Wednesday, July 7, 2010

TORONTO 18 TERRORISM CASE - AMARA GUILTY PLEA

http://www3.quicklaw.com/cgi-bin/LNC-prod/lnetdocf.pl?DOCNO=273



Case Name:
R. v. Amara

Between
Her Majesty the Queen, and
Zakaria Amara

[2010] O.J. No. 181
2010 ONSC 441
Court File No. 2025/07

Ontario Superior Court of Justice
S.B. Durno J.

January 18, 2010.
(162 paras.)

Counsel:

Iona Jaffe and Sarah Shaikh, for the Public Prosecution Service of Canada.

Michael Lacy and David Kolinsky, for the Zakaria Amara.
REASONS FOR SENTENCE

¶ 1 S.B. DURNO J.:— Canada's mission in Afghanistan has been the subject of Parliamentary debates and extensive media coverage. It is a subject upon which some hold strong views. Zakaria Amara, aged 20 at the time, believed Canadian foreign policy regarding Afghanistan had to be changed. He sought to do so by recruiting young men to commit terrorist offences including bombing two buildings in downtown Toronto and a military base. Notwithstanding that he knew that death and serious bodily harm to members of the public was likely, he continued with his plans. Through effective law enforcement work, his plans were foiled. He was arrested along with 17 others and charged with terrorism offences.

¶ 2 He has pled guilty to two counts and is to be sentenced today. On behalf of the Crown, Ms. Jaffe seeks the maximum sentences for both offences, for one life imprisonment and for the other ten years. On behalf of the offender, Mr. Lacy seeks a total sentence of 18 to 20 years.

¶ 3 Counsel agree on the corollary orders: a s. 743.6 order that he not be eligible for parole for 10 years or one half of the sentence, whichever is less, a s. 109 weapons prohibition for life, a DNA order that he provide a blood sample and the analysis of that sample be placed in the national DNA data bank and an order for the forfeiture of $12,380 Canadian currency and $30 American funds seized from the offender's residence after his arrest.

The Charges

¶ 4 Zakaria Amara pled guilty to the following charges. In relation to what has become known as the camp plot:


Between the 18th day of December 2005 and the 30th day of December 2005, in the City of Mississauga, and in the City of Toronto, and in the Township of Ramara and elsewhere in the Province of Ontario, did by receiving and/or providing training knowingly participate in or contribute to, directly or indirectly, activity of a terrorist group for the purpose of enhancing the ability of a terrorist group to facilitate or carry out terrorist activity thereby committing an offence contrary to s. 83.18 of the Criminal Code.


¶ 5 And in relation to the bomb plot he has pled guilty to:


Between the 1st day of March 2006 and the 2nd day of June, 2006, in the City of Mississauga, in the City of Toronto, in the Township of Rama and elsewhere in the Province of Ontario, did commit an indictable offence, to wit: doing anything with intent to cause an explosion of an explosive substance that was likely to cause serious bodily harm or death to persons or was likely to cause serious damage to property, contrary to s. 83(1)(a) of the Criminal Code, for the benefit of, at the direction of, or in association with a terrorist group, namely Zakaria Amara and others, thereby committing on offence contrary to section 83.2 of the Criminal Code.


The Facts

¶ 6 On November 27, 2005 the offender met with Mubin Shaikh, a police agent, F.A. and others are a banquet hall. They discussed jihad, with the agent telling the offender that it was an individual as opposed to a communal obligation. F.A. began to recruit the agent by indoctrinating him with emotional arguments about the oppression of Muslims. While he said the "enemy" was the Americans because of the close local connections between Canada and the United States, Canada was also the enemy.

¶ 7 Amara produced a map and told the agent he had scouted out locations for "training." At this stage, the discussions were very general with F.A. making the final arrangements. The offender gave the agent a text, "Blood, Wealth and Honour of Disbelievers," which he interpreted as a jihadi text. The agent hugged Amara and felt a hard object in his breast pocket that he believed was a firearm. Later, the offender showed the agent a magazine and bullets he referred to as "hollow points, cop killers."

¶ 8 In late November, 2005, Amara drove to Cochrane where after making some inquiries he went to a forested area and discharged two 12 gauge shot guns. Before and after the trip he met with F.A.

¶ 9 From December 18 to December 30, 2005 F.A. and Amara held a training camp at Washago, Ontario. Their purpose was to provide training to potential recruits for their terrorist group so they could assess whether they were suitable candidates for the group. The plan the group was training for was an attack on Parliament and blowing up truck bombs. F.A. was the leader and motivator for those who lived in Scarborough and the offender fulfilled the same role for those who lived in Mississauga.

¶ 10 On December 30, F.A. asked the agent to buy a box of 9 mm Luger ammunition and 14 targets. Amara had brought a firearm to the camp.

¶ 11 Those at the camp engaged in basic military training including marches, paint ball games and obstacle courses. There were three halaqaat, formal sessions where F.A. imparted his ideologies to those in attendance. His message dissuaded the recruits from learning and encouraged them to fight for Islam. As he spoke an audio disk entitled "The Constants of Jihad" played in the background. The second halaqah by F.A. was videotaped by the offender so that the leaders could show it to higher up Mujahadeen people who would be impressed with them.

¶ 12 In that speech F.A. talked about defeating Rome, the United States. He says "... it's kick off ... well we're here to kick it off man." If they did not get victory, their kids would. He told the recruits that their minds and hearts had to be there. When they went back to society they had to put on a face and appear as a bunch of peace lovers. Their mission was greater whether they got arrested, killed, or tortured. The mission was greater than the individual.

¶ 13 The videotape was later seized by police. It included footage of the firearms training session conducted by the agent. A second videotape was discovered on the internet two years later. It also showed some of the training. It appears to be the video that the offender had sent overseas since he told the agent in January that the guys overseas thought the video was impressive. Several months later, Amara talked to F.A. about destroying the camp videos because he was scared. He had expressed concern about the second video as well because his face was visible.

¶ 14 Not everyone who came to the camp realized its purpose. Some were told it had a religious purpose and to learn outdoor skills. Surveillance officers saw a handwritten note in the offender's car on December 9 titled, "Dealing with new recruits." It said, "Don't' tell them anything, just give them jahadi da'wah," "give false name," "keep them on down low."

¶ 15 In early February, F.A. and Amara wanted to buy property to be used for training and as a safe house. A group that did not include Amara went to Opasatika to look at some property. When they returned on February 5, F.A. and the agent met with Amara. Their conversation was intercepted by means of a car probe. The offender told the others that he built the "first radio frequency control detonator." The problem was that you had to be 30 feet away, which was not good. F.A. said you would get blown up so you night as well stay in the car. Amara assured him that it was a step forward. F.A. said they would do it if it worked at 300 metres. The offender assured F.A. that it detonated.

¶ 16 On three occasions over two weeks, Zakaria Amara went to a public library and conducted computer searches for "ammonium nitrate in agriculture," "nitric acid," "rocket fuel," "fuel tablets," "buy nitric acid," "fertilizer," "explosives" and "ways to get ammonium nitrate." On one occasion he used the computer to order "Student Farmer" business cards. He was also seen in the library working with a soldering iron, spools of wire and batteries.

¶ 17 After the first computer search on March 22 the offender and Khalid went to Hamilton and met with Gaya. They sat on what appears to be a park bench and talked for an hour during which the offender appears to be demonstrating the triggering device with his finger and an explosion.

¶ 18 By March 24 F.A. and Amara had a falling out. Amara said the Mississauga guys would tell F.A. that what he was going was "Islamically wrong." Two days later, the offender left a message with F.A.'s wife that everybody in Mississauga quit everything totally.

