2019 QCCA 2044, 2019 QCCA 2044

Official English Translation of the Judgment of the Court Habib c. R. 2019 QCCA 2044 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006549-172 (500-73-004401-168, 500-73-004402-166) DATE: November 28, 2019 CORAM: THE HONOURABLE MARK SCHRAGER, J.A. ROBERT M. MAINVILLE, J.A. MICHEL BEAUPRÉ, J.A. ISMAËL HABIB APPELLANT — Accused v.

HER MAJESTY THE QUEEN RESPONDENT — Prosecutor JUDGMENT [ 1 ] The appellant seeks leave to appeal the judgment rendered September 29, 2017, by Judge Serge Délisle of the Court of Québec, sentencing him to a total of nine years’ imprisonment for two offences, namely, having made a false or misleading statement for the purpose of procuring a passport ( s. 57(2) (

a) of the Criminal Code ) and having left Canada for the purpose of participating in or contributing to the activities of a terrorist group, namely, the Islamic State (s. 83.181 of the Criminal Code ). [ 2 ] For the reasons of Mainville, J.A., with which Schrager and Beaupré, JJ.A. concur, THE COURT : [ 3 ] GRANTS the application for leave to appeal the sentencing judgment dated September 29, 2017, except for the ground of appeal based on a conditional stay of proceedings. [ 4 ] DISMISSES the appeal of the said judgment. MARK SCHRAGER, J.A. ROBERT M. MAINVILLE, J.A. MICHEL BEAUPRÉ, J.A.

Mtre Maxime Chevalier MARIE-HÉLÈNE GIROUX, AVOCATE For the appellant Mtre Ninette Singoye Mtre François Blanchette PUBLIC PROSECUTION SERVICE OF CANADA For the respondent

Date of hearing: October 28, 2019 REASONS OF MAINVILLE, J.A. [ 5 ] The appellant seeks leave to appeal the judgment dated September 29, 2017 rendered by the Honourable Serge Délisle of the Court of Québec, district of Montreal ( 2017 QCCQ 11427 ), that sentenced him to a total of nine years’ imprisonment for one offence of having made a false or misleading statement for the purpose of procuring a passport (one year of imprisonment) and another offence of having attempted to leave Canada for the purpose of participating in or contributing to the activities of a terrorist group, namely, the Islamic State (eight years of imprisonment).

THE SENTENCING JUDGMENT [ 6 ] The judge noted that the appellant had spent three months in Syria with armed groups, that his passport had been revoked by the Canadian authorities and that, when he had returned to Turkey, he had been arrested and deported to Canada. He subsequently sought to leave Canada to join the Islamic State, a terrorist organization. [ 7 ] The judge then drew a profile of the appellant. He described his family history and his conversion to Islam as a young adult.

He noted that the appellant’s family was in Syria, that he had never completed his graduate studies, and that at the time of his arrest he was unemployed. He has been detained since March 4, 2016. [ 8 ] The judge set out the aggravating circumstances. From the outset, he noted that the appellant had committed a terrorist offence and that the law provides that this is an aggravating factor. This called for him to emphasize the objectives of denunciation and deterrence. Next, he pointed out that the terrorist organization the appellant sought to join was responsible for particularly serious and odious actions.

The judge emphasized the appellant’s desire to carry out a jihad and his fierce, continuous and consistent intention to join the Islamic State. In particular, he referred to the evidence of his computer activities at the time the offence was committed, his statements to the undercover officers and the messages he sent to a woman he was courting during his stay in Syria, at a time preceding the commission of the offences in question. He also referred to the appellant’s stay in Syria.

Based on the evidence, he concluded that the appellant’s plan had been carefully thought out, which increased his moral blameworthiness. [ 9 ] As for the mitigating circumstances, the judge referred only to the absence of a criminal record. He was of the view that the fact that the appellant had been apart from his wife and children and had not received any news about them did not reduce the subjective seriousness of the offence in any manner, because his wife shared his extremist ideas and her stay in Syria was voluntary. Referring to the Supreme Court ruling in R. v.

