COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ansari, 2015 ONCA 575

DATE: 20150819

DOCKET: C52883

Strathy C.J.O., Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Asad Ansari

Appellant

John Norris and Breese Davies, for the appellant

Croft Michaelson and Amber Pashuk, for the respondent

Heard: December 15 & 16, 2014

On appeal from the conviction entered on June 23, 2010 by Justice Fletcher Dawson of the Superior Court of Justice, sitting with a jury.

Watt J.A.:

[1] Asad Ansari and several others went camping. In the winter. Near Washago. Among the others were Fahim Ahmad and Zakaria Amara.

[2] Campers participated in several different activities. Marching. Simulated combat exercises. Running an obstacle course. Lectures and discussion circles. Asad Ansari joined in some of the planned activities, but not in all of them.

[3] Some camp activities were videotaped. Later, Asad Ansari helped to produce a video for the leaders, Ahmad and Amara, to use to recruit others to join their group.

[4] Asad Ansari knew a lot about computers. When Ahmad was having trouble with his hard drive, he took Ansari up on his offer of help. Ansari fixed Ahmad’s computer. Among other things, Ansari removed some “malware” – a keystroke logger and a remote administration tool.

[5] A few months after the camping activities ended, Ahmad, Amara, Ansari and several others were arrested on charges of participating in the activities of a terrorist group. The Crown alleged that Ahmad was the leader and Amara a prominent member of the group. As against Ansari, the Crown alleged that Ansari participated in or contributed to the activities of the group by attending the training camp and providing computer assistance to Ahmad and Amara, knowing that in doing these things he was participating in or contributing to a terrorist group’s facilitating or carrying out terrorist activity.

[6] A jury found Ansari guilty of an offence under s. 83.18(1) of the Criminal Code, R.S.C. 1985, c. C-46.

[7] Ansari appeals. He alleges errors in the admission of various items of evidence at his trial, among them evidence of intercepted private communications and letters found in his bedroom during a search conducted after arrest. He also says that the trial judge erred in his instructions about the actus reus or conduct element of the offence charged.

[8] These reasons explain why I would reject Ansari’s claims of error, dismiss his appeal and affirm his conviction.

THE BACKGROUND FACTS

[9] The controverted issues at trial focused on the adequacy of Crown counsel’s proof that Ansari’s attendance at the training camp and computer assistance for Ahmad and Amara:

i. amounted to participation in or contribution to the activities of a terrorist group; and

ii. were done with the requisite degree of knowledge on Ansari’s part and for the proscribed purpose.

[10] For present purposes, an overview of the case advanced at trial is sufficient. I will supply further detail in considering the specific grounds of appeal.

The Preliminary Meetings

[11] In late November 2005, a confidential source handled by CSIS, who later became a civilian agent for the RCMP, went to a meeting at the Taj Banquet Hall to see and hear a presentation about security certificates. The source attended in order to ingratiate himself with Ahmad and Amara who were suspected as principals in a terrorist group.

[12] The confidential source showed Ahmad and Amara a licence that permitted him (the source) to possess both restricted and non-restricted firearms. The men had a general conversation about jihad and discussed the oppression of Muslims around the world.

[13] Ahmad described his plans to the source. He spoke about attacking several Canadian infrastructure targets. Ahmad also planned to hold a training camp to recruit participants to carry out his plans. Ahmad showed the source a map depicting the location of the training camp.

[14] Amara asked the source his position on jihad. The source said he considered jihad a personal obligation. After the men hugged, Amara produced a nine millimetre magazine containing what he described as “cop killers”. As the men were leaving, Amara gave the source copies of three texts that espoused violent jihad. In later conversations, Ahmad and, to some extent, Amara discussed concepts consistent with those texts with others they felt “shared the ideology”.

[15] Asad Ansari did not attend the meeting at the Taj Banquet Hall.

[16] A few days later, the source and Ahmad met again in a Toronto park. Ahmad elaborated on his plans to attack specific targets including Parliament, the CIA and CSIS buildings in Ottawa, a Pickering nuclear plant, an RCMP building, an unspecified military base and critical infrastructure. Ahmad reiterated his plans to hold a training camp for a group of individuals who needed training to attack the proposed targets. Ahmad claimed to have a weapons cache buried in a park in Scarborough. Two others sent to get weapons in the United States had been caught and arrested at the border.

[17] Asad Ansari did not attend the meeting of the source and Ahmad at the park.

The Washago Camp

[18] In late November and early December 2005, the source, Ahmad and Amara made plans for the training camp in Washago. Ahmad wanted to create a group of individuals who could carry out terrorist attacks on specific targets. The purpose of the camp was to weed out undesirables and select those who would receive training.

[19] Asad Ansari did not participate in the planning of the camp. The planners did not disclose the purpose of the camp to others.

[20] In mid-December 2005, Amara invited Ansari and two of his friends to the camp. Ansari and Amara had been friends since middle school, Ansari and Ahmad since high school. Ansari understood that it was to be a “winter camping experience” with some of his friends. He was in the last group to arrive at the camp, on December 24, 2005. He and his two friends left on December 29, 2005. Ansari brought a paintball gun with him and one of his friends brought an air rifle.

The Camp Activities

[21] Little dispute occurred at trial about the nature of the activities that took place at the Washago camp. The controversy was with Ansari’s presence at and participation in some of these activities. Among the activities were:

i. mock combat;

ii. paintball;

iii. obstacle courses;

iv. hiking and marching; and

v. firearms training.

The firearms training occurred before Ansari arrived. Ahmad brought a black flag with the Islamic creed displayed on it. It was posted at the camp and carried at the head of the group during marches.

[22] Three halaqaat or discussion circles took place at the camp. The first, an audio lecture played by Ahmad – “Constants of Jihad” – preceded the appellant’s arrival and appears to have sparked little discussion. The second – a speech by Ahmad describing the Fall of “Rome” – revealed Ahmad’s long-term terrorist plans. “Rome” referred to the West. The evidence conflicted about whether Ansari was present at this time. The third, for which Ansari was present, had nothing to do with terrorist acts.

[23] The confidential source considered that the camp failed to achieve Ahmad’s operational goals.

The Recruitment Video

[24] Amara later provided Ansari with raw footage of activities at the camp and asked him to convert it to a digitized format. Ansari did so. He said he did not view the footage. Ahmad and Amara wanted to use the video to recruit others and to obtain support for their proposed activities.

The Computer Repairs

[25] Around the end of January 2006 Amara dropped off Ahmad’s computer for Ansari to repair. Amara said that the computer was not working. He asked Ansari to fix it. Ansari ran a virus scan. He found different kinds of “malware”, including a key logger program and a remote administration tool. He deleted the malware, backed up the hard drive and tried to reformat it.

[26] In an intercepted phone conversation, Ansari warned Ahmad about “weird” stuff on his computer, including encrypted files with an encryption Ansari had never seen before. Ansari told Ahmad that information was being sent from the computer.

Destruction of the Camp Video

[27] Amara convinced Ahmad to destroy his copy of one of the edited videos from the camp at Washago. Investigators did not obtain a copy of the raw footage or edited video of the activities at the camp.

The Schism

[28] Around the end of March 2006, Amara grew disenchanted with Ahmad and left the group along with several other members from Mississauga. Amara told Ansari of his departure the next day.

The Post-Arrest Seizures

[29] On June 2, 2006 police arrested Ansari. They searched his room in his parents’ house. Among other things, officers found a 300-page spiral-bound notebook on a bedside table in his bedroom. Inside were several notes, lists and diagrams. Near the back were handwritten undated drafts of letters written to his family and its individual members: his father, mother and sister.[^1]

[30] In his letter to his family, Ansari began, “[m]ay the peace and blessing of God be upon you. These letters not only contain the will of one, Asad Ibin Whaqaruddin Ansari but are also a testament of what he believed in.” Ansari expresses his love for his family, apologizes for any wrongs he has done to them, thanks them for being good to him, encourages them to follow Allah and “to have patience and do good”. He also advises his family “I have left for an unknown location to fight for the sake of Allah”.

