COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ahmed, 2017 ONCA 76

DATE: 20170127

DOCKET: C59626 & C59639

Epstein, Pepall and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

(Respondent by Cross-Appeal)

and

Misbahuddin Ahmed

Respondent

(Appellant by Cross-Appeal)

Douglas G. Curliss, Q.C., for Her Majesty the Queen

Frank Addario and Andrew Burgess, for Misbahuddin Ahmed

Heard: May 12, 2016

On appeal from the sentence imposed on October 23, 2014
    by Justice Colin D.A. McKinnon of the Superior Court of Justice.

van Rensburg J.A.:

A.

Overview

[1]

Both the Crown and the offender, Misbahuddin Ahmed, seek leave to appeal
    a 12 year sentence imposed for terrorism-related offences.

[2]

Mr. Ahmed was tried by judge and jury on three charges of terrorism
    offences, arising out of his activities during a six month period in 2010, as
    part of a terrorist group in Ottawa, that involved his co-accused, Hiva
    Alizadeh and his close friend Dr. Khurram Syed Sher.

[3]

Mr. Alizadeh pleaded guilty to a charge of possessing explosive
    substances with intent to endanger life or cause serious damage to property for
    the benefit or at the direction of, or in association with, a terrorist group (
Criminal
    Code,
R.S.C., 1985, c. C-46,

ss. 81(1)(d) and 83.2). He was
    sentenced after a joint submission to 24 years imprisonment:
R. v.
    Alizadeh
, 2014 ONSC 5421, [2014] O.J. No. 4398. Dr. Sher was acquitted of
    conspiracy to facilitate terrorist activity (ss. 465(1)(c), 83.19):
R v.
    Sher
, 2014 ONSC 4790, [2014] O.J. No. 4372.

[4]

Mr. Ahmed was convicted of conspiracy to facilitate terrorist activity
    (ss. 465(1)(c) and 83.19(1)) and participation in the activities of a terrorist
    group (s. 83.18(1)). He was acquitted of an offence under s. 81(1)(d).

[5]

The offence of conspiring to facilitate terrorism is punishable by up to
    14 years imprisonment. Participation in the activities of a terrorist group is
    punishable by up to ten years imprisonment. Sentences other than a life
    sentence must be consecutive to one another for terrorism offences arising from
    the same event or series of events:
Criminal Code
, s. 83.26.

[6]

Mr. Ahmed was sentenced to a global sentence of 12 years imprisonment,
    less one year for pre-sentence custody and bail conditions. He received five
    years on the conspiracy to facilitate terrorist activity count, and seven years
    consecutive on the participation in the activities of a terrorist group count.
    The trial judge made an order under s. 743.6(1.2) of the
Criminal Code
that parole eligibility could be determined under the
Corrections and
    Conditional Release Act
, S.C. 1992, c.
    20

(and not subject to his serving at least one half of
    the sentence).

[7]

The Crown seeks leave to appeal sentence, asking for the substitution of
    a 20 year sentence and that parole eligibility be delayed. Mr. Ahmed also seeks
    leave to appeal sentence, asking for the substitution of a five to eight year
    sentence.

[8]

In
R. v. Khawaja
, 2012 SCC 689, [2012] 3 S.C.R. 555, the
    Supreme Court noted that the temptation to fashion rigid sentencing principles
    applicable to terrorism offences as a distinct class should be avoided (at
    para. 115). Accordingly, the standard of review on this sentence appeal is the
    same as in all other sentencing appeals: absent an error in law or principle
    that has an impact on sentence, this court may not interfere with the sentence
    unless it is demonstrably unfit:
R. v. Lacasse
, 2015 SCC 64; [2015] 3
    S.C.R. 1089 at paras. 11 and 44. A sentence will be accorded appellate
    deference unless the sentencing judge has erred in principle; failed to
    consider a relevant factor; or erred in his or her consideration of an
    aggravating or mitigating factor, and in all cases only where such an error had
    an impact on the sentence imposed:
R. v. Woolridge,
2016 ONCA 302, 130
    W.C.B. (2d) 14, at para. 8.

[9]

The Crown argues that the sentence imposed was not fit as the trial
    judge erred in his assessment of the seriousness of the offence and Mr. Ahmeds
    actions. Further, it contends that there were reversible legal errors in the
    trial judges application of the principles of totality and parity, and that he
    made palpable and overriding errors of fact in finding that Mr. Ahmed was remorseful
    and had good rehabilitative prospects. The Crown also argues that the trial
    judge erred in the determination under s. 743.6(1.2) with respect to Mr.
    Ahmeds parole eligibility.

[10]

In his cross-appeal, Mr. Ahmed argues that the trial judge erred in law
    in his application of the principles of parity and rehabilitation, in using the
    fact that this was a terrorism offence as an aggravating factor, and in
    refusing to find that Mr. Ahmeds possession of explosive components at the
    time of his arrest was for a non-dangerous purpose.

[11]

I note parenthetically that the Crowns appeal in substance asserts that
    the trial judge erred in undervaluing the seriousness of Mr. Ahmeds offences
    and his culpability, while Mr. Ahmed points in the other direction, saying that
    the trial judge sentenced him too severely without adequate regard to the mitigating
    factors. Each argues that this court should set aside the sentence and impose a
    sentence directly in line with what was sought at first instance.

[12]

For the reasons that follow, I would dismiss the appeal and
    cross-appeal. In my view the 12 year global sentence imposed on Mr. Ahmed for
    the two terrorism-related offences in respect of which he was convicted,
    reveals no reversible error, is entitled to deference, and in all the
    circumstances was a fit sentence. Further, there is no reason to interfere with
    the trial judges disposition concerning Mr. Ahmeds parole eligibility.

B.

REASONS FOR SENTENCE

[13]

Because of the broad-based attacks on the trial judges sentencing
    decision advanced by both parties, including assertions that he erred in law
    and in the weight he gave to various factors, it is helpful to begin with a brief
    summary of the evidence at the sentencing hearing, and of the trial judges
    comprehensive reasons for sentence.

[14]

The sentencing followed Mr. Ahmeds trial by judge and jury. Mr. Ahmed
    was convicted on July 11, 2014 after a lengthy trial. He had been on bail for
    approximately four years, and he spent a total of 140 days in custody. The
    sentencing hearing took place on October 14 and October 15, 2014. In the
    interim there was a
Gardiner
hearing (2014 ONSC 5367, [2014] O.J. No.
    4395) in which the trial judge made findings as to relevant facts disclosed by
    the evidence at trial, including aggravating facts (on a standard beyond a
    reasonable doubt) and mitigating facts (on a balance of probabilities):
Criminal
    Code
, ss. 724(2)(b) and 724(3)(e);
R
.
v. Gardiner
, [1982] 2 S.C.R. 368 (the
Gardiner
findings).

[15]

The sentencing proceeded on the basis of the
Gardiner
findings,
    a pre-sentence report (PSR), the expert report and oral evidence of
    psychologist Dr. Wagdy Loza (called by the defence), an outline of the
    offenders education and employment, and letters of support from Mr. Ahmeds
    friends and family. Mr. Ahmed did not testify at the sentencing hearing,
    however he made an in-court statement, pursuant to s. 726 of the
Criminal
    Code.

[16]

The trial judge began his reasons for sentence by incorporating the
Gardiner
findings and by referring to the circumstances of the offences. They included
    the following:

·

Mr.
    Ahmed was involved in a terrorist group with Mr. Alizadeh and Dr. Sher for a
    period of about six months before his arrest. Mr. Ahmed knew from March 6, 2010
    onwards of Mr. Alizadehs desire to form a terrorist group in Ottawa dedicated
    to facilitating violent Jihad, and to conduct attacks in Canada. Mr. Ahmed knew
    Mr. Alizadeh had attended a terrorist training camp in Afghanistan, where he
    learned to construct remote-controlled improvised explosive devices (IEDs), and
    that Mr. Alizadeh had sworn an oath of loyalty to Al-Qaeda and the Taliban. Mr.
    Ahmed was aware that Mr. Alizadeh was in contact with terrorists in
    Afghanistan and Iran, and that he was attempting to arrange IED training for Mr.
    Ahmed. Mr. Ahmed wanted to attend a terrorist training camp of this kind in
    Afghanistan or Pakistan.

·

Mr.
    Ahmed knew that Dr. Sher harboured violent Jihadist views, and that he was in
    contact with a member of the Taliban or Haqqani network, who had offered to
    arrange terrorist training for Dr. Sher.

·

Mr.
    Ahmed shared radical Jihadist propaganda with Mr. Alizadeh and Dr. Sher.