¶ 19 By April 7 the details of the plan were emerging from the offender. The plans included his leaving the country. He wanted a two-way ticket, not because he was returning but because he knew law enforcement persons looked at the profile, a one-way ticket is an indication that results in further investigation. Later in April, the offender was intercepted talking about where he would go, noting Sudan was really good because no passport was required. At a later meeting, the offender said that he was going to hide in Pakistan and then enter Afghanistan for war.

¶ 20 On April 7, he told a second agent that they were going to bomb the Toronto Stock Exchange building, the CSIS building, both in downtown Toronto, and a military base that was later identified as being off Highway 401 between Toronto and Ottawa. Three vans would be rented, packed with explosives and triggered remotely. It was later disclosed that three persons, Gaya, Khalid and a third recruit would drive the trucks. There is no evidence they knew of this part of the plan. Later that month, S.A. told the second agent that the offender wanted to put shrapnel and metal chips in the bombs so they would intentionally hurt people. S.A. opposed that aspect of the plan.

¶ 21 Amara said the attacks were to occur in mid November, 2006 around 9:00 a.m. He would be on plane by 10:00 or 10:30. He had built the very sophisticated detonator that could be detonated from another city. He described from memory the explosive velocity of RDX explosives and ammonium nitrate explosives, the two types of bombs he considered. Since RDX was too difficult to obtain, the bombs would be made of ammonium nitrate. Amara wrote out the ingredients he needed and gave it to the agent - two gallons of nitric acid between 90 and 98% and one and one half tons of ammonium nitrate.

¶ 22 He had two plans to obtain the ingredient, through one bulk purchase by a contact or he would have two unnamed friends, presumably Gaya and Khalid, buy fertilizer, bleach and household items to make the bombs in small quantities up to nine times a month from Canadian Tire and Home Depot.

¶ 23 The offender said the plan would cost $20,000 for the Canadian expenses and $10,000 for the travel and living expenses in Pakistan for those intending to flee. The offender later told the second agent that they had $20,000 cash. Including the money paid to the second agent for the ammonium nitrate and the money seized at the time of the arrests they had access to roughly $30,000.

¶ 24 After the second agent told the offender his uncle owned a large chemical plant, Amara asked him about getting ammonium nitrate, nitric acid and sulfuric acid.

¶ 25 On April 15 and May 3, police surreptitiously entered Amara's home observing a safe that was visually inspected through a screw hole. It contained electronic devices and envelopes of money. On the second date, they saw fifteen rounds of 9 mm ammunition. The offender's computer had saved photographs of hexamine containers and hexamine fuel tablets, and a video depicting the mixing of chemicals. They also found the bomb manual, a list of chemicals and suppliers, packaging for an MK 160 Remote Control via Cellular Phone, and 200 Student Farmer business cards.

¶ 26 The "Bomb Manual" is a 135 page collection of directions for making explosives with portions underlined, handwritten notations and handwritten pages dealing with ingredients. The book also contains an article, Clarification About the Issue of Jihad Today.

¶ 27 In late April, Amara showed the second agent circuit board with wires attached that was the mother board. It could be called from anywhere and explode.

¶ 28 On May 1, Amara bought three pagers to be used by Khalid, Gaya and himself to communicate. That same day he told S.A. that he did not care if he got arrested because he will have tried his best.

¶ 29 S.A., without Amara being there, told the second agent that the purpose of the attack was to affect the economy, to make it lose half a trillion dollars and close the stock exchange for days. At a later meeting, he said it might cause Canada to withdraw from Afghanistan.

¶ 30 On May 11, S.A. told the second agent that Amara now wanted two tons of ammonium nitrate and eight litres of nitric acid. The next day, S.A. told the agent that Amara said the bombs would be bigger than the London subway bombings although S.A. did not share that view. Amara had said one of the three would be comparable to the bombing in Riyadh, Saudi Arabia.

¶ 31 The next day Amara told the agent that he needed 90 to 95% concentration of nitric acid and not 76%. The amount of nitric acid was increased to ten litres.

¶ 32 On May 18, S.A. told the agent that Amara was being followed 24/7. The order was increased to three tons of ammonium nitrate. The next day S.A., the offender and the second agent met regarding the prices for the chemicals. S.A. said that any bomb more than two tones was a "weapon of mass destruction" and he was not going to go to jail for something small. Amara said, "OK, make it four tons." The next day, the order was reduced to 3 tons.

¶ 33 Amara told the agent via a memory stick exchange that he was the leader and that the plan would be implemented in late September. That same memory stick contained a video of Amara demonstrating the remote detonation device, apparently in his home.

¶ 34 On May 30, the offender left messages for Gaya about the importance of renting the house for June 1. That plan fell through and Khalid rented a storage unit from an undercover officer on May 31 pursuant to a police plan to avoid the chemicals going to a house.

¶ 35 On June 2, Khalid picked up Gaya and drove him to a store where they bought large quantities of corrugated boxes and plastic bags. Pursuant to their detailed instructions from the offender, they were to empty the bags of ammonium nitrate into the boxes and stack them high so it was hard to get the top box, putting red dots on the bags so that they could know if it was replaced as occurred in London when authorities switched the bags. They were also to put wax on the door and frame so that it would be obvious if the door was opened. They had bought candles for that purpose.

¶ 36 Khalid and Gaya were observed and videotaped unloading the purported ammonium nitrate bags. They were arrested as they were unloading the truck. They had handwritten instructions from Amara directing them what they were to do. Gaya's backpack contained $9,150 cash. There was also a memory stick that contained instructions from Amara to Khalid and Gaya about getting the house, doing surveillance in downtown Toronto, and obtaining chemicals. Around the time of that message Amara had given Khalid a pinhole camera for use in his surveillance activities.

¶ 37 After the arrests the offender's home was searched and two modified PMK 160 circuit boards found, the bomb manual and $12,360 cash. His computer contained satellite photographs of the Parliament buildings as well as maps of roads near Parliament, logos depicting the twin towers, still photos of the training camp, and instructional videos on bomb making. His car contained a video depicting roadside bombing and executions of western soldiers.

¶ 38 The expert report concluded the offender was likely manufacturing mercury fulminate, a primary explosive, manufactured by treating mercury with strong nitric acid. Another expert explained that the PMK 160 circuits seized are designed to function with a cellular phone and can receive a visual signal through a photo-sensor unit. It can be used at close or long range. The "trigger test" video likely depicted the activation of a PMK 160 circuit.

¶ 39 The modified PMK 160 kit seized from Amara "has the technical and operational potential to be used as an arming or triggering mechanism in an improvised explosive device." An explosives blast test with one ton of ammonium nitrate and gasoline created a bomb equivalent to 768 kilograms of TNT. That bomb would have caused catastrophic damage to a multi-story glass and steel frame building 35 metres from the bomb site, as well as killing and causing serious injury to people in the path of the blast waves and force. The impact of the bombs are illustrated in the video of the test conducted after the arrests.

The Offender

¶ 40 The background information about Zakaria Amara comes from a psychiatric report, letters filed on his behalf and the offender's statement in court on the last date.

¶ 41 Zakaria Amara is 24 years old. He was 20 when arrested. He has been married to Nada Farooq for 6 years. They have a 4 year old daughter. At the time of his arrest, the offender was working at a gas bar and was a first year electronics student at Humber College.

