ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13043/12

DATE: 2013-08-14

BETWEEN:

HER MAJESTY THE QUEEN

– and –

LLOYD ALLEN CHAREST

Defendant

K. Saliwonchyk, for the Crown

G. Wright, for the Defendant

HEARD: July 2,3,4,5/2013

Justice B. Glass

Introduction

[1] Mr. Charest was charged with four counts on an indictment involving an alleged hoax of terrorist activity (section 83.231(1)(a) ), fabricating evidence ( section 137 ), public mischief ( section 140 (1) (c) ), and obstructing a peace officer in the execution of his duty ( section 129 (a) ).

[2] The focus of this trial is an alleged terrorist action towards the Pickering Nuclear Plant run by OPG, i.e. Ontario Power Generation. A report by the Defendant to a person who worked at Pickering regarding finding on an internet site an image of the Quran and drawings of plans of the nuclear generating plant fire plans and words to the effect that the time was now to act as Allah’s will.

[3] The Defendant had had access to computers from the plant to work on them. He lived at the residence of an employee at the plant. The employee worked with security at the Pickering Nuclear Generating Plant. Mr. Charest reported what he had found and the employee contacted security personnel for OPG. The employee, Ted Brown, is a father figure for him.

[4] When the employee saw the images, he recognized the Pickering Nuclear Plant and asked whether this was a joke prior to making contact with the Plant.

[5] The police became involved in the investigation. During the early police involvement, the officers questioned whether this was legitimate or a hoax. An audio-recorded interview with the Defendant lasted over an hour in July 2010. The interviewing officer asked questions that raised the possibility that Mr. Charest had fabricated information. In other words, the time to call off a hoax was then, early in the process. There was no change of heart by Mr. Charest.

[6] During the July 2010 interview, Detective Traviss did not want to start the laptop computer of the Defendant but preferred to take it to the police office. It turned out that the police could not activate the laptop because of password protection. When Detective Traviss was leaving the residence, Mr. Charest spoke words to the effect that anyone trying to open the computer would have trouble even though he told the officer that the laptop was not password protected.

[7] The police then engaged forensic investigators to check the Defendant’s laptop computer along with the DVD he had copied. The forensic investigation revealed that the procedures described by Mr. Charest did not occur as he had reported. For example, he referenced two Jihadist groups who are enemies and who would not act together. One is Sunni and the other is Shiite. Detective Mokdad, as an expert in Middle East Muslim extremist politics, explained how the two Islamic groups do not work together. The Defendant claimed to have pulled the image of the Quran from a website and that image had a large attachment of more than 70 million bytes showing many images of the Pickering Nuclear Plant fire plans. Sergeant Wiegers determined that this did not occur. The image of the Quran was inserted after he claimed to have located it. The image of the Quran had imbedded within it the Pickering Nuclear Generating Station fire plans. I am satisfied that Mr. Charest was lying to Mr. Brown, OPG employee and the police. His story simply does not fit with what the police discovered during their investigation.

[8] Mr. Charest claimed to have been alerted to this information from an online acquaintance, Striker, who could not handle the large information. Mr. Charest claimed to have conducted a rebooting process with his desktop and laptop computers so as to engage more power. This process was referenced to be Frankensteining. That just did not occur according to Sergeant Wiegers, the forensic computer expert who testified. The bottom line from Sergeant Wiegers is that Mr. Charest’s computer was not shut down and rebooted as professed. In fact, the computer had last been shut down on June 19, 2010 so that periods of inactivity would have been times when the computer simply was in sleep mode or a lock mode. The websites could not be accessed as claimed by the Defendant. The analysis of the laptop of Mr. Charest indicated that the image of the Quran had been placed on the computer and then the over 1000 images related to the Pickering Nuclear Plant had been dragged onto the computer within the image of the Quran. The initial work had been done on the desktop computer of the Defendant and transferred to his laptop computer.

[9] In other words, the description given by Mr. Charest was not only incorrect, it was false. The police had another interview with the Defendant prior to laying charges, but he chose not to enlarge on what had happened when he allegedly discovered this information. When he was asked during the trial why he had not corrected Detective Traviss about being able to gain access to the computer without a password, his best answer seems to have been that he was not prepared to assist the police. Later, when challenged about the information, he continued to take the position that he was not prepared to help the police. He appears to have realized that he had dug himself into a corner and chose to say no more about his alleged discovery.

