Court of Appeal for Ontario
Date: 2019-12-20
Docket: C65466
Judges: Watt, Tulloch and Lauwers JJ.A.
Between
Her Majesty the Queen Appellant
and
Ayanle Hassan Ali Respondent
Counsel
For the Appellant: Jason J. Wakely and Bradley Reitz
For the Respondent: Nader R. Hasan, Emily Quail, and Maureen Elaine Addie
For the Intervener, the Criminal Lawyers' Association: Anil K. Kapoor and Dana Achtemichuk
Heard
June 24, 2019
Appeal
On appeal from the acquittal entered by Justice Ian A. MacDonnell of the Superior Court of Justice, on May 14, 2018, with reasons reported at 2018 ONSC 2838.
Reasons for Decision
Watt J.A.:
Introduction
[1] If a person can be a group, can that same person also commit an offence for the benefit, or at the direction of, or in association with that same group of which he is the only member?
[2] Ayanle Hassan Ali (the respondent) attacked three members of the Canadian Forces at a local recruiting centre. He was, the Crown alleged, his own terrorist group. The Crown also alleged that the respondent committed several indictable offences for the benefit of, at the direction of, or in association with that terrorist group of which he was the only member.
[3] Two highly qualified forensic psychiatrists agreed that the respondent suffered from a mental disorder, schizophrenia, which rendered him incapable of knowing that his conduct was morally wrong.
[4] At the conclusion of the respondent's trial, the presiding judge found him not guilty of committing various indictable offences for the benefit of, at the direction of, or in association with his own terrorist group. And not criminally responsible on account of mental disorder for the underlying indictable offences alleged to have been committed.
[5] The Crown appeals and asks that a new trial be ordered on the principal offences charged – breaches of s. 83.2 of the Criminal Code – with that trial limited in its scope.
[6] These reasons explain why I have concluded this appeal fails and should be dismissed.
The Background Facts
[7] The trial proceeded on the basis of an Agreed Statement of Facts together with the testimony of the two forensic psychiatrists who shared the same view of the nature and effect of the respondent's major mental illness.
The Initial Attack
[8] On March 14, 2016, the respondent walked into a Canadian Forces Recruiting Centre. When an officer tried to screen him for security purposes, the respondent punched the officer repeatedly in the head. The respondent then pulled a large kitchen knife out of a folder he was carrying and lunged at the officer with slashing and stabbing motions. The officer, who had been seated at a desk, suffered a three-inch gash on his arm.
The Intervention
[9] Another officer intervened. He jumped over a desk, armed himself with a chair as a shield against a knife attack, and moved the respondent away from his wounded colleague. The respondent engaged this second officer. But the attack failed because of the chair the officer held in front of him.
The Advance and Second Attack
[10] The respondent ran past the first two officers further into the recruiting centre. He chased a female officer, who had come out of her office, further into the recruiting centre. He swung his knife at her more than once, narrowly missing the back of her neck.
The Third Attack
[11] Confusion and chaos followed. The respondent encountered another officer who had slipped on some spilled coffee and fallen to the floor. He slashed and stabbed this officer who suffered a small cut to his left lateral/mid-chest either from his fall or a stab by the respondent.
[12] The respondent lost control of the knife when it struck the floor as he attempted another stabbing motion.
The Apprehension
[13] The respondent ran towards the rear of the recruiting centre. There, a door led to another internal room but not to an exit from the building. The door was partially closed. Several officers blocked the entry. Although recollections differed about the precise sequence of events, in the end, the respondent was tackled, grounded and subdued. Officers seized the knife after it came loose from the respondent's hand.
The Observations of the Respondent
[14] By all accounts, the events in the recruiting centre ended about a minute after they had begun. The respondent ran around frantically. He was listening to his iPod: "the Quran, Chapter Two" appeared on the screen. The respondent was muttering a prayer as officers tried to subdue him. He was incoherent and unresponsive to commands, laughing, smiling, giggling as if he were "on something".
[15] To some of the officers, the respondent appeared to be having a seizure. His eyes rolled back in his head. He foamed at the mouth. He laughed frequently. His affect was flat. He was "not there", "lost in the clouds". He told a paramedic that Allah had sent him to kill people.
