WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order prohibiting disclosure of a witness' identity has been made in this proceeding pursuant to s. 486.31 of the Criminal Code and shall continue. This section of the Criminal Code provides that:

486.31

(1) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, make an order directing that any information that could identify the witness not be disclosed in the course of the proceedings if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) The judge or justice may hold a hearing to determine whether the order should be made, and the hearing may be in private.

(3) In determining whether to make the order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) the nature of the offence;

(c) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(d) whether the order is needed to protect the security of anyone known to the witness;

(e) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;

(e.1) whether the order is needed to protect the witness's identity if they have had, have or will have responsibilities relating to national security or intelligence;

(f) society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;

(g) the importance of the witness' testimony to the case;

(h) whether effective alternatives to the making of the proposed order are available in the circumstances;

(i) the salutary and deleterious effects of the proposed order; and

(j) any other factor that the judge or justice considers relevant.

(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section. S.C. 2015, c. 20, s. 38(3).

Court of Appeal for Ontario

Date: 2019-02-11

Docket: C59184

Panel: Doherty, Miller and Trotter JJ.A.

Between

Her Majesty the Queen

Respondent

and

Mohamed Hersi

Appellant

Counsel:

Paul Slansky, for the appellant

Croft Michaelson, Q.C., Xenia Proestos and Stephen Oakey, for the respondent

Heard: January 23, 2019

On appeal from: The conviction entered by Justice Deena F. Baltman of the Superior Court of Justice, sitting with a jury, on June 25, 2014, and from the sentence imposed on July 24, 2014, with reasons reported at 2014 ONSC 4414.

Decision

Doherty J.A.:

I

[1] The appellant was convicted by a jury of one count of attempting to knowingly participate in or contribute to the activities of Al-Shabaab, a terrorist group; and one count of counselling another person (an undercover police officer) to knowingly participate in or contribute to the activities of Al-Shabaab: see Criminal Code, R.S.C. 1985, c. C-46, s. 83.18. The trial judge imposed consecutive sentences of five years' imprisonment, the maximum sentence available, on each count. Taking into account credit for presentence custody, the trial judge imposed a total sentence of 9 years, 7 ½ months.

[2] The appellant appeals conviction and sentence. For the reasons that follow, I would dismiss the appeal.

II

[3] In October 2010, the appellant was working as a security guard in an office tower in downtown Toronto. It came to his employer's attention that the appellant was in possession of material suggesting radical and violent beliefs. The employer contacted the police.

[4] The police began an investigation. They arranged for an undercover officer ("UC") to go to work at the building where the appellant worked. The UC became friendly with the appellant over the ensuing months. They had many conversations about many things.

[5] The UC testified that, during those conversations, the appellant expressed support for Al-Shabaab, a well-known terrorist organization in Somalia. He told the UC that he planned to travel to Somalia via Egypt and to join Al-Shabaab. He would do whatever they asked him to do in support of the group's Jihadist goals. The UC also testified that the appellant actively counselled him to do the same thing.

[6] The appellant was arrested on March 29, 2011 at Pearson Airport. He was waiting to board a flight to England with a connecting flight to Cairo, Egypt. The appellant had quit his job in Toronto and booked a one-night stay at a hostel in Cairo. The Crown alleged that the appellant's travel plans showed that he was on his way to join Al-Shabaab, just as he had told the UC he would do.

[7] The appellant testified in his own defence. He denied that he ever told the UC that he intended to join Al-Shabaab, or that he counselled the UC to join Al-Shabaab. The appellant testified that he was opposed to the terrorist ideology of groups like Al-Shabaab.

[8] The jury's verdicts turned in large measure on what they made of the conversations between the UC and the appellant. The jury had to decide what was said, and what was meant in those conversations. The conversations between October 16, 2010 and January 28, 2011 were not recorded. Instead, the UC made detailed notes. The appellant also offered his version of those conversations in his testimony. He maintained that the UC lied about those conversations to implicate the appellant in the charges.

[9] The conversations between the UC and the appellant after January 28, 2011, up until the appellant's arrest on March 29, 2011, were intercepted and recorded pursuant to a judicial authorization. The recordings and transcripts of the conversations were before the jury. The Crown and the appellant offered significantly different interpretations of those conversations.

III

The Conviction Appeal

[10] The appellant advances approximately 15 grounds of appeal. Nine challenge various rulings made by the trial judge in the course of the trial. The rest allege multiple errors in the trial judge's instruction to the jury.