Khawaja , [1] he noted that, absent evidence of the appellant’s rehabilitation and considering the compelling evidence of dangerousness, he was justified in imposing a stiffer sentence. [ 10 ] The judge then considered the sentencing principles. He referred to the cardinal principle of proportionality. He considered the decisions of Canadian courts that insisted on the need to denounce terrorist offences by giving priority to the objectives of deterrence and denunciation. The judge noted that Canada takes its international role in the fight against the Islamic State seriously.

He was of the opinion that, had it not been for the intervention of the RCMP, the appellant would have joined this dangerous organization and that his moral blameworthiness could not be reduced by the fact that his plans had been foiled by the police. [ 11 ] To determine the appropriate sentence for the terrorism offence, the judge suggested that the sentences handed down in R. v. Hersi [2] and R. v. Larmond [3] could serve as benchmarks. In the first case, two consecutive five-year sentences were imposed, for a total of ten years’ imprisonment.

In the second case, the judge ordered the offender to serve seven years in prison, in a context in which the offender had pleaded guilty, had expressed remorse and had stated that he wanted to adopt a pro-social lifestyle.

The judge therefore determined that a sentence of eight years’ imprisonment was appropriate given the seriousness of the offence and the appellant’s moral blameworthiness. [ 12 ] For the offence of making a false or misleading statement for the purpose of procuring a passport, the judge referred to six precedents, ranging from a conditional discharge to the maximum sentence of two years’ imprisonment.

The judge determined that, in the appellant’s case, given the degree of premeditation and the nature of the false statement, a sentence of one year’s imprisonment was appropriate. [ 13 ] The judge noted that these sentences would be served consecutively. [ 14 ] He then accounted for the pre-sentencing detention, giving the appellant credit at the rate of 1.5 days, and applied it to the eight-year sentence imposed for the terrorism offence, which brought that sentence down to 2,059 days of imprisonment. To that sentence, he added the one year detention imposed for the fraudulent passport application.

This yielded a total effective sentence of slightly more than six and a half years’ imprisonment. Having regard to s. 743.6

(1.2) Cr.C . , the judge ordered the appellant to serve half his sentence before being eligible for parole. GOUNDS OF APPEAL [ 15 ] The appellant sets out four grounds of appeal in his memorandum, which may be reformulated and analyzed in the following order:

(1) The judge should have ordered a conditional stay of proceedings on the count pertaining to the false or misleading statement for the purpose of procuring a passport (57(2) Cr.C . ), because the appellant had already been convicted and punished for the same facts in

connection with the count of having attempted to leave Canada for the purpose of participating in or contributing to the activities of a terrorist group (83.181 Cr.C . );

(2) The judge erred in his assessment of the seriousness of the offences and the appellant’s alleged actions;

(3) He also erred in his assessment of the mitigating circumstances related to the offences and to the appellant’s situation, in particular by failing to consider the objective of rehabilitation;

(4) Lastly, he erred by failing to apply the totality principle provided for in s. 718.2 (

c) Cr.C. ANALYSIS First ground: the conditional stay of proceedings [ 16 ] It should be noted that, at trial, the appellant never raised the issue of a conditional stay of proceedings. Indeed, during oral arguments, counsel for the appellant acknowledged from the outset that the Crown had discharged its burden of proof as regards the offence of making a false or misleading statement for the purpose of procuring a passport (57(2) Cr.C . ): [4] [ translation ] THE COURT: So, is there anything I should know further to your discussions?

MTRE DÉCARIE: To tell him for s. 57.2 MTRE CHARLES MONTPETIT: Yes, well, that’s it ... MTRE DÉCARIE: We’ll settle that… MTRE CHARLES MONTPETIT: Listen, in fact it was my first point, I had written here “Securing the passport through false written or oral statements under 57.2” this is not contested, it seems obvious. In fact, even in the manner the defence handled the trial, we did not challenge that point. I have nothing to say on that matter.

THE COURT: Very well. [ 17 ] As a result of this observation, as of May 9, 2017, the judge found the appellant guilty on the count of having made a false or misleading statement for the purpose of procuring a passport. [5] It was only after the subsequent deliberations, on June 19, 2017, that the judge found the appellant guilty of the offence of having attempted to leave Canada for the purpose of participating in or contributing to the activities of a terrorist group. [6] [ 18 ] The matter of a conditional stay of proceedings was therefore never raised at trial and it is difficult to criticize the judge for not having addressed it. [ 19 ] Moreover, this issue pertains to the verdict, not the sentence.