The Post-Arrest Searches
[16] Apart from the iPod, officers at the Recruiting Centre found no devices in the clothing or attached to the respondent's body when they strip-searched him at the centre. Police conducted a warranted search at the respondent's home. There they found a lab notebook with entries from earlier in the month of the attack. The entries recounted the respondent's everyday struggles and his complaints about government surveillance. There were entries about Jihad and martyrdom and how to break free from his distractions and thoughts to become a productive member of society. Other writings indicated that he had a licence, the green light, to kill. He lamented having no money for AK 47s or rockets.
The Terrorist Group
[17] Investigators searched all the electronic devices they found on the respondent at the Recruiting Centre and at his home. They found no evidence of any connection with any other person or group.
[18] It was not alleged at trial that the respondent was a member of any group other than that of which he was the only member.
The Expert Evidence of Mental Disorder
[19] Dr. Philip Klassen, a forensic psychiatrist and the Vice-President, Medical Affairs at Ontario Shores Centre for Mental Health Sciences, examined the respondent on behalf of the Crown to determine whether, from a psychiatric perspective, the respondent was criminally responsible for his conduct.
[20] Dr. Klassen concluded that the respondent suffered from schizophrenia, a major mental illness. The issue of criminal responsibility was complicated by the respondent's limited insight and his religious ideation. Dr. Klassen was satisfied that despite his major mental illness, the respondent appreciated the nature and quality of his conduct: he was aware that he was attacking soldiers with a knife and intended to kill them. The doctor was also satisfied that the respondent knew his conduct was legally wrong. However, the respondent did not know his conduct was morally wrong.
[21] Dr. Gary Chaimowitz is a forensic psychiatrist and the Head of Service for the Forensic Psychiatry Program, at St. Joseph's Healthcare in Hamilton. He examined the respondent at the request of the defence.
[22] Dr. Chaimowitz agreed that the respondent suffered from schizophrenia. He also agreed that the respondent appreciated the nature and quality of his conduct: he intended to attack the soldiers, motivated by a desire to be martyred when they (the soldiers) killed him. The respondent knew that his conduct was legally wrong.
[23] It was Dr. Chaimowitz's opinion that the respondent did not know his conduct was morally wrong. The respondent thought that his conduct was morally justified, a conclusion driven by his sense of persecution, which he experienced as a function of his psychosis. The doctor acknowledged the possibility that the conduct was driven by the respondent's Jihadist ideology more than by his delusions. But, Dr. Chaimowitz explained, when the respondent's entire history, including the recent changes in his behaviour, the escalation of his symptoms, and the conviction with which the delusions from his mental illness drove his behaviour, he was satisfied that it was the mental disorder that drove the respondent's behaviour and deprived him of the knowledge of the moral wrongfulness of his conduct.
The Decision of the Trial Judge
[24] The trial judge found the respondent not guilty of committing the various indictable offences for the benefit of, at the direction of or in association with a criminal organization. He then focused on the various predicate or underlying offences as included within the principal offences charged under s. 83.2 and found the respondent NCRMD in relation to those offences.
The Grounds of Appeal
[25] The Attorney General advances a single ground of appeal: that the trial judge erred in holding that a person cannot be convicted of an offence under s. 83.2 of the Criminal Code, R.S.C. 1985, c. C-46 when that person is the only member of the terrorist group for which the offence was committed.
[26] If the appellant is correct, a further issue arises concerning the disposition which should be made in this court concerning future proceedings.
Ground #1: The Interpretation of Section 83.2
[27] As I begin, I find it helpful to briefly sketch out the common ground between the parties and identify the areas of controversy. After that, I will set out the relevant passages of the trial judge's reasons before reviewing the parties' positions and the principles that control our decision.
The Common Ground
[28] The appellant and respondent agree on three things.
[29] First, that a "terrorist group" within s. 83.01(1) can consist of a single individual. A "terrorist group" is an "entity" and an "entity" is defined in s. 83.01(1) as including "a person".
[30] Second, that the respondent is his own terrorist group. He is not a member of any listed entity or terrorist group.
[31] Third, that the respondent was suffering from a mental disorder – schizophrenia – when he committed the offences charged. This rendered him incapable of knowing his conduct was morally wrong.