¶ 42 He was born in Jordan and baptized as an Orthodox Christian during a family visit to his mother's homeland, Cyprus. At age 4, the family moved to Saudi Arabia as his father was working for an oil company. For the next 6 years they moved back and forth between his father's home in Jordan and his mother's in Cyprus. From ages 10 to 13, he was raised by his mother alone in Cyprus. The offender's wife says that he first converted to Islam at age 10 because he was being consistently goaded by his friends that he would go to hell if he did not.

¶ 43 In 1997, the family moved to Canada where both parents worked outside the home. The offender turned to his practicing Muslim peer group for intimacy, consistency and loyalty. His parents underwent their first Islamic divorce in 2003. His father sold his business and was unemployed for a period of time. At 18, the offender proposed to his wife. They were married in October, 2003.

¶ 44 The offender told Dr. Syed that part of his desire to fight in Afghanistan was that his life was getting difficult after he married so young.

The Psychiatric Report

¶ 45 Dr. Syed reported that the offender had never been violent in his past. His wife said he had never raised his voice or hand to her. He found the offender to have a pleasant personality. His family reported that was the "class clown," with all his teachers loving his jokes that cheered up the class. He was a funny, animated guy with a sense of humour. His family said that he was always willing to change and improve.

¶ 46 The doctor concluded the offender devotedly tied himself to theoretical ideals and relationships in response to real-world complexity and isolation, a theme that would continue to weave throughout his life. That his devotedness to the conceptual Muslim world was a surrogate for his disintegrating family was illustrated by his statement, "I used to think that I needed to support the Muslims in every act they take."

¶ 47 The doctor concluded that it was clear from Zakaria Amara's background of character development that there were no antisocial psychopathic personality traits. Since 2004, he was looking for the right answers through the lens of anti-establishment glasses. While his static factors were minimal, the dynamic factors led him down an unlawful path from which he was unable to extricate himself.

¶ 48 Dr. Syed provided his account of the events that may have influenced the offender's attitude and emotional state. After completing grade 12 in the summer of 2003, he went to the University of Medina in Saudi Arabia to apply as a full time student in Islamic studies after obtaining references from moderate Muslims in the GTA. He had given Islamic sermons in high school on Fridays and had never mentioned jihad or politics. It was known that he genuinely wanted to be a scholar. He was intellectually grounded in the Safali ideology in the spectrum of Islam at the time.

¶ 49 When the offender's application was rejected he was very, very disappointed. His idealization of the Safali establishment took an about-face and lesser-known authors were taken as a source of authority. I infer these authors had extremist views. The doctor notes the offender no longer regards these authors as a source of authority. By abandoning established ideology, he was deprived of scholarly methodology and isolated from modern scholarly consensus. In the result, the interpretation of the Qur'an and Prophetic statements would be self-styled, likely being self-serving of unconscious emotional needs.

¶ 50 Dr. Syed said his scholarly isolation was compounded by his father leaving the home in 2004. Soon after the offender and his wife, both teenagers, started to live together as husband and wife in January, 2005. A month later, his wife was pregnant. He then had to look for an apartment, while working full time and attending Ryerson at night for one course. After one term he dropped out of the course. His parent's second Islamic divorce occurred in March and his father went to live in Dubai. He has never returned.

¶ 51 Without adult supervision, the offender and his wife sought out other couples. He had a very tight circle of friends. In these circumstances, the spiritual ideals of jihad stagnated, hardened, and sank into self-aggrandizing bravado. He was working in a gas station that helped to create an intellectually stunted environment. Internet jihad videos became more exciting and their causes more urgent.

¶ 52 Amara's need for violent jihad likely came from a rigid and confined ideology that was given provisional animation by his emotional needs that replaced scholarly aspirations. It seemed his unmet emotional needs created a susceptibility that permitted him to be infected with an extremist ideology that would re-create its own motivations, perceptions, concepts, emotions, attitudes and behaviours. Some around him said he seemed like a different person. His need to attempt terrorist acts may have included his determined need to follow through on commitments of Muslim loyalty.

¶ 53 As I read the report, the doctor relied on certain events that were occurring in the offender's life and drew inferences that those events led to the offender's beliefs at the time of the offences. Zakaria Amara may have felt the need to be important to the perceived Muslim cause after his pro-social aspirations were rejected according to Dr. Syed.

¶ 54 Dr. Syed concluded the offender's openness to discovering a deeper truth would guide his genuine willingness to turn away from criminal conduct. The dynamic risk factors have been effectively subdued by his three years in segregation. What remained was the assessment and treatment of his extremist jihadi ideology.

¶ 55 The evolution of his thinking while in jail showed that his hardened ideology remained firm because sitting in segregation he did not have another point of view to discuss. It was about six or eight months ago that his high school friend and co-accused Sa'ad Khalid told him, "What we did was wrong." The offender has told his wife that he was glad the planned events never happened. She could see in the days before the arrest that he had inner-turmoil. The offender also had discussions with other inmates at the Don Jail that contributed to his re-thinking his beliefs. One, a former Canadian soldier who had been in Afghanistan, sympathized with the suffering of Muslims. The doctor felt the offender's emotional life may have become liberated while in custody.

¶ 56 Dr. Syed met the offender twice for a total of four hours. The offender said he completely regretted his actions. Dr. Syed made a vigorous critique against extremist jihadi ideology during the interviews.

¶ 57 He attempted to probe the current depths of the offender's views by questioning the authenticity of his religious assumptions. On one issue, he admitted his philosophical error. He said he was willing to learn and be helped. On another issue, the offender was less firm than he had been previously and on a third he needed more time to think about it. Dr. Syed said he showed the offender that his methodology and conclusions were flawed. When asked if he would ever act on his flawed ideas again, the offender sheepishly said, "On a personal level, I sort of want to retire."

¶ 58 At the second interview, the offender was more submissive and said he felt like he was locked in a metal box, he needed to talk to people who would give him new ideas and show him a different way. He realized he needed help and was willing to listen. He said his major problem was lack of guidance. Dr. Syed said he believed the offender was being candid with him.

¶ 59 The report concluded:


Although his ideological transformation has not yet been perfected, it was advanced enough even before this interviewer's involvement, he admitted to the guilt of what he had done. After my person interviews, I am confident that a systemic educational dialogue with a qualified religious authority figure and skilled counseling with a Muslim therapist will eventually bear wholesome fruition. Overall, it is my Psychiatric assessment and professional opinion that Zakaria Amara displays a strong willingness to change his attitudes and behaviours and shows high potential to respond to treatment. If he is allowed to participate in the therapeutic process, Zakaria Amara may be able to rejoin society as a reformed, rehabilitated and renewed citizen. To allow him the opportunity and resources for self-correction is a moral imperative which I believe will likely result in healing far beyond the confines of the physical prison.


¶ 60 Dr. Syed provided a list of treatment recommendations including that upon release parole officers should have intimate knowledge of Zakaria's continuing attendance at the local Masjid. This is to ensure that neither an extreme isolation from the community, nor excessive political activism occurs. Both are factors for relapse. That recommendation included a plea that there must be quality to the time served with resources expended on the healing while in jail. Mr. Lacy appropriately submits that the recommendations, while well considered, are not realistic given the sentence ranges that are being discussed.

¶ 61 Dr. Syed's report, titled Psychiatric Report, Regarding Amenability to Treatment, had the following qualification at the outset:


This report was made only to address the question of amenability to treatment and to provide a dynamic understanding of the patient for those who would engage in his rehabilitation. Dr. Syed is not a forensic psychiatrist and does not do risk assessments.