Yet, in his appeal of the verdict, the appellant did not raise a ground of appeal based on a conditional stay of proceedings. Consequently, the Court is not validly seized of this ground. Leave to appeal the sentence on this ground will therefore be denied. [ 20 ] In any event, the two offences in question are not based on the same elements.

While it is true that the false statement made for the purpose of procuring a passport is one of the many acts alleged against the appellant in his attempt to leave Canada in order to participate in or contribute to the activities of a terrorist group, the factual nexus between the two offences is insufficient to invoke a stay of proceedings under the principles set out in Kienapple . [7] [ 21 ] As Dickson, C.J. noted in R. v. Prince [8] , there must be a relationship of sufficient proximity between the offences to justify invoking the rule against multiple convictions.

In Prince , for purposes of applying Kienapple , the offence of manslaughter was distinguished from the offence of assault causing bodily harm. Thus, the principle in Kienapple does not preclude two guilty verdicts with respect to the same facts, provided the offences are essentially different. For example, if an individual throws a rock at a closed window for the purpose of striking the occupant of the house, he could be convicted of assault as well as mischief. [9] The Supreme Court of Canada’s decision in Krug v.

The Queen , [10] which was handed down shortly before Prince, illustrates such a situation quite well, given that the offence of using a firearm while committing an offence was ruled to be different, for purposes of applying the principle in Kienapple , from the offence of armed robbery. [11] [ 22 ] The offences charged in the present case are not proximate. Indeed, there is insufficient proximity between the essential elements of the offence set out in s. 57(2) Cr.C . — i.e. a false or misleading statement for the purpose of procuring a passport — and the

essential elements of the offence set out in s. 83.181 Cr.C . — i.e., 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) Cr.C . , namely, to knowingly participate in or contribute to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity. [ 23 ] The appellant’s guilt or innocence with respect to the offence set out in s. 57(2) Cr.C . does not necessarily imply his guilt or innocence with respect to the offence set out in s. 83.181 Cr.C . , and vice versa. [ 24 ] It is also important to note the will of Parliament, expressed in s. 83.26 Cr.C . , which is reproduced in paragraph [37] hereinbelow, to the effect that the sentence for a terrorism offence, including the offence provided for in s. 83.181 Cr.C . , must be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events.

Second ground: the assessment of the seriousness of the offences and of the actions carried out [ 25 ] The appellant submits that the trial judge erred by imposing a sentence disproportionate to the seriousness of the offence and his degree of responsibility. In his view, the objective seriousness of the offence must be determined in light of the maximum sentence, which is ten years’ imprisonment.

The appellant argues that the eight-year sentence imposed on him comes close to the maximum sentence and that, consequently, it is disproportionate, given that there was only an attempt that never materialized, that no violence was committed and that there is no victim in the case at bar. [ 26 ] While the temptation to fashion rigid sentencing principles applicable to terrorism offences as a distinct class of offences should be avoided — subject to the provisions in the Criminal Code that specifically pertain to those offences — in most cases the inherent seriousness of these types of offences justifies an emphasis on the objectives of denunciation and deterrence, both specific and general. [12] [ 27 ] Terrorism places innocent victims at risk and poses significant challenges to law enforcement agencies.

Terrorist crimes cause the death and suffering of a great number of victims, often chosen at random, and seek to undermine the very foundations of our free and democratic society.

When a terrorist’s dangerous machinations are thwarted by major police efforts at a great cost to society, the court must impose a sentence that fully reflects the community’s outrage and the danger that this type of offence poses to society. [13] [ 28 ] In the present case, the appellant sought to join the ranks of the Islamic State, a terrorist organization that has no hesitation in committing horrendous crimes against humanity and whose number of crimes and the extent thereof seem to know no moral bounds. It is a universally denounced organization.

As the trial judge rightly noted, the appellant sought to join, support and assist one of the most fanatical groups in the world. [14] [ 29 ] The appellant also argues that, since his attempt failed, the offence is less serious and this calls for a more lenient sentence.

