Court File and Parties

Court File No.: CR-23-11404535

Date: 2025-09-08

Ontario Superior Court of Justice

Between:

His Majesty the King (Crown) – and – Patrick Gordon MacDonald (Accused)

Counsel:

Catherine Legault and Carly Norris, Counsel for the Crown

Douglas Baum and Ariya Sheivari, Counsel for the Accused

Heard: June 26-27, 2025 (Ottawa)

Reasons for Sentence

Justice Robert J. Smith

Introduction

[1] Terrorist acts of the type urged by Atom Waffen Division ("AWD") seek to terrorize members of civil society by urging lone wolf individuals to commit random acts of violence (such as killing members of identifiable minority groups, including African Americans, Muslims, and Jewish people.). The terrorist acts are urged with the objective of creating a race war leading to a white ethno-state. Encouraging individuals to join a terrorist group and to participate in terrorist activities is a serious offence in a democratic country such as Canada. Such conduct must be strongly denounced and deterred by the court by imposing a lengthy total sentence of 10 years in prison.

Convictions

[2] The offender was convicted on three counts of terrorism offences. On count 1, Patrick Gordon MacDonald was convicted of participating in or contributing to an activity of the AWD terrorist group for the purposes of engaging in or to facilitate a terrorist activity. He participated in the production of propaganda and recruitment videos for AWD and for publishing other hateful images online contrary to s. 83.18(1) of the Criminal Code, R.S.C., 1985, c. C-46.

[3] On count 2, he was convicted of knowingly facilitating a terrorist activity by AWD by participating in the production of propaganda videos and for publishing other hateful images online contrary to s. 83.19(1) of the Criminal Code.

[4] On count 3, he was convicted of communicating statements that wilfully promoted hatred against Jewish people and other identifiable groups contrary to s. 83.2 of the Criminal Code.

Circumstances of the Offences

[5] The offender participated in the creation of propaganda and recruitment videos for AWD which I found was a terrorist group in Canada in the 2018 to 2019 timeframe. AWD was designated as a terrorist group by Canada in February 2021. AWD was a neo-Nazi far right terrorist group that embraced a violent "Accelerationist" ideology. The Accelerationist movement was led by James Mason, who promoted lone-wolf terror attacks against identifiable minorities in order to promote a race war, which he believed would result in the creation of a white ethno-state.

[6] The offender participated in the creation of the propaganda and recruitment videos titled "Fission", "Feurnacht", and "Grey Zone" and published hateful graphic designs glorifying Nazi leaders. The videos were filmed at an abandoned cement plant in Belleville, Ontario and in a former school in St. Ferdinand, Québec. The videos showed eight to ten individuals wearing skull masks, battle fatigues, and black jackboots, marching and firing automatic weapons in the dark, with fires burning in these remote locations.

Does the Kienapple Principle Apply?

[7] In R. v. Kienapple, [1975] 1 S.C.C. 729, the majority of the Supreme Court of Canada held that where, in substance only, one crime was committed and the second charge was based on the same or substantially the same elements, then only one conviction should be registered.

[8] The defence argues that the Kienapple decision should apply in this case, as the same actions of the offender form the basis for convictions on both participating in and facilitating terrorist activity offences (s. 83.18 and s. 83.19).

[9] The Crown relies on the Court of Appeal for Ontario decision of R. v. Kinnear and while the offender's actions of participating in a terrorist activity are similar for both offences, the Crown submits that there is not a sufficient legal nexus between s. 83.18 and s. 83.19 to apply the Kienapple principle.

[10] In Kinnear, the Court of Appeal for Ontario stated that the analytical framework for the application of the Kienapple rule was set out in R. v. Prince (1986), 30 C.C.C. (3d) 35 at 42 (S.C.C.). The Kienapple rule precluded multiple convictions for different offences "only where there was both a factual and legal nexus connecting the offences". The legal nexus exists if actions of the offender constitute a single wrong or delict.

[11] At para. 36 of Prince, the Supreme Court of Canada stated that the court must consider whether there are "no additional and distinguishing elements" between the offences. The Kienapple rule will not apply where:

a) the offences are designed to protect different societal interests;

b) the offences allege personal violence against different victims; and,

c) the offences proscribe different consequences.