[31] In the letter to his mother, Ansari asks her to pray to Allah in the hope that Allah will “return me to you safely without harm. Otherwise he may grant me [Martyrdom]”.

[32] The letter to his sister ends in mid-sentence. Ansari did not write a letter to his brother.

[33] Ansari claimed that these letters were draft suicide notes, which he had written in the fall or early winter of 2004. He had become depressed and suicidal when he was unable to attend university because of his family’s strained financial circumstances. The reference to fighting “for the sake of Allah” was a red herring because he believed it was impermissible in Islamic culture to commit suicide.

[34] Police also seized several data storage devices including a computer, external hard drives, CDs, DVDs and written materials. The data storage devices contained information downloaded from publicly available websites on explosive devices and detonators, or “bomb-making materials”, as well as numerous religious texts and videos espousing radical Islamic views, violence and terrorism.

Asad Ansari’s Version

[35] Asad Ansari testified. He explained that, after 9/11, he committed himself to showing the world that not all Muslims are terrorists. That he was a Muslim and that he was not a terrorist. Amara and Ahmad were friends of long standing with whom he often debated political issues involving Muslims. Neither Amara nor Ahmad communicated or espoused any terrorist ideology. The black flag with the Muslim creed displayed at the camp in Washago and carried in marches there had no jihadist connotation for him.

THE GROUNDS OF APPEAL

[36] Ansari (the appellant) advances four discrete grounds of appeal. The first three allege improper admission of evidence. The fourth claims error in the trial judge’s final instructions regarding an essential element of the offence charged.

[37] I would paraphrase the grounds of appeal as submissions that the trial judge erred in:

i. admitting evidence of private communications intercepted in breach of s. 8 of the Charter because those interceptions were not made in a manner permitted by the enabling authorization;

ii. admitting evidence of the “departure letters” to the appellant’s family found among other items on the night table in the appellant’s bedroom;

iii. permitting Crown counsel to cross-examine the appellant on materials previously excluded as evidence on the ground that, in giving evidence in his own defence, the appellant had put his character in issue; and

iv. instructing the jury on the actus reus or conduct element of the offence charged by failing to make it clear that the conduct had to create a risk of harm beyond the de minimis level.

Ground #1: The Admissibility of Intercepted Private Communications

[38] This ground of appeal challenges the correctness of the ruling by the trial judge under s. 24(2) of the Charter to admit three intercepted private communications to which the appellant was a party as evidence at trial. The underlying breach of s. 8 that triggered the s. 24(2) analysis was the failure of police to intercept those private communications in the manner in which the enabling authorization permitted them to do so.

[39] To appreciate the nature of the complaint and the manner in which the authorities govern its resolution, it is helpful to begin with brief references to the terms of the applicable authorizations, the nature of the alleged breach and the reasons of the trial judge for admitting the evidence despite the constitutional infringement.

The Authorizations

[40] The relevant interceptions were made under the auspices of the first two of four judicial authorizations to intercept private communications granted during the investigation. The appellant was not named in either of the first two authorizations as a person whose private communications could be intercepted. However, in each of those relevant interceptions, the appellant was speaking with an individual included in the authorization as a “Principal Known Person”.

[41] In the first authorization, granted on December 20, 2005, the following clause describes the manner of interception to be followed:

Provided however that interceptions at all vehicles, places and devices and over the mobile telephones shall be live monitored. The interception of a communication shall be discontinued once it has been determined that none of the Principal Known Persons is a party to it. However, interception may be resumed at reasonable interval [sic] to determine whether one or more of the Principal Known Persons has become party to the communication. If so, then the interception may continue. [Emphasis added.]

[42] In the second authorization, granted on February 15, 2006, a similarly-worded clause directed the manner of interception at certain locations and for certain devices, including cellphones. The second and third calls admitted in evidence against the appellant were cellphone calls.

[43] Neither authorization defined the terms “live monitored”.

The Manner of Interception

[44] To manage interception activity on this project, the RCMP used Voicebox software configured so that the interceptions would comply with the requirements of the authorization. This involved inputting the names and phone numbers of the Principal Known Persons and selecting other features of the program to ensure that the interception process was faithful to its judicial mandate. Incoming calls on authorized lines could be programmed as either “automatic” (all calls recorded automatically) or “live” (requiring activation and acknowledgement by a monitor before recording). Throughout the project, the number of lines to be live-monitored exceeded the number of available monitors.

[45] Among the options available on the Voicebox software was a “put away” feature that allowed the monitor to discontinue listening to a call but to continue recording it. The monitors tried to listen to each intercepted communication in its entirety and to use the “put away” feature sparingly, when a monitor needed to tend to a call on another line. The “put away” feature was not used unless the monitor had ensured that a Principal Known Person was a party to the intercepted private communication.

[46] On February 6, 2006, the appellant spoke to Ahmad for more than ten minutes on the telephone. Ahmad was a Principal Known Person. The monitor, satisfied that Ahmad was a party to the call, put the call away after about two and one-half minutes so that she could attend to another live call that was coming in on another unmonitored line. Subsequently, the monitor put the call away again for the same reason and did so later for a further two seconds for some other reason.

[47] The other two calls tendered against the appellant occurred on March 27 and March 29, 2006. The first was with Ahmad, the second with Amara who was also a Principal Known Person. The “put away” feature was used in the call with Ahmad, but only after their conversation had ended. The feature was not used at all in the Amara call.

[48] The affiant, some group supervisors and the room coordinator testified about how they interpreted the “live monitored” provision in the authorization. The term was borrowed from an existing precedent and was a common feature in many judicial authorizations granted in different jurisdictions across Canada. Each considered that the “put away” function could be used while live monitoring as long as the monitor had first identified a Principal Known Person as a party to the call. Spot monitoring of the call to ensure that a Principal Known Person remained a party was not required.

[49] The manner in which the RCMP interpreted the “live monitored” term of the authorization was first raised in an unrelated prosecution in April 2008. Proceedings in that case were stayed without any judicial assessment of the acceptability of the practice. The police force began a review of the practice and determined it was being followed across Canada even in the absence of a “live monitored” term.

[50] By June 27, 2008, the RCMP was aware that the impugned procedure had been followed in this case. In November 2008, the RCMP notified the Crown. A subsequent directive advised RCMP members not to use the “put away” feature unless the authorizing judge specifically approved of it.

The Motion at Trial

[51] At trial, counsel for the appellant, who is also counsel on appeal, sought exclusion of the three intercepted calls to which the appellant was a party. The s. 8 infringement advanced was that the search – the interception of private communications – was conducted in an unreasonable manner because the interceptions had not been made in accordance with the “live monitored” term of the authorization.

[52] Counsel for the respondent at trial took the position that the “live monitored” term allowed the use of the “put away” feature provided a Principal Known Person was identified as a party to the call. In the alternative, counsel for the respondent contended that if “live monitored” required monitors to listen to the entire call, the failure to do so infringed s. 8 but did not render the intercepted private communications inadmissible as evidence under s. 24(2).

The Trial Judge’s Ruling

[53] The trial judge found that the failure to comply with the “live monitored” term of the authorization infringed s. 8 of the Charter, but did not warrant exclusion of the intercepted private communications as evidence under s. 24(2). The trial judge interpreted “live monitored” as the equivalent of “listened to without interruption”.

[54] In his s. 24(2) analysis under R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the trial judge considered that the first line of inquiry favoured exclusion of the evidence, but the second and third favoured admission as did the balance of the three lines of inquiry.

[55] The trial judge considered the infringement of s. 8 was serious, but not at the most serious end of the infringement spectrum. It was the result of investigative negligence, not reckless or wilful conduct. What occurred here was part of an ongoing pattern of conduct, but one that ended when identified, albeit not immediately. The infringement was aggravated because it was a breach of court order and was accompanied by an institutional failure to ensure proper disclosure.

[56] The trial judge was satisfied that the infringement had little to no impact on the appellant’s Charter-protected rights. Nothing was captured beyond what would have been obtained by proper compliance. The infringement did not have a greater impact on the appellant’s privacy than would have been the case with listening while recording.

