2017 QCCQ 11427, 2017 QCCQ 11427

Unofficial English Translation R. c. Habib 2017 QCCQ 11427 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT DE MONTREAL “ Criminal and Penal Division ” No. : 500-73-004402-166 500-73-004401-168 DATE : September 29, 2017 ______________________________________________________________________ PRESIDING: THE HONOURABLE SERGE DÉLISLE, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

Ismaël HABIB Offender ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ [ 1 ] At the end of his trial, Ismaël Habib was convicted of the offence under s. 83.181 of the Criminal Code , that is, having attempted to leave Canada, or having attempted to go on board a conveyance with the intent to leave Canada, for the purpose of committing

an act or omission outside Canada that, if committed in Canada, would be an offence under s. 83.18(1), contrary to s. 83.181 of the Criminal Code (count 2) . [ 2 ] Immediately following the parties’ submissions, on May 9, 2017, the Court convicted the offender of having made a false or misleading statement in order to obtain a passport (count 1). [1] [ 3 ] Mr. Habib is the first adult in Canada to be convicted of the offence under

section 83.181 of the Criminal Code , which came into force in 2013. [ 4 ] The Court must now determine the sentence to impose on the offender. The Crown recommends a total sentence of nine years’ imprisonment, whereas the defence suggests a term of imprisonment of six and half years. [ 5 ] The offender did not testify at the sentencing hearing and no other evidence was adduced.

CONTEXT Circumstances of the commission of the offence [ 6 ] The context of this case is fully described in the judgment on the verdict dated June 19, 2017. [2] It can be summarized as follows. [ 7 ] After three months in Syria doing jihad to impose sharia law and fighting different groups to establish an Islamic government, Ismaël Habib left that country in November 2013 to get his wife and his children in Turkey with a view to returning to Syria to do jihad.

Because his Canadian passport had been revoked, the Turkish authorities arrested him and sent him back to Canada. [ 8 ] Since returning to Canada in late 2013, the offender actively sought a way to leave the country and return to Syria to join the “Islamic State” (IS) group. [ 9 ] Without a Canadian passport, he made many attempts to obtain false passports, sparing no effort.

Among other things, in order to dupe the Passport Canada officer, he even went so far as to make himself up to look like his twin brother in whose name he made the application. [ 10 ] The Internet searches that he did and the statement that he gave in a Mr. Big operation show that the offender was perfectly aware of the goals of IS and the methods it uses to achieve them. He fully embraced the IS ideology. Extremely motivated, even obsessed, he was prepared to do anything to leave Canada to go to Syria and join IS. The evidence shows that he would have done anything to help IS achieve its goals.

Profile of the offender

[ 11 ] Ismaël Habib will be 30 years old in November 2017. He was 28 years old when he was charged with the offences at issue. He was born in Montreal of a Quebec Catholic mother and an Afghan Muslim father. When his parents separated, he stayed with his mother until the age of 18. When she decided to live in the countryside, he went to live with his father. [ 12 ] He converted to Islam following an anxiety attack related to one incident of drug abuse. [ 13 ] The offender has a wife and two children. At the time of his arrest, the evidence shows that they were in Syria.

No other evidence was adduced on their current situation, either at trial or at the sentencing hearing. [ 14 ] As far as education is concerned, most of the courses from college or university programs he enrolled in were not completed, by choice or because he was expelled from the programs due to absenteeism or insufficient marks. [ 15 ] At the time of his arrest, the offender did not have a job. [ 16 ] He does not have a criminal record. [ 17 ] He has been detained in this case since March 4, 2016.

Aggravating circumstances [ 18 ] First, the offence in question is a terrorism offence. [3] Formally recognized by Parliament as an aggravating circumstance, [TRANSLATION] “it accentuates the sentencing objectives of denunciation and deterrence”. [4] [ 19 ] The offender wanted to join the Islamic State, a terrorist entity on the Canadian list [5] since 2012. The description of this entity by Public Safety Canada [6] reads: “The Islamic State's tactics include suicide attacks using vehicles and improvised explosive devices, armed attacks, hostage takings, and video-taped beheadings.

In November 2015, IS claimed responsibility for coordinated attacks in six Paris locations that killed 120 and injured 200.