[12] In this case, s. 83.18 of the Criminal Code seeks to protect society from individuals knowingly participating in any activity of a terrorist group which enhances its ability to facilitate or carry out a terrorist activity. Section 83.19 of the Criminal Code seeks to protect society from individuals who knowingly facilitate a terrorist activity.

[13] Mr. MacDonald knowingly participated in an activity of the terrorist group, AWD, by assisting in the production of three propaganda and recruitment videos titled, "Fission", "Fuernacht", and "Grey Zone". The offender used his graphic designer skills as well as his camera and lenses and participated in the production of the videos.

[14] The offender's actions of facilitating a terrorist activity under s. 83.19 of the Criminal Code included the recruitment of additional members and providing propaganda for AWD, a terrorist group. These actions are also included as participation in an activity of a terrorist group. The accused was also found to be one of the individuals who was dressed in battle fatigues, wearing a skull mask, and carrying a machine gun in the "Fission" video.

[15] The offender's actions under s. 83.19 of the Criminal Code included sharing the videos with the administrator of Terror Wave Refined, with the intention and for the purpose of publishing the videos on the Terror Wave Refined social media channel. Under the website Telegram, there is a channel called Terrorgram Collective, which was designated as a terrorist organization in Canada in 2024. One of the channels under the umbrella of the Terrorgram Collective was the channel called "Terror Wave Refined" (where the videos were posted).

[16] The posting of these recruitment and propaganda videos online facilitated the commission of terrorist activities by seeking to recruit additional members to AWD and encouraging the formation of lone wolf cells to commit violent terrorist attacks against minority groups, including Jewish people and others in order to accelerate a race war which would create a white ethno-state.

[17] The offender also created and published images under the alias of "Dark Foreigner" one of which was used for the front and back cover of the 4th edition of the book titled "Seige" written by James Mason, the leader of the Accelerationist terrorist group.

[18] At para. 91 of R. v. Ahmed, 2017 ONCA 76, the Court of Appeal for Ontario stated that, "While the trial judge described the exact same factual foundation" as forming the basis of liability on each count (s. 83.18 and s. 83.19), this impliedly recognized that the proof of the same factual circumstances and the same series of events, supported Mr. Ahmed's conviction for both offences. The Court of Appeal for Ontario found that the Kienapple principle did not apply in these circumstances. This situation is very similar to the facts before me where Mr. MacDonald's participation in the production of the three recruitment and propaganda videos for AWD formed the basis for his conviction under s. 83.18, and also formed the factual basis for his conviction of facilitating the commission of a terrorist offence under s. 83.19 of the Criminal Code. As result, I also find that the Kienapple principle does not apply in the circumstances of this case.

[19] I find that facilitating a terrorist activity has a different legal nexus than that of participating in the activities of a terrorist group under s. 83.18 of the Criminal Code; therefore, the Kienapple rule does not apply in this case.

Offender's Circumstances

[20] The offender was born on April 25, 1997, and is presently 28 years of age. He started creating extremist graphic art when he was 15 and he was 20-21 years old at the time the offences were committed. He is the youngest of 3 siblings. He has lived in his parents' home all of his life, and in their basement until the police executed the search warrant at their home, after which his mother asked him to leave their home.

[21] The offender's parents advised the author of the presentence report ("PSR") that they did not teach racist or white supremacist views to their children when they were growing up.

[22] The offender ultimately completed grade 12 in high school after initially skipping his final grade 12 exams. He enrolled in and took graphic design courses at Algonquin College, but it does not appear that he graduated.

[23] The offender has a limited work history. He worked as a sign technician for a few months and at a smaller sign shop which he found to be "exploitive" and so, he quit. The offender has not worked since the Covid pandemic other than doing some volunteer work for an organization called the Scottish Society of Ottawa and some other nonprofit organizations. He stated that he now plans to become an electrician.

[24] The offender does not have a criminal record and has not had any drug or alcohol issues.

[25] The offender agreed that he created and posted numerous works of graphic art online glorifying various Nazi leaders, including Adolph Hitler and violent extremists such as Timothy McVeigh. The offender does not deny his involvement in the white supremacist/Neo Nazi subculture but stated to the author of the PSR that he had renounced those violent extremist and racist views. The offender recently volunteered with an organization that assists refugees from countries that have predominantly African American, Arabic, and/or Muslim populations.