The Controversy
[32] The parties disagree about whether, as a matter of law, the person committing the indictable offence (the principal) can be the only member of the terrorist group for whose benefit, at whose direction, or in association with whom the offence is committed. In other words, can the person committing the offence and the terrorist group be one and the same?
The Reasons of the Trial Judge
[33] The trial judge concluded that s. 83.2 of the Criminal Code does not capture an individual who committed an indictable offence alone in pursuit of his own personal terrorist agenda:
The Crown's approach to the interpretation of s. 83.2 focuses almost entirely on the wording of the provision. The wording is obviously important but statutory interpretation cannot be founded on the wording alone. Rather, "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament."
When the interpretation of s. 83.2 is approached in that manner, and when the objective of Part 11.1 of the Code, the method by which Parliament has sought to achieve that objective, the wording of s. 83.2, the role that s. 83.2 plays in the anti-terrorism scheme, and the relationship that s. 83.2 has with other provisions of Part 11.1 are considered together and as a whole, the inexorable conclusion is that the intention of Parliament in enacting s. 83.2 was to proscribe the kinds of associative conduct that support, facilitate and contribute to terrorist activity. The kind of lone-wolf criminal conduct engaged in by the defendant was not intended to be captured by s. 83.2. Parliament understood that such conduct was subject to prosecution under the existing provisions of the Criminal Code and was content to simply bolster the sentencing options available for that conduct by enacting s. 83.27. There was no need to do more.
Accordingly, the Crown has failed to prove that the defendant's attack on the military personnel at the Recruiting Centre was for the benefit of, at the direction of or in association with a terrorist group and he is found not guilty on each of the nine counts under s. 83.2. However, he is not entitled to be found not guilty of the included offences of attempted murder, assault causing bodily harm, assault with a weapon and carrying a weapon. The agreed facts establish that he committed the actus reus of each of those offences and that he did so with the requisite intent. Whether he should be found guilty of those offences depends on whether at the time of the attack he was suffering from a mental disorder so as to be exempt from criminal responsibility. It is to that issue that I now turn.
[34] The trial judge explained that it was not enough to establish liability that, as a matter of law, a single person could be a "terrorist group" and that, as a matter of fact, the respondent was such a group. Other principles of statutory interpretation, such as the associated words doctrine, suggest the terrorist group must be an entity separate and apart from the principal who commits the indictable offence. After all, the anti-terrorism legislation is focused on associative activity. Parliament could have captured the lone wolf terrorist in Part II.1 but did not do so. What is more, the appellant's interpretation renders other statutorily-created offences redundant and leads to absurd results.
The Arguments on Appeal
[35] The appellant contends that, properly interpreted, s. 83.2 applies to the lone wolf who commits an indictable offence to advance the goals of his own self-constituted terrorist group. To that end, the appellant identifies four errors made by the trial judge that resulted in his flawed conclusion.
[36] First, the appellant says the trial judge misconstrued the legislative purpose of Part II.1. The overriding objective of the Part is not, as the trial judge held, related to associative activity. Rather, the objective of Part II.1 is to prevent the commission of terrorist activity, all terrorist activity, whether that of a group or of a lone actor. The purpose of the legislation in Part II.1 is the prevention and prosecution of terrorism offences. This interpretation does not render other provisions of Part II.1, such as ss. 83.202 and 83.27, redundant.
[37] The trial judge's interpretation does not account for lone wolf terrorists who take steps, not amounting to an attempt, to carry out a terrorist activity. Nor does it consider the normative importance (namely deterrence) of labelling terrorist activity correctly. By excluding the lone wolf from the ambit of Part II.1, the trial judge misconstrued and undermined Parliament's preventative purpose in enacting the anti-terrorist legislation.
[38] Second, the appellant contends it is "awkward" but not implausible to describe a single individual as a "group" committing an offence "for the benefit of, at the direction of or in association with" himself, that is to say, his one-person terrorist group. The connective among these three modes of committing this offence is the disjunctive "or". The lone wolf interpretation of s. 83.2 is supportable if just one of these three modes applies. And "for the benefit of" does so.
[39] Third, the appellant argues no ambiguity inhabits the phrase "in association with" found in s. 83.2. This section requires a connection between the offence and the group, not the accused and the group. Interpreted in this way, the phrase is applicable to the lone wolf.