[11] The court required submissions from the respondent on two issues:

• Did the trial judge err in holding that the "lost evidence" did not result in a breach of the appellant's s. 7 rights, and, if so, what was the appropriate remedy?

• Did the trial judge misdirect the jury on the actus reus component of an attempt?

[12] I will not address individually the arguments on which the court did not call on the respondent. They are devoid of any merit. In respect of the grounds of appeal that challenge the trial judge's rulings, other than the ruling in respect of the "lost evidence", I am in substantial agreement with the reasons provided by the trial judge.

[13] The grounds of appeal asserting that the jury instructions were legally flawed, "unbalanced", "misleading", and "confusing" are also without merit. The trial judge's instructions on legal matters of some complexity were well-organized, correct, and carefully balanced. She provided the jury with a clear description of the elements of the offences, a full and fair summary of the evidence relevant to each element, and an accurate and even-handed statement of the respective positions of the parties. The administration of justice was well-served by this charge to the jury.

[14] I now turn to the two issues on which we required submissions from the Crown.

A. Did the trial judge err in her ruling on the "lost evidence"?

(i) The trial proceedings

[15] At the end of the evidence, but before the jury charge, the appellant moved for a stay of proceedings. He argued that the police had destroyed relevant evidence and prejudiced his ability to make full answer and defence, thereby infringing his rights under s. 7 of the Canadian Charter of Rights and Freedoms. The appellant maintained that the s. 7 violation was sufficiently egregious to necessitate a stay of the criminal proceeding. The trial judge dismissed the motion: see R. v. Hersi, 2014 ONSC 4101.

[16] The stay motion focused on the UC's destruction of certain text messages between himself and the appellant, and on the police failure to download the data from the UC's cellphone at the end of the investigation. The UC had been given a specific cellphone to use during the investigation.

[17] The UC acknowledged that he had destroyed text messages between himself and the appellant. He testified that all of the destroyed messages were exchanged on a single day in October 2010, very early in the investigation. The UC testified that he made verbatim copies of the contents of the text messages before destroying them. He also stated that he destroyed the text messages because they contained only social chatter, or discussions about plans to meet at some later time. In the UC's assessment, there was nothing of substance in the texts.

[18] The UC's evidence was contradicted by the evidence of a police officer who had prepared an affidavit in support of a wiretap application in December 2010. That officer indicated in the affidavit that all text messages sent or received by the UC before December 10, 2010 had been destroyed by him. The trial judge concluded that it was "likely" that the contents of the affidavit, which was sworn at the time of the relevant events, were accurate, and that the UC had destroyed text messages exchanged with the appellant between October and December 10, 2010.

[19] The trial judge also heard evidence that, as of March 2011, when this undercover operation ended, the Toronto Police Service did not routinely download the data from a cellphone used by a UC. The officer in charge of this operation had requested that the data be downloaded, but it was not. In his testimony, he acknowledged that he may not have been clear in making his request. The trial judge ultimately accepted that the failure to download the data resulted from a miscommunication between officers, which resulted in the police following their usual practice of not downloading the data.

[20] The trial judge made several findings of fact that were important to the outcome of the stay motion. She accepted the UC's evidence that the texts were brief and related to insignificant matters. She also accepted his evidence that he made handwritten notes, which copied verbatim the contents of each text. Finally, she characterized the failure to preserve the data from the cellphone as showing at most a "careless" handling of that information.

[21] The trial judge gave careful consideration to the many arguments advanced by the appellant at trial. He argued that the police had deliberately destroyed the text messages and deliberately failed to preserve the data on the cellphone so that they could fabricate conversations in which the appellant indicated his intention to join Al-Shabaab and counsel the UC to do the same. The appellant maintained that if the data existed, it would show that it was the UC who encouraged him to join Al-Shabaab.

[22] The trial judge gave several reasons for rejecting the appellant's submissions. She noted that it would have been very risky for the police to have deliberately lied about the contents of the text messages since the police would have no way of knowing whether the appellant could retrieve those text messages from his own device. The trial judge also rejected the appellant's evidence on these and other matters as "entirely untrustworthy" and "riddled with contradictions". She explained why she came to that very negative view of the appellant's evidence.

[23] The nature of the issues presented on the stay motion required the trial judge to make findings of fact. To make those findings, she had to make credibility assessments. The appellant's submission that she was not entitled to make factual findings in the context of the "lost evidence" application misunderstands the nature of the application.