Four months later, in March 2016, IS claimed responsibility for two bomb explosions at the Brussels Airport and another bomb explosion at the Maelbeek metro station near the offices of the European Union; these attacks killed 31 people and injured 340”. [ 20 ] In fact, in a passage from his statement, the offender says he was delighted with the attacks perpetrated in France, [7] although he says that he would not personally commit that type of attack. [ 21 ] The evidence shows that his priority is, rather, to gain territory and establish sharia law in Syria and Iraq for the benefit of IS.

It also shows that he fully embraces the philosophy and objectives of IS. He clearly told the infiltration agent that he wanted to join IS and that he fully espouses the ideology of this entity. [ 22 ] His desire to join IS can be summarized in two sentences from a Skype conversation [8] when he was in Syria in 2013: “as for me, i love jihad more then [sic] everything” and “there is no place where i feel more home then [sic] here”. [ 23 ] This probably explains the offender’s great motivation and his high degree of responsibility. In 2013, Mr.

Habib spent three months in Syria and he joined three different groups whose primary goal was to fight Bachar Al-Assad and to establish an Islamic state. Before fighting as he was asked to, however, he wanted to go and get his wife and children in Turkey. [9] That is why he left Syria, but his intention was to return there with them.

Sent back to Canada instead, he has been trying to return there ever since. [ 24 ] He demonstrated his knowledge when, in his statement of February 25, 2016, he explained to the infiltration agent how much the situation had changed since he had left Syria, after IS proclaimed its caliphate. He knows that IS is fighting to establish sharia law. He distinguished Al-Qaïda from IS and said that he found the current leader of Al-Qaïda, Ayman Al-Zawahiri, too peaceable. In another passage, he explained that in 2016, with IS [TRANSLATION] “they are clear in their fight: we want, we establish sharia law and it is done.

We show you that sharia law is applied”. [ 25 ] Many Internet searches, including some made shortly before his arrest, concern IS, Syria, the Islamic State, etc. and attest to a contemporary interest. [ 26 ] In his statement, he expresses his unequivocal motivation when he says that his ultimate goal is to do [TRANSLATION] “as much as [he] can” to help IS, that he is prepared to do anything for them. [ 27 ] Other Internet searches filed reveal that the offender made other searches on various ways of leaving Canada clandestinely.

In addition, he took many steps to obtain false passports. [ 28 ] He did not hesitate to become involved in a criminal organization (the fictitious RCMP organization) and he made several return trips between Gatineau and Montreal to participate in this organization’s activities. He even urged the boss of the fictitious organization to get him out of Canada quickly, otherwise he would try to find another way. He also asked him to get rid of his second spouse’s car so that he could obtain the insurance premium and partly finance his clandestine trip. [ 29 ] Lastly, he said that he wanted to leave and never return.

In fact, he detailed his plan in his statement of February 25, 2016: once he arrived in Turkey, he would tear up the Canadian passport provided to him by the criminal organization. He would then obtain Syrian identity documents to become a Syrian refugee in Turkey to make sure that he would later be sent back to Syria by the Turkish authorities. [ 30 ] This was not the utopian and reckless plan of a manipulated adolescent or an impulsive plan. Instead, it was with a full understanding of the objectives of IS and the methods used by this entity that the offender took various steps to get to Syria and join IS.

He was not planning to go there to play a passive role. He was prepared to do anything for IS, even die. [ 31 ] These elements increase the weight that must be given to the objective seriousness of the offence and to the offender’s moral

blameworthiness. Mitigating circumstances [ 32 ] The only mitigating circumstance is the absence of a criminal record. [ 33 ] The defence argues that its client has not heard from his wife and children for 15 months, that he is questioning himself and that he must bear the consequences because he was the one to send them to Syria. [ 34 ] The Court gives little weight to these arguments since the plan to go to Syria and join IS was mutual. The evidence shows that his wife shares the same convictions and embraces the same ideology.

The evidence also shows that she urged him to go to Syria and, in the meantime, to do jihad in Canada. She and her children are therefore in Syria by choice. [ 35 ] As for the possibility of his rehabilitation, the offender did not testify at the sentencing hearing and the Court has no evidence on this point. In the case at bar, the absence of evidence on the possible social reintegration of the offender is an important sentencing factor. The lack of information on the risk of re-offending is relevant in this regard, particularly with respect to s. 718 (

c) of the Criminal Code and the need to separate offenders from society, where necessary. [10] The lack of evidence on the risk that the offender will pursue or reactivate his plan deprives the Court of the assurance that he no longer supports the cause of armed jihad and of terrorism.