¶ 62 The offender's wife, mother, sister and brother wrote letters in support of him. Nada Farooq married the offender when she was 17 and he was 18. While they thought they could overcome the challenges of marrying so young, those challenges soon overwhelmed them. Soon after came the wars in Iraq and Afghanistan and a roller coaster ride of conflicting emotions for Zakaria including confusion, shock, sorrow, helplessness and outrage of images of conflict and barbarous stories of slaughter of Muslims. Some of his companions felt the same way. While many felt the same way, they did not choose to respond like her husband did.

¶ 63 With the guilty plea came the stark realization that their daughter and her would be paying a very heavy price for his actions. In her third year of university, she is raising their daughter on her own and struggling to support herself living in her parent's basement apartment. Their daughter was 8 months old on June 2, 2006. She prays every night that her father will come home.

¶ 64 She feels her husband can become a good citizen with counselling and rehabilitation. She feels he will not re-offend and is remorseful. She will help him recover. Over the past three years he expressed remorse indirectly at the beginning and openly since his plea. She hopes I will consider the future of their daughter in imposing sentence.

¶ 65 Zakaria's mother described her son as a caring individual who always listened to his parents. He was clever and won awards in school. He always made sure he was a phone call away and available to help her. She will be available to support him once he is released. She asks me to remember her pain as a mother waking up every morning and waiting for him to come home.

¶ 66 The offender's sister wrote that Zakaria was always a big brother to her, a motivation in her life. She along with the other family members will support him throughout and be available for him when released. She feels that during his time in jail he has matured mentally, successfully being able to view his life and past mistakes in a grown up perspective. His family believes that he is capable of making healthier decisions. The offender wants to complete his university degree while in custody.

¶ 67 His brother wrote of the family coming to Canada as new immigrants 12 years ago. He has seen his brother's "unquestionable care and benevolent brotherly love first hand." He promises to support his brother and be available upon his release.

¶ 68 On the last date, the offender filed two letters he had written, one to Canadians in general and Muslims in particular and one to me. He read most of them in court with some additional comments. In one letter he described himself as sincere, humble and kind.

¶ 69 He told Canadians he was certain that many, if not all, would never forgive him. He offered no excuse or explanations. He deserved nothing but their complete and absolute contempt. He wrote to say how regretful and sorry he was. He hoped that the day would come when he can demonstrate his regret in actions rather than words. He then addressed the Muslims in Canada:


As for the Muslims amongst you, I have an additional comment to make. I cannot imagine the type of embarrassment or anxiety you must have gone through in the days following my arrest. I am sure than many of you received unwelcome attention and felt hopeless in trying to explain that the actions of a few were not endorsed by the community. I am sure many of you probably cursed me. To you I say that the gravity of the damage I caused to you makes any excuse or apology inappropriate. I can only hope that when all of you, Muslim and non-Muslim, witness the type of man I will one day make out of myself and the type of activities I'll be involved in, then you will perhaps contemplate accepting me once more into the fold.


¶ 70 In his letter and comments to me he said that his whole life he struggled to discover the truth and reality of life. In retrospect, that same struggle led him down the path to extremism. He was na├»ve and gullible enough to think that it was simple, that was dangerous. He became locked in an ideological position subconsciously afraid of any threats or challenges to the ideology and began to isolate himself from the real world.

¶ 71 It was lucky that he got arrested. He was glad it happened. For the next three years he was in isolation, pretty much the antithesis of rehabilitation because it served the demands of the ideology staying secluded. After three years, he was released into the general population, where his ideology was challenged and confronted. At the start, he vigorously defended his positions. However, every time he walked away with doubt in his heart. The other inmates' moral, simple and basic logical arguments caused him to reconsider. Their arguments were like pick axes that chiselled away at his ideological walls. When confronted when somebody shows him he is wrong, he is willing to accept it.

¶ 72 He also had an opportunity to interact with people including a Jewish inmate, a Shia Muslim, and an inmate who worked on Bay Street and had two brothers who worked in the Exchange Tower. He told of his interactions with them. It made him reconsider, it was an enlightening experience.

¶ 73 He continued:


I would like to promise you and every Canadian that no matter how long it takes and how much it costs, that I will produce actions one day that will outweigh the actions that I once took towards hurting other human beings and that I will sort of turn around from a man of destruction to a man of construction.



Another thing that I'd like to say, Your Honour, is that whatever sentence that you pass down, I will embrace because at the end of the day, I think, being fair to myself, I deserve much more than a mere sentence but at the same time I ask you to, I guess, not close the door and give me a chance that one day I'll be able to pay for the moral debt that I still owe.


¶ 74 He said he would use his sentence to build himself into a man of construction.

The Weight to be attached to the offender's evidence and comments

¶ 75 To assist in assessing the mitigating and aggravating factors on sentence and applying the purposes and principles of sentencing, I turn next to the vigorously contested issue of the weight to be afforded the offender's evidence. The Crown strenuously objected the offender's application to introduce the psychiatric report. In a separate ruling, I have found it to be admissible subject to weight.

¶ 76 The Crown contested the weight that could be attached to the comments of those interviewed by Dr. Syed, the letters filed on behalf of the offender, his letters and statement in court. In particular, Ms. Jaffe notes that she had no opportunity to cross-examine any of those persons on their statements including the offender. The prosecution also challenged Dr. Syed's report and evidence, contending it should be given no weight.

¶ 77 The offender argues the comments are all credible and trustworthy in the absence of anything more than a generic attack on the credibility of all accused persons. He submits that Dr. Syed's opinion is sound and should be given significant weight.

¶ 78 First, in relation to the statements of his family members and a friend that Dr. Syed relied upon, there were challenges in determining which person gave what information to the doctor since many of the comments were not sourced. While I appreciated that none of those interviewed were cross-examined, the usual manner in which evidence is tested, they were admissible as providing the basis for portions of the opinion. I also find that they were reliable sources of information on the sentencing. They should not be disregarded as having no weight.

¶ 79 Second, in relation to the offender's comments to Dr. Syed, I am satisfied that they provide some evidence regarding his background, what he was thinking and what he is currently thinking. They were not the subject of cross-examination, but given all of the evidence, I am not prepared to reject or discount them.

¶ 80 Third, in relation to his statements when given his legislated opportunity to speak, he did so from the prisoners' box and was not cross-examined. Those statements can be relevant to some of the sentencing criteria such as whether the offender is remorseful and has taken responsibility for the offence: S. Casey Hill et al., ed., McWilliams Canadian Criminal Evidence, 4th ed., Canada Law Book, Aurora, Ontario, 2008, at p. 34-23, 34:70. These statements are not ordinarily subject to cross-examination: McWilliams, at p. 34-24, 34:70. While it may be that the Crown could apply to cross-examine the offender, there was no application to do so here: McWilliams, at p. 34-24, 34:70.

¶ 81 In these circumstances, I am prepared to rely upon his statements as reflective of his current thinking, acknowledging there was no cross-examination. Apart from his position as an accused who clearly has an enormous interest in the outcome today, there was nothing further I could identify that would suggest that he was disingenuous or otherwise saying the "right things" to reduce his sentence.

¶ 82 I note as well that the comments he made did not reflect a continued devotion to extremist ideas. He did not use the courtroom to advance any such ideas. This is an indication he has or is moving away from that ideology.

¶ 83 Tuning next to the psychiatric report, in a separate ruling I found that Dr. Syed was qualified to give opinion evidence. He used his familiarity with Muslim ideology in the challenging the offender's views. He was an honest and forthright witness. He had the best of intentions. In terms of his conclusions, the Crown did cross-examine him.