[57] The trial judge viewed the societal interest as favouring admission. The evidence was real, reliable and undiminished in its probative value by the infringement. Overall, a proper weighing of the relevant factors favoured admission.

The Arguments on Appeal

[58] The appellant says that the trial judge erred in characterizing the seriousness of the s. 8 breach and its impact on the appellant’s Charter-protected interest under the section. He argues that the trial judge also overvalued society’s interest in a determination of the allegations on their merits. In the result, the appellant contends, the trial judge’s s. 24(2) analysis reached an erroneous conclusion.

[59] The appellant argues that, in considering the seriousness of the s. 8 infringement, the trial judge failed to factor into his analysis the institutional nature of the improper implementation of the authorization, which was exacerbated by the RCMP’s institutional failure to disclose its practice to the Crown so that it could, in turn, be disclosed to the appellant and others in similar circumstances. This, the appellant says, reflects a pattern of disregard for Charter rights. The infringement enabled investigators to collect evidence beyond their entitlement and thus had a profound effect on the appellant’s Charter-protected rights.

[60] The appellant says that the seriousness of the charge and the reliability of the evidence overwhelmed the other factors in the trial judge’s analysis. The trial judge focused on the short term, rather than the long-term effects of the admission of the evidence and overemphasized its importance to the case for the Crown. The evidence should have been excluded, not admitted, on a proper application of s. 24(2).

[61] The respondent rejects any suggestion of error in the trial judge’s s. 24(2) analysis. The trial judge’s characterization of the seriousness of the Charter infringement and the extent of its effect on the appellant’s Charter-protected interest was apt, his assessment of society’s interest in the determination of the case on its merits appropriate. The judge’s conclusion – which was based on a consideration of the relevant factors, in accordance with the proper principles and untainted by any unreasonable findings – is entitled to deference and should not be disturbed.

[62] At trial, counsel for the appellant conceded that what occurred was not a calculated violation of the appellant’s right to be secure from unreasonable search or seizure. The trial judge characterized the violation as serious, but not the most serious. He considered, as an aggravating factor, the institutional nature of the infringement, its impact on other investigations and individuals and the tardy institutional response by the RCMP, both in acknowledging error and in its disclosure to prosecution services. In the end, the respondent says, the trial judge’s factual findings were fully supported by the evidence and resulted in an appropriate characterization of the nature of the infringement.

[63] The respondent contends that the trial judge correctly characterized the nature of the impact of the infringement on the appellant’s protected interests. The “live monitored” term was inserted to protect the privacy of third parties, to ensure that their communications were intercepted only when they were speaking with a Principal Known Person. That was the case here with both Amara and Ahmad. The infringement here did not result in the interception of private communications that would not have occurred had the entire conversation been live monitored. And so it was, says the respondent, apt to characterize the effect of the infringement on the Charter-protected interests of the appellant as minimal.

[64] As for society’s interest in having the allegations determined on their merits, the respondent rejects any suggestion that the seriousness of the offence predominated in the trial judge’s analysis. The trial judge acknowledged that the seriousness of the offence “cuts both ways”. He considered that this evidence was not the only evidence upon which the Crown relied to establish guilt. He did not focus on the short-term effect of admitting this evidence. His characterization of this factor and his overall weighing of the factors was appropriate and ought not to be disturbed.

The Governing Principles

[65] The argument on this ground of appeal focused exclusively on the trial judge’s ruling under s. 24(2) of the Charter. The respondent did not invite us to review the correctness of the underlying infringement of s. 8 that the trial judge determined had occurred because of the failure of those implementing the authorization to adhere to the “live monitored” term of the order. As a result, I will confine my comments on the governing principles to a few brief points in the analysis required under s. 24(2) and to the standard we are to apply in reviewing such decisions.

[66] Whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three lines of inquiry. Each line is rooted in the public interests engaged by s. 24(2). Each interest is “viewed in a long-term, forward-looking and societal perspective”: Grant, at para. 71.

[67] On a motion to exclude evidence under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:

i. “the seriousness of the Charter-infringing state conduct”;

ii. “the impact of the breach on the Charter-protected interests of the accused”; and

iii. “society’s interest in the adjudication of the case on its merits.”

Grant, at para. 71.

[68] State conduct resulting in Charter violations varies in seriousness along a spectrum from the inadvertent or minor on the one hand to the wilful, reckless or flagrant on the other: Grant, at para. 74. To gauge the extent of the departure from Charter standards, a court must consider all of the circumstances. The departure may be significant in degree or involve conduct that the police knew or should have known was not Charter-compliant. Or the breach may be of a more technical nature, perhaps the result of an understandable error in a jurisprudential vacuum or an area of judicial uncertainty: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22. Wilful or flagrant disregard of the Charter by police may require a court to exclude evidence in order to distance itself from such conduct: Grant, at para. 75; Harrison, at para. 22.

[69] Evidence of a systemic problem may aggravate the seriousness of the abuse, as may the subsequent conduct of investigators, such as giving misleading in-court testimony: Harrison, at paras. 25-26. Good faith, which is not to be equated with negligence or wilful blindness, may attenuate the seriousness of a breach: Grant, at para. 75.

[70] The second line of inquiry focuses on the seriousness on the Charter breach on the Charter-protected interests of the accused. A court must evaluate “the extent to which the breach actually undermined the interests protected by the right infringed”: Grant, at para. 76 (emphasis added). An unreasonable search may impact on the individual’s protected privacy interests and “[a]n unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy … is more serious than one that does not”: Grant, at para. 78.

[71] Under the third line of inquiry mandated by Grant, the reliability of the evidence obtained by the Charter-infringing conduct is an important factor: Grant, at para. 81. Sometimes a breach may undermine the reliability of the evidence. Other times not. Where the breach undermines the reliability of the evidence, this line of inquiry favours exclusion because the admission of unreliable evidence is antithetical to a fair trial, the object of which is to uncover the truth of the allegations made by the state: Grant, at para. 81.

[72] A final point concerns the standard of review of trial judges’ decisions admitting or excluding evidence under s. 24(2). Provided a trial judge has considered the proper factors and has not made any unreasonable finding, the judge’s determination is accorded considerable deference on appellate review: Grant, at para. 86; R. v. Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248, at para. 5; and R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44.

The Principles Applied

[73] I would not give effect to this ground of appeal for several reasons.

[74] First, the trial judge’s decision to admit the three intercepted private communications as evidence despite the unconstitutional implementation of the “live monitored” term of the authorization is entitled to considerable deference.

[75] The trial judge articulated the lines of inquiry mandated by Grant. He considered the proper factors in his analysis and assigned the weight he considered appropriate to them. A review of his reasons betrays no consideration of an irrelevant factor or any failure to consider a relevant factor. His findings of fact were not unreasonable and his apportionment of weight to each of the lines of inquiry was reasonable.

[76] Second, the appellant concedes that the infringement here was not a calculated violation of the Charter, in particular of s. 8. The trial judge characterized the infringement as one that involved negligence, not recklessness or wilful blindness, in failing to consider context beyond the bare words “live monitored” as they appear in the order.

[77] The infringement in this case occurred in the execution of a facially valid authorization, a court order obtained from a judge of the superior court of criminal jurisdiction on the basis of material that satisfied the probable cause and investigative necessity requirements of s. 186(1) of the Criminal Code. It is not suggested that the authorization process was corrupted by a lack of full, fair and frank disclosure of all material facts.

[78] The purpose of the “live monitored” term was to ensure that investigators did not intercept communications between third parties – that is, between parties not named in the authorization and not conversing with those who were. That purpose was achieved here because live monitoring ensured that a Principal Known Person was the appellant’s collocutor.

[79] Something should be said about the systemic nature of the infringement. The manner in which the RCMP construed the “live monitored” requirement in this case was followed consistently in several other projects across Canada. This is scarcely surprising. Their institutional response in disclosure to prosecution services when issue was taken with their practice was at once tardy and ill-informed. That said, no precedent had stamped their practice as constitutionally infirm.

