Michael D. Edelson

The accused was charged with conspiracy to facilitate terrorist activity contrary to ss. 83.19 and 465(1)(c) of the Criminal Code after a recorded meeting in which he discussed forming a group to support violent jihad with two individuals already engaged in a terrorist conspiracy.

The Crown relied heavily on wiretap evidence capturing the meeting and argued that the accused had agreed to join the conspiracy.

The accused testified that he only feigned agreement to avoid confrontation and had no genuine intention to participate.

The court rejected significant portions of the accused’s testimony but concluded that the Crown failed to prove beyond a reasonable doubt that he sincerely intended to join the conspiracy.

The court held that while the accused may have sympathized with jihadist causes, the evidence left a reasonable doubt as to whether he had the requisite mens rea to agree to the conspiracy.

The applicant, facing terrorism charges, elected to be tried in the provincial court.

The Director of Public Prosecutions subsequently preferred a direct indictment under s. 577 of the Criminal Code, moving the trial to the Superior Court.

The applicant sought certiorari to quash the indictment, arguing that s. 577 does not apply to an accused who elected a provincial court trial and that overriding his election violated his s. 7 Charter rights.

The Superior Court dismissed the application, holding that s. 577 broadly permits direct indictments regardless of the accused's election, and that there is no constitutional right to a trial by a judge alone in a specific court.