[10] When confronted with challenges in cross-examination to the effect that his testimony contained gaps of sensible reasoning, he at the most would accept that some suggestions for those gaps were possibilities.

[11] In February 2011, the Defendant was charged with the counts now on the indictment.

Issues

[12] With count # 4, did Mr. Charest obstruct a peace officer wilfully while in the execution of his duty? At the conclusion of the trial, he accepted that this count was proven.

[13] With count # 1, was the alleged fabrication likely to cause a reasonable apprehension that terrorist activity was occurring or would occur?

[14] With count #2, did Mr. Charest, with an intent to mislead, fabricate an image of the Quran with the emergency floor plans of the Pickering Nuclear Generating Station with the intent that it be used as evidence in a judicial proceeding?

[15] With count # 3, did the Defendant, with intent to mislead, cause a peace officer to continue an investigation by reporting that a terrorist activity offence had been committed when such had not occurred?

Analysis

[16] The analysis deals with count #4 first because of an acknowledged finding of guilt. Counts #1 and 3 follow because they are drawn together with the allegations. Finally, count #2 is dealt with last and is more separate from counts 1 and 3.

[17] The interview on July 12, 2010 is clearly indicative of the police being suspicious that Mr. Charest made up the story. One might wonder why a person would do such an act. He had lost a job. He was and is very computer knowledgeable. He had done some work for OPG in the past. This work had been related to computers. The Crown theorizes that Mr Charest made up this information to make himself appear to be very computer savvy and valuable to OPG in the role of heading off terrorism at a nuclear generating plant in southern Ontario. If he succeeded in convincing OPG that he was such a specialist, then he could market his skills to OPG.

[18] Mr. Charest denied that he fabricated any information. Rather, he had received information over the computer from a person identified as Striker. This person was not known to Mr. Charest personally. The Defendant described both as White Hat Hackers. That descriptor described good hackers who tried to frustrate website of bad persons. One might consider such hackers as modern day Robin Hoods.

[19] The police took the Defendant’s laptop computer to analyze. They tried to open it but found that it was password protected. The police called Mr. Charest to request he attend the police station to open the computer. When challenged by the Crown in cross-examination as to why he would not have gone to the police station to open the laptop and show the images he had described, he provided an explanation that he was travelling to get new motor vehicle tires. He obviously knew that his computer was locked. He sent the police on a wild goose chase with a piece of equipment that he expected they could not access. In other words, they would be locked into relying on his verbal report about Jihadists. He had not thought of the police wanting to take the laptop computer to analyze. There arose a significant problem for the Defendant.

[20] Forensic examination of the computer revealed operating times of the computer. These operating times were very different from what Mr. Charest reported.

[21] The Defendant claimed to have made a copy of the web site information he had found and showed it to Ted Brown, an employee at Pickering Nuclear Plant and his landlord. Mr. Brown took it seriously and reported it.

[22] Ted Brown did not go to look at the website from which Mr. Charest claimed to have located the information about the nuclear plant. This website was purported to be on Mr. Charest’s desktop computer in the basement of Mr. Brown’s residence. The information was passed from that computer to the laptop of Mr. Charest.

[23] Mr. Brown did not have any understanding of turbines at a nuclear generating plant being aligned in a specific way; yet, Mr. Charest claimed that Mr. Brown told him that he could identify the images because of the alignment of the turbines. This was not the truth.

[24] Mr. Wright on behalf of Mr. Charest concedes that count 4 is established because the Defendant told Detective Traviss that the laptop computer was not password protected. That count alleges that the Defendant obstructed a peace officer in the execution of his duty.

[25] With respect to the other counts, the Defence challenges whether those counts are proven beyond a reasonable doubt. The acts of Mr. Charest that Mr. Wright submits to be sufficient for a finding of guilt to count #4 are letting Detective Traviss take the laptop computer for analysis on the understanding that there was no password to limit access when in fact there was.

Count #4

[26] I find that the advice to Detective Traviss that the laptop computer was not password protected was sufficient to establish this count of obstructing a peace officer in the execution of his duty.

Count 1

[27] I conclude that this count is established beyond a reasonable doubt. The evidence proves that Mr. Charest breached section 83.231 (1) (a) of the Criminal Code. Sergeant Wiegers demonstrated that the emergency floor plans for the nuclear plant were not on a Jihadist website but rather were transferred from an AutoCAD program. They were inserted into the Quran image as hidden files. Although Mr. Charest reported shutting down his computer and Frankensteining his computers, Sergeant Wiegers found that the Defendant had not shut down his computer since June 19th so that the Defendant was not being honest in so reporting. His computer had been in standby mode along the way.

