Ontario Superior Court of Justice

Court File No.: CR-23-13369-MO
Date: 2025/04/02

Between

His Majesty the King
and
Patrick Gordon MacDonald

Catherine Legault and Marc Cigana, for the Crown
Douglas Baum and Ariya Sheivari, for the Accused

Heard: November 18 to December 3, 2024

Reasons for Decision
Robert Smith J.

Overview

[1] Patrick Gordon MacDonald (the “Accused”) is charged with terrorism offences, for participating in or contributing to the production of three recruitment videos to assist what the Crown alleges is a white supremacist terrorist group called Atomwaffen Division (“AWD”). In addition, the Accused is alleged to have posted the videos and other images online promoting AWD’s violent Nazi white supremacist ideology to convince other individuals to join AWD.

[2] The three videos were created in the 2019 time period, before AWD was designated as a terrorist group by Canada, which occurred in February 2021. The Accused is also charged with facilitating a terrorist activity by contributing to the production of the recruitment videos (“videos”) and other images, by posting the videos online as well as posting violent images and statements online, which promoted hatred against Jewish people and others.

[3] The Defence raises two arguments against the conviction:

a. Firstly, the Crown’s evidence does not identify the Accused as the person who participated in or contributed to the production of the three recruitment videos and posted AWD propaganda images online beyond a reasonable doubt; and

b. Secondly, the Defence submits that the expert evidence of Dr. Perry, to the effect that AWD was a terrorist group in the 2018-2019 period that promoted the use of violence in defence of the white race, was not sufficiently reliable to constitute proof beyond a reasonable doubt.

[4] The Crown submits that the metadata evidence contained in the three videos and in particular the video “Grey Zone” identifies the serial numbers of the Fuji camera and lenses that were used to take photographs (“JPEG files”) contained in the video. The search of the Accused’s office and bedroom in the basement of his parent’s home found the Fuji camera and lenses with the same serial numbers as identified by the metadata in the Grey Zone video. The Factual Admissions filed confirm that this Fuji camera was given to the Accused by his father to allow him to enroll in a graphics art program.

[5] A number of other items were also seized during the search of the Accused’s bedroom and office (collectively referred to as his “residence”), which link him to being one of the individuals wearing a skull and bones balaclava and carrying a machine gun in the videos. The other items found during the search include a pair of gold rimmed sunglasses, a tactical military vest, black military combat boots, and a skull and bones balaclava, all of which were similar to those worn by one of the individuals seen in the videos.

[6] The Crown submits that the above circumstantial evidence taken together proves beyond a reasonable doubt that the Accused is the individual who participated in or contributed to the production of the videos and posted the violent images online. The Crown further submits that the expert evidence of Dr. Perry was sufficiently reliable to prove beyond a reasonable doubt that AWD was a terrorist group in the 2018-2019 time-period. The Crown submits that the substance of her evidence was not challenged or contradicted, except for several errors in dates and some of the details used in her examples were not accurate.

Count #1 – Participation (Section 83.18)

[7] Count #1 reads as follows:

Between on or about April 1, 2018 and December 31, 2019 in Saint-Ferdinand, Québec and elsewhere in the province of Québec, in Belleville, Ontario, in Ottawa, Ontario, and elsewhere in the Province of Ontario and elsewhere in Canada and the world, Patrick Gordon MacDonald participated in or contributed to an activity of the Atomwaffen Division group and persons describing themselves as the Atomwaffen Division group, directly or indirectly, for the purposes of enhancing the ability of any terrorist group to engage in or facilitate a terrorist activity, to wit: participated in the production of videos and other images, thereby committing an indictable offense contrary to section 83.18(1) of the Criminal Code.

[8] Section 83.18(1) of the Criminal Code reads as follows:

83.18 (1) Every person 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 of not more than 10 years.

[9] On count #1, the Crown is required to prove the following beyond a reasonable doubt:

a. that AWD was a terrorist group in the 2018-2019 time-period which had one of its purposes or activities to facilitate or carry out a terrorist activity;

b. that the Accused knew that AWD was a terrorist group;

c. that the Accused participated or contributed to the activities of AWD by:

i) assisting with the production of the three recruitment videos titled Grey Zone, Fission, and Feuernacht; and

ii) by posting images of AWD’s violent Nazi ideology online and encouraging others to join AWD; and

d. that the Accused participated in the production of the recruitment videos and images by posting the propaganda images of AWD’s symbols online for the purpose of enhancing the ability of AWD to facilitate or carry out a terrorist activity.