·

Mr.
    Ahmed solicited money from Dr. Sher and another person, and in May 2010 he gave
    Mr. Alizadeh $1,000 of his own money and another $1,000 from Dr. Sher, with the
    intention that the money be sent to foreign terrorists to purchase
    shoulder-mounted weapons, such as rocket-propelled grenades.

·

Mr.
    Ahmed arranged and hosted a meeting on July 20, 2010 for the purpose of
    recruiting Dr. Sher to join him and Mr. Alizadeh in their terrorist ambitions.
    At the meeting, Mr. Ahmed agreed, albeit reluctantly, to lead the terrorist
    group.

·

On
    July 30 and August 2, 2010, Mr. Ahmed gave Mr. Alizadeh $500, knowing that the
    money would be sent to foreign terrorists to purchase grenades. He also
    received money from Dr. Sher for the purchase of grenades.

·

Mr.
    Ahmed knew that Mr. Alizadeh possessed a Presidents Choice bag containing
    components and instructions for constructing remote-controlled IEDs, and that Mr.
    Alizadeh had obtained these items at a terrorist training camp where they had
    been custom-designed by an expert bomb maker. He knew that Mr. Alizadeh
    intended to assemble the components into detonators for use in Canada, and that
    Mr. Alizadeh had videos showing step-by-step instructions on how to construct
    explosives.

·

At
    the time of his arrest, Mr. Ahmed was in possession of the Presidents Choice
    bag and its contents. The trial judge rejected the contention that Mr. Ahmeds
    acquittal on the third charge meant that he possessed the bag with his stated
    intention of disposing of its contents. He concluded that neither the Crown nor
    the defence had proven the purpose for which Mr. Ahmed possessed the
    explosive devices.

·

Mr.
    Ahmed believed it was his duty to assist violent Jihadist causes. He supported
    the Taliban. He wanted the Taliban to defeat the Karzai government and the
    United Nations mandated coalition forces that supported the Karzai regime. He
    believed it was morally legitimate for the Taliban to kill Canadian soldiers in
    Afghanistan.

[17]

After outlining his findings respecting the circumstances of the
    offences, the trial judge turned to the expert evidence of Dr. Wagdy Loza, a
    clinical psychologist in the Canadian penitentiary system, and an expert in
    assessing the dangerousness of offenders. Dr. Loza assessed Mr. Ahmeds
    psychological functioning, mental and emotional stability and the probability
    of violent and non-violent recidivism. He ultimately concluded that Mr. Ahmed
    posed a low risk for committing any further offence related to terrorism.

[18]

The trial judge observed that Mr. Ahmed, in speaking with Dr. Loza,
    downplayed his culpability, and offered explanations for his conduct that were
    inconsistent with the
Gardiner
findings. The sentencing judge
    disagreed with Dr. Loza in several respects. For example: contrary to Dr.
    Lozas observations, Mr. Ahmed was, at the time of the offences, committed
    to violent Jihad and far more a willing co-conspirator than a passive receptor
    of Mr. Alizadehs radical Jihadist philosophy (at para. 44). Further, the
    trial judge disagreed with  Dr. Lozas characterization that certain statements
    amounted to  expressions of remorse.

[19]

Notwithstanding his criticisms of Dr. Lozas observations, the trial
    judge observed that it would be folly to summarily dismiss his opinion
    altogether. The trial judge concluded that in the four years since his arrest,
    Mr. Ahmed had learned his lesson and he agreed with Dr. Loza that Mr.
    Ahmed was at a very low risk to reoffend and become involved in any further
    terrorist activity. He reached this conclusion on the basis of his own
    observations of Mr. Ahmed during the course of the trial, including his
    unerring politeness and dignified bearing during the course of a long and
    probing examination in-chief and cross-examination, [and] his heartfelt
    expression of remorse which brought many in the courtroom to tears (at para.
    51).

[20]

The trial judge then turned to Mr. Ahmeds personal circumstances. He
    was born in Pakistan, lived for eight years in Saudi Arabia and immigrated with
    his family to Canada when he was 14. He completed his schooling and received
    some post-secondary education, eventually graduating from a diagnostic imaging
    program. He also travelled to Syria where he said he learned to speak and read
    Arabic in order to assist in reading the Quran. At the time of his arrest in
    2010, Mr. Ahmed was 26 years old, married with three young children and was
    working as an imaging technician at a hospital in Ottawa. He had no prior
    criminal record. While on bail, Mr. Ahmed completed a number of educational
    courses, including credits toward a Bachelors degree in Accounting. He enjoyed
    positive relationships with numerous Christians in his community. He had 75
    letters sincerely expressing support for him.

[21]

The trial judge discussed the principles of sentencing. He noted the
    observation of the Supreme Court in
R. v. Khawaja
, that the general
    principles of sentencing, including the totality principle, apply to terrorism
    offences. He also noted that denunciation and deterrence are the primary
    considerations in sentencing terrorism offenders.

[22]

The trial judge identified two relevant aggravating factors from the
Criminal
    Code
that he concluded were present in this case: first, that the offence
    was motivated by bias, prejudice or hate based on race, national or ethnic
    origin, or religion (s. 718(2)(a)(i)); and second, that the offences were terrorism
    offences (s. 718(2)(a)(v)). The trial judge also noted the gravity of the offences
    and the length of Mr. Ahmeds involvement as aggravating factors.

[23]

As for Mr. Ahmeds prospects for rehabilitation, the trial judge referred
    to
Khawaja
, where the Supreme Court held that, for terrorism offences,
    it remained within the trial judges discretion to decide the weight of
    rehabilitation on a case-by-case basis. He concluded that Mr. Ahmeds rehabilitative
    prospects were promising, although he noted, [i]ndividual rehabilitation is of
    little weight in fashioning appropriate sentences [in terrorism cases] (at
    para. 81).

[24]

While the trial judge noted this courts caution in
R. v. Khalid
, 2010 ONCA 861, 266 C.C.C. (3d) 405 (leave to appeal
    to SCC refd, (2013) 312 OA.C. 400 (note)),
with respect to using
    youth as a mitigating factor, he nevertheless concluded that Mr. Ahmeds
    relatively young age and lack of criminal record were mitigating factors that
    merited consideration. However, these considerations were subordinate to the
    principles of denunciation and deterrence.

[25]

Under the heading Parity, the trial judge reviewed the sentencing
    precedents put to him by counsel, including the sentences of the various
    members of the Toronto 18. He concluded that Mr. Ahmeds culpability was more
    comparable to the subordinate camp plot offenders than the bomb plot
    offenders in those cases. They received sentences between six years and five
    months and ten years. The trial judge was of the view that, had the sentencing
    judges in these cases had the benefit of this courts decisions in
Khalid
and
R. v. Gaya
, 2010 ONCA 860, 266 C.C.C. (3d) 428 (leave to appeal to
    the SCC refd, (2013)
312 O.A.C. 400
    (note)),
these offenders would have received higher sentences.

[26]

The trial judge considered the most important benchmark to be Mr. Alizadehs
    sentence of 24 years, after a guilty plea and joint submission. The trial judge
    considered Mr. Alizadehs actions in connection with the terrorist group, and
    noted that unlike Mr. Alizadeh, Mr. Ahmed had not been convicted of the more
    serious bomb-making charge, and that any leadership role he assumed was
    limited.

[27]

The trial judge took into account the principle of totality. He noted
    that, while the legal requirements of each count were different, the factual
    foundation was exactly the same (at para. 108). He concluded the sentence of
    20 years sought by the Crown would effectively punish the offender twice for
    the same conduct and would constitute an inappropriate punishment (at para.
    109).

[28]

The trial judge imposed a global sentence of 12 years, which he
    allocated as five years for conspiracy to facilitate terrorism and seven years
    for participating in the activities of a terrorist group. The trial judge also
    noted that, but for the fact that he was convicted of terrorism offences rather
    than some other serious offence, Mr. Ahmed would likely have been considered an
    appropriate candidate for a conditional sentence. He gave Mr. Ahmed 12 months
    credit  seven months for pre-sentence custody and five months to account for
    his bail conditions.

[29]

Mr. Ahmeds parole eligibility was left to be determined in accordance
    with the
Corrections and Conditional Release Act.

C.

Issues on Appeal

[30]

The Crown advances six grounds of appeal; Mr. Ahmed argues four. Some of
    the issues are overlapping. I have grouped the issues as follows:

1.

Did the trial judge err in his assessment of the gravity of the offences
    and the offenders actions? Did the trial judge err in his application of the parity
    principle?

2.

Did the trial judge err in his approach to rehabilitation, remorse and
    the risk of reoffending? Did he under or overemphasize these factors, as well
    as the offenders age?

3.

Did the trial judge err in his application of the totality principle?

4.