¶ 84 There are however, limitations on his opinions, limitations that I find effect the weight to be given his report. While he routinely assesses persons for amenability to treatment; that he had never been involved with a person who had committed criminal offences for court purposes, impacts on the weight of his opinion. He does not have that wealth of experience that some forensic psychiatrists bring to their assessments, notwithstanding that the nature of this offence and those convicted of terrorist offences raise different issues.

¶ 85 While I appreciate that he was acting on Dr. Gojer's advise in not employing the standard actuarial tools because they do not apply to persons who commit terrorism offences, that the conclusion regarding underlying conditions were reached based on the interviews only reduces somewhat his opinion. He said that from the background of the offender's character development there were "no antisocial psychopathic personality traits." Counsel agree that while those who commit terrorism offences pose new challenges for psychiatrists and psychologists and in risk assessment, there is nothing that says a terrorist cannot be a psychopath or suffer from anti-social personality disorder. In many reports filed in criminal cases, the tools are used in addition to the doctor's opinion, albeit they deal with other offences.

¶ 86 Dr. Syed does not conduct risk assessments and neither his report nor his evidence should be seen as such. What he has done is assess Zakaria Amara's amenability to treatment. That is not the same thing as a risk assessment. That the doctor had no experience dealing with the de-radicalization of a terrorist cell leader in itself does not detract from the opinion. There are very few people in Canada who have been convicted of this offence. There is nothing before me to say that anyone else has that expertise, and no one was suggested as being better able to address that issue.

¶ 87 However, on this record, the absence of information about what has worked in the past in achieving the objective, what factors could be considered in arriving at the opinion and whether there are indicators that would help predict whether de-radicalization was possible and could be successful, are factors to consider. Put simply, we do not know. The opinion that he is amenable to treatment has to be seen in that context as well as the fact that his recommendations while conscientiously presented are not realistic. This is not to be critical of Dr. Syed's efforts.

¶ 88 What Dr. Syed gave was his opinion why the offender did what he did. While he acted upon the statements of the offender and his family regarding the events in his life, in general, I find that what he was told was generally reliable information he could act upon. The offender came from a home in which there was marital discord, they moved frequently, he was without his father's influence for significant periods, got married very young, became a father at 19, was rejected at a university he clearly wanted to go to, to pursue his chosen career, his father left the home, he was without parental influence living on his own and not coping with the challenges he faced. That he would change direction as a result of what he was reading and his close circle of friends is in that situation plausible.

¶ 89 For whatever reasons he clearly became immersed in, if not obsessed, with the extremist ideology and became an advocate for his newfound theology. His actions as reflected in the agreed statement show the intensity of his commitment to the cause and his objectives. For at least 7 months, he was obsessively devoted to the extremist ideology and set out to implement it. The depth and intensity of that devotion is reflected throughout the facts. Zakaria Amara acknowledged that those views remained throughout his period in administrative segregation, 3 years, and for a short period when he was admitted to the general population at the Don Jail.

¶ 90 What Dr. Syed provided was an opinion on the offender's capacity to change. The offender says he is willingness to do so and Dr. Syed accepts his position. He could not, and does not say that Zakaria Amara is rehabilitated and de-radicalized. Given his own limitations on his report, he is not saying the offender does not pose a risk of future criminal conduct. What he concluded, was that the offender has the capacity to change. I accept that a key to identifying attitudinal change which involves a process. There are indications that process has started. Were he to do so, it would impact on his risk to the community. He also provided some context and his explanation for why the offender committed the offences.

¶ 91 In terms of his evidence that the offender was willing to change, in his recommendations, he cautioned that isolation and excessive political activism were risk factors for relapse. He says the offender may be able to rejoin society as a reformed, rehabilitated and renewed citizen. To allow him the opportunity and resources for self correction was a moral imperative which he believed will likely result in healing far beyond the confines of the physical prison.

¶ 92 That Dr. Syed believes the offender's assertion that he will turn things around is apparent. Part of his practice in making clinical assessments was looking for malingering or deception. He was very confident in what the offender told him because if it were otherwise Amara would have lost the ideological argument right away. Yet, they had an extended argument for a very long time. That explanation for his confidence in his opinion appears to relate to his ideological views since, as I understand it, that was the issue upon which the doctor was challenging him. However, it is somewhat unusual to see such forceful assertions on credibility in a psychiatric report as opposed to that the subject appeared to be sincere or similar comments.

¶ 93 There were indications in his discussions with the offender that he changed his views on some issues and was willing to re-examine his views on others or at least consider them.

¶ 94 The Crown argued that I had to be certain he would no longer pose a risk and that if I were not, that I had to impose a life sentence because that would provide the best protection for the public with him being on parole for life. With respect, I am not persuaded that the test is certainty. I have to take all of the factors into consideration in determining the sentences. To require certainty, would put the onus on the offender to establish the prospects of rehabilitation beyond a reasonable doubt.

¶ 95 The effect of the expert opinion is that the offender has the capacity to change, has stated that he is willing to do so and that he has taken some steps in that direction. I accept that opinion, but it is in the context that what has taken place occurred within the past 6 months or less. The depth of the offender's commitment and ideological beliefs may be changing, but a few months in the general population with inmates, four hours with the doctor, and his apparently sincere comments in court, require a circumspect assessment at this time. The depth and duration of his commitment will best be known in the future.

¶ 96 The offender's comments in court while reflective of his current thoughts, do not automatically equate with what will occur in the future. He appears to have been fortunate being on a range at the Toronto Jail where some inmates gave him constructive assistance. Whether that will remain in a different environment, with different inmates or otherwise, remains to be seen. In that regard, there should be concerns which federal inmates he associates with. While the challenges he faced at the time he became involved in the extremist ideology were not insignificant, that he will face difficult and challenging times in the future and how he will respond are areas of concern.

¶ 97 I appreciate that the same could be said for all offenders who speak to sentence and provide psychiatric assessments. Predicting the future is a perilous endeavour. It can be particularly perilous regarding risk. I accept that persons who commit terrorist offences, bring new challenges to sentencing as indicated in the D. Elaine Pressman article. [See Note 1 below] Zakaria Amara did not just commit a criminal offence, he committed a terrorist offence that would have had catastrophic and fatal consequences. He did not do it as a foot soldier, he did so as the leader. This is a unique situation. His role and the evidence introduced in this hearing distinguish this offender and this record from that of his co-accused.

Note 1: Pressman, E. (2009). Risk Assessment Decisions for Violent Political Extremism. User Report 2009-02. Ottawa: Public Safety Canada.

¶ 98 I am not prepared on this record to give significant weight to the psychiatric report. It is not without any weight at all. However, for the reasons indicated, I do not find it has the significant weight as suggested by the offender. The comments of the offender as well as those of his family merit weight.

¶ 99 I will next examine the factors I have to consider in sentencing.

Analysis

¶ 100 Sentencing requires a delicate, case specific analysis. It is as difficult a task as any faced by trial judges: R. v. Hamilton, [2004] O.J. No. 3252 (C.A.), para. 85. It is a task in which the trial judge has a duty to the public as well as to the offender: R. v. Borde (2003), 172 C.C.C. (3d) 225 (Ont. C.A.). The process has a narrow focus, aiming to impose a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: Hamilton, para. 1 and 2.

¶ 101 There are aggravating and mitigating factors pursuant to legislation and caselaw. Those factors can increase or reduce a sentence: s. 718.2(a).