[24] This court must defer to the trial judge's findings absent material misapprehension of evidence, or a failure to have regard to relevant evidence. She did neither. I approach the merits of her refusal to stay the proceedings by accepting her findings of fact.

(ii) Was there a s. 7 breach?

[25] As the trial judge correctly observed, a claim asserting a breach of s. 7 based on evidence lost or destroyed by the prosecution proceeds in two steps. First, the court determines whether the loss or destruction of the evidence results in a breach of s. 7 based on an interference with the accused's right to make full answer and defence. Second, if there is a s. 7 breach, the court must determine the appropriate remedy. A stay of criminal proceedings is the appropriate remedy only in extraordinary circumstances: R. v. Carosella, [1997] 1 S.C.R. 80, at para. 52; R. v. O'Connor, [1995] 4 S.C.R. 411, at para. 82; R. v. La, [1997] 2 S.C.R. 680, at paras. 17-24.

[26] In this case, the police destroyed text messages between the UC and the appellant, and destroyed or lost data from the UC's cellphone. The loss or destruction of material in the possession or control of the police will constitute a breach of the right to make full answer and defence if the material was disclosable under the broad relevance standard established in R. v. Stinchcombe, [1991] 3 S.C.R. 326, and R. v. Egger, [1993] 2 S.C.R. 451, and the prosecution fails to show that the loss or destruction of the material was not the consequence of "unacceptable negligence" by the police: La, at para. 22; R. v. Bero (2000), 151 C.C.C. (3d) 545, at para. 30 (Ont. C.A.).

[27] The communications between the UC and the appellant during the relevant time period, including the text messages, were clearly relevant. The Crown's case rested largely on communications between the appellant and the UC. The fact that the UC viewed the particular communications as of no significance had no effect on their relevance in the Stinchcombe sense of that word.

[28] The relevance of the data in the cellphone used by the UC is perhaps less clear, although some of that data was clearly relevant given that it was connected to some of the conversations relied on by both the Crown and the defence. The values animating the disclosure regime established in Stinchcombe favour a finding of relevance in a "close case". I view the data as relevant and disclosable. As it was disclosable, the police had an obligation to preserve it so that it could be disclosed: R. v. Satkunananthan (2001), 152 C.C.C. (3d) 321, at para. 75 (Ont. C.A.).

[29] The determination of whether the loss or destruction of the material constituted a breach under s. 7 depended on whether the prosecution had shown that the loss and destruction of the material was not brought about by "unacceptable negligence": Satkunananthan, at para. 75. The trial judge found that neither the destruction of the text messages, nor the failure to preserve the data was caused by "unacceptable negligence". I accept that finding as it applies to the data, but cannot accept the finding as applied to the text messages.

[30] The phrase "unacceptable negligence" suggests conduct which is more than merely negligent. However, my review of the cases indicates that the reasonableness of the police conduct resulting in the loss or destruction of the evidence is a touchstone of the inquiry. The more obvious the importance of the evidence, the higher will be the degree of care expected of reasonable police officers: La, at para. 21.

[31] The evidence accepted by the trial judge established that at the time the undercover operation ended in March 2011, the police did not, as a matter of practice, take steps to download the information from the cellphones used by the UCs. The officer who requested that the data be downloaded acknowledged that he may have been misunderstood in the circumstances. Nor, in my view, is the relevance of the data so obvious as to create a presumption that the police should have understood the need to save that data. The trial judge concluded that, on the facts as she found them, the failure to download the data did not amount to unacceptable negligence. That finding was reasonably open to her and we have been offered no basis upon which we could properly interfere with it.

[32] The trial judge's finding that the destruction of the text messages was not unacceptable negligence was predicated on the UC's evidence that the messages contained only discussions about plans to meet and other social chitchat. It is, however, no part of the police function when considering whether material should be preserved for disclosure purposes to assess the potential significance beyond a consideration of relevance in the broadest sense. In my view, it is unacceptable that, almost 30 years after Stinchcombe, the UC could operate under the belief that he need save only relevant material that he viewed as significant.

[33] I think a reasonable officer in the position of the UC would have appreciated that the prosecution would ultimately turn largely on the communications between himself and the appellant, and that it was therefore important to preserve all communications between them. Indeed, the UC seemed to appreciate the need to preserve the content of the text messages since he went to the trouble of making verbatim handwritten copies of the contents before destroying the actual text messages.