Did the trial judge err in making findings of fact inconsistent with
    Mr. Ahmeds acquittal on the explosives charge?

5.

Did the trial judge err in using the fact these were terrorism offences
    as an aggravating factor?

6.

Did the trial judge err in his determination of the period of parole
    ineligibility for Mr. Ahmed?

(1)

Issue 1: Did the trial judge err in his assessment of the gravity of the
    offences? Did he err in his application of the parity principle?

[31]

The Crown submits that the trial judge erred in his assessment of the
    gravity of the offences. The Crown says that the judge misapprehended the
    evidence about Mr. Ahmeds level of culpability and in particular erred in
    treating him as less culpable than his co-conspirator, Mr. Alizadeh.

[32]

The Crown also argues that, in determining a fit sentence for Mr. Ahmed,
    the trial judge erred in comparing him to the subordinate camp plot offenders
    (in the Toronto 18 cases). By virtue of this comparison, the trial judge
    imposed too low a sentence on Mr. Ahmed. Mr. Ahmeds actions were more
    comparable to Ahmad, who led the camp plot, and those of certain bomb plot offenders.

[33]

Mr. Ahmed asserts that, while the trial judge was correct in comparing
    his conduct to that of the subordinate camp plot offenders, this ought to have
    attracted a sentence in the five to eight year range, and the trial judge erred
    in imposing a significantly higher sentence than most of the camp plot
    members received.

[34]

Mr. Ahmed submits that, while the trial judge was correct to regard
    Mr. Ahmed as less culpable than Mr. Alizadeh, he erred in using that
    sentence as a benchmark, where Mr. Alizadeh was sentenced to a more serious
    offence that was subject to a maximum life sentence.

(a)

Did the trial judge err in his assessment of the seriousness of the offences?

[35]

I deal first with the Crowns argument that the trial judge undervalued
    the seriousness of the offences and Mr. Ahmeds conduct, in particular in
    relation to the conduct of his co-accused Mr. Alizadeh. The Crown points to the
    evidence that Mr. Ahmed had agreed to become the leader of the terrorist group
    and that he shared Mr. Alizadehs commitment to violent Jihad.

[36]

Section 718.1 of the
Criminal Code
provides that a sentence must
    be proportionate to the gravity of the offence and the degree of responsibility
    of the offender. Typically, the assessment of the seriousness of an offence and
    an offenders conduct involves findings of fact that attract a standard of
    deference:
R. v. Gerk
, 2016 ABCA 162, 130 W.C.B. (2d) 374, at para.
    26;
R. v. McLean
, 2016 SKCA 93, 132 W.C.B. (2d) 96, at para. 34. A
    legal error may exist where the trial judges assessment of the conduct is
    contrary to, or not supported by, the evidence.

[37]

In
Khawaja
, for example, McLachlin C.J. noted that it was an
    error for the trial judge to have devalued the seriousness of the appellants
    conduct
in a way that was inconsistent with the evidence
[emphasis
    added] (at para. 117). The trial judge characterized Khawajas level of
    involvement in the offences as being of a low order compared with that of
    others in the terrorist group. This court (at 2010 ONCA 862, 103 O.R. (3d) 321)
    and the Supreme Court said this finding was unreasonable, as it was contrary to
    the evidence of what the appellant had done to help the terrorist group
    perpetrate mass violence: helping to finance a terrorist group; offering the
    group training in electronics; building devices intended to serve as remote
    triggers for IEDs; and going to Pakistan to train for combat in Afghanistan,
    all while encouraging and applauding violent Jihad (at para. 118).

[38]

In this case, there is no indication that the trial judge devalued
    Mr. Ahmeds culpability in a way that was inconsistent with the evidence. The
    trial judge carefully described Mr. Ahmeds conduct. He noted that Mr. Ahmed consumed
    and shared radical Jihadist propaganda, was looking to attend a terrorist
    training camp abroad, and had taken active steps as part of the terrorist
    group, including recruiting Dr. Sher, and raising money for weapons. The trial
    judge accepted, contrary to what Mr. Ahmed told Dr. Loza, that, at the time of
    the offences, Mr. Ahmed was fully committed to violent Jihad, and that his
    involvement in the offences was not a momentary lapse in judgment but continued
    for more than six months.

[39]

By contrast, the trial judge characterized Mr. Alizadeh as the primary
    instigator. He sought to establish a terrorist group dedicated to facilitating
    violent Jihad, he travelled to Afghanistan to receive weapons training,
    including training on how to assemble and detonate remote-controlled IEDs, and
    he smuggled bomb-making components and instructions as well as Jihadist
    propaganda videos into Canada. He used propaganda videos to radicalize Mr.
    Ahmed. Mr. Alizadeh was in regular contact with terrorists in Afghanistan
    and Iran, and raised and sent money to insurgents on two occasions. He
    possessed detonator components, intending to assemble them into a triggering
    device and he attempted to arrange terrorist training for Mr. Ahmed.

[40]

I reject the Crowns assertion that the trial judge erred in finding
    that Mr. Alizadeh was the true leader of the terrorist group, notwithstanding
    Mr. Ahmeds election as leader at the July 2010 meeting. While the trial
    judge rejected the suggestion that the election of Mr. Ahmed as leader was a laughing
    matter, he nevertheless characterized him as reluctantly agreeing, and he
    stated that any leadership role assumed by Mr. Ahmed was limited. The findings
    about Mr. Ahmeds and Mr. Alizadehs respective roles, and the conclusion that Mr. Ahmed
    was not the instigator, but a follower, were open to the trial judge, and amply
    supported by the evidence of their conduct during the six months of their
    involvement together in the terrorist group. And, contrary to the Crowns
    submission, I do not agree that Mr. Ahmeds culpability should be measured
    solely on whether he was as committed as Mr. Alizadeh was to violent Jihad (the
    trial judges reasons suggest he was very committed). Rather, the
    proportionality principle dictates that the offenders role in the terrorist
    group and his actions are of key importance.

[41]

The Crown also argues that the trial judge
    downplayed the seriousness of the offence by focusing on the degree of
    readiness of the terrorist group rather than on the offenders level of
    determination. The Crown relies on the decision in
Khawaja
as support for this proposition. In
Khawaja
, this court found that the sentencing judge erred in holding that
    Khawajas co-conspirators were way out in front of him when they all had the
    same level of subjective determination, as this factual finding was not borne
    out on the record (at para. 194). The Supreme Court in
Khawaja
agreed that the trial judge effectively devalued the seriousness
    of [Khawajas] conduct in a way that was inconsistent with the evidence (at
    para. 117).

[42]

The trial judge in this case did not commit the
    error alleged by the Crown. His reference to the lack of concrete steps taken
    by Mr. Ahmed was within his parity analysis to distinguish Mr. Ahmeds
    conduct from that of the bomb plot offenders in the Toronto 18. Unlike
Khawaja
, the issue is not that Mr. Ahmed lagged behind Mr. Alizadeh in
    terms of realizing their violent plans (C.A.
Khawaja
, at para. 196). Rather, the trial judge found that there were no
    concrete plans: Mr. Ahmed and Mr. Alizadeh had not identified specific
    targets, nor acquired bomb-making chemicals (at para. 90). As a result, their
    actions were less serious than the actions of the bomb plot offenders who had
    identified targets and had a scheme that was thoroughly researched and
    meticulously planned:
R. v. Amara
, 2010 ONCA
    858, at para. 9. It was appropriate for the trial judge in this case to note
    the lack of concrete steps as a point of departure from the bomb plot cases.

[43]

At no point did the trial judge compare the
    degree of readiness and the subjective determination of Mr. Ahmed and Mr. Alizadeh.
    The comparison between the co-conspirators in this case focused on
    Mr. Alizadehs role as the real leader and his conviction for the more
    serious bomb charge. Again, these are proper points of comparison:
R.
    v. Chand
, 2010 ONSC 6538, [2010] O.J. NO. 6370.

[44]

Absent a legal error, including a material misapprehension of the
    evidence, the determination of the seriousness of the offence and the
    offenders culpability was within the proper purview of the trial judge. Even
    if this court had a different view as to the respective levels of culpability
    of Mr. Ahmed and his co-accused, this alone would not justify interference with
    the trial judges assessment:
Gaya
, at para. 18.

[45]

As such, I would reject this argument by the Crown. There was no reversible
    error in the trial judges assessment of the gravity of the offences and Mr.
    Ahmeds participation in them.

(b)

Did the trial judge err in his application of the parity principle?

[46]

The parity principle requires, to the extent possible, consistency in
    sentencing offenders in comparable circumstances. Section 718.2(b) of the
Criminal
    Code
provides that a sentence should be similar to sentences imposed on
    similar offenders for similar offences committed in similar circumstances. It
    is a fundamental principle of justice that like cases be treated alike: R.
    Cross,
Punishment, Prison and the Public
(London: Colin Steven and
    Sons, 1971), at p. 167.

