ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIM J(S)1557/11
DATE: 20140305
BETWEEN:
HER MAJESTY THE QUEEN
Iona Jaffe/James Clark, for the Respondent
Respondent
- and -
MOHAMED HERSI
Paul Slansky, for the Applicant
Applicant
HEARD: January 10,13, and 16, 2014
Ruling #2: Constitutionality of ss. 83.01 and 83.18
Publication Ban
An order has been made prohibiting the publication of any information that could identify the undercover officer
Baltman J.
[1] Mr. Hersi is alleged to have committed two terrorism offences: first, that he attempted to participate in the activities of a terrorist group (Al-Shabaab); second, he counselled another person to do the same.
[2] Mr. Hersi challenges the constitutionality of various parts of the anti-terrorism provisions. These can be grouped under three headings:
The definition of “terrorist group” as including a “listed entity” (s. 83.01(1)(b));
The definition of “terrorist activity” as including an “attempt” or “counselling” (s. 83.01(1)(b));
The definition of “participating” and “contributing”, and the factors a court may consider in determining same (s. 83.18(3)(b),(d) and (e) and s. 83.18(4));
[3] On February 10, 2014, I issued a ruling dismissing this application, in its entirety, with reasons to follow. These are my reasons. Other than the first item listed - the inclusion of listed entities in the definition of “terrorist group” - the constitutionality of all the impugned provisions has already been upheld by various courts, including the Ontario Court of Appeal and the Supreme Court of Canada. Consequently, these reasons will be fairly concise.
Factual Allegations
[4] In October 2010, following a tip from Mr. Hersi’s employer, an undercover officer was installed at the applicant’s workplace. The undercover officer befriended Hersi, and over the next several months they had numerous meetings and conversations. Over the course of those conversations, the applicant outlined his plan to travel to Somalia in order to join Al-Shabaab, one of the entities listed as a terrorist organization pursuant to the Criminal Code. The applicant explained that he intended to first go to Cairo, then to Puntland in northern Somalia, and ultimately go to southern Somalia in order to join Al-Shabaab. The applicant was arrested on March 29th, 2011, at Pearson airport, while attempting to board a flight to Cairo.
[5] The applicant also encouraged the undercover officer to join Al-Shabaab, and counselled him on how to pursue that goal while avoiding police detection. In particular:
• He told the officer that it was every Muslim’s duty to consider joining Al-Shabaab and that it should be every Muslim’s dream to die as a shaheed (martyr);
• He advised the officer to prepare an alibi to conceal his true motive for traveling to Africa;
• He advised the officer to travel through Kenya, where the officer had connections, and told him how to best get from Kenya into Somalia so that he could link up with Al-Shabaab;
• He warned the officer not to “burn bridges” in Canada as he may be asked to return and “take care” of something, such as people who insult the Prophet;
• He recommended “Inspire” magazine to the officer, an English language online magazine which purports to be published by Al Qaeda; he told the officer that it could teach him how to make bombs;
• He and the officer talked about the bomb making article from “Inspire”, and the applicant told the officer that he did not need to try to make a bomb now because “when you get there they will show you how to make them”.
[6] As noted above, Mr. Hersi faces two charges under s. 83.18: first, that he attempted to participate in the activity of Al-Shabaab, and second, that he counselled another person to participate in the activity of Al-Shabaab.
The Relevant Statutory Provisions
a) The definition of terrorist activity
[7] The definition of terrorist activity is important when dealing with an alleged offence under s.83.18, as the Crown must prove that the accused specifically intended that his participation or contribution would enhance the ability of the terrorist group to facilitate or carry out terrorist activity. The definition of terrorist activity has two parts. First, s. 83.01(1)(a) captures acts committed inside or outside Canada that would constitute offences under Criminal Code provisions incorporating a number of international treaties into our criminal law. That portion has no relevance to this case.