[34] Given the nature of the investigation, the destruction of the text messages fell well below what should be expected of a reasonable police officer properly informed of the prosecution's disclosure obligations. The Crown failed to show the absence of unacceptable negligence. The destruction of the text messages interfered with the appellant's ability to make full answer and defence, and breached his s. 7 rights.

(iii) What is the appropriate remedy for that breach?

[35] Although the trial judge found no breach, she did address the appropriate remedy on the assumption that she had found a breach. The trial judge determined that a s. 24(1) remedy would not have been appropriate. She did, however, give the jury a "lost evidence" instruction. In that instruction, she told the jury that if they found the prosecution's explanations for destroying the evidence "inadequate", they could infer that the lost evidence would not have assisted the Crown. That inference could, in turn, impact on whether the Crown had proved its case beyond a reasonable doubt.

[36] I address the appropriate remedy in the context of the s. 7 breach limited to the destruction of the text messages. Section 24(1) requires the court to impose the "appropriate and just" remedy in the circumstances. In making that judgment, the actual prejudice caused to the defence is a significant consideration. Here, there was none. The trial judge found that the appellant had available to him the substance of the text messages in the form of the UC's verbatim notes: see R. v. Bradford (2001), 52 O.R. (3d) 257, at para. 8 (C.A.); Satkunananthan, at para. 84.

[37] Nor did the destruction of the text messages prevent the appellant from cross-examining the UC on the truth of his claim that he deleted only text messages for one day. The appellant was able to point to conflicting evidence from another police officer, given under oath in his affidavit in support of the wiretap application. There was no prejudice to the appellant's right to make full answer and defence.

[38] I also do not accept that the destruction of the text messages, while inappropriate, had any adverse effect on the integrity of the trial process or the prosecution. Once again, I look to the factual findings of the trial judge. On those findings, there is not a trace of police misconduct aimed at subverting the course of justice or thwarting the prosecution's disclosure obligations.

[39] Although, unlike the trial judge, I would find a breach of the appellant's s. 7 rights to make full answer and defence flowing from the destruction of the text messages, I agree with the trial judge that no remedy beyond an appropriate jury instruction was "appropriate and just" in the circumstances.

B. The instruction on the actus reus component of attempt

[40] Count one in the indictment charged the appellant with attempting to commit the substantive offence created by s. 83.18(1) of the Criminal Code. The trial judge instructed the jury that the essential elements of the offence as charged in count one included the requirement that:

Mr. Hersi [the appellant] knowingly attempted to participate in or contribute to, directly or indirectly, any activity of Al-Shabaab.

[41] The trial judge further instructed the jury that, to prove this element of the offence, the Crown had to first prove that the appellant did something that amounted to an attempt to participate in or contribute to, directly or indirectly, any activity of a terrorist group. The trial judge defined participation and contribution by reference to both the relevant provisions in the Criminal Code and to the normal meaning of those words. She specifically told the jury that merely joining a terrorist group did not prove participation in or contribution to the terrorist activities of that group. She said:

What is necessary is that the proposed participation or contribution is something more than trivial; it must be an act that, if completed, would materially enhance Al-Shabaab's ability to carry out a terrorist activity.

[42] The heart of the trial judge's instructions in respect of the actus reus component of attempt is set out below:

As I mentioned earlier, an "attempt" is an act taken toward the commission of an offence that goes beyond mere preparation. In this case, the conduct alleged to constitute an attempt to participate in or contribute to Al-Shabaab is that at the point he was arrested Mr. Hersi was headed to Somalia – with Egypt as a stop along the way – in order to offer his skills for the benefit of Al-Shabaab. In other words, if you find that at the point he was arrested Mr. Hersi was in fact heading to Somalia (via Egypt) in order to offer his skills for the benefit of Al-Shabaab, as I have defined those terms, then this first requirement is satisfied. [Emphasis added.]

[43] The trial judge then summarized the evidence that was relevant to whether the appellant was on his way to the airport to travel to Somalia via Egypt to join Al-Shabaab when he was arrested. She told the jury that if those acts were proven beyond a reasonable doubt by the Crown, those acts constituted an attempt and the jury should move on to a consideration of the other essential elements of count one. Those elements focused on the appellant's state of mind. The trial judge told the jury:

I instruct you that proof beyond a reasonable doubt of the conduct I have just described is proof of an attempt to participate in or contribute to the activities of Al-Shabaab, however you, as the judges of the facts, decide if the conduct I have just described has been proved beyond a reasonable doubt.