[47]

The trial judge considered the various sentencing precedents respecting
    terrorism offences. He appended to his reasons a chart summarizing the cases,
    including the charges and maximum penalties available, relevant facts, and
    whether the offender had pleaded guilty. Ultimately, the trial judge determined
    that there were two key comparators for Mr. Ahmeds culpability.

[48]

First, the trial judge considered the sentences received by members of
    the Toronto 18. He described how the members of the bomb plot took concrete
    steps towards detonating three truck bombs at specific identified targets. Subordinate
    members of the bomb plot group received sentences ranging from 18 years to life,
    while Amara, the leader, received a sentence of life imprisonment (upheld on
    appeal in
R. v. Amara
, 2010 ONCA 858, 266 C.C.C. (3d) 422, leave to
    appeal to SCC refd (2013), 312 O.A.C. 400.The trial judge noted that Mr. Ahmeds
    acquittal on the bomb-related charge and the lack of concrete steps towards an
    attack distinguished his conduct from that of the bomb plot offenders. He
    described Mr. Ahmeds situation as more comparable to that of the subordinate
    members of the camp plot. The camp plot members planned to conduct armed
    terrorist attacks against targets described as critical infrastructure. They
    were involved in arranging terrorist training and setting up a training camp in
    Ottawa. Its leader, Ahmad, was sentenced to 16 years, while five other members
    of the group received sentences of between six years and five months and ten
    years, some after pleading guilty.

[49]

The trial judge reviewed the circumstances and sentences in each case. He
    noted that the sentences imposed in the camp-plot cases would likely have been
    higher had the sentencing judges had the benefit of this courts decisions in
Khalid
and
Gaya
(increasing their
    sentences by six years each, after concluding that the sentencing judge had
    overemphasized mitigating factors.)

[50]

The trial judge noted that perhaps the most important benchmark was the
    sentence given to Mr. Alizadeh, who pleaded guilty to a single charge of
    possessing explosive substances with an intent to endanger life in association
    with a terrorist group, and received a sentence of 24 years following a joint
    submission. Mr. Ahmed, in comparison, was not convicted of the more serious
    charge and any leadership role he assumed was limited.

[51]

The Crown submits that the trial judge erred in comparing Mr. Ahmeds
    culpability to that of the subordinate members of the camp plot in the
    Toronto 18 cases, rather than that of the leader, Ahmad. This is premised on the
    argument that Mr. Ahmeds level of culpability was close to that of Mr.
    Alizadeh, based on his close association with Mr. Alizadeh who planned to
    construct explosives, his determination and commitment to violent Jihad, and his
    assumption of a leadership role. I have already rejected that argument, and
    concluded that there was no error in the trial judges assessment of the
    respective roles of Mr. Ahmed and Mr. Alizadeh and their culpability, which was
    based on the evidence. Therefore, I would not give effect to the Crowns
    argument that the trial judge erred in his parity analysis when he compared Mr. Ahmed
    to the subordinate members of the Toronto 18 camp plot, rather than to its
    leader Ahmad.

[52]

On the issue of parity, Mr. Ahmed asserts that, after correctly
    comparing Mr. Ahmeds level of culpability to that of the subordinate camp
    plot offenders in the Toronto 18, the trial judge erred in imposing a much
    higher sentence than those offenders received. Mr. Ahmed says that it was wrong
    for the trial judge to assume that the sentences for such offenders would have
    been higher in light of
Khalid
and
Gaya
where this court
    increased the sentences for two Toronto 18 bomb plot offenders. He argues that the
    Supreme Court in
Khawaja
stepped back from the hardline approach in
    those cases. Further, Mr. Ahmed seeks to distinguish his conduct from that of
    some of the members of the camp plot who participated to a more significant
    degree in terrorist group activities.

[53]

I would not give effect to these arguments.

[54]

The trial judge gave careful consideration to the sentencing precedents.
    It was reasonable for him to consider the sentences other terrorism offenders
    had received in light of subsequent developments in the case law, including the
    fact that the sentences for Khalid and Gaya were increased on appeal. Because
    Khalid and Gaya were sentenced first (with Khalid as the first guilty plea
    among the Toronto 18 offenders), their sentences informed the approaches of the
    parties and the sentencing judges in the other Toronto 18 cases. The trial
    judge also noted that, although the Supreme Court in
Khawaja
differed
    from this court in terms of its articulation of certain sentencing principles,
    it upheld the significant increase in sentence in that case, and emphasized the
    importance of denunciation and deterrence. Further, after
Khawaja
was
    decided by the Supreme Court, Khalid and Gaya were denied leave to appeal to that
    court.

[55]

And, while there were no doubt differences between Mr. Ahmeds conduct
    and that of individual members of the camp plot, the trial judge considered
    the specific facts of each case and there was no error in principle in his
    reference to the range of such sentences as an appropriate comparator. Moreover,
    the choice of sentencing range is not in itself a reviewable error:
Lacasse
,
    at para. 51;
R. v. Lloyd
, 2016 SCC 13, 1 S.C.R. 130, at para. 52.

[56]

For these reasons, I see no reversible error in the trial judges application
    of the parity principle, in particular in identifying a range of sentences
    based on sentences given to the subordinate camp plot offenders in the
    Toronto 18, in light of subsequent developments in the jurisprudence, and in
    comparing Mr. Ahmeds conduct and culpability with that of his co-conspirator,
    Mr. Alizadeh.

(2)

Issue 2: Did the trial judge err in his approach to rehabilitation,
    remorse and the risk of reoffending? Did he under or overemphasize these
    factors, as well as the offenders age?

[57]

Both the Crowns appeal and Mr. Ahmeds cross-appeal take issue with the
    trial judges treatment of the mitigating factors of rehabilitation, remorse
    and the offenders position as a relatively youthful first offender.

[58]

The trial judge concluded that Mr. Ahmeds prospects for rehabilitation
    were promising. He nevertheless stated that [i]ndividual rehabilitation is of
    little weight in fashioning appropriate sentences in terrorism cases (at para.
    81).

[59]

Mr. Ahmed says that the trial judges approach to this issue reflects an
    error in law, as the Supreme Court specifically rejected the principle the
    trial judge articulated about the role of rehabilitation in terrorism offences.
    Mr. Ahmed also contends that a reduced sentence was warranted, having regard to
    the strong evidence of his rehabilitative potential. Finally, Mr. Ahmed argues
    that the trial judge failed to consider the principle that rehabilitation is
    the most important sentencing factor for youthful first offenders.

[60]

The Crown asserts that there was no error in the trial judges
    statements of legal principle, including with respect to youthful first
    offenders convicted of terrorism offences. The Crown however submits that the
    trial judge misapprehended the evidence when he concluded that the appellant had
    good rehabilitative prospects, was at a low risk to reoffend and expressed
    remorse. Even if there was evidence of remorse, the Crown argues the trial
    judge gave too much weight to remorse and Mr. Ahmeds age in sentencing.

(a)

Did the trial judge err in law in his comments about the role of
    rehabilitation in sentencing in terrorism offences?

[61]

The trial judges statement that in cases of terrorism, individual rehabilitation
    is of little weight in fashioning appropriate sentences, read in isolation, is
    inconsistent with what the Supreme Court said in
Khawaja,
at para.
    124. However, when read in the context of his other accurate statements of the
    law and the trial judges actual treatment of the evidence concerning rehabilitation,
    this is not a reversible error. Rather, he decided that, having regard to the
    seriousness of Mr. Ahmeds offence and his conduct, the role of rehabilitation
    was less important than deterrence and denunciation in fixing an appropriate
    sentence.

[62]

In
Khawaja,
the Supreme Court rejected the view expressed by
    this court, that rehabilitation as a mitigating circumstance is significantly
    reduced in the context of terrorism offences, given the unique nature of the
    crime and the grave and far-reaching threat that it poses to the foundations of
    our democratic society: C.A.
Khawaja
, at para. 201. Rather, McLachlin
    C.J. noted that [t]he terrorism provisions catch a very wide variety of
    conduct, suggesting that the weight to be given to rehabilitation in a given
    case is best left to the reasoned discretion of trial judges on a case-by-case
    basis (at para. 124).

[63]

In this case, the trial judge referred to these principles from
Khawaja
and in particular that the role of
    rehabilitation was for his reasoned discretion.
He also referred to
    other passages in
Khawaja
in which the Supreme Court emphasized the
    importance of the principles of denunciation and deterrence given the
    seriousness of terrorism offences.