Impact of the Offender's Actions

[26] B'nai Brith Canada has filed a victim impact statement in these proceedings as Exhibit number six. B'nai Brith Canada is a human rights organization dedicated to combating racism and is the grassroots voice of Jewish Canadians. The actions of the offender's anti-Semitic postings have contributed to an atmosphere where Jewish Canadians do not feel safe in their own communities, leaving them in perpetual fear for their well-being. The actions and postings of Mr. MacDonald are an affront to Canadian morals and values. The ideology of AWD has the objective of purging the weak, destroying the "Jewish system" amounted to a de-humanization of the Jewish community in Canada.

[27] Mr. Kriner gave expert testimony on the impact of the designs and videos posted online by the offender. He testified that he reviewed the Telegram website and the Terror Wave Refined website where the offender published material online, most of which were under the name "Dark Foreigner". He testified that the offender's graphic designs encouraged acts of violence and that the offender had developed a style or "brand" of graphic designs, such as shown in Exhibit "D" on the voir dire, which was an image of a person wearing a skull mask and carrying a firearm pointed at the viewer with the red, black, and white colours and the words "do not come between the Nazi and his prey".

[28] Mr. Kriner testified that various individuals participating in the Terrorgram Collective referred to the offender's violent graphic designs glorifying senior Nazis with approval. He also testified that the offender's extremist designs continue to live on in the Internet world which increases the harm that the offender caused.

[29] Mr. Kriner testified that the offender's brand of graphic designs supporting violent extremism made him a minor celebrity in the Terrorgram world. He also testified that the offender's propaganda designs promoted "in group" cohesion for AWD. The red colour used in the offender's designs symbolized blood, and the skull mask in his designs were a symbol of AWD. The offender's designs looked like a brand supporting AWD and "Siege Culture".

[30] The offender created the designs on the front and back pages of the book titled "Siege Culture" written by James Mason. The Terrorgram website also glorified individuals who would create acts of terror and were referred to as "Saints" on this violent, extremist website.

[31] The three videos were posted on the Terror Wave Refined website. These videos helped create an identity for AWD and were a tool for the recruitment of new members. The videos and the offender's graphic designs glorifying senior Nazis created a heightened level of propaganda on the Internet. The videos also helped to radicalize individuals, especially in the 10-to-20-year age group.

[32] Examples of the offender's graphic designs glorifying senior Nazis and terrorists are set out in Exhibits #7 and #9. In particular, the image at page 3 of Exhibit #9 which shows a person wearing a skull mask and pointing a gun at the viewer with the words "Do not get in the way of a Nazi and his prey" with the Nazi colours of red, black, and white. In addition, the images of Adolf Hitler on pages 40 and 41 on Exhibit #9 and the quote from Dylann Roof, a terrorist who shot and killed a number of African Americans attending church in South Carolina.

Positions of the Crown and the Defence

[33] The Crown seeks a total sentence of 14 years in prison on all three counts to achieve the primary objectives of denunciation and individual and general deterrence as well as the principal of totality.

[34] The defence submits that a total sentence of six to eight years in prison for all counts is appropriate. In addition, the defence submits that the offender has met his onus so he should be subject to the regular entitlement to parole rather than being required to serve one half of his prison sentence as required by s. 743.6(1.2) of the Criminal Code. The defence further submits that the offender has met his onus on a balance of probabilities as a result of his expression of remorse, his renunciation of his violent extremist racist beliefs, his participation in the counselling program Project Reset for approximately two years, and his volunteer work while on bail for the benefit of several visible minority groups that are predominantly African American, Arabic, and/or Muslim.

Mitigating Factors

[35] The following are mitigating factors:

a) the offender has no previous criminal record and has a supportive family.

b) the offender was relatively young being 20-21 years old when the offences were committed. However, in R. v. Hersi, 2019 ONCA 94, the Court of Appeal for Ontario stated that notwithstanding the young age of the offender, lengthy sentences were still required due to the seriousness of terrorism offences.

c) the offender has expressed remorse for adopting the white supremacist/Neo Nazi violent ideology of the AWD and in his interview for the preparation of the PSR, he stated that he had renounced these beliefs.

d) the offender has attended the counselling with Project Reset for the past two years and is agreeable to continue to follow counselling.

e) the offender has volunteered to assist several minority groups of predominantly African American, Arabic, and/or Muslim individuals during the last few years.

f) the offender has not breached his bail conditions for a period of about two years. I also take into account the fact that the accused was under stringent bail conditions similar to house arrest for two years as a mitigating factor following the Court of Appeal for Ontario decision of R. v. Downes.

