CITATION: R. v.

Ahmad, 2010 ONSC 5874

COURT FILE NO.: CRIMJ(F)2025/07
DATE: 20101025

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N: )
)
HER MAJESTY THE QUEEN ) Jason Wakely and Sarah Shaikh, for the
) Crown
)
)
- and - )
)
FAHIM AHMAD ) Dennis Edney and Bella Petrouchinova for
) Fahim Ahmad
)
)
)
) HEARD: September 27 and 28, 2010
)
)

REASONS FOR SENTENCE

F. DAWSON J.

[1] The issue before the court is the determination of a fit sentence for Fahim

Ahmad who stands convicted of three terrorism offences. The convictions are the

result of a change of plea entered by Mr. Ahmad in the midst of his jury trial.

Following almost two years of pre-trial motions, jury selection commenced on

March 21, 2010. The Crown opened to the jury on April 12. The change of plea

came on May 3 after 13 days of evidence had been called before the jury.
 -2-

[2] The first conviction under count one is for participating in or contributing

to the activities of a terrorist group for the purpose of enhancing the ability of the

terrorist group to facilitate or carry out a terrorist activity, contrary to s. 83.18

(1)(a) of the Criminal Code. That offence is punishable by up to 10 years

imprisonment. The second conviction under count two is for importing firearms

into Canada contrary to s. 103 of the Criminal Code for the benefit of, at the

direction of, or in association with a terrorist group, thereby committing an

offence contrary to s. 83.2 of the Criminal Code. That offence is punishable by up

to life imprisonment. The third conviction pursuant to count four is for knowingly

instructing six named individuals to carry out an activity for the benefit of, at the

direction of or in association with a terrorist group contrary to s. 83.21 (1) of the

Criminal Code. That offence is also punishable by a sentence of up to life

imprisonment. Pursuant to s. 83.26 of the anti-terrorism provisions of the Criminal

Code, sentences, other than a life sentence, must be consecutive to one another

for offences arising from the same series of events, as these do.

[3] The terrorist group in question is specified in the indictment as consisting

of Fahim Ahmad and others. It is indisputable that Fahim Ahmad was the original

leader of the group.

 -3-

Factual Background

[4] On November 17, 2005 the Canadian Security Intelligence Agency

(“CSIS”) advised the Royal Canadian Mounted Police (“RCMP”) that Fahim

Ahmad posed a threat to the security of Canada. CSIS identified Mr. Ahmad as a

threat when they were engaged in a large scale project to gather intelligence on

Sunni Islamist extremism in Canada.

[5] As part of that project CSIS had developed a confidential human source

who later agreed to become an agent of the RCMP, have his identity disclosed

and testify. That person was Mubin Shaikh who, when still a CSIS operative, was

tasked to meet with a number of individuals expected to be attending a public

presentation on November 27, 2005 at the Taj Banquet Hall in Toronto. There

Mr. Shaikh met Fahim Ahmad, Zakaria Amara and a number of other young men.

[6] Before the night was out Mr. Shaikh had learned that Fahim Ahmad and

Zakaria Amara had already planned to hold a terrorist training camp in a

relatively remote area north of Toronto. The training camp was to be the first step

in bringing a group of young men to a state of readiness to conduct armed

terrorist attacks against targets in Canada described by Mr. Ahmad as “critical

infrastructure”. He also learned that Mr. Amara was in possession of a 9 mm

handgun with bullets described as “cop killers”. Mr. Amara showed the magazine

from the handgun to Mr. Shaikh only after obtaining permission to do so from Mr.
 -4-

Ahmad. It was clear that night, as it was over the following months, that Zakaria

Amara was the second in command and treated Fahim Ahmad as his Amir. That

night, in Mr. Ahmad’s presence, Mr. Amara provided Mr. Shaikh with certain

fundamentalist literature and told him to study it. Mr. Shaikh was recruited by Mr.

Ahmad to assist in acting as a trainer at the forthcoming camp on the basis of Mr.

Shaikh’s professed views on jihad and past military experience.

[7] Targets for potential terrorist attacks were identified in subsequent

meetings involving Mr. Ahmad, Mr. Amara and Mr. Shaikh that took place prior to

the commencement of the training camp. They included the building housing

CSIS’s office in downtown Toronto, the CBC building in downtown Toronto,

Parliament, unspecified military bases and a nuclear power plant. Mr. Ahmad

also claimed that he previously had a stash of assault rifles buried in a park but

said they had been stolen. He advised Mr. Shaikh that two men who were

illegally importing firearms for him from the United States had been apprehended

at the border and sent to jail, something which was quite true and supports the

conviction on count two. Mr. Ahmad repeatedly expressed that it was religiously

permissible to attack targets in Canada because Canada was attacking Muslims

in Afghanistan.

[8] The training camp was held near Washago, Ontario from December 18 to

30, 2005. Mr. Shaikh was in attendance and the RCMP had the camp under
 -5-

surveillance. Parts of a video of activities at the camp taken by Zakaria Amara

were later recovered by the police. A total of 14 young men attended the training

camp at one time or another, with a core group of nine who were present

throughout. Although the group was ill-prepared for winter weather they

participated in marches in formation while wearing camouflage clothing, ran

obstacle courses while under fire from snipers using paintball guns and simulated

taking a hill. There was also training with a 9 mm semiautomatic handgun. A

black flag bearing the Islamic Creed was displayed at the camp. Such flags are

often associated with terrorist groups.