[28] Mr. Charest then reported to Mr. Brown, who is like a father-figure to him. Ted Brown worked at the security section of the Pickering Nuclear Generating Station, and he recognized what Mr. Charest showed him as emergency fire plans for the Pickering Plant. Mr. Brown questioned whether this was true information. Obviously, Mr. Brown took the information seriously and reported to security personnel at the Pickering Nuclear Plant. Before Mr. Charest and Mr. Brown left the Brown residence to speak to the security personnel, the Defendant knew that this was being treated seriously. Seriously means that the revelation of the images of the fire emergency plans with the Quran and the wording alleged to have been that “the time was now. It was Allah’s will” could mean that people would be afraid of death, bodily harm, property damage or serious interference to property should this be a terrorist act. He could not have concluded any other thought but that such information would cause a reasonable apprehension that terrorist activity was occurring or would occur. Because Mr. Charest knew that the information was false, he was enhancing the fear to be experienced by people, especially involved with security at the nuclear plant. In addition, the terrorist group called the Toronto 18 were the subject of considerable attention by the police and security at the Pickering Nuclear Plant at that time. There was heightened security because of this group prior to Mr. Charest’s revelation. If a person creates a terrorist hoax with respect to a nuclear generating plant that is in southern Ontario where many people live following the September 11, 2001 terrorist attack in New York City, he cannot be mistaken that his actions would cause great fear that a major act of terrorism is about to occur.

[29] With Mr. Charest in count #1, the evidence demonstrates a lack of any lawful excuse on his part. Further, his actions lead to a conclusion that he was passing himself off as a computer expert who had discovered some information about a terrorist attack. He had done some computer work for OPG previously. Whoever discovered a legitimate terrorist plan of attack could not help but be recognized as a skilled and knowledgeable person. One might conclude that since he did not have his landscaping job anymore and since his own computer business had not developed well, Mr. Charest was seeking a way to enhance his computer business.

[30] Because of the inconsistencies in the evidence of Mr. Charest, I do not believe his testimony. Further, it does not raise a reasonable doubt about this allegation.

[31] Count #1 is an allegation that Mr. Charest engaged in the creation of a hoax that terrorist activity was to occur with respect to the Pickering Nuclear Plant. There will be a finding of guilt for this count. It is established beyond a reasonable doubt.

Count #3

[32] Mr. Wright submits that counts 1 and 3 are linked together so that if there were an acquittal to count #1, there ought to be a similar acquittal for count #3. Conversely, it follows that if there is a finding of guilt to count #1 there should be a similar finding for count #3. And I find that to be so.

[33] The actions of Mr. Charest mentioned above did demonstrate an intent to mislead and cause a peace officer to continue with an investigation by reporting that the offence of terrorist activity had been committed when such was not correct. He knew he was making a false allegation. A finding of guilt will be made. As with count #1, I do not believe the Defendant’s testimony which does not raise a reasonable doubt. Count #3 is established beyond a reasonable doubt.

Count #2

[34] Count #2 alleges that Mr. Charest fabricated, with intent to mislead, an image of a Quran embedded with the emergency floor plans of the Pickering Nuclear Generating Station intending it to be used in a judicial proceeding. Mr. Wright submits that there was no judicial proceeding in existence at the time of the allegation. There was no proposed judicial proceeding at the time of these allegations. In R. Sevick, 1930 CarswellNS 35, the Nova Scotia Supreme Court interpreted the former section finding that a judicial proceeding need not have been commenced at the time of the fabrication. Rather, the offence is complete even though proceedings might never be commenced.

[35] I conclude that Mr. Charest made up the evidence intending to mislead authorities. There is a reasonable inference that this information would lead to judicial proceedings wherein someone would be prosecuted for terrorist activity. At that time, the terrorist group called the Toronto 18 were in the news and had led to heightened security by the Pickering Nuclear Station. If there were people to be thought responsible at the time of this revelation, the Toronto 18 group were in that category. He was challenged about making a false allegation and he denied doing so.

[36] The lack of a judicial proceeding does not matter. This information could have been used for such a proceeding.

[37] I do not believe Mr. Charest when he denies such activities. I am satisfied beyond a reasonable doubt that this count is proven.

Conclusion

[38] There will be a finding of guilt on all four counts.

Justice B. Glass

Released: August 14, 2013