Issue #1a – Was AWD a terrorist group in Canada during the 2018-2019 time period?

[10] Canada listed AWD as a terrorist group in 2021. However, the charges in the indictment relate to the 2018-2019 time period, which is before AWD was listed as a terrorist group in Canada.

[11] Section 83.01(1) of the Criminal Code defines a “terrorist group” as “an entity that has as one of its purposes or activities the facilitating or carrying out of any terrorist activity”; or b) a listed entity.

[12] A “terrorist activity” is also defined in section 83.01(1) of the Criminal Code. The relevant parts of the definition are as follows:

“terrorist activity” means
(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
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… (Emphasis added)

[13] Section 83.18(3) of the Criminal Code defines participating for the purposes of section 83.18(3) as follows:

(3) Participating in or contributing to an activity of a terrorist group includes:
… “(a) recruiting a person to receive training; and (c) “recruiting a person in order to facilitate or commit (i) a terrorism offence”.

[14] Dr. Perry was qualified as an expert witness in the area of right-wing extremism in Canada, National Socialism or neo-Nazism, Atomwaffen, James Mason, and Accelerationism. A voire-dire was held during the trial and Dr. Perry was qualified to give opinion evidence in the above areas based on her academic record and writing as set out in her curriculum vitae including the fact that she has been qualified as an expert by the Superior Court of Justice on previous occasions.

[15] Dr. Perry testified that AWD has been in existence since 2015. In 2020, it was designated as a terrorist group in the United States and United Kingdom and in 2021, it was designated as a terrorist group in Canada. In 2020, it rebranded itself as the Nationalist Social Order. In its now defunct website, AWD proclaimed that it was grounded in National Socialism. AWD’s ideology is associated with neo-Nazi accelerationism and extreme violence that takes overt inspiration from the ideas of Adolf Hitler and the National Socialist movement in Germany. Dr. Perry testified that the core elements that define the AWD movement include:

a. conspiracy theories that hold that a “global cabal led by Jewish interests is intent on gaining and holding control of key institution across the West, including media, government and finance in particular”. Its proponents believe that the Jewish people and other enemies will cause the demise of the white race. For AWD, “the only viable solution to the current crisis is the wholesale collapse of the current order and its replacement by a white ethnic state”;

b. National Socialism is grounded in the ideology of the supremacy of an idealized Aryan race, which is inherently superior to all other races. Any threats to the purity or supremacy of the Aryan race must be eliminated, and this included Jewish people as well as contra genetics, such as people with disabilities, people identifying as 2SLGBTQ+, and others who are outside the Aryan demographic;

c. AWD is a neo-Nazi group with one of its core ideologies associated with neo-Nazi accelerationism. The core of AWD’s belief is that modern (Western) society is so fundamentally corrupt and debased that it cannot be restored to its proper foundations of white supremacy. It holds that persons of colour and 2SLGBTQ+ communities, under the tutelage of the Jewish people has brought Western culture to a state of degeneracy so that its ultimate demise is both imminent and necessary;

d. According to AWD, the only solution is the wholesale collapse of the current order and its replacement by a white ethno-state. AWD encouraged its members to train and prepare for an upcoming war and promoted committing acts of violence against minority groups, including Jewish people, Muslims, African Americans, and 2SLGBTQ+ individuals with the ultimate intent to bring down the present system; and

e. Dr. Perry further testified that AWD adopted many of the ideologies of James Mason and Siegism. AWD’s members were encouraged to engage in acts of violence against the state, minorities, and Jewish people with the intent of provoking a race war. Members of AWD were encouraged to perpetrate violent attacks, not as a group, but in a series of “self-directed” acts of terrorism. AWD sought to bring about the race war by organizing decentralized small cells to commit acts of violence, that were intended to spread fear and panic among the public, as precursors to the desired race war.

[16] In cross-examination and in submissions, the Defence attacked the reliability of Dr. Perry’s expert opinion evidence that AWD was a terrorist group in the 2018-2019 time period. Dr. Perry testified that AWD had one of its purposes or activities the facilitating of acts of violence as described in the above paragraphs. If her evidence is accepted, AWD would meet the definition of a terrorist group as set out in the Criminal Code.