[9] Mr. Ahmad acted as the leader throughout the winter training camp. He

used his laptop computer to show the participants part of a video lecture series

entitled “The Constants of Jihad”. He told those assembled that they were like Al

Qaeda; not part of that group but that they held the same beliefs. He gave a

motivational speech, some of which was captured on the recovered video of

camp activities, in which he advised those present that they had to be part of a

“covenant” to “bring down Rome”, meaning the United States and its allies.

[10] Over the following months Mr. Ahmad continued to profess the same

views on many occasions. Often his statements were captured electronically

pursuant to a series of judicial authorizations that permitted the interception of

private communications. By this means and through the continued efforts of

 -6-

Mubin Shaikh the authorities developed a formidable volume of evidence against

Fahim Ahmad. This evidence showed that he and three others travelled to the

small town of Opasatika about 10 hours north of Toronto for the purpose of

evaluating a rural property that was for sale there. The property had been located

by Zakaria Amara and was being considered as a possible safe-house, a base

for training and a place to store weapons.

[11] The evidence also shows that Mr. Ahmad and Mr. Amara were scheming

about ways to raise money for the purpose of violent jihad. Mr. Ahmad attended

a meeting with a man called “Talib” who was engaged in bank and mortgage

fraud based on identity theft and the use of fictitious identities. Mr. Ahmad and

Mr. Amara also spoke of a promotional video based on the training camp footage

that was being produced under Mr. Amara’s direction. It was to be used for

recruiting, to assist in raising money and to impress certain Imams and others

who might support their cause. Two such videos were eventually made and one

was transmitted to an associate of Mr. Ahmad's in England. That video was later

recovered by the West Yorkshire Police in an investigation that led to the arrest

and conviction of one of Mr. Ahmad’s associates, Aabid Khan, on terrorism

charges in the United Kingdom. In addition, it is admitted that Mr. Ahmad had

been instrumental in sending Jahmaal James to Pakistan for the purpose of

receiving paramilitary training that was to be used for the benefit of Fahim
 -7-

Ahmad’s group. That training never took place because Mr. James became

seriously ill after arriving in Pakistan. The plan had been for Mr. James to

connect with Aabid Khan, who was to travel from England to arrange the training.

There is evidence that police in the United Kingdom knew or believed that Aabid

Khan was a facilitator who arranged for terrorist training in Pakistan and

Afghanistan. Aabid Khan was also known as Abu Omar.

[12] As time progressed Fahim Ahmad and Zakaria Amara had a falling out.

Mr. Amara came to believe that Mr. Ahmad had been untruthful about certain

things, such as Mr. Ahmad’s claim that he had travelled to Iraq and spoken with

armed dissidents there who had told him to return to Canada where he could be

a lion. Mr. Amara was also upset because Mr. Ahmad had sent one of the videos

overseas when it still contained a view of Mr. Amara’s face. Mr. Amara felt that

Mr. Ahmad was too overt and not careful enough about their activities from a

security standpoint. This culminated in a formal split between the two leaders at

the end of March, 2006.

[13] Mr. Ahmad and Mr. Amara then pulled away from one another, each with

their own group of followers. Mr. Amara and his group were based in

Mississauga and focused on the development of truck bombs. Significantly, their

targets continued to include the buildings that housed CSIS’s offices and the

CBC in downtown Toronto. Mr. Ahmad and his followers spoke of obtaining
 -8-

assault rifles and carrying out attacks, and a further amateurish training camp

was held.

[14] The RCMP quickly determined that from the end of March, 2006 on it was

the group led by Mr. Amara that posed the greater threat. Unlike Mr. Ahmad, Mr.

Amara went about his business quietly and made real progress towards the

production of truck bombs. Mr. Ahmad appears to have struggled on quite

ineffectively. Mr. Shaikh, who remained close to Mr. Ahmad, came to believe that

Mr. Ahmad was an exaggerator who talked a good game and expressed

grandiose ideas but who had not been able to develop any real operational

capability. Although Mr. Ahmad spoke of previously having had a stash of assault

rifles, and claimed that a shipment of AK-47s had been sent from Mexico and

would be available as soon as a further sum of approximately $6,500 was raised,

Mr. Shaikh doubted those claims were true.

[15] However, the evidence shows that Mr. Dirie, who was serving a

penitentiary sentence for illegally importing handguns for Mr. Ahmad and the

group, was working at obtaining more firearms through connections he was

making in the penitentiary. There is also evidence to support the conclusion that

Mr. Ahmad’s group had made a connection with three “Jamaican converts” to

Islam who were armed and ready to act as part of the group.
 -9-

[16] On June 2, 2006 the members of both groups were arrested. Collectively,

they came to be known in the media as the “Toronto 18”. Those who the Crown

determined to proceed against have now all entered pleas of guilty or have been

convicted after trial. In terms of the sentences that have been imposed on those

convicted to date it is apparent that those involved in the bomb plot led by

Zakaria Amara have received the longest sentences. The sentences imposed so

far on the young men who remained with Fahim Ahmad have been less severe,

reflecting that they were not involved in the bomb plot. However, as of this date,

none of the accused who have been sentenced who remained with Mr. Ahmad

after the split were in a leadership position.

[17] It is significant that Mr. Ahmad was the original leader of the group and

Mr. Amara clearly regarded him as such. The evidence demonstrates that Fahim

Ahmad was the driving force behind recruiting and indoctrination. He prepared

and distributed collections of fundamentalist Islamic videos advocating violence

towards and hatred of non-believers in Islam, and depicting atrocities against

Muslims and retaliating violence against western forces in Iraq and Afghanistan.