[80] Third, the infringement in this case had no negative impact on the appellant’s privacy interest. At the outset of the calls, monitors satisfied themselves that a Principal Known Person was a participant. It follows that the interception of these calls fell within the four corners of the authorization. The flaw here was not in recording a communication that was not authorized, but in failing to listen to the conversation in its entirety contemporaneously with the recording. In these circumstances, it is difficult to see anything other than a negligible impact on the appellant’s Charter-protected right to privacy.

[81] Fourth, the evidence obtained by the infringement in this case is real evidence – a recording of words spoken by the appellant. The reliability of this evidence is unaffected by the infringement. The evidence is non-conscriptive. It is an important part of the Crown’s case, but not critical. The trial judge recognized that the offence was serious but acknowledged that this factor cut both ways.

[82] The trial judge’s analysis of the Grant lines of inquiry was untainted by legal error, misapprehension of evidence, consideration of an irrelevant factor or failure to consider a relevant factor. The same may be said of his balancing of the relevant lines of inquiry. Deference is his due.

Ground #2: The Admissibility of the Departure Letters

[83] This ground of appeal also relates to the admissibility of evidence received at trial – the “departure letters”. The challenge at trial was principally grounded on the submission that, if relevant and material, the letters should have been excluded on the basis that their probative value was overborne by their prejudicial effect.

[84] The circumstances in which the departure letters were found and the appellant’s explanation for writing them appear earlier in these reasons and do not warrant repetition. The discussion may instead begin with a brief reference to the trial judge’s reasons for admitting them as evidence.

The Trial Judge’s Ruling

[85] The trial judge considered the admissibility of the departure letters at the same time he determined the admissibility of a high school essay the appellant had written two and one-half years earlier – “Bin Laden Rules”. He admitted the letters, but excluded the essay.

[86] At trial, Crown counsel advanced the case for a reception of the evidence on the basis that the letters, which were undated, were relevant to prove the appellant’s state of mind. As relevant evidence relating to a material issue, the letters were prima facie admissible. They should not be excluded under a cost/benefit analysis because their probative value exceeded their prejudicial effect.

[87] At trial, counsel for the appellant advanced two arguments against reception. The letters were undated and thus were irrelevant, incapable of supporting an inference about the appellant’s contemporaneous state of mind. Their true meaning could not be ascertained in the absence of any evidence of the context in which they were written. In any event, even if relevant, the letters fell foul of the general exclusionary rule because their prejudicial effect overshadowed their probative value.

[88] The trial judge was satisfied that the meaning of the letters was apparent from their contents. The appellant cared deeply for his family, but was leaving them to fight for Allah in some unspecified place. His fate – life or death – depended on Allah’s wishes.

[89] The trial judge concluded that the letters had been written in temporal proximity to relevant events. Although undated, the letters were found on a night table beside the appellant’s bed. The last letter, to his sister, ends in mid-sentence.

[90] The trial judge decided that the letters were relevant to establish motive and, in turn, to shed light on the nature of the appellant’s association with the co-accused, the reasons for his attendance at the Washago training camp and the state of his knowledge about the nature and intentions of the organization headed by Ahmad, including its then-alleged plans for a bomb attack, hostage-takings and other acts of terrorism. The trial judge considered the probative value of the evidence to be well above minimal and the prejudicial effect to be minimal. The letters did not disclose extrinsic disreputable conduct or require an undue expenditure of time in their introduction. They were easily rebuttable by their author, the appellant.

The Arguments on Appeal

[91] The appellant says that the trial judge erred in failing to exclude the departure letters on the ground that their prejudicial effect exceeded their probative value.

[92] The appellant submits that the probative value of the departure letters depended upon a temporal or thematic nexus between the letters and the allegations framed in the indictment.

[93] No temporal nexus existed. The letters were undated, and thus it cannot be determined whether they were written before or after the appellant severed relations with Ahmad. Any temporal association is conjectural, not inferential.

[94] According to the appellant, a thematic nexus is also lacking. Relevance is assessed in the context of all the evidence, but only that evidence which is properly admissible against the appellant. The trial judge should have limited that context to the appellant’s attendance at the training camp and the computer assistance he provided to Ahmad and Amara and not extended it to knowledge of the bomb plot that formed no part of the case against the appellant.

[95] The trial judge also erred, according to the appellant, in concluding that the introduction of this evidence caused him no prejudice. This evidence engendered moral prejudice, a real risk that jurors would resort to improper propensity reasoning as a route to conviction.

[96] The respondent disagrees. This evidence was properly admitted. It was relevant, material and admissible because its probative value exceeded its prejudicial effect.

[97] At trial, the theory of the Crown was that the terrorist group was led by Ahmad. Amara was a key member. The appellant’s contribution to or participation in the group’s activities included his attendance at the Washago training camp and the computer assistance he provided to Ahmad and Amara in full knowledge of the character of the group and their plans.

[98] The appellant defended the case on the basis that he did know the nature of Ahmad’s group or the true purpose of the training camp. He had no intention of assisting a terrorist group or enhancing the ability of any such group to facilitate or carry out any terrorist activity. The departure letters passed the very modest standard of relevance, affording evidence of the appellant’s knowledge, state of mind and motive, all of which were material at trial.

[99] The respondent says that the letters afforded evidence that the appellant was prepared to fight and die for religious purposes. That he was evinced a motive to interact with and assist others with similar views. The undated nature of the letters did not render them irrelevant, especially in light of their thematic nexus, or invoke any exclusionary rule.

[100] The respondent contends that the trial judge did not err in his probative value/prejudicial effect analysis. The evidence had significant probative value on contested issues involving the appellant’s mental state at trial. It did not include any extrinsic disreputable conduct apt to engender an impermissible chain of reasoning based on bad character. There was no danger of reasoning prejudice – confusion or distraction of the jury from the contested issues at trial – and a minimal risk of moral prejudice. In any event, the trial judge gave a thorough and accurate limiting instruction to ensure the jury’s use of the evidence remained within permissible bounds.

The Governing Principles

[101] The resolution of this ground of appeal requires consideration and application of fundamental principles of the law of evidence. First, the notion of relevance. And, second, the admissibility rule that excludes relevant and material evidence on the ground that its probative value is exceeded by its prejudicial effect.

[102] Relevance is not an inherent characteristic of any item of evidence. Relevance exists as a relation between, on the one hand, an item of evidence and, on the other, a proposition of fact that the evidence is offered to prove. Relevance is a matter of everyday experience and common sense. An item of evidence is relevant if, by the application of everyday experience and common sense, it renders the fact it seeks to establish by its introduction slightly more or less probable than the fact would be without it: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 204.

[103] Relevance does not exist in the abstract or in the air: Cloutier v. The Queen, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709, at pp. 730-732; Luciano, at para. 205. Relevance is also relative; we assess and determine it in the context of the entire case in which the evidence is proffered and the positions of counsel in that case: Cloutier, at pp. 730-732; and Luciano, at para. 205.

[104] To be relevant, an item of evidence need not prove conclusively the proposition of fact for which it is introduced. Nor does the evidence, to be relevant, need to make the proposition of fact more probable than not. An item of evidence is not irrelevant simply because it can sustain more than one inference. The requirement of relevance is met where the item of evidence reasonably shows, “by the application of everyday experience and common sense[,] that the fact is slightly more probable with the evidence than it would be without it”: Luciano, at para. 206.

[105] Admissibility is a legal concept. Admissibility rules exclude evidence that is both relevant and material on the basis of some policy consideration that the law regards as of sufficient importance to warrant exclusion of evidence that would otherwise assist the trier of fact in ascertaining the truth of the matter at hand. The rule that excludes relevant and material evidence on the basis that its probative value is outweighed by its prejudicial effect is a rule of admissibility.

[106] The prejudice component of this general exclusionary discretion may involve either or both of two types of prejudice.

[107] Moral prejudice refers to the risk of an unfocused trial and a conclusion of guilt based on a prohibited chain of reasoning from a general disposition or propensity to guilt of the offence charged. In other words, a finding of guilt that is based on character, not conduct: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31 and 139.