[8] The second part of the definition – s. 83.01(1)(b) – involves an act or omission committed inside Canada for a political, religious or ideological purpose, with the intention of intimidating the public or a government, that intentionally causes death, serious bodily harm or various types of destruction. Importantly for this case, that provision includes a conspiracy, attempt or threat to commit any act or omission, counselling an act or omission and being an accessory after the fact to an act or omission. It does not include conduct that occurs during an armed conflict conducted in accordance with international law.
b) The definition of terrorist group and “listed entities”
[9] Under section 83.01 of the Code a “terrorist group” is also defined in two ways. The first is “an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity”. That is intended to capture ill-defined or nameless entities that engage in terrorist activity despite not (yet) being formally recognized or identified as terrorist groups. The second is a “listed entity”, i.e. an entity included on a list established and maintained by the Governor in Council (pursuant to s. 83.05) reasonably believed to be involved in terrorist activity. Inclusion of an entity on the list is subject to judicial review.
c) The definition of “participating in” or “contributing to”, and factors that may be considered in that determination
[10] Section 83.18(3) sets out a non-exhaustive list of actions that amount to “participating in” or “contributing to” an activity of a terrorist group, as follows. The ones impugned in this motion are bolded:
(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;
c) recruiting a person in order to facilitate or commit
i. a terrorism offence, or
ii. an act or omission outside Canada that, if committed in Canada, would be a terrorism offence;
d) entering or remaining in any country for the benefit of, at the direction of or in association with a terrorist group; and
e) making oneself, in response to instructions from any of the persons who constitute a terrorist group, available to facilitate or commit
i. a terrorism offence, or
ii. an act or omission outside Canada that, if committed in Canada, would be a terrorism offence.
[11] In addition, section 83.18 sets out various factors that can, amongst others, be considered “in determining whether an accused participates or contributes to an activity of a terrorist group”. They include 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;
c) receives any benefit from the terrorist group; or
d) repeatedly engages in activities at the instruction of any of the persons who constitute the terrorist group.
The Essential Elements of an offence under s. 83.18
[12] Section 83.18(1) provides:
Every one who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
[emphasis added]
[13] Counsel agree the provision requires the Crown to prove the following essential elements beyond a reasonable doubt:
a) A terrorist group, as defined in s. 83.01(1), existed;
b) The accused knew it was a terrorist group;
c) The accused knowingly participated in or contributed to, directly or indirectly, any activity of the terrorist group;, and
d) The accused specifically intended that his participation or contribution would enhance the ability of the terrorist group to facilitate or carry out a terrorist activity.
[14] The Crown need not prove the accused knew the specific nature of the terrorist activity that was to be carried out, but must prove a specific intent to have the general effect of facilitating terrorist activity.
[15] In this case the scope of the attempt and counseling provisions must also be considered. Attempts are addressed at s. 24 of the Code. To obtain a conviction for attempt the Crown must establish that the accused (i) intended to commit the offence in question, and (ii) did something to carry out that intention. It is a question of law whether the conduct in issue was an attempt or mere preparation, and thus too remote to constitute an offence: R. v. Root 2008 ONCA 869, para. 94; R. v. Dynar, 1997 SCC, [1997] 2 S.C.R. 462, paras. 73-74.
[16] Counseling also involves a twofold consideration: (i) deliberate encouragement or active inducement, and (ii) an accompanying intent or conscious disregard of the risk inherent in the counseling.
[17] Thus in this case the Crown must prove the following:
a) Al-Shabaab is a listed entity (or an entity as otherwise defined in s. 83.01);
b) Mr. Hersi knew Al-Shabaab was a terrorist group;
c) Mr. Hersi knowingly:
i. Attempted to participate in or contribute to, directly or indirectly, any activity of Al-Shabaab, and that his acts went beyond mere preparation; and he
ii. Deliberately encouraged or actively induced the undercover officer to participate in or contribute to, directly or indirectly, any activity of Al-Shabab
d) Mr. Hersi specifically intended that
i. His participation or contribution, if completed, would enhance the ability of the terrorist group to facilitate or carry out a terrorist activity.
ii. The undercover officer’s participation would enhance the ability of the terrorist group to facilitate or carry out a terrorist activity.
Issue #1: The Listing of Al- Shabaab as a Terrorist Group
[18] The applicant claims that by defining “terrorist groups” to include listed entities, s. 83.01 offends the presumption of innocence and is overbroad. Specifically, he asserts that the listing of any particular group obviates the need for the Crown to prove that such group is in fact engaged in terrorist activity.
[19] My first comment is that given Mr. Slansky’s concession that there is a group known as Al-Shabaab that has as one of its goals the commission of terrorist activity, this issue is largely moot. With that concession the Crown need not resort to the listing and instead can proceed on the basis that it meets the definition of a “terrorist group” under s. 83.01, namely “an entity that has as one of its purpose or activities facilitating or carrying out any terrorist activity.”