FACTORS IN AGGRAVATION

(1) The Potential Harm

¶ 102 This is the first sentencing out of this prosecution where the offender acknowledges knowing all the details of the plan. Accordingly, what could and would have happened had the police not intervened is more relevant in this sentencing. Had the offender's plan been implemented there would clearly have been injuries and deaths. While the element offence is 'likely death or serious bodily harm' there is no dispute that what would have occurred was multiple death and injuries. On the timetable indicated in the facts with detonation occurring at 9 a.m., the impact would have been magnified as workers arrived for work. With one ton bombs at each location, the results would have been catastrophic. What this case revealed was spine-chilling. I agree with Mr. Lacy that the potential for loss of life existed on a scale never before seen in Canada. It was almost unthinkable without the suggestion that metal chips would be put in the bombs. Had the plan been implemented it would have changed the lives of many, if not all Canadians forever.

¶ 103 The Exchange Tower has 36 floors, 963 offices occupying over a million square feet of rentable space. It is connected to adjoining buildings by the underground Path system. The CSIS building is also in the downtown area, an area that would be very busy at that time of day. The military base presumably would be occupied by troops and civilian employees, resulting in further injuries and loss of life.

¶ 104 This was not an offence that would just impact on those who were injured or killed and their families and friends. This type of offence, even when it is stopped before the plans are implemented, impacts throughout Canada. It cannot be said, "These things only happen in other countries. It could not happen here."

¶ 105 As the offender acknowledged in his statement, even his arrest resulted in embarrassment and anxiety for Muslims. The many, many hard working, peaceful Muslims in this area and elsewhere in Canada were already impacted by the offence.

¶ 106 In addition, there would have been massive property damage and to at least some extend an interference with the stock exchange. That it would have impacted the economy, cannot be excluded.

(2) Planning and Deliberation

¶ 107 At times criminal offences occur on the spur of the moment, without forethought to the consequences of the actions. This was not a spur of the moment plan. Reading through the Agreed Statement, the voice messages, and the bomb manual reveals a plan that was thoroughly researched and meticulously planned to the point that detailed instructions were given to those who did not know all the plans. The plans even included his fleeing the country right after the detonations.

(3) The Leadership Role

¶ 108 Zakaria Amara was the directing mind of the bomb plot and one of the directing minds for the camp plot. The meticulous details for the bomb plot were provided by Zakaria Amara. He became knowledgeable about bomb making ingredients and how to avoid detection.

(4) The Use of Firearms

¶ 109 In relation to the camp plot, the offender brought a gun to Washago. He was later found in possession of bullets. It is an aggravating factor in relation to the camp plot that firearms were used. He also was seen with deadly hollow point bullets, what he called "cop killers."

(5) Recruiting

¶ 110 In addition to the leadership role, Zakaria Amara was an active recruiter who influenced young men to become involved in a deadly plot. He led some into substantial jail terms. At the outset his plan was to keep the recruits "down low." Don't tell them much.

(6) Terrorist Offences

¶ 111 Parliament has mandated that in addition to providing for a maximum sentence of life imprison for this offence, it is a statutory aggravating factor that the sentence is for a terrorist offence: s. 718(a)(5). In doing so, Parliament sent a clear message that any terrorist offence is a most serious offence. Given the bomb offence has a maximum sentence of life, it is in the most serious category of terrorism offences.

FACTORS IN MITIGATION

(1) Guilty Plea

¶ 112 A public acknowledgement of guilt through a guilty plea, is generally indicative of remorse and the potential for rehabilitation. The plea saves court time and the public the expense of a trial.

¶ 113 The credit to be given for a guilty plea cannot be reduced to any formula, but will vary with the circumstances of each case, including the timing of the plea, the strength of the prosecution's case, whether the facts are admitted or a contested-facts hearing is required where the aggravating facts are established and whether there were any assurance as to the sentence to be imposed: R. v. Faulds (1994), 20 O.R. (3d) 13 (C.A.); R. v. Daya (2007), 227 C.C.C. (3d) 367 (Ont. C.A.). Here, Zakaria Amara has not attempted to minimize the facts, the results that would have occurred or his involvement.

¶ 114 A plea can be a genuine demonstration of remorse and the potential for rehabilitation or it can be the recognition of the inevitable. Even the latter type of plea merits mitigation because of the saving of court time: R. v. Rosenberg, [1993] O.J. No. 3260, para. 19. The Crown submits that this was an overwhelming case. The offender argues that the use of paid agents, and the reliance on intercepted communications and search warrants, that the case was far from overwhelming.

¶ 115 This was far from an early guilty plea, generally the type of plea warranting the greatest credit. This plea occurred over three years after the arrest. This was a most complex prosecution, perhaps the most complex and challenging one in this province at least. There were issues that had never been litigated and relatively new legislation to be interpreted. That the investigation started out as a CSIS one posed additional challenges. I accept that in order to properly assess his position, the offender should know what evidence was available in relation to many aspects of the case, before an informed decision could be made. This is particularly so when the Crown seeks the maximum sentence of life in prison for the bomb plot.

¶ 116 The offender pled guilty before the ruling admitting the wiretaps, a key part of the Crown's case. That goes to his credit. I accept Mr. Lacy's submission that there were arguable issues to be advanced. The offender's counsel conducted the case in a responsible manner. He pled after the CSIS disclosure motion. He also pled guilty in the knowledge that the Crown was seeking the maximum sentence for both offences and with no assurances what the sentence would be or what range would be considered. Those factors go to his credit as well.

¶ 117 The plea also brings finality to the convictions stage of the proceedings against this offender. Had there been a trial, almost invariably there would have been a lengthy and costly appeal.

¶ 118 I am also persuaded that his plea had some impact on the bomb plot trial going from a multi month jury trial to a three week non-jury trial.

(2) Age

¶ 119 Zakaria Amara was 20 years of age at the time of his arrest. He is a young adult offender. While perhaps just beyond the category of a youthful offender, he is a young man with many years ahead of him. The young age of an offender generally mitigates the sentence because they possess the greatest potential for reform and rehabilitation. They can also display a lack of judgment attributable to their youth. However, as the offence gets more serious, the mitigating effect of age decreases: R. v. Borde, (2003), 172 C.C.C. (3d) 225 at para. 36. That does not mean that age is totally eliminated from the sentencing equation for serious offences, just that it has less significance.

(3) First Offender

¶ 120 The offender had never been convicted or found guilty of a criminal offence as a Young Person or adult at the time of his arrest. He has not been charged or found guilty criminally or administratively while incarcerated. Where an offender has been through the criminal justice system once or more than once and commits further offences, a reasonable inference may be drawn that the offender did not get the required message from lesser punishments on earlier cases. Where an offender has never had contact with the criminal justice system, it is expected that being arrested, here held without bail for over three years, and publicly tried will, in itself, have an important impact. In general, the sentence that should be imposed on a young first offender is not the same sentence required to send a message to a more seasoned criminal or to the public.

¶ 121 While the Court of Appeal has held that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the youthful accused rather than solely for general deterrence and denunciation, as the offence becomes more serious those comments have to be altered to reflect the more prominent principles of sentencing for more serious offences: R. v. Priest, supra.

(4) Remorse

¶ 122 If an offender is genuinely remorseful, it mitigates the sentence because it tells the Court and the public that he or she has learned from being arrested, brought to court and admitting their guilt. A sincere expression of remorse is a valid consideration on sentence because it acknowledges the harm or potential harm done. Remorse is also relevant to the prospects of rehabilitation and restoration to the community: R. v. Francis (2006), 207 C.C.C. (3d) 536 (Ont. C.A.) at para. 27.