[64]

In my view, there was no error in the trial judges approach to the
    weight to be given to evidence concerning Mr. Ahmeds rehabilitative potential.
    His reasons, read as a whole, demonstrate that he did not entirely discount the
    significance of such evidence. Rather, he used his reasoned discretion to
    conclude that denunciation and deterrence were more important factors than
    rehabilitation in sentencing Mr. Ahmed, having regard to the seriousness of the
    offences and Mr. Ahmeds conduct. The question of weight to be given to
    relevant sentencing factors is for the trial judge. An appellate court may not
    interfere simply because it might have weighed the relevant factors
    differently, unless the weighing was unreasonable:
Lacasse
, at paras.
    49 and 78.

[65]

I also specifically reject Mr. Ahmeds submission that rehabilitation
    ought to have been the primary consideration in his sentencing because he was a
    relatively youthful first offender, and that the trial judge ignored this
    factor. While sentences imposed on young first offenders will often stress
    individual deterrence and rehabilitation, the importance and weight of other
    factors increases with the seriousness of the crime:
R. v. Thurairajah
,
    2008 ONCA 91, 89 O.R. (3d) 99, at paras. 41-42;
R. v. Brown
, 2015 ONCA
    361, 126 O.R. (3d) 797, at para. 5; and
Khalid
, at para. 43. And, as
    this court noted in
Khalid
, in terrorism cases, youth and the lack of
    criminal antecedents, while relevant considerations, must be viewed through a
    different lens, as youthful first offenders are attractive recruits to
    sophisticated terrorists: at para. 47.

[66]

I see no error in the trial judges conclusion that Mr. Ahmeds
relatively
young age (26 years old) and lack of a criminal record were mitigating factors,
    but subordinate to the principles of denunciation and deterrence. Again, it was
    for the trial judge to make a reasoned determination for the role of
    rehabilitation in this case.

(b)

Did the trial judge err in his assessment of the evidence of Mr. Ahmeds
    rehabilitative potential and remorse?

[67]

The Crown submits that the trial judge misapprehended the evidence of
    rehabilitation and remorse, and gave these factors too much weight in
    sentencing Mr. Ahmed.

[68]

First, there is the question of the trial judges treatment of the
    evidence of Dr. Loza. The Crown says that the trial judge erred in relying on
    the opinion of Dr. Loza, when it was based on his interviews with Mr.
    Ahmed in which he continued to deny responsibility for the offences and
    minimized and downplayed his role. Further, some of the factual underpinnings
    of the psychologists report were contrary to the trial judges
Gardiner
findings. The Crown says that it is evident from the 37 paragraphs the trial
    judge devoted to Dr. Lozas evidence, that his evidence played a significant
    role in his conclusions about Mr. Ahmeds rehabilitative potential and
    ultimately in the sentence imposed.

[69]

I disagree. The trial judge had no choice but to carefully consider
    Dr. Lozas opinion. His evidence, which was admitted without objection at
    the sentencing hearing, was relevant to (but not determinative of) the
    important question of Mr. Ahmeds likelihood to reoffend, and his level of
    continuing dangerousness. By contrast, in
Khawaja
,
in the face of compelling evidence of
    dangerousness, the absence of evidence about the offenders probability of
    reoffending or rehabilitative prospects, was sufficient to justify a stiffer
    sentence: at paras. 123 and 124.

[70]

The trial judges reasons do not reveal the error alleged by Crown. The
    trial judge approached Dr. Lozas evidence with caution, recognizing that his
    opinions were informed in part by what Mr. Ahmed told him. The trial judge found
    that, contrary to Dr. Lozas observations, the evidence at trial clearly
    indicated that Mr. Ahmed was, at the time of the offences, committed to
    violent Jihad (at para. 39) and far more a willing co-conspirator than a
    passive receptor of Mr. Alizadehs radical Jihadist philosophy (at para.
    44). Nor did he accept the experts opinion that Mr. Ahmeds statements to Dr.
    Loza represented an expression of remorse; rather, the trial judge
    characterized these statements as an expression of regret for having become
    involved in a terrorist activity and being convicted by a jury for his
    involvement (at para. 42). As such, the trial judge did not uncritically
    accept Dr. Lozas opinion; rather, he said it should not be rejected summarily,
    and went on to make his own assessment. This, in my view, he was entitled to
    do.

[71]

The trial judge considered evidence other than Dr. Lozas opinion in arriving
    at his own conclusion that Mr. Ahmed was at a very low risk to reoffend and
    become involved in any further terrorist activity. The evidence included the 75
    letters of support from family and friends, Mr. Ahmeds conduct during the
    course of the trial, and his in-court statement, which the trial judge accepted
    as a heartfelt expression of remorse.

[72]

The Crown says that none of this evidence ought to have satisfied the
    trial judge that Mr. Ahmed was amenable to rehabilitation or expressed remorse.
    The Crown contends that the letters of support were from people who for the
    most part were unaware of Mr. Ahmeds terrorist sympathies and activities; the
    in-court statement did not amount to an unqualified acceptance of
    responsibility and renunciation of his terrorist sympathies, and in any event
    counted for little as it was offered only after conviction. And Mr. Ahmeds
    polite and dignified bearing in court was essentially irrelevant. The Crown
    says that in this case, as in
Khawaja
,

there was simply no
    evidence on which the trial judge could reasonably conclude that Mr. Ahmed was
    unlikely to reoffend.

[73]

I disagree. Ultimately it was for the trial judge to make a reasoned
    assessment, based on the evidence, of Mr. Ahmeds prospects for rehabilitation
    and his likelihood to reoffend. Unlike in
Khawaja
, where there was no such evidence at all,

there was considerable evidence that the court could consider, in addition
    to the circumstances of the offences, in assessing Mr. Ahmeds continuing
    dangerousness. A great deal of personal information was available through the
    PSR and the sessions with Dr. Loza. The letters of support contained
    significant details of Mr. Ahmeds community engagement and support, and, while
    expressing surprise at Mr. Ahmeds involvement in terrorist activities, did not
    deny the seriousness of his offences. There was evidence of Mr. Ahmeds
    educational pursuits and activities during the four years he was on bail. It
    was open to the trial judge to consider Mr. Ahmeds in-court statement to be a
    genuine expression of remorse, even if it was offered late in the day, and even
    if it did not contain a detailed admission of all that he had done and an
    unqualified renunciation of the beliefs that informed and led to the offences. The
    trial judge was able to consider all of this evidence, as well as the serious
    and disturbing evidence about Mr. Ahmeds involvement and participation in the
    offences, in his assessment of his likelihood to reoffend.

[74]

I would therefore reject the Crowns submission that the trial judge
    misapprehended the evidence and that there was no evidence to support his
    conclusions as to Mr. Ahmeds rehabilitative potential. There is no basis to
    interfere with the trial judges findings with respect to rehabilitation and
    remorse.

[75]

In the alternative, the Crown also submits that even if there were evidence
    of remorse, the trial judge erred in the weight he gave to Mr. Ahmeds
    expression of remorse and his age as sentencing factors. The Crown says that,
    despite the trial judges statements to the contrary, he must have given
    significant weight to these factors, because the sentence was so light, and
    because of the trial judges comment that, but for the offences being terrorism
    offences, Mr. Ahmed would have been a candidate for a conditional sentence.
    This comment, says the Crown, informed the entire sentencing process.

[76]

I disagree. First, there is nothing to support the Crowns assertion
    that the sentence was too light, which is premised on the earlier argument that
    I have rejected, that the trial judge undervalued the seriousness of the
    offences. The sentence of 12 years was informed by the sentences of similar
    offenders for similar offences and proportional to the gravity of the offences
    and Mr. Ahmeds culpability. Second, the reference to Mr. Ahmeds being a
    candidate for a conditional sentence, simply confirms what the trial judge said
    about his rehabilitative potential, and that he was not dangerous. There is
    nothing in the trial judges reasons to suggest that the starting point was a
    conditional sentence. To the contrary, the trial judge specifically emphasized
    the importance of the principles of deterrence and denunciation, he considered
    Mr. Ahmeds prospects for rehabilitation to be of little weight, and he concluded
    that as a result of the crimes Mr. Ahmed committed the suggestion that Mr.
    Ahmed be given a conditional sentence to be served in the community simply
    cannot be entertained[and he] must go to jail for a lengthy time (at para.
    79).

[77]

Accordingly, I would reject this ground of the Crowns appeal.

(3)

Issue 3: Did the trial judge err in his application of the totality
    principle?

[78]

The issue of totality arose in this case because of the requirement in
    s. 83.26 of the
Criminal Code
that a sentence other than one of life
    imprisonment, imposed on a person for a terrorism offence be served
    consecutively to any other punishment imposed on the person for an offence
    arising out of the same event or series of events.