[17] The Defence did not attack any of Dr. Perry’s evidence about the history of AWD, the formation of AWD, or dispute her opinion evidence that AWD’s core ideological views were based on neo-Nazi accelerationism or that it encouraged its members to engage in acts of violence against the state, Jewish people, minorities, and others with the intent to create a race war to establish a white ethno-state.

[18] Rather, the Defence pointed to several errors in Dr. Perry’s report where she stated that:

a. all but one of five Canadian far right multiple murders between 2017 and 2022 were motivated by racist or Islamophobic hate. The killing of three RCMP officers in New Brunswick was an example of a violent event, but it did not occur between 2017 and 2022; rather it occurred in 2014;

b. she stated that the Nazi SS troops used a trefoil symbol (nuclear energy symbol) but in fact, nuclear energy was not discovered until 1946. The trefoil symbol is used by AWD but this symbol was not used by Nazi SS troops;

c. she stated that the killing of four Muslim men in a mosque occurred in Montréal when the incident occurred in Québec City;

d. she stated that a member of AWD killed his girlfriend’s parents because they would not let her marry him because he was a member of AWD. The Defence argued that this murder occurred because the parents would not permit their daughter to marry him and not because he was a member of the AWD; and,

e. she stated that Mr. Russell, a founder of AWD in the United States, was arrested on murder charges in the deaths of his roommates and fellow AWD members in 2021. Dr. Perry explained that she was quoting from a paper written by Mr. Newhouse. The Defence submitted that one of the roommates was arrested for murder, not Mr. Russell. Dr. Perry was not aware of this error.

[19] Dr. Perry was not argumentative in cross-examination and did not appear to know the exact details of some of the violent murders she referred to in her report. The date of the murder of the three RCMP officers in New Brunswick occurred in 2014 and not within the 2017 to 2022 time period. This is an error but does not affect the reliability of her evidence about AWD’s ideological views or that it encouraged its members to engage in acts of violence against a number of minority groups.

[20] I accept Dr. Perry’s expert evidence about the history and the ideological beliefs of the AWD group, including her opinion that AWD was a terrorist group within the definition of section 83.01(1) of the Criminal Code in the 2018-2019 time period, because AWD encouraged its members to commit violent acts against the state, Jewish people, minorities, and others to create a race war to establish a white ethno-state. I also accept Dr. Perry’s opinion evidence that one of AWD’s purposes was the facilitation of carrying out a terrorist activity and as such, it was a terrorist entity in 2018-2019. Her opinion was not contested on this point.

[21] AWD’s purposes are consistent with Dr. Perry’s evidence that AWD was a terrorist group in 2018-2019 because its political purpose was fighting to establish a National Socialist state and protecting the white race. AWD’s activities included creating lone wolf or small cells to threaten or counsel others to commit violent acts with the intention of intimidating and causing terror to members of the public. The three videos in evidence show the actions of AWD members wearing skull masks and carrying machine guns while dressed in battle gear would intimidate members of the public with regards to their security. The videos contain images of several individuals wearing skull imaged balaclavas, army fatigues, high black boots, assault vests, and holding and shooting automatic weapons in the dark with fires burning. The videos constitute a threat to commit violent acts to promote the AWD ideology of creating a white Nazi state.

[22] Dr. Perry’s evidence is consistent with the images contained in the three videos, which include violent images of several individuals wearing skull balaclavas, shooting automatic weapons at night with fires burning. In the videos, the individuals wear a badge with the trefoil symbol in a shield as the symbol of the AWD. The videos also contain Nazi images such as swastikas.

[23] One of the items seized during the search of the Accused’s residence was an information pamphlet about the AWD program, which set out the requirements to join the AWD group. The pamphlet included a section titled “What is the Atomwaffen Division”. It stated that AWD was the ideological vanguard of the worldwide Nationalist Socialist revolution… through “lone wolf Atomized action”. The pamphlet continued on to describe the AWD as “the shock troops of National Socialism”. This evidence is also consistent with Dr. Perry’s expert evidence which enhances her credibility.

[24] The requirements for membership in AWD set out in the pamphlet discovered in the Accused’s residence include the following:

a. must be a white male (non-Jewish of wholly European ancestry);

b. must accept as his own, the goals of the Atomwaffen Division;

c. must not be a f----- or a defective;

d. must not have a non-white spouse or a non-white dependent; and

e. must read “Mein Kampf” by Adolf Hitler, “Siege” by James Mason, “The Great Replacement” by Brenton Tarrant, and “Atom buch” by Chernobles with a swastika below.