Some of the material he distributed called for violence in North America.

[18] I would add that Mr. Ahmad and Mr. Amara were well aware that they

were under scrutiny by CSIS and probably the police. For example, it is apparent

that Mr. Ahmad and Mr. Amara believed their telephones were being intercepted.
 - 10 -

Indeed they were. Mr. Ahmad, Mr. Amara and the others were aware that they

were being followed by CSIS employees. They took counter-measures. Mr.

Ahmad seems to have been concerned that his computer activities were being

monitored. He took steps to use his computer in ways designed to avoid

monitoring. One of Mr. Ahmad’s associates found a miniature camera in an exit

sign outside the door to Mr. Ahmad’s apartment. Mr. Ahmad believed it had been

placed there by the authorities as indeed it had been. Mr. Ahmad was undeterred

by any of this.

[19] By April, 2006 Mr. Ahmad learned that two men who had visited him in

Toronto had been arrested in Atlanta, Georgia. He expressed concern that this

could lead to his apprehension. Those men have since been convicted of

terrorism offences in the United States.

Pre-Trial Custody

[20] Mr. Ahmad has been in custody since his arrest on June 2, 2006.

Consequently, he has spent approximately four years and four and one-half

months in custody. Some of that time has been spent in administrative

segregation and most of it at the Don Jail in Toronto. These circumstances could

require the court to become involved in a time consuming determination of

whether there should be enhanced credit for pre-trial custody. However, Crown

and defence counsel have canvassed this aspect of the matter and have agreed
 - 11 -

that the customary two days credit for each day in pre-trial custody should be

applied. I will follow that approach. Therefore, whatever sentence I arrive at will

have eight years and nine months deducted from it on this basis.

The Positions of the Crown and Defence

[21] The Crown submits that if it were not for Mr. Ahmad’s guilty plea, late

though it was, and his relative youth and lack of criminal record, a life sentence

would be appropriate. However, having regard to those factors the Crown seeks

a sentence of 18 years in totality from which time spent in pre-trial custody

should be deducted. The Crown submits that as the leader of the original group

Mr. Ahmad must bear some responsibility for the bomb plot that eventually fell

under the complete direction of Mr. Amara after the group split at the end of

March, 2006.

[22] The Crown acknowledges that Fahim Ahmad had not gotten to the point

where he was preparing detailed attacks on any of the targets he had identified

and in this sense he had achieved less than Mr. Amara had by the time of the

arrests. On the other hand, the Crown emphasizes that Mr. Ahmad’s goals,

which involved armed assaults, required that he recruit, indoctrinate and arm a

group of fighters before developing concrete plans for specific attacks. Money

had to be raised to acquire weapons. The Crown emphasizes that Mr. Ahmad

had taken concrete steps in all of these areas. He was himself armed and it is
 - 12 -

confirmed that Ali Dirie was illegally importing firearms from the United States for

Mr. Ahmad. Mr. Ahmad had also sent Jahmaal James to Pakistan for training. He

met with Talib to try to raise money. He also had a plan to raise money by means

of a credit card fraud. He held two training camps to try to identify suitable

persons to engage in the attacks. He made recruiting videos and engaged in real

efforts to radicalize Muslim youth. He was serious. Once he had a group of

armed men available to him he intended to commit indiscriminate mass murder

for political, ideological and religious purposes.

[23] Mr. Ahmad submits that a sentence in the range of 10 to 12 years is an

appropriate sentence with the time spent in pre-trial custody to be deducted from

that quantum. This would result in a sentence of approximately one year and

three months to three years and three months remaining to be served after

allowance for pre-trial custody.

[24] Mr. Ahmad submits that the Crown is taking a “one size fits all” approach

to sentencing in terrorism cases and stresses that the court must impose an

individualized sentence based on a careful assessment of the seriousness of

what actually occurred having regard to the principles of sentencing. Mr.

Ahmad’s counsel submits that Mr. Ahmad is really a pathetic figure who grossly

exaggerated his connections, abilities and intentions in order to lift himself up and

achieve some status and attention that he would not otherwise have in life. He
 - 13 -

submits that Mr. Ahmad was living in a fantasy world. He was unemployed, had a

young family and no money. He did not have the means to develop operational

capability. He points out that Mr. Ahmad spoke of targets but that there is no

evidence of any concrete planning to attack any of them. Mr. Ahmad’s reference

to some targets was fleeting: he would mention them once and then never

mention them again. The two training camps were amateurish. He submits that

Mr. Ahmad can bear no responsibility for the bomb plot Mr. Amara was working

on. Mr. Amara’s efforts to obtain bomb making chemicals and a warehouse in

which to build the bombs all took place after the split, as did perfection of the

detonators. He emphasizes that even Mr. Shaikh came to believe that Mr.

Ahmad lied, exaggerated and was essentially incompetent.

The Offender

[25] Fahim Ahmad was born in Afghanistan on August 10, 1984 and is

currently 26 years of age. He was 21 years of age at the time of his arrest. He is

an only child. When he was one year of age his parents fled to Pakistan to

escape compulsory military service, the Soviet war in Afghanistan and to secure

a better future. Fahim Ahmad remained in Pakistan until his family moved to

Canada in October, 1994 when he was ten years of age.

[26] Mr. Ahmad’s parents are well educated and held good jobs in Pakistan.

His father was employed as a civil engineer and his mother as a teacher.
 - 14 -

However, after arriving in Canada his parents had difficulty having their

credentials recognized and both ended up working double shifts in minimum

wage jobs to make ends meet. In a letter to the court Mr. Ahmad’s father has

expressed regret that he and his wife were unable to spend more time with their

son.