[20] However, Mr. Slansky has tried to qualify that concession by suggesting that because Al-Shabaab is not necessarily a homogenous group, it may be that the particular stream that Mr. Hersi is alleged to have joined is not involved in terrorist activity, and therefore would not be captured in the definition.
[21] I find that qualification highly implausible. A “terrorist group” is defined as an entity that has as one of its purposes the facilitation of any terrorist activity. Thus even if Al-Shabaab can be described as a large entity containing different sub-groups with different objectives, if any one of the sub-groups operating under that name is directed to any form of terrorist activity then the entire organization is captured within the definition.
[22] Even without that concession, my second observation is that in the context of an offence under s. 83.18, the Crown is not relieved of any burden by relying on the “listed entity” aspect of the definition of terrorist group. Given the essential elements described above, it is apparent a trier of fact could not find an accused guilty without concluding that a listed entity engaged in terrorist activity.
[23] As noted above, to be convicted under s. 83.18, a person must know that the group with which they are participating is a terrorist group, and act for the specific purpose of enhancing the ability of the terrorist group to carry out a terrorist activity. To make those findings, a trier of fact would necessarily have to be satisfied that the listed entity engages in terrorist activity.
[24] Nor does the listing make the definition of a terrorist group overbroad. Membership in a terrorist group is not, in itself, an offence. No crime is committed under s.83.18 unless the accused not only knew of the group’s existence but also participated in it for the purpose of enhancing its ability to carry out terrorist activity. The offence thus requires an act to be done with a specified degree of knowledge and for a specific purpose.
Issue #2: Definition of “Terrorist Activity” to include “attempt” or “counselling”
[25] Mr. Slansky’s attack on the inclusion of “attempt” and “counselling” is threefold: first, that the terms are overly broad; second, they are beyond criminal law powers; and third, they violate s. 2(a) and (b) of the Charter. Importantly, all three of those prongs turn on his perception that the inclusion of “attempt” and “counselling” renders the offence “an inchoate upon an inchoate”. In my view, that characterization is fundamentally wrong, and therefore his entire argument must fall.
[26] The only way “attempt” and “counselling” can amount to “an inchoate upon an inchoate” is if the offence contained within section 83.18 is itself inchoate. It is not. As the Supreme Court said in R. v. Khawaja, 2012 SCC 69, [2012] S.C.J. No. 69, paras. 61-63, there is nothing inchoate about it:
Here, there is no problem of remoteness from a substantive offence because Parliament has defined the substantive offence, not as a terrorist act, but as acting in ways that enhance the ability of a terrorist group to carry out a terrorist activity.
The breadth of the impugned provisions reflects Parliament’s determination that “there is substantive harm inherent in all aspects of preparation for a terrorist act because of the great harm that flows from the completion of terrorists acts”: R. v. Ahmad (2009), 2009 ON SC, 257 C.C.C. (3d) 199 (Ont. S.C.J.), at para. 60. …The criminalization under s.83.18 of a broad range of interactions that have the potential – and are intended to – materially enhance the abilities of terrorist groups is not grossly disproportionate nor overbroad in relation to the objective of prosecuting and, in particular, of preventing terrorism.
[emphasis added]
[27] So while it is true that the Supreme Court did not deal with the terms “attempt” or “counselling” in Khawaja, its finding that participation in or contribution to a terrorist group is itself a substantive offence means that an attempt or counselling to participate in or contribute to a terrorist group is, at most, an inchoate upon a substantive.
[28] This is entirely consistent with the view taken by our Court of Appeal in United States of America v. Nadarajah, 2010 ONCA 859, [2010] O.J. No. 5473, at para. 31:
…Section 83.18 creates a substantive offence. It requires proof of conduct, participation in or contribution to the activity of a terrorist group that goes beyond inchoate liability, such as conspiracy or counselling. Nor is liability imposed for anything short of the completion of the actus reus with the requisite mens rea. Section 83.18 is by any measure a substantive offence.
[emphasis added]
[29] The existing law with respect to attempts and counseling, combined with a correct interpretation of s. 83.18, ensures that criminal sanctions do not flow from innocent interest in terrorist groups or benign efforts to associate with them. The chart below, reproduced from the Crown’s factum, answers most of the concerns regarding the application of attempts or counselling to s. 83.18 offences.