Aggravating Factors

[36] The following are aggravating factors:

a) the offences of participating in and facilitating a terrorist group to commit terrorist activities are very serious offences that cause fear and terror in members of the public.

b) terrorism offences are recognized as being aggravating pursuant to s. 718.2(a)(v) of the Criminal Code.

c) the seriousness of the offence is an important aggravating factor as stated in R. v. Khalid, 2010 ONCA 861, R. v. Ahmed, 2017 ONCA 76 and the decision in R. v. Khawaja, 2010 ONCA 862 by the Supreme Court of Canada. As stated at para. 79 of Ahmed, "the public must know and have confidence that the courts will treat terrorist activity with the deadly seriousness it deserves."

d) the offender's actions were planned and occurred over a lengthy period of time. They were not done on the spur of the moment.

e) the offender created ideologically motivated violent extremist ("IMVE") content on various social media platforms.

f) the offender's actions were motivated by bias, prejudice, or hate, which are aggravating factors pursuant to s. 718.2(a)(i); and

g) a substantial part of the material created by the offender was to encourage others to commit terrorist activities including the murder of identifiable groups, such as Jewish people and other Nazi labelled "defectives".

Applicable Principles

[37] The principles of sentencing are set out in s. 718 of the Criminal Code. Denunciation and individual and general deterrence are the applicable sentencing principles for terrorist offences. Proportionality and the totality principle are also applicable given the requirement for consecutive sentences under s. 83.25 of the Criminal Code.

Caselaw

[38] The Crown has submitted a casebook containing many of the terrorism cases and the sentences imposed, as well as a summary schedule highlighting the sentences imposed with brief reasons. The defence agrees that the Crown's casebook contains the major decisions on sentencing for terrorist offences.

[39] In Khawaja, the accused was convicted of seven counts including participating in the activities of a terrorist group, instructing a person to commit a terrorist activity, and facilitating a terrorist activity by working on the development of a detonator as well as keeping an explosive substance. The accused was given a life sentence on the count relating to building a detonator to cause a deadly explosion and a total of 24 years imprisonment on the remaining counts. Khawaja was sentenced to four years imprisonment on count 3 (s. 83.18), eight years consecutive on count 6 (s. 83.18), and three years consecutive on count 7 (s. 83.19).

[40] In Khawaja, there was an absence of information on the likelihood of reoffending and compelling evidence of his continued dangerousness, which was very relevant to his sentencing and the need to separate him from society. In this case, Mr. MacDonald has not breached any of his strict bail conditions over two years, has expressed remorse for his actions, has renounced his racist neo-Nazi violent beliefs, and has participated in counselling as part of the program Project Reset for two years. These factors distinguish his case from those of Khawaja.

[41] In Hersi, the accused was convicted of two terrorism offences for attempting to join the Islamic terrorist group Al Shabaab in Somalia, and attempting to counsel and recruit an undercover officer to join Al Shabaab. He was sentenced to five years imprisonment on each count (consecutive). At para. 53, the Court of Appeal for Ontario stated that it had spoken repeatedly about the need to emphasize denunciation and deterrence when sentencing for terrorist crimes: see R. v. Khalid, R. v. Amara, and R. v. Khawaja.

[42] At para. 54 of Hersi, the Court of Appeal for Ontario stated that terrorists (like the appellant) pose an existential threat to the Canadian community and to the Canadian way of life. They are not criminals in the normal sense. They are worse. Terrorists stand prepared to engage in virtually any form of murder or mayhem if it furthers their ideology. When people determined to wreak havoc in our community are caught and convicted, the courts must impose sentences that reflect the community's moral outrage and the very real danger posed by those individuals to the community.

[43] In this case, the accused did not engage in any terrorist action but rather participated in the production of three videos which contained propaganda and recruitment materials for the Atom Waffen Division neo-Nazi terrorist group. He also posted many graphic designs glorifying white supremacist Nazi leaders and published threatening designs including one graphic design depicting a person wearing a skull mask, wearing combat fatigues, and carrying a gun pointed at the viewer with dramatic splashes of red stating "do not come between a Nazi and his prey".