[25] I accept Dr. Perry’s evidence and find it was both credible and reliable that the terrorist activity to be facilitated by AWD was for a political or ideological purpose or cause, namely encouraging acts of violence against the state, Jewish people, and other minorities to create a race war to establish a white ethno-state. The recruitment of members to join AWD and commit acts of violence against members of the public amounts to facilitation of terrorist activities.

Disposition of Issue #1a

[26] For the above reasons, I accept Dr. Perry’s evidence, which I found was credible and reliable, and find that AWD was a terrorist group as defined in the Criminal Code in 2018-2019 beyond a reasonable doubt.

Issue #1b – Did the Accused know that AWD was a terrorist group?

[27] The Accused posted the recruitment videos and violent Nazi images online under the online pseudonym “Dark Foreigner” for AWD on several media platforms using the hashtag “atomwaffen division”. The login information and password for these accounts were found above the ceiling tiles in the Accused’s residence during the search of his premises. The fact that the Accused hid the login information and passwords for these accounts above the ceiling tiles indicates his knowledge that AWD was a terrorist group. The post by “Dark Foreigner” on Tumblr on April 16, 2018, included an image showing the trefoil symbol, a person wearing a balaclava skull mask, a military camouflage jacket, an assault jacket, and carrying a weapon with the words “Nazi” and “Atomwaffen” inscribed at the bottom.

[28] In the videos, the individuals wore AWD badges while they were filmed. This demonstrates that the participants knew about AWD and its purposes. The Accused also illustrated the 4th edition of the book “Siege”, written by James Mason, which is a cult book in the neo-Nazi circles and was mandatory reading for members of AWD. In this book, the author James Mason advocates for a leaderless resistance to start a race war to bring about the collapse of the present political system. Dr. Perry testified that: 1) the Siege ideology advocates that violence is the only solution; 2) that individuals who see themselves as outsiders or losers could be manipulated and should be recruited; and, 3) that violent attacks should be perpetrated in a series of individually and self-directed acts of terror.

[29] Finally, the pamphlet of “the AWD program” written in Russian was also found hidden above the ceiling tiles in the Accused’s room in the basement. While the recruitment pamphlets of AWD were written in Russian, the fact that the Accused hid the pamphlets above the ceiling tiles indicates that he knew about the ideology of AWD and tried to conceal the pamphlet to avoid detection of the fact that he was a participant in the activities of AWD and that it was a terrorist group.

[30] The metadata contained in the Grey Zone video, namely in the JPEG files, confirms that these images were filmed using the Accused’s Fuji camera and lenses that had the identical serial number as the Fuji camera and lenses that were found in the Accused’s residence during the search of his premises. This is strong evidence that the Accused was involved in taking images with his Fuji camera and lenses that were included and found in the Grey Zone video. It is also strong evidence that the Accused was aware of AWD’s ideology and that it was a terrorist group.

Disposition of Issue #1b

[31] For the above reasons, I am satisfied beyond a reasonable doubt that the Accused knew that AWD was a terrorist group that advocated for the use of violence against various minorities to provoke a race war to create a Nazi socialist white ethno-state.

Issue #1c – Did the Accused participate in or contribute to the activities of AWD by (1) assisting with the production of the three recruitment videos, (2) by posting images of AWD’s violent neo-Nazi ideology online, and (3) by encouraging others to join AWD?

[32] The Crown submits that the Accused participated and contributed to the activities of AWD by assisting with the production of three recruitment videos titled “Grey Zone”, “Fission”, and “Feuernacht”; and by posting images of AWD’s violent Nazi ideology online and encouraging others to join AWD.

[33] The Defence submits that the Crown’s evidence, including the metadata discovered in the videos and the items discovered during the search of the Accused’s residence do not prove beyond a reasonable doubt that the Accused was the person involved with the production of the recruitment videos or the posting of the Nazi images online.

[34] The Defence did not argue that contributing to or participating in the production of the recruitment videos would not amount to participating or contributing to a terrorist activity. The issue is whether the Crown has proven beyond a reasonable doubt that the Accused is the person that participated in the production of the recruitment videos and posted the violent Nazi images online.

