R. v. Hersi

Court	Ontario Superior Court of Justice, Canada, Canada
Case number	CRIM J(S)1557/11
Decision title	Sentencing of accused for participating in terrorist group and counselling another person to participate in terrorist group
Decision date	24 July 2014
Categories	Terrorism
Keywords	Attempted terrorism, Criminal law, Recruitment for terrorism, Sentencing
Links	Sentencing of accused for participating in terrorist group and counselling another person to participate in terrorist group

Summary

Mr. Hersi was a naturalized Canadian citizen from Somalia living in Toronto. A drycleaner found a USB in Hersi’s security guard uniform containing suspicious documents, such as instructions on how to make explosives as well as various Islamic religious writings. The drycleaner notified the police, and the police investigated Mr. Hersi further using an undercover officer. During these meetings with the undercover officer, Mr. Hersi explained his well-developed plan to join the terrorist organisation Al-Shabaab and suggested that the UC also join.

The Court found Mr. Hersi guilty of (1) attempting to participate in the activities of Al-Shabaab and (2) counselling an undercover officer to participate in Al-Shabaab. The Court then sentenced Mr. Hersi to 10 years in prison, the maximum of 5 years for each of his offenses. Additionally, the Court held that Mr. Hersi be required to serve at least one-half his sentence, as opposed to the typical requirement of one-third of a sentence, before he could be released on parole, given the gravity of the offence and the unlikelihood of Hersi’s rehabilitation.

Procedural history

On 29 March 2011, Mohamed Hersi was arrested at Pearson Airport (Toronto) where he had a flight scheduled to Egypt. Hersi was charged with two terrorism offences under the section 83.18 of the Criminal Code of Canada: (1) attempting to participate in the activities of Al-Shabaab and (2) counselling an undercover officer to participate as well (para. 3).

On 30 May 2014, a jury found Mohamed Hersi guilty of on both counts (para. 3).

The case at hand concerned sentencing: the Crown seeked a total of 10 years, and Hersi asked for 3-4 years (para. 5).

Legally relevant facts

An employee at the drycleaner where Hersi’s uniform was being cleaned found a USB in the uniform. The USB contained suspicious documents including the National Defense Operational Manual and the Anarchist Cookbook. It was determined that the USB belonged to Mr. Hersi, and the police were notified. (para. 9)

The police installed an undercover officer (“UC”) at Mr. Hersi’s work place. The UC “befriended” Mr. Hersi and met with him approximately 30 times. (para. 10). Mr. Hersi revealed to the UC that he planned to travel to Somalia to join Al - Shabaab; he encouraged the UC to join Al-Shabaab as well (para. 11).

Al–Shabaab is listed as a terrorist organization, pursuant to the Criminal Code of Canada (paragraph 11). Mr. Hersi was aware that they were a terrorist group, as he had accessed websites which described Al–Shabaab’s brutal acts of terror in furtherance of an extremist religious agenda. (paragraph 12).

In the conversations with the UC, Mr. Hersi revealed that he had been planning to join Al-Shabaab for 4-5 years (para. 19), and that he would be willing to return to Canada to “take care of” someone who insulted the prophet (para. 26).

Core legal questions

What is the appropriate prison sentence for an individual who has been found guilty of attempting to participate in the activities of a terrorist organization, and recruiting another to do the same?

Specific legal rules and provisions

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

s. 83.18 (1): Every one who knowingly participates in or contributes 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 is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
s. 463(b): every one who attempts to commit or is an accessory after the fact to the commission of an indictable offence for which, on conviction, an accused is liable to imprisonment for fourteen years or less is guilty of an indictable offence and liable to imprisonment for a term that is one-half of the longest term to which a person who is guilty of that offence is liable

s. 464(a): every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable.

Court's holding and analysis

The Court determined that Hersi had a longstanding plan to join Al-Shabaab, intended to participate in terrorist activity, and shared Al-Shabaab’s extremist ideology (paras. 18-33).

The Court then considered several aggravating factors for Mr. Hersi’s sentence, such as the fact that Hersi attempted to join a terrorist group with a proven record of violent attacks on innocent civilians (para. 40). Additionally, Mr. Hersi had been planning to join Al-Shabaab for many years and was so committed as to encourage another to join as well (para. 41). Finally, Mr. Hersi displayed a desire to personally wage violent jihad against disbelievers. (para. 42).

The overwhelming presence of aggravating factors combined with the lack of mitigating factors such as remorse, led the Court to find that the maximum sentence was appropriate.

The Court sentenced Mr. Hersi to the maximum of 5 years for each offence, totalling 10 years (para. 87).

The Court also found that because Mr. Hersi was so committed to the terrorist ideology despite all his privilege, rehabilitation was unlikely (para. 67). In this regard, the court held that Mr. Hersi would need to complete at least one-half, instead of the traditional one-third, of his sentence before being eligible for parole (para. 87).