[27] By all accounts Fahim Ahmad was a good student, received good grades

and was interested in sports. While in school he worked part-time at Walmart and

at a fast food restaurant. After the 9/11 attacks the accused felt his friends were

treating him differently. He began to spend increasing amounts of time at the

mosque. Mr. Ahmad advised the presentence reporter that his parents were

secular Muslims and discouraged the close and ongoing attachment he was

developing to the Islamic faith. In a letter the accused has written to the court he

advises that he increasingly turned to elders at the mosque for advice. He also

says that as he became more attached to the mosque he distanced himself from

his friends.

[28] According to the presentence report, when Mr. Ahmad was at the

mosque he began to interact with individuals who believed Islam was under

attack and that Muslims everywhere needed to stand up for their faith and for

those Muslims whose countries were being attacked by the United States and its

allies.
 - 15 -

[29] At the same time Mr. Ahmad began to spend more time on the internet,

including sites making claims that atrocities were being committed against

Muslims by western forces overseas. He became convinced it was his duty to

assist the Afghani people and his faith by becoming involved in the conflict.

[30] Mr. Ahmad met his wife Mariya Mohammed on an Islamic internet forum

called “Clear Guidance”. Ms. Mohammed has written to the court explaining that

she now feels the forum should have been called “Misguidance”. The content on

that site incited young Muslims to hate “non-believers” and promoted violence

against them. As a result of connecting on this internet site the couple decided to

marry. Mr. Ahmad was 18 and Ms. Mohammed was 16. Mr. Ahmad says that

elders at the mosque recommended the marriage. The parents on both sides

were opposed but the marriage proceeded. The couple had not met in person

prior to the wedding.

[31] The couple initially resided with Mr. Ahmad’s parents in Mississauga but

there was friction due to the couple’s religious beliefs and practices. Within three

months they moved into the home of Ms. Mohammed’s parents in Toronto. This

resulted in Mr. Ahmad’s attendance at a new mosque which placed an emphasis

on Islamic fundamentalism.
 - 16 -

[32] Around this time Ms. Mohammed became pregnant. When the baby was

born she suffered from postpartum depression. Mr. Ahmad resorted to the

mosque more frequently to find a harbour from the stress. Soon Ms. Mohammed

was pregnant again and again she experienced postpartum depression when

their second child was born.

[33] The presentence report indicates that around this time Mr. Ahmad met an

older man with connections in Afghanistan who spoke of guns and training. The

accused decided he wanted to take concrete action. Based on the evidence I

have already reviewed it appears that he then did so.

The Post Arrest Period

[34] According to the presentence report Mr. Ahmad has clearly expressed

“regret over involvement in the activities before the court”. He claims to have re-

evaluated his goals and his understanding of the Islamic faith. The accused has

also expressed these sentiments in some detail in his letter to the court. He

explains how his interaction with inmates of various faiths at the Don Jail played

an influential role in this process. He now claims to be tolerant of other religions

and respectful of the beliefs of others. In her letter to the court Mariya

Mohammed indicates that she and Mr. Ahmad have both changed their views

and together made the decision to have their children enrolled in public school
 - 17 -

instead of Islamic school. This is advanced as concrete evidence of their change

of views.

[35] Mr. Ahmad’s father-in-law has also provided a letter to the court. He

brought his family to Canada from Dubai in 2002. He has explained how he was

originally opposed to Fahim Ahmad’s marriage to his daughter. However, over

time he saw that Mr. Ahmad was kind and caring towards his daughter. Despite

being ashamed of what Mr. Ahmad was a party to he explains that he and his

wife are relieved and pleased that Mr. Ahmad has now taken responsibility for his

actions. He expresses the view of his family that Fahim Ahmad possesses

goodness and essential humanity and has learned from his experience. He

pledges the continuing support of his family to assist the accused once he has

paid his debt to society. In the meantime he is supporting his daughter and her

two children.

[36] It is clear from all of the letters that Mr. Ahmad has the continuing support

of his wife and both of their families.

The Psychiatric Evidence

[37] Mr. Ahmad has presented the court with a lengthy report prepared by Dr.

Julian Gojer, a qualified forensic psychiatrist. Although the report is 27 pages in

length only about two pages deal with diagnosis and risk assessment and
 - 18 -

management. The balance of the report is a recitation of the presentence report,

the letters of support, and details provided by Fahim Ahmad that are similar to

those provided by Mr. Ahmad in his letter to the court.

[38] Dr. Gojer concludes that Fahim Ahmad does not suffer from any mental

illness or personality disorder that can account for the belief system Mr. Ahmad

developed or the actions he has taken. In other words, Dr. Gojer confirms that

those are simply the product of Mr. Ahmad’s considered religious and political

views.

[39] Dr. Gojer was cross-examined about how these conclusions might be

helpful to the court in fashioning a proper sentence. He stated that the only

significance was that the court would know that there was no mental illness or

personality disorder to stand in the way of efforts to rehabilitate Mr. Ahmad.

[40] Dr. Gojer also agreed that there is consensus amongst those who have

studied the matter that terrorists do not generally act as a result of mental

imbalance, psychopathy or psychopathology. Therefore, the absence of mental

illness or personality disorder is not helpful or predictive in determining whether

Mr. Ahmad is likely to continue to pursue terrorist activity in the future.