[40] Fourth, the appellant says the trial judge incorrectly used the associated words rule in his interpretation of s. 83.2. This error is twofold:
i. the legislation was not ambiguous, so the rule does not apply; and
ii. if the rule is applicable, the judge misidentified the common objective of the disjunctive modes.
[41] The respondent rejects the appellant's position and advances three reasons for why the trial judge's conclusion that s. 83.2 does not apply to individuals acting alone was correct.
[42] First, the respondent points out that the language "for the benefit of, at the direction of or in association with a terrorist group" is not unique to s. 83.2. This phrase appears elsewhere in Part II.1, as for example, in ss. 83.18(3), 83.201 and 83.21(1). These terms have, as their common sense meaning, one that excludes individuals, such as the respondent, who act alone.
[43] Second, the respondent says a single person cannot be at one and the same time the principal and the one-person group for whose benefit the offence is being committed. The respondent accepts that a single person can constitute or be a "terrorist group". But if the relevant group is but a single individual, then the principal, the person who commits the indictable offence, must be different from the person who is the "terrorist group". The respondent cites the following principles of statutory interpretation to support its position:
• Presumption against tautology: Parliament is presumed to have been acting purposefully and logically when it enacted s. 83.2. Common sense indicates that when a person does something intentionally, they do so for their own benefit. To require nothing more would mean that every indictable offence committed for an ideological purpose potentially falls within the sweep of s. 83.2 and collapses the essential elements of indictable offences and those of terrorist offences.
• Same words same meaning principle: the phrase "for the benefit of, at the direction of or in association with" appears in s. 467.12(1) regarding criminal organizations. Under this provision, there must be a nexus between the indictable offence and the criminal organization such that where a principal intends the indictable offence to advance their own purpose, rather than that of the organization, the section has no application. The same result should follow here despite the requirement that a criminal organization consists of "three or more persons".
• Associated words rule: because "at the direction of" and "in association with" in s. 83.2 contemplate the principal and terrorist group as separate entities, the phrase "for the benefit of" should be read in a harmonious way to the same effect.
[44] Third, the respondent says legislative intent does not rebut the governing principles of statutory interpretation. Parliament's purpose in enacting s. 83.2 was to punish those who aid, abet, or participate in terrorist groups. Parliament did so by expanding the law to prohibit certain associative activities (e.g., the inclusion of the existence of a terrorist group as an essential element of several offences included in Part II.1) and in forbidding certain preparatory conduct that enables and assists terrorist groups. The respondent's position will not deprive law enforcement of the tools necessary to prosecute lone wolf terrorists.
The Governing Principles
[45] This appeal involves a question of statutory interpretation. Specifically, whether s. 83.2 applies to a person who is at once the principal who commits the indictable offence and the only member of the terrorist group whose interests are advanced by its commission.
[46] The modern principle of statutory interpretation requires that we read the words of the section "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament": Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 34, citing E.A. Driedger, Construction of Statutes, 2nd ed. (Oxford: Butterworth-Heinemann, 1983), at p. 87. This approach acknowledges the many-sided nature of statutory interpretation and the need to read textual considerations with the legislative intent and established legal norms: Application under s. 83.28 of the Criminal Code (Re), at para. 34. See also, Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.
[47] In our interpretation of a legislative provision, such as s. 83.2, we must form an impression of the meaning of its text. But we do not stop there. We must then infer what rules the legislative authority intended to enact. This we do by taking into account the purpose of the provision and all relevant context. This is so regardless of whether we consider the provision to be ambiguous: Ruth Sullivan, Sullivan on the Construction of Statutes (6th ed, 2014), at para. 2.2.
[48] To determine whether a statutory provision applies to a specific factual matrix, we must consider:
i. the meaning of the text of the provision;
ii. the intention of the legislating authority; and
iii. the consistency of the proposed interpretation with established legal norms.
See, Sullivan, at para. 2.3-2.5; 2.8.
The Textual Meaning
[49] Section 83.2 of the Criminal Code creates and punishes an indictable offence:
Every one who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of or in association with a terrorist group is guilty of an indictable offence and liable to imprisonment for life.
[50] To establish an alleged offender's guilt of this offence, the Crown must prove the three essential elements beyond a reasonable doubt:
• predicate offence;
• terrorist group; and,
• nexus/relationship.