¶ 123 I accept that the offender appears to be remorseful from his comments in court, those of his family and Dr. Syed.

(5) Psychiatric Assessment

¶ 124 While I have noted the findings regarding the weight to be attached to the report, it provides some evidence that the offender has the capacity to change. From a psychiatric perspective, there would appear to be no impediment to doing so. There is some evidence that appears to remove concerns for underlying causes although I give that opinion less weight.

(6) Prospects of Rehabilitation

¶ 125 The offender has the capacity to be rehabilitated and has expressed a willingness to do so. He appeared sincere in his comments. As noted earlier, given the circumstances of this offence and this offender, those prospects are guarded at this stage. I accept that his family are supportive of him and will continue to be so in helping him to rehabilitate.
(7) The Offender's Family
Responsibilities

¶ 126 That an offender has dependents and children can be a mitigating factor. I accept the offender's wife's comments about how much his four year old daughter misses him and wants him home. I accept that he truly wants that to occur. His emotions were readily apparent when Mr. Lacy read from his wife's letter. However, those considerations have to be viewed in the context that he was prepared to flee the country, presumably without his wife and child.

¶ 127 However, applying the reasoning in a Court of Appeal case dealing with drug importers, it is a grim reality that the young children of parents who choose to commit serious crimes necessitating imprisonment suffer for the crimes committed by their parents: R. v. Spencer, [2004] O.J. No. 3262. It is an equally grim reality that the children of persons who commit crimes of this nature are not the only children who are potential casualties of that criminal conduct. Had this plan been implemented, it is certainly possible that young children could have been the victims. If not, it is likely, if not a certainty that children would have lost their parents, grandparents, brothers or sisters in the devastation that would have occurred.

¶ 128 The fact Zakaria Amara has a young daughter and could play an important role in her life cannot diminish the seriousness of his crimes or detract from the need to impose a sentence that adequately denounces his conduct and hopefully deters others from committing the same crime. While there is a societal interest in preserving the family unit, given the gravity of the offence, the needs of his child cannot justify a sentence below what would otherwise be appropriate.

(8) Pre-sentence Custody Credit

¶ 129 Counsel are agreed that the offender should receive the current standard credit of two days for each day in pre-sentence custody, 3 years, 7 months and 18 days resulting in 7 years and 3 months credit.

FACTORS THAT ARE NEITHER AGGRAVATING NOR MITIGATING

¶ 130 That there was no property damage or injuries is not a mitigating factor. Rather, it is the absence of a potentially aggravating one: R. v. Stuckless, (1998), 127 C.C.C. (3d) 225 (Ont. C.A.) at para 42.

THE PURPOSES AND PRINCIPLES OF SENTENCING

¶ 131 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that in this case have the objectives I will examine: s. 718, Criminal Code, supra. The purpose is achieved by blending the various objectives identified in s. 718. The proper blending of those objectives depends on the nature of the offence and the nature of the offender: R. v. McArthur (2004), 182 C.C.C. (3d) 230 (Ont. C.A.).

Denunciation, s. 718(a)

¶ 132 One of the key principles in this sentencing is denunciation. A sentence should communicate society's condemnation of the particular offender's conduct. In short, a sentence with a denunciatory element represents "a symbolic, collective statement of our society's basic code of values enshrined within our substantive criminal law": R. v. M. (C.A.), supra at para. 81. Society through the courts must show its abhorrence of particular crime, and the only way that courts can show this is by the sentences they impose: R. v. Sargeant, (1974), 60 Cr. App. R. 74 at p. 77.

¶ 133 Where the offence had the potential to have such a devastating impact on the public, the need for a denunciatory sentence is all the more pronounced.

General Deterrence, s. 718(b)

¶ 134 The sentence should also send a clear message to others who would be tempted to engage in similar conduct and to others who might think of committing similar offences in this jurisdiction, that they will be severally dealt with.

Specific Deterrence, s. 718(b)

¶ 135 To date, the offender has been in jail for over 43 1/2 months and is going to jail for a penitentiary term. There are indications that he is committed to turning his life around. Notwithstanding those views, I am not persuaded the sentence should ignore specific deterrence.


Separation of the Offender from Society, s. 718(c)


¶ 136 Some offenders are dangerous and must be separated from society, because to permit them back into society would compromise the public's safety. No one is suggesting that Zakaria Amara should be released today or in the near future. Given the nature of his conduct and notwithstanding his statements of his present intentions, at this time there remains a risk to the community. I note as well in this regard than even Dr. Syed said he may be able to rejoin society as a reformed, rehabilitated and renewed citizen.

Rehabilitation, s. 718(e)

¶ 137 I am persuaded that with counselling the offender has the capacity to be rehabilitated and become a law abiding member of society. He has taken steps in that direction and appears since in stated intention.


To Promote a Sense of Responsibility in Offenders and Acknowledgment of the Harm Done to the Victim and the Community, s. 718(f)


¶ 138 The offender appears genuine in his acceptance of responsibility for his wrongdoing, an important factor in sentencing.

The Fundamental Principle of Sentencing

¶ 139 The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1, Criminal Code, supra.

¶ 140 The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community: R. v. Hamilton, [2004] O.J. No. 3252 (C.A.).

¶ 141 This offence involved resorting to violence to effect change, violence that was likely going to cause serious property damage and likely lead to death or serious injuries. What was planned was intended and would have terrorized not only the community in which the bombs were exploded but the wider community. The offender was the leader and had access to over $30,000 throughout the period covered by the indictment. I agree with Mr. Lacy that what was planned was the most serious kind of terrorism imaginable.

¶ 142 As I noted in Khalid:


Terrorist offences are a most vile form of criminal conduct. They are abnormal crimes. R. v. Martin, [1998] EWCA Crim 3046 (Court of Appeal). They attack the very fabric of Canada's democratic ideals. Those involved live by a philosophy that rejects the democratic process. Their motivation is unique and fundamentally at odds with the rule of law. It is an offence that has an enormous impact on the public. Their object being to strike fear and terror into the citizens in a way not seen in other criminal offences.


¶ 143 There is no question that if the plan had been implemented they would have achieved that objective. These offences have left a permanent scar on this area. Had the bombs exploded that scar would have been all the more severe. The offender to his credit has not minimized his role or what could have happened. Given the expert's reports, this offender's dedication to his cause and diligence at arranging the details, there can be no legitimate suggestion that this was not the real thing. It was not a group of amateurs whose efforts were inevitably doomed to failure.

¶ 144 The next area, the degree of responsibility of the offender, refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime: Hamilton, supra at para. 91.

¶ 145 It is difficult to put into words Zakaria Amara's degree of responsibility. He was the leader and directing mind of a plot that would have resulted in the most horrific crime Canada has ever seen. He attended to every detail and gave those under him explicit instructions and encouragement to pursue their objectives. He said going to jail would be alright as long as he tried.

OTHER SENTENCING PRINCIPLES


Sentences should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, s. 718.2(e)


¶ 146 There is no such thing as a uniform sentence for a particular crime. Sentencing is an inherently individualized process and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be an exercise in academic abstraction: R. v. M. (C.A.), 105 C.C.C. (3d) 327 (S.C.C.) at para. 92. That is particularly so, when this is the fifth sentencing under the terrorist amendments. However, the cases filed have been of assistance. I have considered them all and the indices will be marked as exhibits.

¶ 147 In regards to those from the United Kingdom, the approach of examining the actual time served by a worst offence murderer as the standard for terrorist offences, is not one that has been applied in this country: R. v. Jalil et al [2008] EWCA Crim 2910. Nevertheless, all of the authorities were helpful.

