By Michelle Stephenson
A recent sentencing decision of the Ontario Superior Court of Justice addresses the severity of sentencing appropriate for individuals convicted on charges of terrorism.
In R. v. Esseghaier, two men were sentenced after being convicted of several terrorism offences under the Criminal Code, predominantly arising from their plans to derail a passenger train.
The charges for which the first Defendant, Mr. Esseghaier, was sentenced included:
- conspiracy to damage transportation infrastructure with intent to endanger safety for the benefit of a terrorist group (which carries a maximum sentence of life imprisonment);
- conspiracy to commit murder for the benefit of a terrorist group (also carries a maximum sentence of life); and
- three counts of participating in or contributing to the activity of a terrorist group (carries a maximum sentence of 10 years imprisonment).
His co-defendant, Mr. Jaser, was his partner until some time in 2012. He was charged only for the second offence above and two counts of the third.
Steps taken by the two Defendants included reconnaissance trips to locations where they might attempt to derail a train, attempts at obtaining a “safe house”, and numerous conversations and planning sessions debating the more effective way to ensure a large number of fatalities.
Despite no actual harm being done to the public, the factors considered in sentencing weighed strongly against Esseghaier and Jaser in this case.
The line of case-law that has developed around sentencing for terrorism charges, led to life sentences for both the conspiracy to damage transportation to endanger safety for the benefit of a terrorist group, and the conspiracy to commit murder for the benefit of a terrorist group.
These charges fall within the most serious kind of terrorism offences, those 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.” The Ontario Court of Appeal has held that the appropriate sentence for such an offence is at least 20 years, up to a life sentence.
For these types of charges, sentences in the lower end of the 20 year – life sentence range are appropriate where there are strong mitigating factors, such as where the defendants are very young, plead guilty, express remorse, and have strong community support for rehabilitation.
However, the Court found that there was little to no mitigation present for these Defendants. Maximizing indiscriminate killing had been the very goal of the Defendants.
Furthermore, Esseghaier was found to be completely remorseless and dangerous; he had not been affected by his arrest or the court process, and had no rehabilitative prospects.
Similarly Jaser consistently refused to take responsibility for his actions or to express remorse, and his only reason for abandoning the plot had been his fear of apprehension, after the two were stopped by police officers on one of their reconnaissance missions.
For these reasons, the Court found life sentences to be appropriate for both Defendants, for the more serious offences.
Additionally for the third offence, Esseghaier received a subsequent 18 years, and Jaser 13. Neither will be eligible for parole until ten years from the date of their arrest.
The severity of these sanctions reflects the goal of sentencing for this type of offence, which goes beyond punishing individual offenders. Terrorism cases are relatively rare in Canada, and the sentencing principles applied to them aim to keep it this way.
The “unusual gravity of terrorism offences means that denunciation and deterrence” are the predominant principles used in sentencing.
While other factors, such as proportionality, still apply; the Court has a responsibility in these cases to send “a clear and unmistakeable message that terrorism is reprehensible” and that those who engage in it in Canada “will pay a very heavy price.”