Section 463 Cr.C . states that, except as otherwise provided, every one who attempts to commit an indictable offence is liable to a maximum sentence that is less than the sentence set out for the indictable offence in question. In the case at bar, however, the maximum sentence set out in s. 83.181 Cr,C. is the same for an attempted offence as it is for the completed offence (83.18 Cr.C . ). It is precisely to ensure that an attempt is punishable by a sentence similar to the sentence applicable to the foiled terrorist act that Parliament intervened by adopting this provision of the Criminal Code .

Consequently, the Court cannot accept the appellant’s argument. [ 30 ] The appellant also argues that the subjective seriousness of the offence is mitigated because he did not use any violence and because, as a result, the offence did not have an impact on the community. It should be noted that the appellant acknowledged that during his stay in Syria he had armed himself with an AK-47 and had tortured a prisoner, but it is true that these acts were prior to the period covered by the indictment.

Be that as it may, although the facts do not reveal any additional violence committed during the period covered by the indictment, this is not a mitigating factor. Rather, it is a neutral factor that, had it been considered, would have had no impact on the sentence. [15] [ 31 ] The appellant also submits that his criminal intent was coupled with the intention to join his family and that this mitigates the seriousness of the offence. The judge, however, considered the facts at hand and the nature of the offence, and concluded that the offence was subjectively serious.

He noted that the evidence demonstrated that the appellant’s wife shares the same convictions and adheres to the same ideology as he does and that she was in Syria by choice. [16] He rightly noted two factors on which he placed great weight: (1) this is a terrorism offence — which, according to s. 718.2 ( a )(

v) Cr.C ., is a factor that must be taken into account when sentencing — and (2) the offence was carefully thought out and premeditated at length. The appellant has not shown how the judge’s reasoning in this regard is erroneous or constitutes an error in principle. Third ground: the mitigating circumstances and the appellant’s situation, in particular the possibility of rehabilitation [ 32 ] The appellant first argues that the judge failed to consider the fact that he had no criminal record, which is a mitigating factor.

This is incorrect, because the judge referred to this factor. [17] [ 33 ] The appellant further claims that the judge did not consider as a mitigating factor the fact that his family was living in Syria. The judge did, in fact, consider this factor, but rejected it because he concluded, as previously noted, that the appellant’s wife was in Syria by choice. The appellant has not established that this conclusion is tainted by a palpable and overriding error of fact. [ 34 ] The appellant also claims that the judge was not entitled to disregard the objectives of rehabilitation and social reintegration.

It is true that, depending on the offender’s profile, it may be appropriate to favour the principles of social reintegration and rehabilitation, even where the offender has been convicted of a terrorism offence which usually dictates a stiffer sentence. There must, however, at least be evidence that the offender’s character and situation suggest that he may be deterred by a lenient sentence and will be positively reintegrated into society at the end of that sentence. McLachlin, C.J.’s remarks in R. v.

Khawaja are informative in this regard: [18] [122] The second error identified by the Court of Appeal is that the trial judge failed to treat the absence of evidence of the appellant’s

rehabilitative prospects as an important factor in sentencing. I agree that the absence of information on the likelihood of the appellant re- offending was relevant to sentencing, particularly in regard to s. 718(

c) and to the need to separate offenders from society, where necessary. (…) [123] The absence of evidence on the appellant’s likelihood of re-offending gave the trial judge no assurance that he was no longer committed to violent jihad and terrorism, or that there was any chance that, over time, he could change and be released from state control without undue risk of harm to the population.

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. [124] I cannot accept the broad proposition that “the import of rehabilitation as a mitigating circumstance is significantly reduced in [the] context [of terrorism] given the unique nature of the crime . . . and the grave and far-reaching threat that it poses to the foundations of our democratic society” (C.A., at para. 201).

The terrorism provisions catch a very wide variety of conduct, suggesting that the weight to be given to rehabilitation in a given case is best left to the reasoned discretion of trial judges on a case-by-case basis. This does not, however, negate the fact that on the evidence in this case, the absence of evidence on rehabilitation prospects justified a stiffer sentence than otherwise might have been appropriate . (Emphasis added) [ 35 ] In the case at bar, the appellant did not present any evidence regarding his risk of re-offending or regarding his regrets or remorse.