¶ 148 When considering those authorities and the sentences to be imposed, I have to consider the parity principle. So long as sentencing remains an individual process, there may be sentences meted out to offenders for participation in the same offence which are justifiably disparate: R. v. Issa, [1992] O.J. No. 1631 (C.A.). The rule against unreasonable disparity in sentencing does not require equal sentences, but only understandable sentences when examined together: Clayton Ruby, Sentencing, 3rd ed., (Toronto, Butterworths, 1987). What the principle seeks to avoid is the sting of injustice being felt by one of the accused as a result of his or her sentence in comparison to that of a co-accused: R. v. Dawdy (1973), 12 C.C.C. (2d) 477 (Ont. C.A.).

¶ 149 Here, there is no suggestion that Zakaria Amara should receive the same sentence as Saad Khalid or Saad Gaya for the bomb plot or that Mohammed Dirie received for his role in the plots. Mr. Lacy suggests that a 4 to 6 year increase above what Khalid received reflects their different roles.

¶ 150 In addition to the terrorism sentencing cases I have reviewed those dealing with maximum sentences and life sentences including McArthur, supra and R. v. L.M., [2008] S.C.J. No. 31. In R. v. L.M., the Supreme Court of Canada found that while the Criminal Code provided maximum sentences for all offences, those terms were not always imposed where it could or should be because judges were influenced by a misconception that the maximum sentence should be reserved for the worst cases involving the worst criminals. Judges would then write what the Court referred to as 'horror stories,' hypothetical cases, that were always a worse fact situation and the 'worst offence/worst offender' criteria did not apply.

¶ 151 Lebel J. continued :


20 In R. v. Cheddesingh, [2004] 1 S.C.R. 433, 2004 SCC 16, the Court acknowledged the exceptional nature of the maximum sentence, but firmly rejected the argument that it must be reserved for the worst crimes committed in the worst circumstances. Instead, all the relevant factors provided for in the Criminal Code must be considered on a case-by-case basis, and if the circumstances warrant imposing the maximum sentence, the judge must impose it and must, in so doing, avoid drawing comparisons with hypothetical cases:



... terms such as "stark horror", "worst offence" and "worst offender" add nothing to the analysis and should be avoided. All relevant factors under the Criminal Code ... must be considered. A maximum penalty of any kind will by its very nature be imposed only rarely ... and is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. As is always the case with sentencing, the inquiry must proceed on a case-by-case basis. [para. 1]



21 Even where a maximum sentence is imposed, therefore, regard must be had to the trial judge's discretion, the individualized nature of sentencing and the normative principles set out by Parliament in ss. 718, 718.1 and 718.2 Cr. C. There is still a place in criminal law for maximum sentences in appropriate circumstances.



22 Thus, the maximum sentence cannot be reserved for the abstract case of the worst crime committed in the worst circumstances. The trial judge's decision will continue to be dictated by the fundamental principle that a "sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender" (s. 718.1 Cr. C.). Proportionality will be achieved by means of a "complicated calculus" whose elements the trier of fact understands better than anyone. The trial judge's position in the sentencing process justifies the respect owed to the reasoned exercise of his or her discretion and the deferential approach that appellate courts should take in such matters (see Manson, at p. 86). As is noted in one commentary on sentencing principles:




[TRANSLATION] [The] objectives of denunciation, deterrence, separation from society, rehabilitation, reparations and retribution are all quite general, and there is no precise standard that can be applied to rank them. At first glance, this is desirable, since the sentencing process is fundamentally an individualized one in that sentences will necessarily vary from one offender to another in light of the particular emphasis that will be placed on one or the other of the objectives in order to arrive at the appropriate sentence, having regard to all the circumstances, in each case.



(Dadour, at p. 17)


¶ 152 I have also considered R. v. Khawaja where a sentence of more than 15 years but less than 20 years was imposed, albeit after a trial. That offender did not cooperate or provide much, if any personal information to the sentencing judge. The expert's report indicated that the devices he made were amateurish and that they would not work.

THE SENTENCE

¶ 153 The Crown seeks two maximum sentences for a young first offender who pled guilty. The maximum sentences are very rarely imposed in Canada. The offender seeks a lengthy fixed term. Unlike murders and some other offences, these offences have no minimum terms.

¶ 154 As regards parity, as indicated earlier, disparity can occur where it is warranted. While the offender submits that a 4 to 6 year increase above that imposed in Khalid is fit. With respect, I am unable to agree, given the very significant differences in their roles. Khalid knew that the bombs would go off in downtown Toronto. He did not know the precise locations. He did not know he was to drive one the bombs to its location. He was deliberately not told the details, according to the position on that sentencing. He took orders from the offender. He had engaged for some time in spiritual counselling from three men over an extended period of time in custody. I am persuaded that the suggested increase above the Khalid sentence would not adequately meet the purposes and principles of sentencing.

¶ 155 As regards the camp plot, he was one of the leaders. He was involved in recruiting and assessing the candidates for what was to be most serious terrorist conduct. He had photographs and maps of Parliament. He was seeking approval or support from those abroad. He was the leader and motivator of the Mississauga group. I can also take into account, that while the suggestions from that camp were not pursued, this was not just a one-off few days in the snow with all terrorist ideas abandoned. The offender pursued further terrorist activity. He brought the gun to the camp. The camp involved training in the use of firearms. While the offender did not do the training, it is a reasonable inference he was supportive of it. I have also taken into consideration the defence evidence. Including the psychiatric report. In all the circumstances, I am persuaded that a sentence of 9 years is appropriate.

¶ 156 As regards the bomb plot, what must be considered is all the relevant circumstances. I am persuaded that this is one of those rarest of cases where the maximum sentence of life is appropriate for this offender for committing this offence in this community. I acknowledge the exceptional nature of maximum sentences and particularly where it is a life sentence for a young, first offender. However, the truly exceptional nature of this offence cannot be denied. In all the circumstances, the only fit sentence is one of life in prison.

¶ 157 The Crown argued that the public will be better protected because the offender would be supervised for life under a life sentence. While the sentence I am imposing has that result, and it can be viewed as a positive factor, it is a by-product of the conclusion I have reached that the fit sentence must be one of life. It is not a reason why that sentence is imposed. As expressed in submissions, I am not persuaded that would be an appropriate approach in the absence of some authorities to support that analysis.

¶ 158 I am well aware of the concern expressed in appellate authorities that sentences should not be such as to crush the hopes for rehabilitation and eventual release. I have given that principle as well as all the circumstances of this case most anxious consideration. However, the offender will be eligible for full parole in 6 years and 3 1/2 months. He is a young man with some community support. That he has that support will no doubt be considered by the Parole Board. As will the fact that he pled guilty, accepting full responsibility for the offences. Should he bring the determination he had in pursuing the terrorist activities and objectives to his rehabilitation, he has the capacity to be rehabilitated. That too should be a positive factor. Zakaria Amara asked me not to close the door. While I have concluded that the only fit sentence is one of life imprisonment, I do not regard the door as permanently closed.

CONCLUSION

¶ 159 On count 1 the sentence is 21 months in addition to 3 years, 7 months and 18 days pre-sentence custody for which he is credited with 7 years and 3 months.

¶ 160 On count 4 the sentence is life in prison. He will not be eligible for parole for 10 years from his arrest pursuant to s. 743.6(1.2).

¶ 161 There will be a DNA order and a lifetime weapons prohibition under s. 109.

¶ 162 The funds seized are forfeited.

S.B. DURNO J.

cp/qi/e/ln/qllxr