The Predicate Offence
[51] An offence is deemed to be an indictable offence if the enactment creating that offence provides that the offender may be prosecuted for the offence by indictment: Interpretation Act, R.S.C. 1985, c. I-21, s. 34(1)(a). Each underlying or predicate offence is either exclusively indictable or may be prosecuted by indictment.
The Terrorist Group
[52] The term "terrorist group" is exhaustively defined in s. 83.01(1) of the Criminal Code as the entity the interests of which are advanced, to some degree at least, by the commission of the predicate offence:
(a) an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity, or
(b) a listed entity,
and includes an association of such entities.
[53] Two components of the term "terrorist group" require special mention.
[54] Section 83.01(1) defines a "terrorist activity" as having a conduct and a mental or fault component:
(b) an act or omission, in or outside Canada,
(i) that is committed
(A) in whole or in part for a political, religious or ideological purpose, objective or cause, and
(B) in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada, and
(ii) that intentionally
(A) causes death or serious bodily harm to a person by the use of violence,
(B) endangers a person's life,
(C) causes a serious risk to the health or safety of the public or any segment of the public,
(D) causes substantial property damage, whether to public or private property, if causing such damage is likely to result in the conduct or harm referred to in any of clauses (A) to (C), or
(E) causes serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy, protest, dissent or stoppage of work that is not intended to result in the conduct or harm referred to in any of clauses (A) to (C),
and includes a conspiracy, attempt or threat to commit any such act or omission, or being an accessory after the fact or counselling in relation to any such act or omission ….
[55] The conduct component includes not only an act or omission, but also a conspiracy, attempt or threat to commit any act or omission, or being an accessory after the fact to an act or omission that causes a consequence described in any of subparagraphs (b)(ii)(A) to (E): R. v. Khawaja, 2010 ONCA 862, 273 C.C.C. (3d) 415 at para. 81, aff'd 2012 SCC 69, [2012] 3 S.C.R. 555.
[56] The mental or fault component of "terrorist activity" consists of three parts:
i. intending to bring about any consequence described in subparagraphs (1)(b)(ii)(A) to (B);
ii. further intending to bring about either consequence described in subsection (1)(b)(i)(B); and,
iii. for a political, religious or ideological purpose, objective, or cause in subsection (1)(b)(i)(A).
In other words, the fault element requires the Crown to prove the accused's intention to bring about any consequence prohibited in the definition; an ulterior intention with respect to a further consequence; and a specified purpose or motive: Khawaja, at paras. 82-86.
[57] Section 83.01(1) defines an "entity" as
"entity" means a person, group, trust, partnership or fund or an unincorporated association or organization.
[58] The inclusion of "a person" in the exhaustive definition of "entity" means a single (natural) person can constitute a "terrorist group": R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555, at paras. 26 (S.C.C.), Khawaja (Ont. C.A.), at para. 78; United States of America v. Nadarajah, 2010 ONCA 859, 266 C.C.C (3d) 447 at para. 20, aff'd 2012 SCC 70, [2012] 3 S.C.R. 609.
The Nexus/Relationship
[59] Section 83.2 targets indictable offences connected to the activities of a terrorist group and to advancing its interests. This element may be established on any of the three alternative bases in the section: "for the benefit of", "at the direction of", or "in association with".
[60] These words bear their normal, natural, everyday meaning, and share a common objective: to suppress terrorist activity: R. v. Ansari, 2015 ONCA 575, 330 C.C.C. (3d) 105, at para. 168. See also, R. v. Venneri, 2012 SCC 33, [2012] 2 S.C.R. 211, at para. 53. The single connective "or" is disjunctive. It signals that the relationships are alternatives, that is to say, that proof of any one will suffice to establish this element of the offence. Proof of all is not required: see e.g. Venneri, at para. 53.
[61] The Supreme Court in Venneri discussed the meaning of "in association with" in the context of the s. 467.12 criminal organization provision. That provision's use of "in association with" is analogous to s. 83.2, so I find the reasoning persuasive to the interpretation of s. 83.2 in this case.
[62] The phrase "in association with" captures indictable offences that advance, in some measure at least, the interests of a terrorist group, even if they are neither primarily for its benefit nor directed by the group: Venneri, at para. 54. The phrase requires a connection between the predicate indictable offence and the terrorist group, not simply an association between the principal who commits the indictable offence and the terrorist group: Venneri, at para. 55.