The Videos

[35] The videos had two purposes: a) to recruit new members; and b) to propagate AWD terrorist ideology by encouraging viewers to start the revolution and purge the weak. The Fission video invites viewers to join AWD in their efforts to “vanquish the modern world”; the narrator continues stating “we call forward all who are willing to descend, like a howling wolf, on the frail fold and rend limb from limb those without the stomach to fight”, “from the ashes of the kike system, our new order shall emerge” and concludes by saying “join us or perish with the rest”, which is a statement that expressly incites fear in members of the public.

[36] In the Feuernacht video, the narrator exhorts viewers to “burn it all, purge the weak, join the division”. The Grey Zone video concludes by telling viewers to “get the program”, “create your own cell”, and “start the revolution”. It describes the terror that will be unleashed on “fat, treacherous bureaucrats” and “Jewish snakes”, “we will storm your mansions, creating caskets from your dining tables and tombstones of your bedposts”. All three videos end with the same email address: awdrecruiting@tutonota.com

[37] I find that anyone who participated in the filming of the above AWD recruitment videos participated in an activity of the AWD, as they dressed up in uniforms with AWD badges, fired automatic weapons in the dark, moved in tactical motions, participated in house clearing drills, and burned flags.

The Accused’s Participation in Filming the Videos

[38] The evidence introduced at trial convinces me beyond a reasonable doubt that the Accused participated in the filming of the Grey Zone, Fission, and Feuernacht videos for the following reasons:

a. the Accused’s Fuji camera and lenses were used to film some scenes in the Grey Zone video. The metadata in the JPEG files found in this video identify the serial number of the Fuji camera and the lenses as being the same as the Fuji camera and lenses found during the search of the Accused’s residence. This evidence indicates that the Accused’s Fuji camera and lenses were used in filming scenes in the Grey Zone video. Mr. Haya testified as an expert witness in audio-video analysis. He testified that this evidence strongly supported a finding that the video sequences were filmed with the Accused’s Fuji camera. I accept Mr. Haya’s evidence beyond a reasonable doubt;

b. Mr. Haya also testified that the video sequences showed a 391 days and 15 hours time offset with the other recording devices used, which strongly supported a finding that the Accused’s Fuji camera was used to film scenes in the Grey Zone video on November 23, 2019, and the Fission and Feuernacht videos;

c. Mr. Tardif testified that he compared a video found on the SD card seized with the camera in the Accused’s residence and an audio file found on the SD card seized with the voice recorder on March 30, 2022. Both files were of the same interview which occurred on January 31, 2022, during the Freedom Convoy protest in Ottawa, demonstrating that the Accused’s camera had a date offset of 391 days and 15 hours. The camera used in the filming of the Fission and Feuernacht videos also had a date offset of 391 days and 15 hours, which is evidence that the Accused’s camera with the above time offset was used as part of the filming of all 3 videos;

d. Officer Swryjesky was able to identify the location where the Grey Zone video was filmed namely at an abandoned cement plant in Belleville, Ontario. He compared the graffiti and marks on the cement wall to confirm the location where Grey Zone was filmed. He also obtained a cell phone usage report from Freedom Mobile which indicated that the Accused’s cell phone pinged off a tower near Belleville on November 23, 2019. This is circumstantial evidence that the Accused was present when the Grey Zone video was filmed at Belleville;

e. Several of the items seized when the Accused’s residence was searched were similar to the items worn by one of the individuals in the Fission video. These items included a similar black skull balaclava, a similar tactical vest, a similar pair of gold rimmed dark sunglasses, a similar pair of high ankle black boots, and a similar type of walkie-talkie. The chances that the Accused had five items that were similar to those worn by one of the persons in the video, along with evidence that the Accused’s camera was used to film some of the scenes on November 23, 2019 and where his cell phone pinged off a tower in Belleville on the same date, constitutes proof beyond a reasonable doubt that the Accused participated in the creation of the Grey Zone videos;

f. Scenes from the Fission video were filmed at a former school in St. Ferdinand, Québec on July 12, 13, and 14, 2019. In addition to the evidence that the Accused’s Fuji camera was used to film some of the scenes, the Accused’s banking records from CIBC and Simpli, filed as Exhibit 28, provide evidence that the Accused’s debit card was used to make purchases near St. Ferdinand on May 19, 2019 and June 15, 2019. Transactions were also made at Restaurant Le Puce and the Alimentation IGS grocery store on June 15, 2019, as well as July 11, 12, 13, and 14, 2019. The evidence that the Accused participated in the filming of some scenes of the Fission video includes evidence that his Fuji camera with a 391 days and 15 hours offset was used to film some of the scenes and that his banking records indicate that he was present in the St. Ferdinand area during the filming of the Fission video which occurred on July 12, 13, and 14, 2019; and,