[44] In Ahmed, the accused was convicted of a conspiracy to facilitate a terrorist activity (s. 83.19) and another count under s. 83.18 of the Criminal Code. A global sentence of 12 years imprisonment was imposed, five years imprisonment on the s. 83.19 charge, and seven years consecutive on the s. 83.18 charge. The sentence was affirmed on appeal. Ahmed was involved with a terrorist group for about six months. He gave $1,000 of his own money and agreed to be the leader of the group but any leadership role was limited.

[45] In Ahmed, the accused called an expert witness who opined that Ahmed posed a low risk of committing further terrorism offences. He was 26 years old, married with three young children, had graduated from a diagnostic imaging program, and was working as a technician at a hospital. Ahmed presented 75 letters of support including many good deeds he had performed during his years in Canada.

[46] The offender in this case was not involved in a bomb plot or in creating detonators to explode a bomb which justified very lengthy prison terms. In this case, the offender participated in the production of three recruitment and propaganda videos for the terrorist group AWD and published other hateful messages. The offender has expressed remorse for his actions to the probation officer preparing the PSR and to the court. The offender has also renounced his violent racist white supremacist ideology, has participated in a Reset Project program for approximately two years and has volunteered to assist new immigrant groups whose members include African Americans, Arabic and/or Muslim individuals. He has a very supportive family. The steps taken by the offender indicate that there is hope for Mr. MacDonald's rehabilitation.

[47] In Ahmed, the Court of Appeal for Ontario upheld a global sentence of 12 years in prison, five years for the conviction on the s. 83.19 and 465(1)(c) charges, and seven years in prison for the conviction on the s. 83.18 count. In Ahmed, the Court of Appeal for Ontario also upheld the trial judge's finding that the offender had met his burden under s. 743.6(1.2) of the Criminal Code to become eligible for parole based on the Parole Board's decision without having to serve a minimum of one half of his prison sentence.

[48] In R. v. Asad Ansari, 2015 ONCA 575, the accused attended a training camp which included mock combat marching and firearms training. He also helped produce a video of the camp activities and offered other computer skills. He was 20 years old at the time of the offence and had no criminal record. Ultimately, Ansari was not accepted by the terrorist group which meant that his involvement was not at the most serious and of the scale. The Crown and defence also made a joint submission of an effective sentence of six years and five months imprisonment which was accepted by the trial judge. The decision was upheld by the Court of Appeal for Ontario. In this case, the parties have not made a joint submission.

[49] The offender submits that he should receive a reduction of seven months from the sentence that would otherwise be imposed, based on the Downes decision due to the lengthy period he spent on strict bail conditions. His bail conditions included house arrest, GPS monitoring, and he was prohibited from using the Internet except under the supervision of one of his sureties. In Downes, the Court of Appeal for Ontario stated that it was an error in principle to fail to consider the time spent on stringent presentence bail conditions as a relevant mitigating factor. In this case, the accused was facing very serious terrorism charges for which he was convicted. The sentencing for terrorism related offences must strongly reflect deterrence and denunciation. I consider the time spent on pre-sentence house arrest as a mitigating factor along with the other evidence indicating that the accused can be rehabilitated to allow the offender to be released on parole in accordance with the usual parole criteria under the Corrections and Conditional Release Act, S.C. 1992, c. 20, without being required to serve one half of his sentence in prison.

[50] In Ahmed, the trial judge declined to give any reduction based on the accused being on very strict bail conditions for a lengthy period of time. This decision was upheld by the Court of Appeal for Ontario.

[51] The offender spent 55 days in pre-sentence custody; therefore, he is entitled to 83 days credit, which I will round to 3 months of credit.

Imposition of Sentence

[52] For the above reasons, I sentence the offender to a total period of ten years of imprisonment; four years on count #1 (the s. 83.18 participating count), four years on count #2 (the s. 83.19 facilitating count), and a further two years on count #3 (the s. 83.2 count of communicating statements that wilfully promote hatred against an identifiable group). The total period of ten years imprisonment is reduced by three months for pre-sentence custody for a total sentence of nine years and nine months in prison.

[53] For the reasons given previously, including that the offender renounced his racist and violent white supremacist beliefs, has apologized to the court, has participated in Project Reset program for a two-year period, has volunteered to assist minority immigrant groups during the past two years, and has spent approximately two years on stringent house arrest, I find that the offender has met his burden and does not have to serve one half of his sentence in prison and will be eligible for parole based on the Parole Board's decision in the usual course.

Date: September 8, 2025

Justice Robert J. Smith