[63] An offender may commit an indictable offence "in association with" a terrorist group of which the offender is not a member. However, membership in the group can be a relevant factor in determining whether, in all the circumstances, the required relationship or nexus between the offence and the group has been adequately established: Venneri, at para. 56.
The Intention of Parliament
[64] The purpose of the Anti-terrorism Act is the prosecution and prevention of terrorism offences: Application under s. 83.28, at para. 40.
[65] The Act's preamble is evidence of this purpose. It speaks to the challenge of eradicating terrorism; the need to strengthen Canada's capacity to suppress, investigate, and incapacitate terrorist activity; and the need for legislation to prevent and suppress the financing, preparation, facilitation, and commission of acts of terrorism.
Adherence to Interpretative Norms
[66] An interpretation must not only comply with the legislative text and promote the legislative intent. It must also conform to accepted legal norms: Sullivan, at para 2.9. The presumption against tautology; same word, same meaning principle; the associated words principle; and the presumption against absurdity are the legal norms relevant to this case.
The Presumption against Tautology
[67] We presume that legislative bodies avoid superfluous or meaningless words. Every word and phrase used in a statute has a meaning and a function. Thus, we eschew interpretations that render any portion of a statute meaningless, pointless, or redundant: Winters v. Legal Services Society, [1999] 3 S.C.R. 160, at para. 48; R. v. Katigbak, 2011 SCC 48, [2011] 3 S.C.R. 326, at para. 59.
The Same Words, Same Meaning Principle
[68] We also presume the legislative body uses language in a careful and consistent manner. Thus, within a statute, the same words and phrases have the same meaning and different words and phrases have different meanings. Unless the context clearly indicates otherwise, words and phrases should be assigned the same meaning wherever they appear in a statute: R. v. Zeokowski, [1989] 1 S.C.R. 1378, at p. 1387.
The Associated Words Rule
[69] The associated words rule may be invoked when two or more terms, linked by "and" or "or", serve an analogous grammatical and logical function within a provision. The terms draw their colour from each other. We look to a common feature among the terms and rely on that common feature to resolve ambiguity or limit the scope of the terms: Sullivan, at para. 8.58; R. v. Goulis (1981), 60 C.C.C. (2d) 348 (Ont. C.A.), at pp. 352-353. See also, Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at para. 64; R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217, at paras. 49-51; Opitz v. Wrzesnewskvj, 2012 SCC 55, [2012] 3 S.C.R. 76, at paras. 40-43.
[70] The common theme of the phrasal string "for the benefit of, at the direction of or in association with" in s. 83.2 might be characterized as advancing the interests of the terrorist group: Compare, Venneri, at para. 54. An offence committed for entirely selfish motives would seem to fall beyond the reach of these terms: Venneri, at para. 54.
The Presumption against Absurdity
[71] It is a well-established principle of statutory interpretation that the legislator does not intend to produce absurd results: Rizzo, at para. 27; R. v. McIntosh, [1995] 1 S.C.R. 686, at p. 722; Morgentaler v. The Queen, [1976] 1 S.C.R. 616, at p. 676. The interpretation of legislation is not an arid, academic exercise. It involves the application of legislation to a group of facts. It has consequences for the persons involved and others beyond them. An interpretation that leads to an absurdity may be rejected in favour of a plausible alternative that avoids the absurdity.
The Principles Applied
[72] As I will explain, I agree with the trial judge that a person cannot, at one and the same time, commit an offence and be the sole member of a terrorist group for which the offense was committed. Consequently, I would reject this ground of appeal.
[73] The words of the section are largely unrevealing about how they should be interpreted, except that they appear to contemplate two different constituents: the person who commits the indictable offence, a principal under s. 21(1)(a), and the terrorist group whose interest the principal seeks to advance.
[74] Section 83.01(1) defines several terms, among them, "terrorist group". In its normal, natural, everyday sense, the word "group" refers to a number of persons or things, with some common relation or purpose, classed together because of the degree of similarity. Despite the inclusion of "a person" in the term "entity", the central focus of the definition of "terrorist group" remains on multiple individuals.