In Khawaja , the Supreme Court concluded that the lack of information on a person’s probability of re-offending, in the face of compelling evidence of dangerousness, is sufficient to justify a stiffer sentence. [11] SENTENCING PRINCIPLES [ 36 ] The Supreme Court established that given the seriousness of terrorism offences, denunciation and deterrence, both specific and general, are important principles when sentencing the authors of these offences.

The Supreme Court, however, made it a point to underscore that terrorism offences do not belong to a distinct class of offences and that the general principles of sentencing apply to these offences. [12] [ 37 ] The sentence must therefore be proportionate to the seriousness of the offence and the degree of responsibility of the offender. [ 38 ] This said, many judges of different courts have pointed out certain characteristics that make terrorism particularly reprehensible. [ 39 ] For example, in Khalid , [13] the Ontario Supreme Court wrote: Terrorist offences are a most vile form of criminal conduct. ...

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. [ 40 ] In Khawaja , [14] the Court of Appeal for Ontario wrote: To be sure, terrorism is a crime unto itself. It has no equal. It does not stop at, nor is it limited to, the senseless destruction of people and property.

It is far more insidious in that it attacks our very way of life and seeks to destroy the fundamental values to which we ascribe — values that form the essence of our constitutional democracy. [ 41 ] In Hersi , a decision of the Ontario Supreme Court in which an individual was found guilty of having attempted to leave Canada to go to Somalia in order to join the terrorist group Al-Shabaab, Baltman, J. wrote: Just like completed acts of terrorism, attempting or counselling such acts undermines the rule of law, because it erodes the very foundations of Canadian society. [15] [ 42 ] Further, on the need to give emphasis to the principle of deterrence, he observed: The need for deterrence is even more acute for people planning to commit terrorist crimes overseas.

These offences, being incipient in nature, are inherently difficult to detect and investigate on Canadian soil. Nor should we imagine that because Mr. Hersi planned to participate in terrorist activity abroad, we here in Canada should be less concerned. ...

Canada has an international responsibility to prevent the exportation of terrorism, just as we expect other countries to do the same. [16] [ 43 ] It is precisely because Canada takes its international responsibilities and its role in the Coalition against IS seriously that Parliament added four terrorism offences [17] to respond to the problem of foreign fighters, even before the UN Security Council made the issue of foreign terrorist fighters a top international priority. [18] [ 44 ] In the case at bar, if it were not for the RCMP’s investigation and intervention, Ismaël Habib would have joined “one of the most fanatical terrorist groups on the planet,” as Baltman, J. put it in Hersi .

The fact that the authorities foiled the offender’s plans does not lessen the seriousness of the offence, nor does it diminish his level of moral blameworthiness. [19] [ 45 ] As for the objective seriousness of the offences, making a false or misleading statement in order to obtain a passport is punishable by a maximum sentence of two years’ imprisonment, whereas attempting to leave Canada, or attempting to go on board a conveyance with the intent to leave Canada, for the purpose of committing

an act outside Canada that, if committed in Canada, would be an offence under s. 83.18(1) Cr. C. , is punishable by a maximum 10-year term of imprisonment. [ 46 ] Only Hersi [20] and the remarks in Larmond [21] on the sentence to impose following a recommendation of the parties can guide the Court on the quantum of the sentence to impose on the offender.

[ 47 ] Mohamed Hersi was charged with having attempted to participate in the activities of a terrorist group and having counseled another person to do likewise, in violation of s. 83.18 Cr. C. , since the offence under s. 83.181 was not in effect in 2011. That being said, the circumstances of the commission of the offence are identical to those in the case at bar. Hersi planned to go to Somalia to join the terrorist entity Al-Shabaab. Following an investigation of several months involving infiltration agents, he was arrested at the airport just before embarking for Cairo. [ 48 ] By the operation of ss. 83.18 and 463 (

b) of the Criminal Code , the maximum sentence by which Hersi was punishable was five years’ imprisonment on each of the counts for which he was found guilty.