[44] The trial judge's instructions are true to the division of labour prescribed in s. 24(2) of the Criminal Code:

The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.

[45] It is for the trial judge to decide, as a matter of law, where on the evidence the line between preparation and attempt must be drawn. It is for the jury to decide whether, on the facts as found by them, that line has been crossed. As Martin J.A. explained in R. v. Breese (1984), 12 C.C.C. (3d) 491, at p. 510:

Under s. 24 it is for the jury to find what acts were done by the accused and the intent with which they were done. It is for the judge to decide whether the acts, if the jury find them to have been done by the accused, go beyond mere preparation and constitute an attempt. Accordingly, the jury should be instructed that if they find the accused did certain acts (found by the trial judge to go beyond mere preparation) with the intention of committing the offence alleged that constitutes an attempt to commit the offence. [Emphasis added.]

[46] The trial judge's instruction is also consistent with the model jury instruction found in Watt's Manual of Criminal Jury Instructions, (Toronto: Thomson Carswell, 2015), 2d ed., at p. 1076. The author suggests this direction:

The conduct alleged in this case is that [describe briefly conduct alleged to amount to an attempt]. Proof beyond a reasonable doubt of the conduct I have just described is proof of an attempt.

[47] Although the appellant argued at trial and again on appeal that the conduct described to the jury by the trial judge could not, as a matter of law, constitute an attempt, we did not call on the Crown on this argument. The appellant's actions could reasonably be seen as the commencement of a journey intended to end with the joining of Al-Shabaab in Somalia. We agree with the trial judge that the conduct crossed over the line from preparation to attempt. The trial judge instructed the jury to that effect and correctly left the necessary fact finding to the jury. The charge on the actus reus of attempt was correct.

IV

The Sentence Appeal

[48] The trial judge imposed the maximum sentence of five years on each count. She made the sentences consecutive and she directed that the appellant should not be eligible for parole until he had served one-half of the sentence.

[49] The trial judge made several important findings of fact on sentence. She summarized these in her reasons, R. v. Hersi, 2014 ONSC 4414, at para. 33:

I conclude (i) Mr. Hersi had long standing plans to join Al-Shabaab; (ii) he intended to participate in its violent jihadist activities; and (iii) he shared its extremist religious ideology.

[50] I accept these findings of fact. All underscore that the appellant knew exactly what he was doing. He was determined to join fellow travellers and engage in violent crimes in the name of their terrorist cause.

[51] This court has spoken repeatedly and emphatically on the need to emphasize denunciation and deterrence when sentencing for terrorist crimes: see R. v. Khalid, 2010 ONCA 861, 183 O.R. (3d) 600; R. v. Amara, 2010 ONCA 858, 266 C.C.C. (3d) 422; R. v. Khawaja, 2010 ONCA 862, 103 O.R. (3d) 321, aff'd 2012 SCC 69, [2012] 3 S.C.R. 555.

[52] The trial judge acknowledged the appellant's status as a first offender and other positive features in his background. The case law from this court, however, dictates that even in those circumstances, a lengthy prison sentence has to be imposed for terrorist crimes. The trial judge followed that direction.

[53] The trial judge was also alive to the totality principle, both as it related to the ultimate global sentence imposed and the imposition of a period of parole ineligibility pursuant to s. 743.6(1.2). She recognized that, in respect of terrorism offences, that section required the sentencing judge to declare the offender ineligible for parole for one-half of the total sentence imposed, unless satisfied that the denunciatory and deterrence goals of the sentence could be adequately met by a period of parole ineligibility equal to one-third of the total sentence. The trial judge determined that those considerations required her to prohibit parole until half of the sentence had been served. I see no error in principle in that finding.

[54] There is no doubt that the sentence imposed was severe. It had to be. Terrorists, like the appellant, pose an existential threat to the Canadian community and to the Canadian way of life. They are not criminals in the normal sense. They are worse. Terrorists stand prepared to engage in virtually any form of murder or mayhem if it furthers their ideology. When people determined to wreak havoc in our community are caught and convicted, the courts must impose sentences that reflect the community's moral outrage and the very real danger posed by those individuals to the community. That is what the trial judge did. The sentence imposed was fit.

V

[55] I would dismiss the appeal.

Released: February 11, 2019

Doherty J.A.

I agree. B.W. Miller J.A.

I agree. Gary T. Trotter J.A.