[41] In addition, Dr. Gojer agreed that the scientifically reliable psychological

instruments he used during his assessment of Mr. Ahmad have not been
 - 19 -

standardized on a terrorist population and are therefore not predictive. The

newest instrument Dr. Gojer applied is called the Violent Extremist Risk

Assessment (VERA). It is intended to be used on extremists. However, it has not

yet been standardized and is not currently accepted as scientifically reliable. Dr.

Gojer explained how he used it as a guide during his interview with Mr. Ahmad.

He testified that he accepted as accurate Mr. Ahmad’s answers to the questions

he posed in using the VERA and used that information to support his conclusion

that overall Fahim Ahmad is a low risk to engage in future terrorist activity.

[42] The VERA calls for the interviewer to rate the subject as “low, medium,

high” in relation to a number of issues listed under each of five categories. The

categories and the issues within the categories are listed on a one page chart.

The last line on the page is titled “Final Judgment” and calls for the interviewer to

check off “low, medium or high” in relation to the subject’s future risk, presumably

after looking over the similar ratings for the various relevant issues that appear

above on the chart.

[43] No doubt there is need for the development of instruments such as the

VERA. I am concerned in this case, however, with the reliability of such

instruments and the approach taken by Dr. Gojer to predicting whether Fahim

Ahmad is likely to engage in dangerous activity in the future. These concerns

 - 20 -

extend to my overall assessment of the weight I am prepared to place on Dr.

Gojer’s opinion.

[44] Dr. Gojer agreed in cross-examination that his opinion and his entire

report is based on a single interview of the accused that was 2 ½ hours in length,

a single interview with Mr. Ahmad’s wife, and a single interview with the family,

combined with a review of the presentence report, the letters before the court

and a transcript of Mr. Ahmad’s guilty plea. Dr. Gojer did not familiarize himself

with the extensive evidence against Mr. Ahmad. Although use of the VERA

required him to exercise his judgment and rate Mr. Ahmad’s responses, he

agreed that he did not challenge Mr. Ahmad’s statements and was in no position

to evaluate Mr. Ahmad’s responses against the actual evidence in the case. He

did not read the “Fall of Rome” speech. He did not read any of the wiretaps, or

view or read any of the extremist or violent material that Mr. Ahmad identified

with and used in his attempts to radicalize and recruit Muslim youth. Mr. Ahmad

advised Dr. Gojer that he was interested in launching attacks in Afghanistan and

that it was Mubin Shaikh’s idea to hold a training camp in Ontario. This is

contrary to the evidence. Dr. Gojer agreed that if he was provided with unreliable

information that could affect his opinion. Consequently, it appears to me that

there are fundamental underlying problems that make it very difficult for the court
 - 21 -

to place much weight on Dr. Gojer’s report or his conclusion that Mr. Ahmad

poses a low risk to engage in further terrorist activity.

The Principles of Sentencing

[45] Section 718 of the Criminal Code provides that the purpose of sentencing

is to contribute, together with crime prevention initiatives, to respect for the law

and the maintenance of a just, peaceful and safe society by imposing sanctions

with one or more of the following objectives:

a. to denounce unlawful conduct;

b. to deter the offender and other persons from committing offences;

c. to separate offenders from society, where necessary;

d. to assist in rehabilitating offenders;

e. to provide reparations for harm done to victims or the community;

and

f. to promote a sense of responsibility in offenders, and

acknowledgment of the harm done to victims and to the
community.

[46] Section 718.1 of the Criminal Code describes the fundamental purpose of

sentencing as follows: “A sentence must be proportionate to the gravity of the

offence and the degree of responsibility of the offender”. Pursuant to s. 718.2 of

the Criminal Code a sentence should be increased or reduced having regard to

 - 22 -

aggravating or mitigating circumstances. Several circumstances are listed, but

the list is not closed. Other factors may be considered as well.

[47] Two factors are listed as aggravating in s. 718.2 (a)(i) and (v) of the

Criminal Code that are present in this case. Under the first, there is evidence that

what occurred here was motivated by bias, prejudice or hate based on national

or ethnic origin and religion. Under the second, these are clearly terrorism

offences. These are aggravating circumstances that I am directed to take into

account in determining a fit sentence.

[48] As previously indicated, s. 83.26 of the Criminal Code requires that

unless I impose a life sentence I must impose consecutive sentences for the

offences in question. A life sentence is not in issue here. The Crown agreed to

seek a maximum sentence of 18 years as part of a negotiation that induced Mr.

Ahmad’s guilty plea. It was understood that Mr. Ahmad would seek a lesser

sentence. In these circumstances binding authority mandates that I should

sentence within the range suggested by counsel unless I am of the view that to

do so would be contrary to the public interest or would bring the administration of

justice into disrepute: R. v. Cerasudo (2001), 151 C.C.C. (3d) 445 (Ont. C.A.); R.

v. Dorsey (1999), 123 O.A.C. 342 (C.A.). In my view, in the circumstances of this

case sentencing within the range suggested by counsel would not be contrary to

the public interest or bring the administration of justice into disrepute.

 - 23 -

Consequently, I will be imposing fixed term consecutive sentences within the

suggested range.

[49] The “totality principle” of sentencing found in s. 718.2 (c) of the Criminal

Code provides that where consecutive sentences are imposed the combined

sentence should not be unduly harsh. Therefore, it is apparent that I must have

regard to the overall length of the sentence that is appropriate and adjust the

sentences for the individual offences to achieve that result in order to ensure that

the totality principle is not violated: R. v. Jewell (1995), 100 C.C.C. (3d) 270 (Ont.

C.A.).