[79]

The totality principle is a particular application of the general
    principle of proportionality: C. Ruby, G. Chan and N. Hasan,
Sentencing
,
    8th ed. (Markham: LexisNexis Canada Inc., 2012) at 2.63. It requires a sentencing
    judge who orders an offender to serve consecutive sentences for multiple
    offences to ensure that the cumulative sentence rendered does not exceed the
    overall culpability of the offender:
R. v. M.(C.A.)
, [1996] 1 S.C.R.
    500, at p. 531. Following
M.(C.A.)
, the sentencing provisions in the
Criminal
    Code
were amended. Proportionality was included as the fundamental
    principle of sentencing (s. 718.1) and sentencing courts were instructed to
    take into consideration the totality principle when imposing consecutive
    sentences to ensure that the combined sentence is not unduly long or harsh (s.
    718.2(c)). The totality principle applies in sentencing persons convicted of
    terrorism offences:
Khawaja
, at para. 126.

[80]

The trial judge addressed the principle of totality, and applied it in
    the following way. First, he observed that, while the legal requirements of the
    two offences of which Mr. Ahmed was convicted were different, the factual
    foundation for each count was exactly the same. He stated:

[i]n my view, where the same factual foundation forms the basis
    of liability on each count it would be an error in principle, not to mention
    manifestly unfair to the person convicted, to render a sentence that
    effectively punishes the offender twice for the same conduct. That, in effect,
    is what Crown counsel is urging me to do [in requesting a global sentence of 20
    years] (at para. 108).

He concluded that a sentence of 20 years would constitute
    an inappropriate punishment, where [t]he penalty would outstrip [Mr. Ahmeds]
    degree of culpability (at para. 109). The trial judge then fixed a global
    sentence of 12 years, which he allocated to five years for the conspiracy to
    facilitate offence and seven years for the offence of participating in a
    terrorist group.

[81]

The Crown says that the trial judge erred in his approach to totality: first
    he should have fixed an appropriate sentence for each offence without regard to
    totality, and then he ought to have looked at the total sentence to assess
    whether or not it was excessive as to Mr. Ahmeds overall culpability, using
    the combined maximum sentences of 24 years as the standard. This, according to
    the Crown, is what is anticipated by s. 83.26 of the
Criminal Code
. The
    Crown contends that the trial judge, in invoking the totality principle before
    setting out the sentences for the individual offences, frustrated the will of
    Parliament expressed in the requirement to impose consecutive sentences, and in
    effect imposed the equivalent of a concurrent sentence.

[82]

Mr. Ahmed submits that the trial judge correctly concluded that the factual
    foundation for the two offences was exactly the same in this case, and that the
    totality principle applied. In argument on the appeal, he went further and asserted
    that, because the charges were duplicative, the appropriate sentence ought to
    have been based on a range of 0 to 14 years (the maximum sentence for conspiracy
    to facilitate), and then allocated between the two offences. Looked at this
    way, the sentence of 12 years was too severe.

[83]

As I will explain, I see no reversible error in how the trial judge approached
    and applied the totality principle.

[84]

First, I address the Crowns argument that sentences should initially be
    fashioned for each count and then subsequently adjusted (if necessary) in
    accordance with the totality principle. This approach has been endorsed in
    certain appellate decisions from other provinces:
R. v. Punko
, 2010
    BCCA 365, 258 C.C.C. (3d) 144, at paras. 93-96, leave to appeal to SCC refd
    (2011), 303 B.C.A.C. 320 (note);
R. v. Hutchings
, 2012 NLCA 2, 282
    C.C.C. (3d) 104, at paras. 20-26, and 84;
R. v. Adams
, 2010 NSCA 42, 255
    C.C.C. (3d) 150, at paras. 23-28; and
R. v. Draper
, 2010 MBCA 35, 253
    C.C.C. (3d) 351, at para. 30. See also the trial level decision in Ontario in
R.
    v. M.E
., 2012 ONSC 1078, 100 W.C.B. (2d) 610, at paras. 63-69. The Crown
    says that, if the judge had first determined Mr. Ahmeds individual sentences
    for each offence, and then adjusted the sentence, looking to an available range
    of 24 years, he would have sentenced Mr. Ahmed to a much longer sentence of
    imprisonment.

[85]

I disagree with the Crowns submission that the trial judge made a legal
    error in his application of the totality principle. The approach taken by the
    trial judge here is consistent with the decision of this court in
R. v.
    Jewell
(1995), 100 C.C.C. (3d) 270 (Ont. C.A.). In
Jewell
, this
    court said that the trial judge should first identify the gravamen of the
    conduct giving rise to all of the criminal offences, and next determine the
    total sentence to be imposed. Having determined the appropriate total
    sentence, the trial judge should impose sentences with respect to each offence which
    result in the total sentence, and which appropriately reflect the gravamen of
    the overall criminal conduct: p. 279. See also
R. v. R.B.
, 2013 ONCA
    36, 114 O.R. (3d) 465, at para. 30, where this approach to totality was
    followed, and
R. v. Smith
, 2011 ONCA 564, 274 C.C.C. (3d) 34, at fn.
    2, where this court, referring to the differing approaches in the appellate
    courts (citing
Jewell
,
Adams
and
R.
    v. Wozny
, 2010 MBCA 115, [2011] 2 W.W.R. 630 (C.A.), noted
    that the proper approach to sentencing an offender for multiple offences is
    unsettled. Further, in
R. v. Ahmad
, 2010 ONSC 5874, [2010] O.J. No. 6372,
    at para. 73 the trial judge fixed a global sentence of 16 years, and then apportioned
    it among the three offences.

[86]

I note that the trial judge approached the issue of totality in line
    with the Crowns submissions at trial. The Crown advised that if the trial
    judge determined that the totality principle commands a certain sentence and
    that to exceed that sentence would be unfair, then [the trial judge should]
    impose that sentence and divide it up as between the two counts. And, in
    sentencing submissions, the Crown did not seek to apportion Mr. Ahmeds
    sentence between the two offences, but sought a global sentence of 20 years.

[87]

I also reject the Crowns argument that, if the trial judge had taken a
    different approach (by fixing each sentence individually and then applying the
    totality principle to see if the sentences were fair), he necessarily would
    have imposed a higher sentence. What the Crown proposes would not have made a
    material difference given that the trial judges focus was on the seriousness
    of the offences and Mr. Ahmeds conduct. He considered Mr. Ahmeds overall
    culpability, irrespective of the number of convictions on which he was to be
    sentenced.

[88]

The trial judge was invited by the Crown to impose a sentence of 20
    years, relying on the requirement to sentence consecutively. The trial judge
    concluded that this would constitute an inappropriate punishment, where [t]he
    penalty would outstrip [Mr. Ahmeds] degree of culpability (at para. 109). The
    trial judge did not refuse to give effect to the requirement for consecutive
    sentences; rather, he correctly noted that totality remained an important
    consideration, and he applied it in imposing a sentence that reflected the
    gravity of the crimes committed and Mr. Ahmeds moral culpability.

[89]

I turn to Mr. Ahmeds arguments respecting totality. As I have already
    noted, Mr. Ahmed initially took the position that there was no error in the
    trial judges application of the totality principle. In argument on the appeal,
    however, he emphasized that because the charges were duplicative, the trial
    judge, in applying the totality principle, ought to have based his sentence on
    a maximum available sentence of 14 years, in which case, reflecting his level
    of culpability, the sentence should have been only five to eight years.

[90]

First, if the convictions were truly duplicative, the doctrine in
R.
    v. Kienapple,
[1975] 1 S.C.R. 729, which precludes multiple convictions
    for the same delict, would have been engaged, and Mr. Ahmeds argument about
    the maximum sentence being 14 years would prevail. The
Kienapple
rule was
    applied by the trial judge in
Khawaja
to stay the finding of guilt on
    a count where it related to the same conduct as another count  the offenders
    involvement in the development of a specific weapon.
[1]
In this case, although there was a factual nexus between the two offences,
    which arose out of the same events, and they shared common elements, there was
    not a sufficient legal nexus between the offences to warrant the application of
    the doctrine: See
R. v. R.K
. (2005), 198 C.C.C. (3d) 232 (Ont. C.A.),
    at paras. 27-40. Indeed no one argued the
Kienapple
rule applied.

[91]

While the trial judge described the exact same factual
    foundation as forming the basis for liability on each count, this simply
    recognized that proof of the same factual circumstances, the same series of
    events, supported Mr. Ahmeds conviction for both offences. Section 83.26 of
    the
Criminal Code
mandates consecutive sentences, for offences
    arising out of the same event or series of events, where otherwise
    consideration would have been given to the imposition of concurrent sentences.
Concurrent sentences are typically imposed where the multiple
    charges are part of the same event or transaction, and are appropriate where
    the charges have a sufficiently close nexus, or where the gravamen of the
    offences is the same:
Wozny
, at para. 21. Here Parliament has
    directed that concurrent sentences are not available for terrorism offences
    arising out of the same events.