[108] Reasoning prejudice involves the distraction of the trier of fact from their proper focus on the offence charged by the introduction of evidence of other incidents that consume undue time and may be accorded more weight than should be their due: Handy, at para. 31 and 144.

[109] When invited to exclude relevant, material and otherwise admissible evidence on the basis that its prejudicial effect predominates over its probative value, a trial judge will consider the individual constituents of the rule – probative value and prejudicial effect – and then balance them to determine which predominates.

[110] The assessment of probative value involves consideration of the strength of the evidence; the extent to which it supports the inferences the proponent seeks to have drawn from it; and the extent to which the matters the evidence tends to prove are at issue in the proceedings: R. v. B. (L.); R. v. G. (M.A.) (1997), 1997 CanLII 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont. C.A.), at para. 23.

[111] An assessment of prejudicial effect should take into account:

i. the degree of discreditable conduct disclosed by the evidence;

ii. the extent to which the proposed evidence may support an inference of guilt on the sole basis of bad character;

iii. the extent to which the evidence may confuse issues; and

iv. the ability of the accused to respond to the evidence.

B. (L.); G. (M.A.), at para. 24.

[112] A trial judge’s decision about where the balance settles between probative value on the one hand and prejudicial effect on the other is accorded a high degree of deference by appellate courts. Where a trial judge has applied the proper principles, weighed the probative value of the evidence and its potential prejudice and decided the issue of admissibility, appellate courts will not lightly intervene: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 42; R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599, at p. 613; R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at pp. 733-734; R. v. Samuels, 2013 ONCA 551, 310 O.A.C. 175, at para. 47; B. (L.); G. (M.A.), at para. 51.

[113] A final point concerns prophylactic measures undertaken by the trial judge to reduce the risk of reasoning or moral prejudice. A limiting instruction that explains the proper use of this evidence and enjoins prohibited reasoning is of critical importance in ensuring a fair trial: R. v. Vukelich (1996), 1996 CanLII 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C. C.A.), at para. 51.

The Principles Applied

[114] As I will explain, I would not give effect to this ground of appeal.

[115] To begin, the departure letters were relevant.

[116] The departure letters were found in the appellant’s bedroom, on the night table beside his bed. That he was their author is unassailable. It is a reasonable inference that these letters, as well as the other contents in his bedroom, were in his possession. It is well-settled that documents that are or have been in the possession of a party are generally admissible against that party as original (circumstantial) evidence of their contents and of the party’s connection to, or complicity in, the transactions to which they relate: R. v. Turlon (1989), 1989 CanLII 7206 (ON CA), 49 C.C.C. (3d) 186 (Ont. C.A.), at p. 190; R. v. Black, 2014 BCCA 192, 309 C.C.C. (3d) 484, at para. 29; Phipson on Evidence, 18th ed. (London: Sweet & Maxwell, 2013), at pp. 1326-1327. Possession of the letters is evidence of the appellant’s state of mind (the intention to fight for Allah) which, in turn, tends to establish his motive for joining and his knowledge of the nature of the organization and the activities in which he participated and to which he contributed.

[117] Recall as well that the threshold for relevance is not onerous. This evidence met that threshold. As relevant evidence, it was prima facie admissible.

[118] It is uncontroversial that the only admissibility rule that would bar the reception of the departure letters as evidence is the rule that excludes prosecution evidence the prejudicial effect of which exceeds it probative value.

[119] Four reasons persuade me that we should not interfere with the trial judge’s calibration of the balance between probative value and prejudicial effect in connection with the evidence of the departure letters.

[120] First, decisions of trial judges that set the balance between probative value and prejudicial effect are entitled to substantial deference on appellate review. In this case, the trial judge correctly stated and properly applied those principles. He weighed the evidence, assessed this probative value, calculated its prejudicial effect and rendered a reasoned conclusion about the location of the balance between them.

[121] Second, although the probative value of the evidence may not have been overwhelming, it need not be dispositive of the factual issues to which it relates. At bottom, it was relevant to the appellant’s state of mind, in particular his motive, knowledge and purpose.

[122] Third, evidence of the departure letters engendered no palpable moral or reasoning prejudice. The letters revealed no extrinsic misconduct, only an intention to fight for Allah at some undefined location. The evidence was scarcely remarkable in a prosecution for an offence of knowingly participating in or contributing to any activity of a terrorist group for the purpose of enhancing the ability of that group to facilitate or carry out a terrorist activity. The evidence was not apt to confuse or distract the trier of fact, take undue time to elicit or impose impediments on the appellant’s ability to rebut.

[123] Fourth, the trial judge provided jurors with a well-balanced limiting instruction that enjoined impermissible reasoning in their use of this evidence. Such an instruction, which we presume the jurors followed, alleviated concerns about any vestige of moral or reasoning prejudice lurking in the evidence.

Ground #3: The Religious and Ideological Evidence

[124] The final complaint about the admissibility of evidence arises out of evidence the trial judge admitted after reconsideration of a pre-trial ruling that excluded the same evidence. A brief reference to both rulings will be sufficient to place the issue in its appropriate context.

The First Ruling

[125] Before the jury was selected, several of the persons charged, including the appellant, sought exclusion of various documents and videos found in their possession. Some of the materials were paper copies but the majority were contained on computers, computer discs or USB keys. The videos were found on various forms of computer media.

[126] The documents included articles about jihad and bomb-making. The videos included religious lectures and scenes of detonation of bombs or improvised explosive devices destroying military and civilian targets in what appeared to be Middle East locations. Discharge of mortars and firing of rockets were also depicted.

[127] Crown counsel contended that these materials, compendiously described as the “Religious and Ideological Evidence”, were relevant to prove the motive, purpose, intent and knowledge of those in whose possession they were found on the basis of the documents-in-possession rule.

[128] The persons charged argued that this evidence was irrelevant or, if relevant, should be excluded because the moral and reasoning prejudice it encouraged outweighed its probative value. Although the persons charged did not challenge their possession of the physical items or computer media, they submitted that, because of the volume of the material stored on the various media, the Crown could not establish their knowledge of the contents, a critical element in proof of knowledge.

[129] The trial judge admitted three items. At para. 61 of his ruling, he said:

The three items I conclude are admissible in relation to any accused in whose possession any one or more of them were found, are the three articles that were provided to Mr. Shaikh by Mr. Amara and Mr. Ahmad as part of a recruiting-like process. Those articles are titled “Fundamental Concepts Regarding Al-Jihad” (“Fundamental Concepts”), “Milat Ibrahim” (“The Religion of Ibrahim”) and the “Essay Regarding the Basic Rule of the Blood, Wealth and Honour of the Disbelievers” (“Essay”). Based on the evidence, “Fundamental Concepts” was found in circumstances capable of supporting a conclusion of possession in relation to the accused Mr. Ansari, Mr. Khalid and Mr. Chand. “The Religion of Ibrahim” was found in such circumstances in relation to the accused Mr. Ansari, Mr. Durrani and Mr. Chand. The “Essay” was found in such circumstances in relation to Mr. Ansari, Mr. Chand and Mr. Gaya. I would add that although there was other material said to have been passed to police agents or distributed for recruiting purposes by Mr. Ahmad, that material was not found in the possession of any other accused.

[130] The trial judge excluded several documents related to bomb-making stored on a hard drive in the appellant’s bedroom. The trial judge described the documents in these terms, at para. 69:

Mr. Ansari had some 40 documents related to bomb-making on a hard drive located in his bedroom. These documents have titles such as “10 Great High Explosive Mixtures”, “Ammonium Nitrate”, “Basic Explosive Theory”, “Blowing Up a Car” and “Bombs for Beginners”.

[131] After pointing out that the appellant was no longer charged with the bomb plot, the trial judge explained why he excluded this evidence, at paras. 76-77:

I have taken all of the Crown’s submissions into account. It seems to me that the only means by which the evidence of possession of these items leads to an inference of knowledge of the purpose of the training camp at the time of Mr. Ansari’s initial attendance is through a bad character or general disposition reasoning processes: because Mr. Ansari possessed such material he is the kind of person who would likely know or likely have been told the purpose of the camp. This is reasoning from general disposition to a specific form of knowledge that is very important to proof of the case against Mr. Ansari. In my view, the Crown has not been able to articulate a logical path between possession and knowledge that does not depend on this prohibited form of reasoning. The problem with this evidence, therefore, is that while it may be logically relevant it runs afoul of an exclusionary rule.