Analysis

[50] The crimes Mr. Ahmad has been convicted of are preparatory crimes. As

I observed in my pre-trial ruling upholding the constitutional validity of the anti-

terrorism provisions of the Criminal Code, Parliament has recognized the harm

that is inherent in such preparatory acts, and decided to criminalize such conduct

in the hope that the authorities will be able to intervene at an early stage and

avoid the devastation that is associated with completed acts of terrorism: R. v.

Ahmad (2009), 257 C.C.C. (3d) 199 (Ont. S.C.J.). In order to criminalize such

preparatory conduct in a constitutionally permissible fashion Parliament ensured

that a high level of intent and criminal purpose must be established in order to

obtain a conviction. Mr. Ahmad’s convictions embody the finding of a specific

 - 24 -

intent to advance the objectives of his terrorist group. He expressed the

objectives of the group repeatedly. He was dedicated to preparing a group of

young men to undertake attacks that would involve firearms and explosives,

although the emphasis was placed on attacks using firearms.

[51] What was contemplated was the eventual infliction of death, serious

injury and extensive property damage for the purpose of intimidating the public,

all of which was justified on political, religious and ideological grounds. In

circumstances such as these the principles of denunciation and general and

specific deterrence must come to the forefront in sentencing, together with the

need to protect the public by removing the offender from society. While mitigating

factors such as youthfulness, lack of a criminal record and the prospect of

rehabilitation must still be taken into account, they must play a subordinate role.

[52] In addition, there can be no doubt that terrorism offences tend to

undermine our democratic way of life. Democracy flourishes because it tolerates

and values a diversity of views and protects the rights of those who hold views at

odds with the views of the majority. Such tolerance and recognition of the value

of diversity is founded on the principle that members of our society will not seek

to effect change by violent means. Those who turn to terrorism to effect change

break this fundamental compact. They are not only a threat to the physical safety

of the populace but to the foundational principles of our civil society. Those who
 - 25 -

pursue terrorism seek to make all of us less free. This is another reason why

denunciation, deterrence and protection of the public must be treated as the

predominant principles of sentencing.

[53] I do not see this approach as being at odds with the premise advanced by

counsel for Mr. Ahmad. In applying this approach I accept Mr. Edney’s

submission that the sentence must be based on what Mr. Ahmad actually did and

must take into account the evidence that he was not very effective in pursuing his

despicable goals. As counsel argues, and I agree, the fundamental principle of

sentencing as articulated in s. 718.1 of the Criminal Code requires this.

[54] Two concepts are embodied in that eloquently simple principle. The first

is that the sentence must be proportionate to the gravity of the offence. It is here

that the nature of the offence is felt. By their nature, terrorism offences will almost

always be viewed as gravely serious. The pursuit of plans to unleash

indiscriminate killing and mayhem must surely fall close to the top of any scale

that measures the gravity of offences. But the second part of the principle is

equally important: the sentence must also be proportionate to the degree of

responsibility of the offender.

[55] Determining the degree of responsibility of the offender is more

challenging in this case. That is because there is no doubt that while Mr. Ahmad
 - 26 -

ultimately proved to be ineffectual in achieving his goals he was quite successful

at motivating others to pursue terrorist activities. For example, it is very clear that

Zakaria Amara initially treated Mr. Ahmad as his leader. The plan to build and

detonate bombs was part of the overall discussion that took place while Mr.

Ahmad was still the leader of the entire group. Mr. Amara had started to work on

a radio frequency remote control detonator well before the group split in two. Mr.

Amara reported his progress building a detonator to Mr. Ahmad and the two

discussed it. At least two of the locations where Mr. Amara subsequently planned

to detonate large truck bombs were originally identified as targets when Mr.

Ahmad was in charge of the entire group. For these reasons I agree with the

Crown that Mr. Ahmad must bear some responsibility for the bomb plot that

continued to blossom under Mr. Amara’s direction after the group split into two

groups.

[56] In addition, I cannot overlook the fact that Mr. Ahmad must bear

considerable responsibility for embroiling other young men in his hateful pursuits.

The wiretaps and other intercepts are replete with Mr. Ahmad fostering his views,

instilling hatred and justifying terrorist acts in Canada on religious grounds. Mr.

Ahmad is substantially responsible for virtually ruining the lives of a number of

other young men who became involved in terrorist activities and now stand

convicted of terrorism offences as a result of Mr. Ahmad’s proselytizing. Although

 - 27 -

the training camps had some amateurish aspects to them they were one of the

primary means by which Mr. Ahmad brought others into his fold.

[57] While Mr. Ahmad’s claim that he had acquired a stash of assault rifles

that were subsequently stolen, or that he was about to receive a further shipment

of AK-47s were never verified, I am in no position to say that those claims were

untrue. While I accept that there was an element of grandiosity and exaggeration

inherent in Mr. Ahmad’s statements and activities he acknowledges that he had

Mr. Dirie illegally import firearms for his group and that he was instrumental in

sending Mr. James to Pakistan for terrorist training. I do recognize the

“exaggeration factor”. But there is also hard evidence of things that Mr. Ahmad

actually accomplished that were in furtherance of his objectives. I ultimately base

my sentencing determination on the hard facts. My view of Mr. Ahmad’s stated

abilities and ambitions are tempered by my awareness and acceptance that he

was prone to grandiosity and exaggeration. I observe that there is no indication

from Dr. Gojer that this was symptomatic of any underlying psychopathology.