[92]

I agree with the Crown that what Mr. Ahmed proposes, that the trial
    judge ought to have regarded the offences as duplicative, and considered Mr.
    Ahmeds maximum sentence as 14 years, would ignore the requirement under s.
    83.26 for consecutive sentences for terrorism offences arising out of the same
    events. That is not what is required by the totality principle.

[93]

Rather, the totality principle ensures that the focus is on the
    offenders actions, role in the offences and overall culpability, irrespective
    of the number of offences charged. I am sympathetic to the concern expressed by
    Mr. Ahmeds counsel both at trial and on appeal, that, because of the
    requirement for consecutive sentences, and the overlapping nature of many
    terrorism offences under the
Criminal Code
, the Crown could pursue a
    greater sentence in any particular case by laying multiple charges. While that
    is theoretically possible, the totality principle is a check on any such
    approach. Irrespective of the number of offences of which a terrorism offender
    is convicted, the sentence must reflect and not exceed the offenders overall
    moral culpability.

(4)

Issue 4: Did the trial judge err in making findings of fact inconsistent
    with Mr. Ahmeds acquittal on the explosives charge?

[94]

As Mr. Ahmed was acquitted of the explosives offence, it was necessary
    for the trial judge to make certain determinations of fact in relation to his
    involvement with bomb-making components that were in his possession at the time
    of his arrest. In his sentencing decision, the trial judge stated at para. 9:

Mr. Ahmed knew that Mr. Alizadeh possessed a Presidents Choice
    bag containing components and instructions for constructing remote controlled
    IEDs that had been custom designed by an expert bomb-maker at the terrorist
    training camp attended by Mr. Alizadeh. Mr. Ahmed knew that Mr. Alizadeh
    intended to assemble the components in the bag into detonators for use in
    Canada.

[95]

This paragraph reflects the findings in relation to Mr. Ahmeds
    knowledge of the contents of the bag and Mr. Alizadehs intentions set out at
    para. 10 of the
Gardiner
findings.

[96]

The trial judge went on to state, at para. 12:

Mr. Ahmed was in possession of the explosive devices contained
    in the Presidents Choice bag. Neither the Crown nor the defence has proven the
    purpose for which he possessed the explosive devices.

[97]

Mr. Ahmed asserts that the trial judge erred in his findings with
    respect to his involvement with the Presidents Choice bag containing
    bomb-making parts. He says that it was a necessary conclusion from his
    acquittal on the most serious offence, that he was holding the Presidents
    Choice bag for a non-dangerous purpose, namely to dispose of it, as he had
    testified at trial. He says that the effect of the trial judges findings, would
    mean that the third and most serious offence would have been made out. The
    result, according to Mr. Ahmed, is that his overall culpability was overstated.

[98]

I disagree. A required element of the explosives offence, that had to be
    proven beyond a reasonable doubt, was the intent to endanger life or cause
    serious damage to property for the benefit or at the direction of, or in
    association with, a terrorist group. The trial judge was unable to determine
    Mr. Ahmeds intent when he possessed the Presidents Choice bag. As the trial
    judge concluded at para. 14 of his
Gardiner
findings, the verdict of
    the jury acquitting him on the charge means that they were not satisfied beyond
    a reasonable doubt that [Mr. Ahmed] had the intent to endanger life or cause
    serious damage to property or to enable another person to do so for the benefit
    of or at the direction of or in association with Mr. Alizadeh and his terrorist
    group. That Mr. Ahmed testified about his intention to destroy the contents
    may have given rise to a reasonable doubt as to his intention, however the
    trial judge was not satisfied, on a balance of probabilities, that Mr. Ahmed
    possessed the explosives in the Presidents Choice bag for a non-dangerous,
    innocent purpose. The failure to prove an alleged aggravating fact beyond a
    reasonable doubt does not require the trial judge to assume a version of facts
    most favourable to an accused. It was for the defence to establish on a balance
    of probabilities any mitigating fact relied on:
R. v. Smickle
, 2013
    ONCA 678, 304 C.C.C. (3d) 371, at para. 18.

[99]

The trial judge was correct to conclude that Mr. Ahmeds acquittal on
    the explosives charge simply meant that the jury found him not guilty. The
    trial judge properly recognized that Mr. Ahmed was not convicted of the third
    and most serious offence, relating to explosives, and this recognition informed
    his conclusions about Mr. Ahmeds overall culpability.

[100]

I would
    accordingly dismiss this ground of appeal.

(5)

Issue 5: Did the trial judge err in using terrorism as an aggravating
    factor?

[101]

The trial judge referred
    to the aggravating factors present in this case, including two deemed
    aggravating circumstances from s. 718.2(a)(v) of the
Criminal Code
:
    first, that the offence was motivated by bias, prejudice or hate based on race,
    national or ethnic origin, or religion (s. 718.2(a)(i)); and second, that the
    offences were terrorism offences (s. 718.2(a)(v)).

[102]

Mr. Ahmed says
    that the trial judge erred in using as an aggravating factor the fact that
    these were terrorism offences, when involvement in terrorism was an essential element
    of each of the offences of which he was convicted.

[103]

In
Lacasse
,
    the Supreme Court considered the sentence in an impaired driving case. Wagner
    J., for the majority, noted it was an error for the sentencing judge to
    identify as an aggravating factor the fact that the offender was intoxicated,
    when his intoxication was an essential element of the offence. Ultimately,
    however, this was not a reversible error as the erroneous consideration of an
    aggravating or mitigating factor warrants appellate intervention only if it can
    be seen from the trial judges decision that the error had an actual impact on
    the sentence. In that case it was apparent that the judge attached no real
    weight to this factor; rather, he simply recited it in a list of aggravating
    factors (at paras. 44 and 83).

[104]

Mr. Ahmed says
    that the trial judges reference to this being a terrorism offence as an
    aggravating factor must have had a material impact on sentence because, in his
    submission, the trial judge imposed a sentence at the high end of the
    sentencing range.

[105]

By contrast, the
    Crown asserts that, if the trial judge erred in referring to the fact that this
    was a terrorism offence as an aggravating factor, it had no material impact on
    the sentence.

[106]

I agree with the
    Crowns position on this issue. Section 718.2(a) requires a court imposing a
    sentence to take into consideration the principle that a sentence should be
    increased or reduced to account for any relevant aggravating or mitigating
    circumstances relating to the offence or the offender, and deems as an
    aggravating circumstance evidence that the offence was a terrorism offence. The
    inclusion of this statutory aggravating factor serves to underline the
    seriousness of terrorism offences: see
Khawaja
, at para. 130.

[107]

In this case,
    while the trial judge mentioned the statutory aggravating circumstances, it is
    difficult to see how evidence that the offences were terrorism offences was
    used by him to increase Mr. Ahmeds sentence. The trial judge, in determining
    sentence, considered the range of sentences imposed in other terrorism cases,
    as well as the appellate decisions of this court and the Supreme Court of
    Canada. As the precedents were already terrorism cases, the seriousness of the
    offence was already built into the courts consideration of an appropriate
    sentence. Therefore, there is no indication he imposed a higher sentence as a
    result of the aggravating circumstance that was already present in all of the
    sentencing precedents he considered.

[108]

Mr. Ahmed further
    submits that the statutory factor must have been taken into consideration
    because he was sentenced at the high end of the range (which he says was 0 to
    14 years based on the maximum sentence for the participation offence). It is
    incorrect to say that the sentencing range here was 0 to 14 years in the
    absence of a finding that the
Kienapple
rule applied. Mr. Ahmed
    was convicted of two offences, which attracted consecutive sentences.

[109]

Accordingly,
    while, in my view, the trial judge ought not to have mentioned the statutory
    aggravating circumstance as a factor in sentencing in addition to the
    seriousness of the offence, I am not persuaded that this had any effect on the
    sentence Mr. Ahmed received. I would therefore not give effect to this
    ground of appeal.

(6)

Issue 6: Did the trial judge err in concluding that Mr. Ahmeds period
    of parole ineligibility would be determined in accordance with the
Corrections
    and Conditional Release Act
?

[110]

The court is
    required to order that any offender sentenced to more than two years
    imprisonment for a terrorism offence will be eligible for parole only after
    serving one half of the sentence or ten years, whichever is less. An exception
    to this requirement applies where the court is satisfied having regard to the
    circumstances of the commission of the offence and the character and
    circumstances of the offender that the expression of societys denunciation of
    the offence and the objectives of specific and general deterrence would be
    adequately served by a period of parole ineligibility determined in accordance
    with the
Corrections and Conditional Release Act
 (
Criminal Code
,
    s. 743.6(1.2)).

