempted murder of Fayez Afzaal.

[150] I sentence the offender to a life sentence with no parole eligibility for a period of 25 years for the first degree murder of Talat Afzaal.

[151] I sentence the offender to a life sentence with no parole eligibility for a period of 25 years for the first degree murder of Salman Afzaal.

[152] I sentence the offender to a life sentence with no parole eligibility for a period of 25 years for the first degree murder of Madiha Salman.

[153] I sentence the offender to a life sentence with no parole eligibility for a period of 25 years for the first degree murder of Yumnah Afzaal.

[154] These sentences will run concurrently with one another.

[155] I impose the following ancillary orders:

a) A mandatory firearms and weapons prohibition pursuant to s. 109 of the Criminal Code;

b) As murder and attempted murder are primary designated offences under s. 478.04 of the Criminal Code, a mandatory DNA order pursuant to s. 487.051 of the Criminal Code.

c) A forfeiture order, pursuant to s. 490.1 of the Criminal Code, that includes, but is not limited to, the Dodge Ram pickup truck used in the commission of the offences; and

d) An order that the offender not communicate with Fayez Afzaal, pursuant to s. 743.21 of the Criminal Code.

“Regional Senior Justice Renee M. Pomerance”

Renee M. Pomerance

Regional Senior Justice

Delivered: Orally and in Writing – February 22, 2024