g. There was evidence that the Accused’s cell phone pinged off several towers in the Toronto and Hamilton area and back in Ottawa during the same time that the Fission video was filmed. This evidence indicates that the Accused’s cell phone was not in the St. Ferdinand area at that time Fission was filmed. This evidence is circumstantial, as is the evidence that the Accused’s bankcard was used to purchase food at the same time in St. Ferdinand, Québec. The bank records indicate that food was purchased in the St. Ferdinand area on more occasions, the evidence that the Accused’s camera was being used to film some of the scenes in the video and the items seized during the search of his residence convinces me beyond a reasonable doubt that the Accused participated in the filming of the Fission video and was in St. Ferdinand. The Accused may have loaned his cell phone to someone who travelled to the Toronto area during this time period.

Disposition of Issue #1c

[39] For the above reasons, I find that the evidence is consistent with the Accused being the person who participated with the production of the videos and inconsistent with any other rational conclusion based on the circumstantial evidence presented at trial. I find that the Accused participated or contributed to the production of the three videos: Fission, Feuernacht, and Grey Zone and by posting violent images of AWD’s ideology online in order to recruit new members and to enhance AWD’s ability to carry out or facilitate a terrorist activity.

Issue #1d – Was the Accused’s participation in the production of the recruitment videos and by posting the propaganda images of AWD’s symbols online for the purpose of enhancing the ability of AWD to facilitate or carry out a terrorist activity?

[40] A “terrorist activity” is defined to include a threat to commit or counselling in relation to any terrorist act. Participation for the purposes of section 83.18(3) of the Criminal Code includes participating in or contributing to the recruiting of a person in order to facilitate or commit a terrorism offence. The videos were made for the purpose of recruiting new members to join AWD which would facilitate and enhance the ability of AWD to carry out a terrorist activity.

[41] The narration and subtitles were superimposed on the video footage after it was recorded. However, individuals shown in the video were wearing AWD insignia, distinctive white skull balaclava masks, and were filmed engaging in a variety of activities that are central to the AWD ideology, namely shooting, paramilitary training, and burning flags and books. From the video, it is clear that the participants knowingly acted for the purposes of enhancing the group’s ability to carry out a terrorist activity. It would have been obvious to any of the participants that at a minimum, they were participating in the creation of a propaganda video on behalf of AWD, which would help increase the numbers of potential followers called to violent action.

[42] The evidence of a screenshot of the “Terror Wave Refined Telegram” channel shows that the Fission video was viewed approximately 35,000 times and the Feuernacht video was viewed approximately 25,000 times. This evidence indicates that many individuals viewed these recruiting and propaganda videos, which enhanced AWD’s ability to carry out or facilitate a terrorist activity.

Disposition of Issue #1d

[43] For the above reasons, I find that the Accused’s participation in the production of the recruitment videos and the posting of propaganda images of AWD online was for the purpose of enhancing the ability of AWD to facilitate or carry out a terrorist activity.

Disposition of Count #1

[44] For the above reasons, I find the Accused guilty beyond a reasonable doubt of participating in or contributing to an activity of the Atomwaffen Division group for the purpose of enhancing its ability to engage in or facilitate a terrorist activity namely, he participated in the production of videos and other images thereby committing the indictable offense contrary to section 83.18(1) of the Criminal Code.

Count #2 – Facilitation (Section 83.19)

Did the Accused knowingly facilitate a terrorist activity by participating in the production of the recruitment videos and posting AWD Neo-Nazi images online?

[45] I have previously found that AWD was a terrorist group in the 2018-2019 time period and found that the Accused knew that AWD was a terrorist group. In addition, I have previously found that the Accused participated or contributed to a terrorist activity by contributing to the creation of all three recruitment and propaganda videos (Fission, Feuernacht, and Grey Zone) and by posting AWD propaganda and Nazi symbols online.

[46] Count #2 relates to whether the Accused facilitated a terrorist activity. In R. v. Lindsay, 2009 ONCA 532 (in the context of section 469.1 of the Criminal Code), the Ontario Court of Appeal stated that “Facilitation” meant “to make a matter easier” and “the act of making it easier for another person to commit a crime”. In R. v. Nuttall, 2018 BCCA 479 at paragraph 471, the British Columbia Court of Appeal held that the purpose of the facilitation offence was to capture “those on the periphery but nevertheless aided in carrying out the acts themselves where the Crown could not prove knowledge of the specific terrorist activity involved”.