[111]

The paramount principles
    to guide the courts determination are denunciation and specific or general
    deterrence, with rehabilitation of the offender, in all cases, being
    subordinate to those paramount principles (s. 743(2)). The onus is on the
    offender to establish the exception applies on a balance of probabilities:
Khalid
,
    at para. 30.

[112]

In this case,
    the trial judge was satisfied that Mr. Ahmed met the onus. He concluded that
    the objectives of specific and general deterrence would be adequately served by
    a period of parole ineligibility determined in accordance with the
Corrections
    and Conditional Release Act
. He referred to the circumstances of the
    offencesand the character and circumstances of Mr. Ahmed, including the 75
    letters of support and the opinion of Dr. Loza, added to [his] own belief [Mr.
    Ahmed] has renounced his terrorist sympathies and that he could be a force for
    good in de-radicalizing other would-be terrorists.

[113]

In
Khalid
and
Gaya
, this court reversed the determination of the sentencing
    judge as to parole ineligibility. In each case, this court substituted an order
    requiring the offender to serve one half of his sentence before being eligible
    for parole, stating that the sentencing judge erred in underemphasizing the
    enormity of the respondents crime and overemphasizing his rehabilitative
    prospects. This court held that, had the judge followed the approach he should
    have, he would have come to a different conclusion as to parole ineligibility (
Khalid
,
    at para. 60,
Gaya
, at para. 22).

[114]

In this case,
    the Crown does not point to any error of law or principle with respect to the
    decision concerning parole ineligibility, other than its earlier argument that
    the trial judge undervalued the seriousness of the offence and Mr. Ahmeds
    conduct, and overemphasized his rehabilitative prospects and remorse. As I would
    reject such arguments for reasons I have already explained, I find there is no
    merit to this ground of appeal. The trial judge took into consideration the
    relevant factors and concluded that the expression of societys denunciation of
    the offence and the objectives of specific and general deterrence would be
    adequately served by not requiring Mr. Ahmed to serve one half of his sentence
    before eligibility for parole. There is no basis to interfere.

[115]

Accordingly I
    would reject this ground of the Crowns appeal.

D.

Conclusion and Disposition

[116]

As the Supreme
    Court emphasized in
M.(C.A.)
, at
    para. 91, and in
Lacasse
,
    at paras. 1, 12 and 89
,

the determination of a just and
    appropriate sentence is a delicate matter. In each case, the trial judges assessment
    of the evidence as well as the various sentencing factors and their weight, are
    entitled to deference absent an error in principle that has a material impact
    on the sentence. In enacting the specific provisions in the
Criminal Code
,

Parliament set out its commitment
    to a strong and effective response to terrorism offences. In
Khawaja
, the
    Supreme Court underlined however that the general principles of sentencing
    continue to apply to such offences. In this case, the appeal and cross-appeal
    took issue with the trial judges application of many of the principles of
    sentencing. As I have found no error in principle and have concluded that the
    sentence imposed was not demonstrably unfit, there is no basis to interfere
    with the 12 year sentence Mr. Ahmed received, or the determination with respect
    to his parole ineligibility.

[117]

For these
    reasons, I would grant leave to appeal sentence, and dismiss the appeal and
    cross-appeal.

Released: G.E. January 27, 2017

K. van Rensburg J.A.

I agree Gloria Epstein J.A.

I agree S.E. Pepall J.A.

[1]

The two charges were for developing a device to activate a
    detonator (under s. 81(1)(a) of the
Criminal Code
)

and keeping an
    explosive substance under s. 81(1)(d).


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Ally, 2017 ONCA 67

DATE: 20170125

DOCKET: C60054

Doherty, Blair and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nafraaz Jazid Ally

Applicant (Appellant)

Martin Kerbel, Q.C., for the appellant

Shawn Porter, for the respondent

Heard and orally released:  January 17, 2017

On appeal from the conviction entered on October 22, 2014
    by a jury presided over by Justice Daley of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of dangerous driving causing bodily harm by
    a jury.  He appeals his conviction only.

[2]

The appellant was headed eastbound on a four-lane road in Brampton.  As
    he approached a green light, a vehicle driven by Ms. Vaz, that was headed
    westbound, commenced a left turn across the lane in which the appellant was
    travelling eastbound.  A collision occurred and, unfortunately, Ms. Vaz was
    badly injured.

[3]

The Crown claimed that the appellant
    was driving at a very high rate of speed as he entered the intersection where
    the accident occurred.  Several witnesses testified that the appellant was
    driving 40 or 50, or even more, kilometres above the speed limit.  Two
    witnesses testified that the appellant appeared to be racing with another
    vehicle.  The Crown argued that in the circumstances, the appellants speed,
    particularly combined with the racing, established the offence of dangerous
    driving.  There was no issue about causation in this case.

[4]

The appellant admitted that he was
    driving somewhat over the speed limit, but he testified that he was not driving
    nearly as fast at the witnesses for the Crown suggested he was.  It was the
    defence position that the accident in fact resulted because Ms. Vaz made an
    illegal left turn at the light, crossing into the lane in which the appellants
    vehicle was travelling.

[5]

Counsel for the appellant has advanced
    four grounds of appeal.  First, he submits that the trial judge erred in
    instructing the jury on the fault component of dangerous driving.  Counsel
    relies on
R. v. Roy
(2012), 281
    C.C.C. (3d) 433 (SCC).

[6]

We cannot accept this argument.  In our
    view, the trial judges instruction is on all fours with the description of the
    fault component in
R. v. Roy
.  The
    trial judges instructions are found at pp. 26-31 of the transcript.

[7]

In his argument, counsel submitted that
    the trial judge should have told the jury that the fault component required
    foresight of the risk that Ms. Vaz would make the improper left turn at the
    light.  We do not read
Roy
that way.
    The focus of the fault requirement is on foresight of the risk created by the
    manner of the accuseds driving.  In this case, the jury had to consider
    foresight of the risk created by driving at such a fast speed in a residential
    area at night.

[8]

The second ground of appeal relates to
    the experts evidence.  Counsel submits that the jury should have been told to
    ignore the experts evidence about who was at fault for the accident.

[9]

We would not give effect to this ground
    of appeal.  While it is true that the expert was asked about fault, his
    answer in fact spoke about the cause of the accident.  No objection was taken
    to the experts evidence.  He was entitled to give evidence about the cause of
    the accident as long as it was based in the physical evidence that had been
    placed before the jury and was properly within the ambit of his expertise.

[10]

The trial judge gave a proper
    instruction on the fault requirement of dangerous driving.  He did not suggest
    to the jury that some other notion of fault would suffice to establish criminal
    liability.  In fact, he made it clear to the jury that carelessness, something
    the jury might equate with fault, was not sufficient to establish criminal
    liability.

[11]

We see no risk that the jury may have
    been misled by the experts evidence or the trial judges instructions on that
    evidence.

[12]

The third ground of appeal relates to
    the trial judges instruction on the use the jury could make of the appellants
    convictions for various offences under the
Highway Traffic Act
.  The appellant had a relatively minor
Highway
    Traffic Act
record.  The trial judge, without
    objection, instructed the jury that it might take those convictions into
    account if it saw fit in assessing the appellants credibility.

[13]

In our view, convictions for the
Highway
    Traffic Act
offences in issue here could not
    possibly assist one way or the other in assessing the appellants credibility
    and it would have been better had no such instruction be given.  We are satisfied,
    however, that there was no risk that the jury would have used the
Highway
    Traffic Act
convictions to make an adverse
    credibility finding against the appellant.  The instruction, while unnecessary,
    could not have prejudiced the appellant.

[14]

The fourth argument is an argument that
    the verdict was unreasonable.  Counsel submits that no jury, properly
    instructed, could have convicted the appellant.  He argues that speed alone in
    these circumstances could not support the conviction.

[15]

We observe that the trial judge made it
    clear to the jury that speed alone could not be equated with dangerous
    driving.  In our view, there was a basis upon which this jury could find that
    the appellant by travelling at such a high rate of speed in a residential area
    at night met the requirements for dangerous driving.  It was also open to the
    jury to find that the appellant was racing at the time of the accident.  The
    Crown put that position to the jury and there was some evidence to support it.
    Mr. Kerbel, with his usual candour, acknowledges that if the jury was
    satisfied, not only that the appellant was going very fast but that he was
    racing another vehicle, the verdict could not be said to be unreasonable.

[16]

The appeal must be dismissed.

Doherty J.A.

R.A. Blair J.A.

P. Lauwers J.A.