[58] With respect to the claim that Mr. Ahmad was in some respects

amateurish and ineffectual, history has shown that amateur terrorists have often

succeeded in causing great harm and have certainly put many at risk of great

harm. Mr. Ahmad’s activities created a grave risk and substantially heightened

the likelihood that devastating acts of terrorism would be carried out in Canada.
 - 28 -

[59] It is also important to acknowledge the harm that Fahim Ahmad has

caused to the Muslim community, the vast majority of whom are peaceful and law

abiding people who participate in and contribute substantially to the success of

our country. It is that community that acutely feels the unfortunate wariness and

mistrust of Muslims that can be generated in the wider community by the acts of

those like Fahim Ahmad.

[60] I turn now to one of the most difficult aspects of this sentencing. I have

before me heartfelt letters written by Mr. Ahmad’s father and father-in-law. I also

have a thoughtful letter from Mariya Muhammad explaining how she and her

husband have had an ongoing dialogue and together come to the realization that

the religious views they previously held were wrong. Mr. Ahmad himself has

written a detailed and thought provoking letter. These letters describe Mr. Ahmad

in his personal life as a caring person with underlying humanity. They portray a

young man who experienced some isolation in his upbringing and explain how he

became radicalized. They make references to Mr. Ahmad’s two young children

and to his young wife who has been left to raise their children without their father.

The letters claim that Mr. Ahmad has seen the error of his ways, has become

more tolerant, and is now committed to moving forward in his life in a manner

that reflects this more moderate and tolerant stance.

 - 29 -

[61] While denunciation, deterrence and protection of the public must

predominate in determining a fit sentence, some weight and consideration must

be given to Mr. Ahmad’s lack of criminal record and his prospects for

rehabilitation. I accept that Fahim Ahmad’s parents and his in-laws are sincere in

the comments expressed in the letters they have written to the court. I also

accept that Fahim Ahmad has the continuing support of his wife. One cannot

help but have sympathy for her situation raising two young children on her own. I

accept that Mr. Ahmad is very concerned for his children. It also seems to me

that his expression of a change of religious views and expression of remorse is

worthy of consideration, although I also say at once that it is difficult to readily

accept such assertions from someone who has recently advocated hatred of

non-Muslims and justified terrorist acts on a religious and political basis. I would

note that Mr. Ahmad did not testify at the sentencing hearing and his claims to

reformation have not been tested by cross-examination.

[62] Mr. Ahmad was youthful when he formulated his extremist views. He is

now 26 years of age. Perhaps his emergence from youth to adulthood has

caused his fervour to soften. One thing is clear: I am not dealing with someone

who remains openly defiant and who blatantly continues to advocate the

rightfulness of his past actions and ideas. Only time will tell whether Mr. Ahmad

has truly renounced his former views.

 - 30 -

[63] Fahim Ahmad has no criminal record and I take that into account. I also

take his plea of guilty into account. However, in determining the weight to give to

the guilty plea as a sign of remorse I cannot overlook the fact that it came some

13 days into the evidence at trial and only after Mr. Ahmad’s counsel had

completed his vigorous cross-examination of Mubin Shaikh. The guilty plea was

made at virtually the last moment and in the face of an overwhelming Crown

case. Nonetheless, the plea did simplify the trial of the remaining accused. I must

give the guilty plea some weight as a mitigating factor although I give it far less

weight than I would have had it been made at an earlier date.

[64] By way of offering some explanation for the lateness of the plea, Mr.

Ahmad points to the fact that the Deputy Attorney General of Canada preferred a

direct indictment before the preliminary inquiry was complete. He submits this

negatively impacted his ability to assess the case against him prior to trial.

However, I would observe that Mr. Ahmad’s counsel had also completed his

cross-examination of Mr. Shaikh at the preliminary inquiry before the direct

indictment was preferred. Very full disclosure was also made in this case at an

early date. Little weight can be given to the submission that Mr. Ahmad did not

have an adequate opportunity to evaluate the strength of the Crown’s case prior

to the commencement of the trial. In any event, such a submission is at odds with
 - 31 -

the notion that a guilty plea will often lead to a reduction of sentence because it is

an acknowledgment of responsibility and an indication of remorse.

[65] In arriving at the determination of a fit sentence I am mindful of the

principle that a sentence should be similar to sentences imposed on similar

offenders for similar offences committed under similar circumstances: s. 718.2

(b) of the Criminal Code. There are very few Canadian precedents to consider on

this point. I have considered the reasons of Rutherford J. in R. v. Khawaja

(2009), 248 C.C.C. (3d) 233 (Ont. S.C.J.). I have reviewed and considered all of

the other authorities provided by counsel including the cases from Australia and

the United Kingdom that have been cited. Amongst the foreign authorities I have

found the judgment of Bongiorno J. of the Supreme Court of Victoria in R. v.

Benbrika, [2009] VSC 21 to be of assistance due to some similarities with this

case. The English case of R. v. Barot, [2007] EWCA Crim 1119 (Crim. Div.) is

factually different but highlights the unique nature of terrorist offences and

discusses important sentencing considerations at paras. 45 and 54-62.

[66] Of considerable importance is the formulation of a sentence that is

consistent in a proportional sense with the sentences imposed on other accused

persons involved in this case. In this regard I note that Mr. Amara received a life

sentence for leading the bomb plot: R. v. Amara, 2010 ONSC 441. Saad Khalid,

who was to deliver one of the bombs but was not in a leadership role, was
 - 32 -

sentenced to the equivalent of 14 years having regard to a substantial period of

pre-trial custody. Saad Gaya, also involved in the bomb plot but to a slightly

lesser degree than Mr. Khalid, received an effective sentence of 12 years. All of

those sentences were imposed by my colleague Durno J. based on guilty pleas

entered prior to the commencement of trial. All of those sentences are under

appeal by either the Crown or defence and although the appeals have been

argued judgment by the Court of Appeal remains under reserve.