Deeming that the seriousness of the offences committed by Hersi was significant, the judge concluded that the maximum sentence should be imposed for each of the counts, for a total of 10 years’ imprisonment, less the time already spent in custody. [ 49 ] By adding the specific offence of attempting to leave Canada for the purpose of participating in or contributing to the activity of a terrorist group for the purpose of enhancing the ability of a terrorist group to carry out a terrorist activity [22] to the Criminal Code in 2013, and by doubling the punishment for this conduct, Parliament gave an indication of the objective seriousness that it ascribes to this offence. [ 50 ] This increased objective seriousness seems to have been considered by the parties in the joint recommendation presented to the judge in Larmond , in which three individuals were charged with various terrorism offences. [ 51 ] The offence to which Carlos Lamond pleaded guilty is the same as the one on which Ismaël Habib was convicted, that is, having attempted to leave Canada for the purpose of participating in the activity of a terrorist group.

Larmond was arrested, following a police investigation lasting a few months, just before he was to board at Pierre-Elliott-Trudeau International Airport. His plan had been to go to Syria and join IS. He had converted to extremist Islam a few months earlier. In addition to his guilty plea, the offender expressed deep regret and demonstrated his intention to become a law-abiding citizen upon his release from prison.

The judge accepted the joint recommendation of seven years’ imprisonment, less the time already served in custody. [ 52 ] Sentencing decisions concerning the offence of making false or misleading statements in order to obtain a passport are less numerous. The Court found six. [23] The sentences ranged from a conditional discharge to two years’ imprisonment. THE SENTENCE [ 53 ] Concerning the charge of having made a false or misleading statement in order to obtain a passport, it is clear that the offender went to a lot of trouble to dupe the Passport Canada officer.

Not only did he present the application in the name of his twin brother, but he also used his brother’s identity documents and made himself up to try to look like his brother in the photos when presenting his application. The degree of premeditation and the nature of the false statement militate in favour of a sentence of one year of imprisonment. [ 54 ] As for the charge of having attempted to leave Canada, or having attempted to go on board a conveyance with the intent to leave Canada, for the purpose of committing

an act outside Canada that, if committed in Canada, would be an offence under s. 83.18(1), Ismaël Habib sought desperately to go to Syria to join IS, a terrorist entity responsible for the death of many innocent civilians, both in its armed combats in Syria and in its attacks elsewhere in the world. Habib had been trying for several months to find a way to get to Syria and at the time of his arrest, he was convinced that the fictitious RCMP organization was going to have him leave Canada clandestinely by boat.

He had a plan to sell his assets (and those of his second wife) and had contacts with IS in Syria, where his wife and his children were. The Court finds that a sentence of eight years’ imprisonment is commensurate with the seriousness of the offence and the offender’s degree of responsibility. [ 55 ] The sentences are consecutive. [ 56 ] Ismaël Habib has been in custody in this case since March 4, 2016, that is, for 574 days. The Court credits the offender with one and a half days for each day spent in custody, for a total of 861 days. The Court credits the time spent in custody to the second charge.

The offender will therefore have to serve 2,059 [24] days in custody for this second charge, that is, just over five and a half years. [ 57 ] The total sentence that Ismaël Habib will have to serve is just over six and a half years’ imprisonment. [ 58 ] Subsection 743.6(1.2) of the Criminal Code provides that the Court shall order that an offender convicted of a terrorism offence serve half of his sentence before being eligible for parole, unless the court is satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence and the objectives of specific and general deterrence are such that the usual period of parole eligibility, that is, one third of the sentence, may be applied. [ 59 ] In the case at bar, society’s denunciation of terrorism offences and the need to send a strong message of deterrence that such crimes will be severely punished dictate that the usual period of parole eligibility not be applied. [ 60 ] The Court therefore orders that Ismaël Habib serve half of his sentence before being eligible for parole. [ 61 ] In addition, pursuant to s. 487.051 of the Criminal Code , the Court makes an order authorizing the taking of a sample of the offender’s DNA. [ 62 ] Lastly, under s. 109 of the Criminal Code , the Court makes an order prohibiting Ismaël Habib from having in his possession, for a period of 10 years, the weapons or dangerous substances referred to in this section.

__________________________________ SERGE DÉLISLE, J.C.Q. Mtre Lyne Décarie For the Crown Mtre Charles Montpetit For Ismaël Habib Date of hearing: August 17, 2017