Even if I am wrong and there is some logical chain of reasoning other than from general disposition that I have not been able to discern, it seems to me that there is a great danger that the jury will use the evidence in this impermissible way. The nature of the material and its quantity invites bad character or general disposition reasoning, while other logical chains of reasoning are obscure at best. In such circumstances a limiting instruction to a jury is less likely to be effective than in circumstances where there is an easily identifiable chain of reasoning that does not depend upon inferences from general disposition. The potential for prejudice is increased by the relative lack of other evidence against Mr. Ansari, as the questioned evidence with its prejudicial effects is bound to become central to the proof of the Crown’s case.

The Reconsideration Ruling

[132] At the request of Crown counsel, the trial judge reconsidered his pre-trial ruling about this evidence shortly after the cross-examination of the appellant had begun.

[133] Crown counsel submitted that he should be permitted to cross-examine the appellant on the religious and ideological materials:

i. to prove the falsity of material parts of the appellant’s evidence; and

ii. because the appellant had put his character in issue during his examination-in-chief and the ideological and religious evidence was relevant to neutralize or rebut this claim.

[134] Counsel for the appellant responded that the proposed cross-examination was only permissible if the appellant had put his character in issue, which counsel denied. In the alternative, counsel argued that even if the appellant had put his character in issue, the cross-examination should not be permitted because the prejudicial effect of any evidence admitted would exceed its probative value.

[135] The trial judge rejected the appellant’s claim that the cross-examination was only permissible if the appellant had put his character at issue in examination-in-chief. The trial judge was satisfied that the proposed cross-examination was permissible on two grounds:

i. as relevant circumstantially to prove the falsity of parts of the appellant’s testimony; and

ii. as relevant in rebuttal of the evidence of good character the appellant had given, which portraying himself as one who did not hold extremist views, thus rendering it unlikely that he would knowingly participate in or contribute to the activities of a terrorist group.

The Arguments on Appeal

[136] The appellant says that the trial judge erred in finding that the appellant had put his character in issue during his examination-in-chief. He did nothing more than repudiate the allegations made against him and offer an explanation for his conduct. Neither is sufficient to put his character in issue.

[137] The appellant points out that determining whether an accused who testifies on his or her own behalf has crossed the line between repudiating the allegations and putting his or her character in issue requires the consideration of the essential elements of the offence, the nature of the case for the Crown and the overall context of the allegations. In this case, there was no direct evidence of the appellant’s knowledge of the group’s plans or of his intention to assist them in their activities. The jury was left to infer from the fact and the nature of the relationship among the principals the essential elements of knowledge, purpose and intention to assist.

[138] According to the appellant, it was open to him to describe his relationship with Ahmad and Amara, to explain his own religious and ideological views – including his reasons for attending a mosque – and to deny being a terrorist without putting his character in issue. He was entitled to explain and repudiate the context of the allegation made by the Crown and the nature of the evidence adduced against him. His evidence went no further and did not amount to putting his character in issue.

[139] The appellant acknowledges that Crown counsel was entitled to adduce evidence in cross-examination to prove the falsity of evidence the appellant gave in-chief. But, the appellant says, the evidence Crown counsel proposed to (and did) put to him was not capable of achieving this purpose. This evidence was circumstantial and the inferential gap between it and the evidence it sought to demonstrate was false was so vast that it should not have been permitted on a cost/benefit analysis.

[140] The respondent contends that the trial judge was correct in permitting the cross-examination on both grounds. The appellant, in giving evidence, took advantage of an unduly restrictive ruling made prior to jury selection and put his character in issue by his own testimony in-chief and the manner in which he chose to rebut the case for the Crown. These changes in circumstances warranted the trial judge’s reconsideration. The cross-examination permitted was carefully circumscribed by the trial judge and curtailed any meaningful risk of improper jury use of the evidence.

[141] The appellant was in possession of a large quantity of material, the contents of which were philosophically aligned with the intentions of Ahmad and Amara. He had downloaded this material and burned it onto discs shortly before the Washago training camp. This material, described as “good stuff Islamic videos”, was relevant to the appellant’s knowledge, his purpose in attending the camp, his state of mind and his motive. Any moral or reasoning prejudice could easily be mitigated by limiting instructions. The trial judge’s first ruling was unduly restrictive of the Crown’s proof and overly charitable to the appellant.

[142] In his first ruling, the respondent continues, the trial judge made it clear that a change in circumstances during the trial might require a reconsideration of that ruling. The defence advanced at trial was inconsistent with the appellant’s possession of large amounts of jihadist material contemporaneously with his association with Ahmad and Amara and attendance at the training camp; the appellant held himself out as a moderate Muslim, not the sort of person who supported or would participate in terrorist activities.

[143] The respondent says that, irrespective of whether the appellant put his character in issue, Crown counsel was entitled to cross-examine the appellant to show, if he could, that material parts of the appellant’s testimony were false. The evidence that Crown counsel proposed to put to the appellant in cross-examination was relevant to show the implausibility of the appellant’s claim that he was a moderate Muslim who eschewed jihadist activity and the jihadist mindset. The evidence supported the further inference, from the implausibility of the claim, that the evidence expressing the claim was false. This created no danger of propensity reasoning.

[144] In addition, the respondent continues, the appellant put his character in issue. He testified that he wanted to show the world that all Muslims are not terrorists. He was not a terrorist or the sort of person who would be interested or participate in terrorist activities. Whether an accused has put his or her character in issue is a matter of no little complexity. It follows, the respondent says, that we should accord substantial deference to the trial judge’s decision because of his advantaged position of watching the trial as it unfolded over several months.

[145] The respondent points out that the trial judge’s ruling on reconsideration represented a measured response to the Crown’s application. The appellant was in possession of a significant volume of material that could have been used in cross-examination and what was permitted was limited and not apt to engender propensity reasoning, especially in light of the trial judge’s clear and specific limiting instructions.

The Governing Principles

[146] The ruling of the trial judge and the argument advanced here require a consideration of the principles that govern the scope of the right to cross-examine an accused to demonstrate the falsity of his testimony and the test to be applied in determining whether, in giving evidence in-chief, an accused has put his character in issue.

[147] An accused who gives evidence in a criminal trial has a dual character. “As an accused he is protected by an underlying policy rule against the introduction of evidence by the prosecution tending to show that he is a person of bad character, subject … to the recognized exceptions to that rule”: R. v. Davison, DeRosie and MacArthur (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.), at p. 441, leave to appeal to S.C.C. refused, [1974] S.C.R. viii. As a witness, however, an accused’s credibility is subject to attack: Davison, at p. 441.

[148] The law imposes limitations on the cross-examination of an accused that do not apply to non-accused witnesses. For example, an accused may not be cross-examined on extrinsic misconduct or discreditable associations unrelated to the charge that is the subject-matter of the trial for the purpose of leading to the conclusion that, by reason of bad character, she or he is a person whose evidence should not be believed: Davison, at p. 444. But cross-examination “directly relevant to prove the falsity of the accused’s evidence falls does not fall within the ban, notwithstanding that it may incidentally reflect upon the accused’s character by disclosing discreditable conduct”: Davison, at p. 444. For example, an accused may be cross-examined to show that her or his explanation of the purpose for which she or he was in possession of certain material was untrue. Rejection of an explanation of innocent purpose may entitle the trier of fact to draw an inference of illicit purpose, design or knowledge: Davison, at p. 445.

