R. c. Habib, 2017 QCCQ 6948

Court	Criminal and penal division, Court of Quebec, Canada
Case number	500-73-004402-166 & 500-73-004401-168
Decision title	Jugement sur la culpabilité (Judgment on guilt)
Decision date	19 June 2017
Parties	The Queen – Prosecutor Ismaël HABIB – Accused
Categories	Terrorism
Keywords	Attempted Travel, Foreign fighters, intent, Islamic State, Preparatory Acts, Terrorist Offence, terrorist organisation
Links	http://citoyens.soquij.qc.ca/php/decision.php?ID=665CE529E6296CF537DD221B65CF1149

Summary

On 19 June 2017, Canadian citizen Ismaël Habib was the first adult found guilty of attempting to leave Canada to participate in the activities of a terrorist group. Mr. Habib had already travelled to Syria in 2013 for three months, but he was arrested and brought back to Canada as his passport had been cancelled by the Canadian authorities. Following initial suspicions, the Canadian police created an elaborate undercover operation by establishing a fictitious criminal organisation in which Mr. Habib was working. The accused was arrested in February 2016 after he confessed to a police undercover officer that he wished to leave for Syria to fight with ISIS. Even though the accused conceded that he had the primary intent of leaving Canada, there was a dispute on his reasons for doing so. While Mr. Habib argued that he wished to join his first wife and children in Syria, the prosecution contended that the defendant’s intent was to join ISIS and participate in its terrorist activities.

Procedural history

Mr. Habib, a Canadian citizen, was arrested in Turkey and sent back to Canada in 2013 due to the cancellation of his passport (para. 68).

On 6 March 2017, the Court held a voir-dire on the admissibility of evidence in the Habib case. The evidence concerned a declaration made by the accused to an undercover officer, in the context of a Mr. Big operation by the Royal Canadian Mounted Police (RCMP). The Court ruled that the declaration was admissible as the confession’s probative value outweighed its prejudicial effect.

Related developments

Ismaël Habib was sentenced to nine years in prison on 29 September 2017 by the Court of Quebec. He was facing up to ten years under the 2015 Anti-terrorist Act amendments to the Criminal Code, but was condemned to eight years for attempting to leave Canada to join ISIS, and one year for providing false information to obtain a passport.

Legally relevant facts

Ismaël Habib first travelled to Syria in 2013 with Wassim Boughadou (paras. 41-44).

He landed in Algeria and then met his first wife and children in Turkey.
Shortly after his arrival, the two men left for the Turkey-Syria border before crossing it, and participating during three months in the activities of three groups, the Free Syrian Army, Ahrar al-Sham, and the Chechens.
As he was returning to Turkey, Mr. Habib was arrested by the Turkish authorities and sent back to Canada (para. 68).
Back in Canada, Mr. Habib started dating a woman and married her. She was unaware that he was still married to his first wife (para. 31).

The RCMP created an undercover Mr. Big operation (para. 1) by establishing a fictitious criminal organisation of official documents forgery and smugglers. In the course of the operation, the boss offered to smuggle Mr. Habib out of Canada for a discounted price if he agreed to help escort another client, thanks to his contact in Syria (para. 5).

On 14 January and 25 February 2016, the accused declared to the fictitious boss of the organisation, who had asked him for assurances regarding his past and contacts in Syria, that (paras. 6 and 61):

He wanted to leave as in his religion one had to live in a Muslim country applying Sharia law.
His ultimate goal was to go to Syria and fight as he wanted to die for god.
He wanted to be a fighter for ISIS and was ready to do anything in his power to help them, except a terrorist attack in Canada.

Core legal questions

Article 83.181 of the Canadian Criminal Code requires the accused to have a double intent: the intent to leave Canada and the intent to participate and willingly contribute to a terrorist activity (para. 56).

The fact that Mr. Habib wanted to leave Canada for Syria is not disputed. The accused, however, testified before the Court that his sole goal was to join his wife and children in Syria, casting doubts on the fulfilment of the second requirement of intent.

The Court thus had to answer the following preliminary question: can the testimony of the accused be included in the trial? To do so, it applied the R. c. W. test on what reasonable doubt means, in the context of conflicting testimonial accounts (see para. 12).

Then, the Court had to consider the core question: did Mr. Habib possess the intent of participating and contributing to a terrorist activity in Syria, making him guilty of the offence under 83.181?

Specific legal rules and provisions

Article 83.181 (leaving Canada to participate in activity of terrorist group) of the Canadian Criminal Code, as read with article 83.18(1) of the Criminal Code (participation in activity of terrorist group).

Article 57(2) of the Canadian Criminal Code (false statement in relation to passport).

Court's holding and analysis

Mr. Habib testified before the Court that his confession to the undercover agent was false as he was under pressure (para. 16). The real reason of his departure to Syria was to meet his first wife and children (para. 8).

Following the R. c. W. test, the Court first rejected Mr. Habib’s testimony before the Court since, on the basis of the accepted evidence, it was convinced beyond reasonable of the guilt of the accused (para. 53):

His credibility was affected by several elements of dishonesty, and the evidence contradicted his testimony (e.g. remarried, paras. 26; 28-31).
The narrative of his first departure to Syria was not credible (paras. 45-50).

The Court then ruled that Mr. Habib had both the primary and the special intent required by article 83.181 (paras. 86-87) as his aim was equally to join his family and fight with ISIS (para. 65):

His declarations to the undercover officer detailed his plan and reasons to leave for Syria and fight for ISIS (para. 60). Mr. Habib warned that he would not wait a year before leaving.
He already went to Syria in 2013 and met with several armed groups (paras. 63-64; 83-85).
Finally the evidence showed the existence of Abu Bara, Mr. Habib’s contact to reach Syria and join ISIS. The websites he consulted also prove his interest for Syria and ISIS (paras. 74-77).

Instruments cited

Criminal Code (R.S.C., 1985, c. C-46), 1985, Canada

Anti-Terrorism Act (S.C. 2015, c. 20), 2015, Canada

Related cases

Kingston-upon-Thames Crown Court, UK, R v. Shabiz Khan, case No. T20167057: Mr. Khan was found guilty of planning to travel to Syria and join ISIS.
Kingston-upon-Thames Crown Court, UK, R v. Junead Khan, case No. T20167057: Junead Khan, Shabiz Khan’s nephew, was convicted of attempting to travel to join ISIS and of plotting to attack US personnel on military bases in the UK.
Supreme Court of Victoria, Australia, R v. Mohamed, case No [2016] VSC 581: Mr. Mohamed was sentenced to 5,5 years for attempting to travel to Syria and fight there.