R. v. Khalid (S.), 2010 ONCA 861

• Judge: Doherty, Moldaver and Cronk, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 20, 2010
• Jurisdiction: Ontario
• Citations: 2010 ONCA 861;(2010), 272 O.A.C. 228 (CA)

R. v. Khalid (S.) (2010), 272 O.A.C. 228 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. DE.036

Her Majesty The Queen (appellant) v. Saad Khalid (respondent)

(C51062; 2010 ONCA 861)

Indexed As: R. v. Khalid (S.)

Ontario Court of Appeal

Doherty, Moldaver and Cronk, JJ.A.

December 17, 2010.

Summary:

Khalid, originally from Saudi Arabia, was a 19 year old university student at the time of his arrest on a charge involving terrorism. He pled guilty to using explosives "likely to cause serious damage to property", contrary to s. 81(1)(a) of the Criminal Code, for the benefit of, at the direction of, or in association with a terrorist group, contrary to s. 83.2 of the Code. He did not admit to knowing that detonation of the explosives was "likely to cause serious bodily harm or death to persons". On a "Gardiner" hearing, the Crown sought to establish that Khalid committed the offence with a more culpable state of mind.

The Ontario Superior Court, in a decision reported at 2009 CanLII 44274, ruled that Khalid had a more culpable state of mind because he was wilfully blind. The next issue was the appropriate sentence. Section 83.2 provided for a maximum punishment of life imprisonment.

The Ontario Superior Court concluded that a sentence of 14 years was appropriate. To accomplish this, the court sentenced Khalid to "a further seven years, in addition to 39 months of pre-sentence custody" for which the court credited Khalid with seven years. The court declined to make an order under s. 743.6(1.2) of the Criminal Code, requiring that Khalid serve one-half of his sentence before being eligible for parole. The Crown applied for leave to appeal and if leave was granted, sought to have the sentence increased to an effective sentence of 18 to 20 years. The Crown did not challenge the credit of seven years. The Crown also sought an order under s. 743.6(1.2) of the Code.

The Ontario Court of Appeal granted leave to appeal, allowed the appeal and increased the effective sentence from 14 to 20 years. Taking into account the seven-year credit for pre-sentence custody, that translated into a sentence of 13 years. The court also made an order under s. 743.6(1.2).

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - Over a period of three months, until the day of his arrest, the 19 year old accused participated in a foiled terrorist plot to detonate bombs at three buildings in Toronto during the morning rush hour - The sentencing judge rejected the presumptive period of parole ineligibility set out in s. 743.6(1.2) of the Criminal Code - The Ontario Court of Appeal disagreed - The court had already concluded that, in imposing the sentence he did, the sentencing judge under-emphasized the enormity of the accused's crime and over-emphasized his rehabilitative prospects - Those reasons applied with equal force to the issue of parole ineligibility - Had the sentencing judge followed the approach that the court believed he should have, he would have come to a different conclusion on the issue of parole ineligibility - Accordingly, the court ordered that the accused serve one half of his sentence (6.5 years) before he might be released on parole - See paragraphs 59 to 61.

Criminal Law - Topic 5833.9

Sentencing - Considerations on imposing sentence - Offences involving terrorism - The accused participated in a foiled terrorist plot to detonate one ton bombs at three buildings in Toronto during the morning rush hour - The Ontario Court of Appeal concluded that the 14-year sentence was demonstrably unfit - The sentencing judge did not have adequate regard to the sentencing considerations that were "demanded by the unique nature of terrorism-related crimes" - In the result, the sentence did not adequately reflect the enormity of the accused's crime and his pivotal role - The court reinforced the principle that, "where the terrorist activity, to the knowledge of the offender, is designed to or is likely to result in the indiscriminate killing of innocent human beings, sentencing judges should give serious consideration to life sentences, and where a life sentence is not called for, to sentences exceeding 20 years" - The fact that the authorities foiled the plot did not lessen the gravity of the crime, nor did it diminish his level of moral blameworthiness - Were it not for the mitigating features that served to reduce the length of sentence, the accused would have been a candidate for a life sentence - See paragraphs 32 to 37.