[149] In a criminal case an accused may put his or her character in issue in several different ways, including by giving evidence in-chief in his or her defence at trial: R. v. Farrant, 1983 CanLII 118 (SCC), [1983] 1 S.C.R. 124, at p. 145; Morris v. The Queen, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, at p. 204; R. v. P. (N.A.) (2002), 2002 CanLII 22359 (ON CA), 171 C.C.C. (3d) 70 (Ont. C.A.), at para. 31; R. v. McNamara (No. 1) (1981), 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont. C.A.), at p. 346, leave to appeal to S.C.C. on this point refused (1981), 1981 CanLII 3394 (SCC), 56 C.C.C. (2d) 576.

[150] An accused is entitled to repudiate the allegations of the Crown and does not put his or her character in issue by doing so: P. (N.A.), at para. 34. But, in giving evidence, an accused is not entitled, under the guise of repudiating the allegations made against him or her, to assert expressly, or impliedly, that she or he would not have done what is alleged because she or he is a person of good character. An accused who does so puts his or her character in issue: McNamara (No. 1), at p. 346; and P. (N.A.), at para. 31.

[151] The line between permitted repudiation of the Crown’s case and putting one’s character in issue becomes especially difficult to draw in cases in which the Crown adduces evidence to provide context and that evidence reveals disreputable conduct by an accused: P. (N.A.), at para. 34. In those cases, the accused must be able to repudiate the charge by offering his or her own version of that context without suffering the disadvantage of having put his or her character in issue: P. (N.A.), at para. 34. But this repudiation is not without bounds: P. (N.A.), at para. 35; and R. v. W. (L.K.) (1999), 1999 CanLII 3791 (ON CA), 138 C.C.C. (3d) 449 (Ont. C.A.), at pp. 465-466, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 383.

[152] An accused who puts character in issue may be cross-examined about previous acts of disreputable conduct, but the jury should be carefully instructed about the permitted and prohibited uses of that evidence: McNamara (No. 1), at pp. 352-354; and W. (L.K.), at pp. 465-467.

The Principles Applied

[153] I would not accede to this ground of appeal. As I will explain, I am satisfied that the trial judge did not err in permitting the impugned cross-examination on the basis that it tended to demonstrate the falsity of the appellant’s evidence in-chief and was equally permissible as a response to the appellant’s having put his character in issue.

[154] I begin with a preliminary point about the nature and source of the material used in cross-examination. The information originated in documents, whether in electronic or paper form, found in possession of the appellant at times reasonably proximate to the offence charged. The documents-in-possession rule permitted the introduction of these documents as original (circumstantial) evidence to establish the appellant’s knowledge of their contents. Such possession and knowledge was relevant to cast doubt on the truthfulness of the appellant’s claim that he was a moderate Muslim who eschewed jihadist activity. Rejection of his evidence on this issue left open to the jury an inference of design, motive, knowledge and purpose on the part of the appellant.

[155] The trial judge limited the amount of material that Crown counsel was entitled to use in cross-examination of the appellant. This cross-examination for the purpose of demonstrating the falsity of various aspects of the appellant’s evidence in-chief did not depend on a ruling that the appellant had put his character in issue. The evidence did not disclose extrinsic disreputable conduct apt to engender an impermissible chain of reasoning leading to proof of guilt. The careful limiting instructions of the trial judge provided an effective prophylactic against forbidden use.

[156] I am further satisfied that the trial judge did not err in permitting the impugned cross-examination on the basis that the appellant, in giving evidence in-chief on his own behalf, had put his character in issue. I reach this conclusion for several reasons.

[157] First, even with due allowance for context, including the nature of the offence charged, the appellant’s repudiation of the case for the Crown extended beyond the proffer of an alternative explanation for the conduct. The explanation of innocent purpose was inextricably bound with the use of character as circumstantial evidence of innocent conduct.

[158] Second, the governing authorities make it clear that character may be put in issue either directly or by implication. A canvass of the appellant’s evidence in-chief supports the conclusion that, at the very least, the appellant put his character in issue impliedly, if not directly.

[159] Third, this is not a case like P. (N.A.), in which the case for the Crown involved the introduction of evidence of a lengthy relationship among the principals – including other disreputable conduct – to provide context for the specific allegations contained in the indictment. The evidence in this case consisted of specific conduct and inferences of knowledge and purpose said to emerge from that conduct.

[160] Fourth, the trial judge took two measures to guard against impermissible use of this evidence. He carefully limited the items that Crown counsel could put to the appellant in cross-examination to ensure that the proper balance of probative value and prejudicial effect was maintained. And he devoted several paragraphs of his charge to limiting jury use of this evidence to what the law permits.

Ground #4: Instructions on the Actus Reus of the Offence

[161] The final ground of appeal takes issue with the trial judge’s charge to the jury. The complaint is not so much that the trial judge misstated the essential elements of the offence, but rather that he failed to include in his instructions something that was said more than two years later by the Supreme Court of Canada in R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 55. What is now said to be a fatal deficiency was not the subject of objection at trial.

[162] The focus of the complaint relates to the conduct element or actus reus of the offence in s. 83.18(1) of the Criminal Code, not to any of the myriad components of the fault element which constituted the crux of the appellant’s defence at trial.

[163] This claim of error does not command any evidentiary review. An overview of the charge and recapitulation of the argument advanced on appeal will provide an adequate background for an assessment of the alleged error.

The Charge to the Jury

[164] The trial judge defined for the jury the terms “terrorist group” and “terrorist activity” and explained the importance of the motive requirement, which distinguishes terrorism offence from many other offences in the Criminal Code.

[165] The trial judge defined the four essential elements of the offence charged:

There are four essential elements to this offence, each of which must be proven beyond a reasonable doubt. They are as follows:

1. A terrorist group comprised of Fahim Ahmad and others, existed;

2. The accused knew of the existence of the terrorist group;

3. The accused knowingly participated in or contributed to, directly or indirectly, any activity of the terrorist group; and

4. The accused’s participation or contribution was intended by the accused to enhance the ability of the terrorist group to facilitate or carry out a terrorist activity. That really means it was for the purpose of.

[166] The trial judge then converted each essential element into a question, explained what was required to prove each element, reviewed the salient features of the evidence and related them to the proof of each element before he left the issue for the jury to decide, together with instructions about the consequences of their assessment, with respect to further deliberation or verdict, of the adequacy of the Crown’s proof of each element.

[167] The question framed by the trial judge in connection with the third essential was this:

Did the accused knowingly participate in or contribute to, directly or indirectly, any activity of the terrorist group?

The trial judge explained that there were two parts to the question. The first part required the Crown to prove beyond a reasonable doubt that the accused engaged in acts of participation in or contribution to, directly or indirectly, any activity of the terrorist group. The second part of the question, the judge explained, required proof that the appellant knew at the time that his acts constituted such participation or contribution.

[168] The trial judge instructed the jury on the first part of the conduct requirement in these words:

Sections 83.18(3) and (4) of the Criminal Code provide some assistance in determining the first part of this question; whether a person’s actions constitute participation in, or contribution to, any activity of a terrorist group. I would flag for you that they do not assist with the second part of this question; whether the accused had the requisite knowledge.

Now, I am going to refer to those. They are on that page I gave you that has the excerpts from s.83.18 of the Criminal Code. And what we are going to do now is we are going to skip over two and we are going to look at three and four.

Those subsections, that is three and four, insofar as they apply to this case, read as follows:

(3) Participating in or contributing to an activity of a terrorist group includes:

(a) providing, receiving or recruiting a person to receive training;

(b) providing or offering to provide a skill or an expertise for the benefit of, at the direction of or in association with a terrorist group;

(4) In determining whether an accused participates in or contributes to any activity of a terrorist group, the court may consider [and you are the court in this instance] among other factors, whether the accused

(a) uses a name, word, symbol or other representation that identifies or is associated with, the terrorist group;

(b) frequently associates with any of the persons who constitute the terrorist group;

With respect to subsection (4), I would point out that it provides guidance as to what may be considered, but does not require you to conclude from the use of a name word or symbol or from frequent association that there was participation or contribution. These are simply mentioned as factors for you to consider.

Subsection (3), however, would require you to conclude that an accused participated in or contributed to the activity of the terrorist group if you find that he did one or more of the things mentioned in that provision, provided you are also satisfied that the second requirement of concurrent knowledge has been established.