[67] Amin Durrani was part of Mr. Ahmad’s group. He attended both of the

training camps and travelled to Opasatika to evaluate the potential safe house.

He was sentenced to 1 day in jail plus probation after serving almost three years

and eight months in pre-trial custody. On the basis of “two for one” credit for pre-

trial custody this is the equivalent of a sentence of almost seven years and six

months. Jahmaal James received the same sentence in circumstances that were

almost identical to Mr. Durrani’s in terms of pre-trial custody. Ali Dirie received

an effective sentence of nine years having regard to the effects of pre-trial

detention. Those sentences were all imposed by Durno J. following pleas of

guilty. They are not under appeal to my knowledge.

[68] I previously sentenced Asad Ansari to one day in jail to be followed by

three years probation. Having regard to pre-trial detention, for which I gave two

for one credit, this was an effective sentence of six years and five months. Mr.
 - 33 -

Ansari had been released on bail prior to the start of the trial. He was convicted

by the jury at trial.

[69] The convictions registered against Durrani, James, Dirie and Ansari are

based on their activities with Mr. Ahmad. Those accused were not involved in the

bomb plot with Mr. Amara. With the possible exception of Mr. Dirie, they did not

play a leadership role of any kind in the group.

[70] As a leader and the person who initiated all of the activities that have

given rise to these other convictions, it is fitting that Fahim Ahmad receive a

sentence which reflects his leadership role. This suggests a more severe

sentence than was imposed on the others I have mentioned who were

exclusively involved in Mr. Ahmad’s group. While after the split the bomb plot

posed a more immediate and grave threat than did the activities of Mr. Ahmad’s

group that is offset considerably by Mr. Ahmad’s leadership role. I agree with the

Crown’s submission that given his plea of guilty, late though it was, Mr. Ahmad

should receive a lesser sentence than Mr. Amara. I am also influenced to that

position by Mr. Ahmad’s ineffectiveness and by the fact that by the time of the

arrests Mr. Ahmad’s plans had not progressed to the extent that Mr. Amara’s

had.
 - 34 -

[71] In my evaluation of the overall circumstances I am prepared to place

somewhat more weight on Mr. Ahmad’s prospects of rehabilitation than the

Crown submits is warranted. Perhaps I am overly optimistic but I believe I see

prospects for rehabilitation in the letters that have been filed with the court. I

include Mr. Ahmad’s letter in this regard. However, as I have said, rehabilitation

is a subordinate principle of sentencing in this case. Nonetheless, this aspect of

the matter leads me to moderate the sentence sought by the Crown.

[72] Balancing all the factors I have discussed as best I can it is my

determination that a total global sentence of 16 years is appropriate. Time spent

in pre-trial custody will be deducted from that amount.

[73] I would apportion that 16 years between the three counts as consecutive

sentences as follows. On count one; participating in or contributing to the

activities of a terrorist group, the sentence is five years. On count two; importing

firearms for the benefit of, at the direction of or in association with a terrorist

group, the sentence is two years consecutive to sentences of even date. On

count four; knowingly instructing the individuals named in that count to carry out

any activity for the benefit of, at the direction of or in association with a terrorist

group, the sentence is nine years consecutive to sentences of even date, but

from which eight years and nine months shall be deducted as credit for pre-trial

custody on a two for one basis, leaving a sentence of three months consecutive
 - 35 -

to be served on count four. This leaves seven years and three months to be

served on what is effectively a 16 year sentence.

[74] In addition, Fahim Ahmad is to be subject to a weapons prohibition order

under s. 109 of the Criminal Code for life. I also order that he provide a sample of

his DNA for inclusion in the DNA data bank.

Parole Eligibility

[75] Pursuant to s. 743.6 (1.2) of the Criminal Code, when a judge imposes a

fixed term sentence of more than two years for a terrorism offence the court shall

order that the portion of the sentence that must be served before the offender

may be released on full parole is one half of the sentence, or 10 years, whichever

is less, unless the court is satisfied that the expression of society's denunciation

of the offence and the objectives of specific and general deterrence would be

adequately served by the usual or lesser period of parole ineligibility determined

in accordance with the Corrections and Conditional Release Act, S. C. 1992, c.

20. Section 743.6 (1.2) directs the court to consider the circumstances of the

commission of the offence and the character and circumstances of the offender

in determining whether to deviate from the presumptive period of parole

ineligibility.
 - 36 -

[76] In view of Fahim Ahmad's leadership role as I have described it, and

having regard to the objectives and purposes of his terrorist activities and to the

extent of those activities, I am not satisfied that there should be any deviation

from the presumptive position created by s. 743.6 (1.2) of the Criminal Code.

Consequently, Fahim Ahmad will be required to serve one half of the sentence I

have imposed today before he is eligible to be considered for release on full

parole.

[77] I would like to thank counsel for their submissions, assistance and

cooperation.

___________________________
F. Dawson J.

Released: October 25, 2010

 CITATION: R. v. Ahmad, 2010 ONSC 5874
COURT FILE NO.: CRIMJ(F)2025/07
DATE: 20101025

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

- and –

FAHIM AHMAD

REASONS FOR SENTENCE

F. DAWSON J.

Released: October 25, 2010