Criminal Law - Topic 5833.9

Sentencing - Considerations on imposing sentence - Offences involving terrorism - The accused (19 years old at the time of his arrest) participated in a foiled terrorist plot to detonate one ton bombs at three buildings in Toronto during the morning rush hour - He was found to have known that the explosions were likely to kill or injure any number of innocent people - In arriving at the 14-year sentence imposed, the sentencing judge emphasised the accused's youth, his lack of criminal record, his remorse and his prospects for rehabilitation - He also considered that he did not suffer from a mental illness "in determining if he remains a danger to the public" - The Ontario Court of Appeal stated that the sentencing judge over-emphasized the significance of the mitigating factors and reduced the sentence below the appropriate range - Having identified the gravity of terrorist offences and the enormity of the accused's crime, the sentencing judge should have given the accused's youth and lack of criminal record much less significance than he did - "When balanced against the nature and seriousness of the crime, these factors are entitled to considerably less weight" - See paragraphs 37 to 45.

Criminal Law - Topic 5833.9

Sentencing - Considerations on imposing sentence - Offences involving terrorism - The Ontario Court of Appeal set out the approach that should be followed when dealing with young first-offender terrorists - The court accepted that an accused's youth and lack of criminal antecedents were relevant considerations on sentencing - "But, in terrorism cases, these factors must be viewed through a different lens. Youthful first offenders present as attractive recruits to sophisticated terrorists ... The sad truth is that young home-grown terrorists with no criminal antecedents have become a reality. And that is something the courts must recognize and take into account when deciding how much leniency to give to youthful first offenders who commit terrorist crimes" - See paragraphs 46 and 47.

Criminal Law - Topic 5833.9

Sentencing - Considerations on imposing sentence - Offences involving terrorism - The accused, originally from Saudi Arabia, participated in a foiled plot to detonate one ton bombs at three buildings in Toronto during the morning rush hour - He was found to have known that the explosions were likely to kill or injure any number of innocent people - He was a 19 year old university student at the time of his arrest - Section 83.2 of the Criminal Code provided for a maximum punishment of life imprisonment - The sentencing judge emphasised the accused's youth, his lack of criminal record, his remorse and his prospects for rehabilitation, and concluded that a sentence of 14 years was appropriate - The Ontario Court of Appeal concluded that the sentence was demonstrably unfit - Taking into account the mitigating factors that the sentencing judge considered and giving them the weight they deserved, the court imposed an effective sentence of 20 years, which was at the bottom end of the 20 to 25 year range that the court identified - "Stern sentences in that range are meant to send a clear message - those who chose to pursue deadly terrorist activities from or in Canada will pay a very heavy price" - In order to impose the effective sentence, the court increased the accused's term of imprisonment from seven to 13 years - See paragraphs 56 to 58.

Criminal Law - Topic 5841

Sentencing - Considerations on imposing sentence - Age of accused - [See second and third Criminal Law - Topic 5833.9 ].

Criminal Law - Topic 5927

Sentence - Possession or use of bombs or explosives - [See fourth Criminal Law - Topic 5833.9 ].

Criminal Law - Topic 5940

Sentence - Explosives - Causing injury or damage with intent - [See fourth Criminal Law - Topic 5833.9 ].

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See fourth Criminal Law - Topic 5833.9 ].

Cases Noticed:

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361, refd to. [para. 2].

R. v. Amara, 2010 ONSC 441, refd to. [para. 11].

R. v. Martin, [1999] 1 Cr. App. R. (S.) 477, consd. [para. 38].

R. v. Barot, [2007] EWCA Crim. 1119, refd to. [para. 46].

Counsel:

Beverly Wilton, Nicholas E. Devlin and Ghazala Zaman, for the appellant;

Russell Silverstein and Ingrid Grant, for the respondent.

This sentencing appeal was heard on May 20, 2010, by Doherty, Moldaver and Cronk, JJ.A., of the Ontario Court of Appeal. On December 17, 2010, the Court of Appeal released the following reasons for judgment and judgment.