[75] As the trial judge and respondent point out, the position the appellant advances – that the principal and the terrorist group may be one and the same person – is inconsistent with the modern principle of statutory interpretation. The appellant's position, for all practical purposes, focuses exclusively on the single word "person" as it appears in the definition of "entity". This ignores the admonition in Rizzo that interpretation involves more than a textual analysis and requires consideration of the context in which the words appear, Parliament's intent, and the rules of statutory interpretation.
[76] The principal focus of the legislation is on associative activity. Under s. 83.2, the prosecution must establish a nexus or relationship between the principal's offence and the group. The legislation aims to suppress terrorist activity, specifically, the commission of serious domestic offences that, to some extent at least, advance the purposes of a terrorist group. This it does by creating an offence for conduct that amounts to an indictable offence to advance the interests of a group of which the principal need not even be a member. This purpose is not furthered where the principal and group are one and the same. Or, put another way, where the offence is committed for the principal's own purposes.
[77] The phrases that establish the relationship between the offence and terrorist group – "for the benefit of, at the direction of and in association with" – all refer to a bilateral relationship. Two parties. Not one. When Parliament wishes to describe conduct done for the self-interest of an actor, it uses different language. For example, in s. 4(3) – "for the use or benefit of himself or of another person". Or in s. 121(1)(a)(ii) – "for himself or another person". No such language appears in s. 83.2.
[78] The appellant's position also tends to relegate the phrase "for the benefit of, at the direction of or in association with" to mere surplusage. Where the principal and terrorist group are one and the same, the principal would commit the offence for the benefit of, at the direction of, or in association with him or herself. Such an interpretation contravenes the proscription against tautology, that is to say, that Parliament avoids inclusion of meaningless or superfluous words.
[79] As the trial judge observed, had Parliament intended to create an offence of committing an indictable offence for a terrorist purpose, which is the effect of the appellant's construction of s. 83.2, Parliament could easily have done so. This would capture the lone wolf terrorist. But Parliament declined to do so. In these circumstances, it is a reasonable inference that Parliament did not intend that s. 83.2 would apply to the lone wolf terrorist.
[80] But the lone wolf does not escape criminal liability. Consider s. 83.27(1):
Notwithstanding anything in this Act, a person convicted of an indictable offence, other than an offence for which a sentence of imprisonment for life is imposed as a minimum punishment, where the act or omission constituting the offence also constitutes a terrorist activity, is liable to imprisonment for life.
[81] Section 83.27 subjects a lone wolf terrorist to a potential sentence of imprisonment for life, the same punishment as under s. 83.2, for committing an indictable offence amounting to a "terrorist activity". This provision undercuts the appellant's submission that to interpret s. 83.2 as inapplicable to the lone wolf terrorist leaves a lacuna in Part II.1. The appellant's interpretation of s. 83.2 in a case such as this would render ss. 83.201 and 83.202 redundant.
[82] Therefore, I would not accede to this ground of appeal.
Ground #2: The Issue of Remedy
[83] The issue of remedy arises only in the event that the verdict of acquittal in respect of the offence in s. 83.2 is set aside. The appellant has failed in that endeavour; thus the appeal from that acquittal must be dismissed.
[84] The appellant's notice of appeal did not include an appeal from the finding that the respondent was not criminally responsible on account of mental disorder in respect of the underlying or predicate offences. At trial, it was beyond controversy, that at the time he entered the recruiting centre and attacked the various officers of the Canadian Forces working there, the respondent:
i. was suffering from a mental disorder, schizophrenia;
ii. appreciated the nature and quality of his conduct; and,
iii. knew that his conduct was legally wrong; but,
iv. did not know that his conduct was morally wrong.
This entitled the respondent to a finding under s. 672.34 of the Criminal Code that he committed the acts that formed the basis of the underlying or predicate offences but was not criminally responsible for those acts on account of mental disorder.
[85] Absent an appeal from the not criminally responsible verdict, available to the Crown under s. 676(1)(a) of the Criminal Code, there is no basis upon which to set aside this finding, let alone give directions about the manner in which fresh trial proceedings should be conducted.
Disposition
[86] I would dismiss the appeal.
Released: December 20, 2019
"David Watt J.A."
"I agree. M. Tulloch J.A."
"I agree. P. Lauwers J.A."