There is nothing in the record that would have allowed the judge to conclude that he would have been justified in favouring the objectives of rehabilitation and reintegration. The appellant has therefore failed to show that the judge erred by not focusing on possible rehabilitation and reintegration. Fourth ground: application of the totality principle provided for in s. 718.2 (

c) Cr.C. [ 36 ] As a general rule, prison sentences should be concurrent where the counts result from a single event or a series of continuous criminal acts, save where the law provides for consecutive sentences or where the court considers that one of the counts forming part of the single event contains an aggravating element justifying a consecutive sentence. [19] [ 37 ]

Section 83.26 Cr.C . , however, sets out a specific rule for terrorism offences: 83.26 A sentence, other than one of life imprisonment, imposed on a person for an offence under any of sections 83.02 to 83.04 and 83.18 to 83.23 shall be served consecutively to 83.26 La peine — sauf une peine d’emprisonnement à perpétuité — infligée à une personne pour une infraction prévue à l’un des articles 83.02 à 83.04 et 83.18 à 83.23 est purgée consécutivement : (

a) any other punishment imposed on the person, other than a sentence of life imprisonment, for an offence arising out of the same event or series of events; and

a) à toute autre peine — sauf une peine d’emprisonnement à perpétuité — sanctionnant une autre infraction basée sur les mêmes faits; (

b) any other sentence, other than one of life imprisonment, to which the person is subject at the time the sentence is imposed on the person for an offence under any of those sections.

b) à toute autre peine — sauf une peine d’emprisonnement à perpétuité — en cours d’exécution infligée à une personne pour une infraction prévue à l’un de ces articles. (Emphasis added) [Soulignement ajouté] [ 38 ] Thus, the sentence imposed in such a case must be served consecutively to any other punishment imposed for an offence arising out of the same event or series of events and to any other sentence for another terrorist offence. [ 39 ] That being said, the effect of this

section does not preclude the application of the principle of proportionality in sentencing. [20] A judge who imposes consecutive sentences for multiple counts, even for offences related to terrorist activities, must ensure that the cumulative sentence does not exceed the overall culpability of the offender; in other words, the total sentence must be just and appropriate, failing which it should be reduced. [21] The totality principle is in fact codified in s. 718.2 (

c) Cr.C. , which prescribes that the court imposing a sentence must take into consideration the principle that “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”. [ 40 ] In the words of Wagner, J., as he then was, in R. v. Lacasse [22] , “ [p]roportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances”.

These remarks must guide the analysis here. [ 41 ] The judge clearly considered the appellant’s significant moral blameworthiness when determining the sentence and he imposed the sentence based on precedent. [ 42 ] Indeed, the total sentence of nine years’ imprisonment imposed on the appellant falls between the sentences imposed in R. v. Larmond [23] and R. v. Hersi . [24] [ 43 ] In Larmond , one of the offenders had pleaded guilty to the offence set out in s. 83.181 Cr.C . , namely, having attempted to leave Canada for the purpose of participating in or contributing to the activities of a terrorist group.

Notwithstanding the guilty plea and the finding that the offender had a good chance of being rehabilitated, McKinnon, J., of the Ontario Superior Court of Justice, sentenced him to seven years in prison. In Hersi , the offender had been convicted of two offences under s. 83.18 Cr.C . for events that took place before s. 83.181 Cr.C . came into force, namely, having attempted to participate in the activities of a foreign terrorist group and having counselled another person to do the same. Baltman, J., of the Ontario Superior Court of Justice, imposed a total sentence of ten years’

imprisonment, which sentence was recently confirmed by the Ontario Court of Appeal. [25] [ 44 ] These precedents are relevant. It therefore appears that the judge was mindful to impose a proportionate and harmonized sentence. Moreover, the sentence imposed in the case at hand reflects the seriousness of terrorist-related offences and the sentences imposed in such cases. [26] CONCLUSIONS [ 45 ] For these reasons, I propose that the Court grant the application for leave to appeal the sentence, save as regards the ground founded on a stay of proceedings, but that it dismiss the ensuing appeal. ROBERT M. MAINVILLE, J.A.