I would suggest to you that it is obvious how subsection (3)(a) would apply in relation to the training camp, the alleged training camp. If you are satisfied beyond a reasonable doubt that Mr. Ansari and/or Mr. Chand provided or received training at the Washago camp, that would constitute participation in or contribution to the activities of the terrorist group under the first part of this question.

With respect to Mr. Ansari, if you were satisfied that while at the winter camp he offered his computer skills for the benefit of, at the direction of or in association with the terrorist group that would constitute participation in or contribution to the activities of the terrorist group under the first part of this question.

In addition, if you were to conclude that Mr. Ansari provided computer or technical skills after the training camp for the benefit of, at the direction of or in association with the terrorist group, that would also constitute participation in or contribution to the group under the first part of this question by virtue of section 83.18 (3) (b) of the Criminal Code.

“For the benefit of” means to the profit, advantage or service of. Whether something profits, advantages or is of service to a group is determined having regard to the group’s objectives. It is for you to determine what the group’s objectives were based on a consideration of all of the evidence and my earlier instructions.

“At the direction of” means at the instruction of or under the guidance of the terrorist group.

“In association with” means in linkage with. A person may act in association with the group even if they are not a formal member of the group.

As I am sure is obvious to you, while s. 83.18 (3) provides some direction as to what constitutes participation and contribution, you are not restricted to the activities described in that section. You have heard the arguments of Crown counsel about what other activities the Crown says constitute participation in, or contribution to, directly or indirectly, the activities of the terrorist group, at the training camp and otherwise. You have also heard defence arguments to the contrary. You might conclude that there are a number of things that constitute participation or contribution for one or both of the accused; or you might not. That is entirely for you to decide.

You are not restricted to conduct that falls within s.83.18 (3) (a) and (b), but if you find that an accused acted in a manner that brings his conduct within those provisions, you must conclude that the first part of this question should be answered “yes”. You do not all need to agree on what conduct constitutes participation in or contribution to the activities of the terrorist group but each of you must be sure that there was some such conduct on the part of the accused you are considering before you would move on to consider the second part of this question for that particular accused.

The Arguments on Appeal

[169] The appellant says that the trial judge erred in failing to instruct the jury that the conduct element of participating in or contributing to the activities of a terrorist group requires proof of conduct that creates a risk of harm beyond de minimis. The charge, he submits, should have contained this express instruction; what was said did not make it clear that the appellant’s conduct must be capable of materially enhancing the ability of the group to carry out terrorist activity.

[170] The appellant contends that the omission here was significant in light of the activity relied upon by the Crown to prove this essential element – the camp attendance and computer assistance. Neither was obviously above the de minimis threshold, nor was their combined force. This was a jury question and should have been the subject of an express instruction.

[171] The respondent takes the position that, even if an express instruction like that now sought by the appellant were required, its omission did not cause the appellant any prejudice.

[172] The respondent points out that the Crown is not required to prove beyond a reasonable doubt that an accused’s conduct actually enhanced the ability of a terrorist group to facilitate or carry out terrorist activity to prove this element of the offence. It is sufficient if the conduct is of a nature to materially assist the group. The conduct here plainly met that standard, as s. 83.18(3) points out in its reference to receiving training and providing a skill or expertise for the benefit of the group. From a functional perspective, the respondent says, the instructions substantially complied with the Supreme Court of Canada’s later elucidation of the law in Khawaja and caused the appellant no prejudice.

The Governing Principles

[173] The principles that inform the determination of this ground of appeal are those that describe the requirements of proof of this essential element and those that describe the standard we are to apply in reviewing the adequacy of jury instructions, especially those delivered prior to an elaboration or exposition of a legal principle by an appellate court of binding authority.

[174] To take, first, the requirements for proof of an offence under s. 83.18(1).

[175] Section 83.18(1) criminalizes participation in or contribution to the activities of a terrorist group and requires proof that an accused:

i. knowingly;

ii. participated in or contributed to;

iii. directly or indirectly;

iv. any activity of a terrorist group; and

v. for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity.

See Khawaja, at para. 41.

[176] A person commits an offence under s. 83.18(1) even if his or her contribution or participation does not actually enhance the ability of the terrorist group to carry out or facilitate a terrorist activity: Code, s. 83.18(2)(b).

[177] Section 83.18(3) contains an inclusive list of various activities that constitute participation in or contribution to an activity of a terrorist group. Among those activities are “receiving … training” and “providing or offering to provide a skill or expertise for the benefit of” the group.

[178] The offence of participation in and contribution to a terrorist activity is confined, as a matter of constitutional requirement, to conduct that creates a risk of harm that exceeds a de minimis threshold: Khawaja, at para. 51. In other words, what is excluded from the reach of the criminal law is “conduct that a reasonable person would not view as capable of materially enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity”: Khawaja, at para. 51 (emphasis in original). Moreover, “[t]he determination of whether a reasonable person would view conduct as capable of materially enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity hinges on the nature of the conduct and the relevant circumstances”: Khawaja, at para. 52.

[179] What is excluded from the conduct requirement is “innocent or socially useful conduct that is undertaken absent any intent to enhance the abilities of a terrorist group to facilitate or carry out a terrorist activity”, as well as “conduct that a reasonable person would not view as capable of materially enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity”: Khawaja, at para. 53.

[180] Several brief points should be made about the standard we are to apply in our review of the adequacy of jury instructions.

[181] First, we review jury instructions from a functional perspective to determine whether the instructions fulfil their purpose of equipping the jurors to decide the case in accordance with the proper legal principles. The parties are entitled to a properly, but not a perfectly instructed jury: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at paras. 2 and 32.

[182] Second, when the substance of a complaint of misdirection, or non-direction amounting to misdirection, arises as a result of a decision rendered after the charge has been given, the essential issue is whether the charge substantially complies with the principles later expressed: R. v. Rhee, 2001 SCC 71, [2001] 3 S.C.R. 364, at para. 21.

[183] Third, the review just described is not a mechanical task, but rather involves an assessment of whether the deficiencies in the charge delivered, compared to the standard later pronounced, give rise to a reasonable likelihood that the jury misapprehended the correct legal standard: Rhee, at para. 21; R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, at para. 12.

[184] Finally, our evaluation of the likely consequences of any errors in jury instructions requires an assessment of the shortcomings in light of the charge as a whole and in the context of the entire trial, including the nature of the defence advanced on the appellant’s behalf: Rhee, at para. 22.

The Principles Applied

[185] In my respectful view, this ground of appeal fails for several reasons.

[186] First, the conduct element does not require proof that what the appellant did actually enhanced the ability of the terrorist group to carry out or facilitate a terrorist activity, only that the conduct creates a risk of harm beyond de minimis.

[187] Second, the constitutional requirement that the offence not be overbroad relates only to the capacity of the conduct materially to enhance the group’s ability to carry out or facilitate a terrorist activity. What the absent instruction would have excluded is conduct that a reasonable person would not view as capable of materially enhancing the abilities of the group to facilitate or carry out a terrorist activity. In this case, the appellant’s actions do not fit this description; rather, his conduct is expressly included in the Code’s definition of “[p]articipating in or contributing to an activity of a terrorist group”: ss. 83.18(3)(a) and (b).

[188] Third, the defence advanced at trial focussed principally on the fault element of the offence charged, in particular the elements of knowledge of the character of the group and the purpose underlying the appellant’s camp attendance and computer assistance. The defence was not directed to the actus reus of the offence.

[189] Fourth, the jury clearly rejected the defence advanced on the basis of a jury instruction that is unimpeachable. The failure to include what is now sought, in light of the charge as a whole and the manner in which the defence was run, does not give rise to a reasonable likelihood that the jury misunderstood the essential elements of the offence.

CONCLUSION

[190] For these reasons, I would dismiss the appeal.

Released: August 19, 2015 (DW)

“David Watt J.A.”

“I agree G.R. Strathy C.J.O.”

“I agree Gloria Epstein J.A.”

[^1]: The admissibility of these letters, the “departure letters”, is a ground of appeal.