[47] A terrorist activity can be facilitated whether or not any terrorist act was carried out. In this case no terrorist act has been directly linked to AWD or the Accused. The videos were produced for the purpose of recruiting new members to AWD and for propaganda purposes, but the videos have not been linked to an actual terrorist act.

[48] The Accused participated in the creation and editing of the three recruitment videos encouraging viewers to commit violent acts on behalf of AWD and by posting them and other violent images online as propaganda for AWD. The Accused facilitated the creation of these recruitment videos by providing his equipment namely his Fuji camera and lenses to take images for the videos. He is also trained as a graphic designer and was capable of producing the videos.

Disposition of Count #2

[49] For the above reasons, I find the Accused guilty of count #2. The Accused’s actions of participating in the creation of the three recruitment videos by using his camera and lenses, by acting in at least one video, and by using his technical and artistic skills as a graphic designer, he facilitated the commission of a terrorist activity. The recruitment videos urge viewers to “burn, purge and start the revolution” which provide motivation and solidarity to viewers to carry out a terrorist activity.

Count #3 – Did the Accused communicate statements in association with a terrorist group, namely AWD, that wilfully promoted hatred against identifiable groups as stated in section 319(2) of the Criminal Code?

[50] Section 319(2) of the Criminal Code reads as follows:

(2) everyone who by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of an indictable offence…

Section 319(3) sets out a number of possible Defences, none of which are applicable on the facts of this case.

[51] I have previously found that AWD was a terrorist group in 2018-2019.

[52] The Crown alleges that the Accused communicated statements that wilfully promoted hatred against identifiable groups including Jewish people for the benefit or in association with a terrorist group, namely AWD.

[53] In the case of R. v. Keegstra, [1990] 3 SCR 697, the Supreme Court of Canada held that speech that wilfully promotes hatred must be public, wilful, and hateful. In Keegstra, Dixon C. J. stated at paragraphs 772-778 that the determination of what constitutes hateful will be a subjective task left to the trier of fact.

[54] The Defence points out that section 319(2) does not criminalize statements made in private conversation. The Defence submits that communications of hatred against an identifiable group made in a public forum are not sufficient to activate the legislation. I disagree.

[55] In Keegstra, a majority of the Supreme Court held that section 319(2) of the Criminal Code was not an excessive impairment of the freedom of expression guaranteed in section 2 of the Charter of Rights and Freedoms. The Supreme Court was satisfied that the stringent standard of mens rea required by section 319(2) of communicating statements wilfully promoting hatred against an identifiable group provided a sufficient guarantee of freedom of expression. To obtain a conviction under this section, the Crown must prove that the Accused had the intent to promote hatred against an identifiable group or knowledge of the substantial certainty of such a consequence.

[56] In Keegstra, the Accused promoted hatred against Jewish people, but his statements did not specifically threaten violence against them. In the case before me, the Accused participated in creating the three videos which incited hatred towards identifiable groups; the Fission video targets Jewish persons while the Feuernacht video targets members of the Jewish, Muslim, and LGBTQ communities, which are all “identifiable communities.”

[57] The Fission video contains statements that promoted hatred against Jewish people. In the Fission video, participants burn an Israeli flag as well as the American and European Union flags. The Accused participated in the creation of these three videos that promoted a revolution that would bring about the “ashes of a Jewish system” and they encouraged viewers to “purge the weak”. These statements imply a threat of violence to the identifiable group. These statements, taken together with the use of Nazi symbols, the history of the Holocaust, the burning of religious texts, while masked individuals dressed in battle fatigues carry and shoot automatic weapons, promotes the use of violence against and promotes hatred against Jewish people.

[58] The communication of statements in the videos promoting hatred against Jewish people was made for the benefit of AWD to recruit and invite members to commit acts of violence against Jewish people.

Disposition of Count #3

[59] For the above reasons, I find the Accused guilty on count #3 beyond a reasonable doubt namely that he communicated statements in the videos, that he participated in producing, and published images which wilfully promoted hatred against an identifiable group, namely Jewish people, for the benefit of and in association with AWD, which is a terrorist group.

Robert Smith

Date: April 2, 2025