The applicant’s claim regarding the attempts or counseling as applied to s. 83.18 offences
The law’s pre-existing response
It amounts to criminalization of intent without an actus reus (Applicant’s factum, para. 23)
Intent without an act is not an attempt. One is only guilty of an attempt if they have committed an act or omission going beyond mere preparation.[^1]
It criminalizes mere presence or association (Applicant’s factum, para. 28)
It is not an offence to belong to a terrorist group. The requirement of a specific mens rea, as set out in Khawaja, means mere association is not criminalized: “To be convicted, an individual must not only participate in or contribute to a terrorist activity “knowingly”; his or her actions must also be undertaken “for the purpose” of enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity … To have the subjective purpose of enhancing the ability of a terrorist group to facilitate or carry out a terrorist activity, the accused must specifically intend his actions to have this general effect.”[^2]
It creates liability without actual knowledge of the criminal risk in which you are involved – it can criminalize ignorance (Applicant’s factum, para. 32, 68, 69)
Ignorance is not criminalized: “s. 83.18 applies to persons who, by their acts, contribute to or participate in what they know to be the activities of what they know to be a terrorist group. In addition, those acts must be done for the specific purpose of enhancing the ability of that terrorist group to facilitate or carry out activity that falls within the definition of terrorist activity.”[^3]
It could criminalize “talking about the possibility of joining a terrorist group.” (Applicant’s factum, para. 62)
Such conduct does not constitute counseling, which requires “active inducement or advocacy, not merely the description of the commission of an offence,” as well as “nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counseling.”[^4]
[30] The underlying theme to all of Mr. Slansky’s submissions regarding attempts or counselling is that conduct that poses no real risk of harm will be criminalized. But this was expressly addressed in Khawaja, at paras. 49-51, where the court stipulated that only conduct that a reasonable person would view as capable of materially enhancing the ability of a terrorist group to commit a terrorist act would be captured. If the completed act reaches that threshold, then an attempt to do that act or counseling another to do that act creates similar risk.
[31] If, on the other hand, the conduct in issue creates no risk or a negligible risk of enhancing the ability of a terrorist group to commit a terrorist act, then any attempt at such conduct will also not be captured.
Issue #3: The definition of “participating” and “contributing”, and the factors a court may consider in determining same
[32] Mr. Slansky submits the meaning of these provisions is unclear, and that they potentially go far beyond what is necessary to prevent and prosecute acts of terrorism. Consequently, he argues, they are both vague and overbroad.
[33] Again, this fails to account for the limits of the actus reus of s. 83.18. The various activities described in s. 83.18(3) are amongst a non-exhaustive list of acts that may logically constitute “participating” or “contributing”. As our Court of Appeal observed in Nadarajah, at para. 18, the conduct described “falls within the normal meaning” of those terms. Whether such conduct reaches the level needed to establish the actus reus will depend on the facts of the particular case.
[34] Nor do the factors listed in s. 83.18(4) that “may” be considered in this assessment expand the normal meaning of “participating” or “contributing”. On any common sense basis they may be relevant. If they are present at all, it will be for the trier of fact to decide whether they assist in the assessment, and to what extent. Again, Nadarajah is instructive: “Section 83.14(4) does not expand the meaning of participation or contribution. It simply allows the court to ‘consider’ the factors identified in the subsection. The extent to which these factors assist in proving participation or contribution will depend on the circumstances.” (para. 19)
[35] Mr. Slansky complains that the provisions criminalize merely “breathing”, or “existing”, or “talking”. These comments are similar to the submissions he previously made to Dawson J. in Ahmad: see paras. 28-31. They were unmeritorious then and remain so today, for the simple reason that they ignore the essential elements of s. 83.18, particularly the necessary mens rea. Mr. Hersi can breathe, exist or talk wherever and with whomever he wishes, provided he does not do or say anything that he knows may in some material way enhance a terrorist organization’s ability to carry out any terrorist activity, and do it for that purpose.
[36] Mr. Slansky submits you cannot cure a defective (i.e. overly broad) actus reus by applying the relevant mens rea. I have two responses: first, for the reasons already stated by the Supreme Court and our Court of Appeal, there is nothing defective in the actus reus of this provision; second, it is false and misleading to interpret any offence solely by reference to the actus reus. Reference to the mens rea is both a proper and necessary limit to the potential breadth of the offence. As the court stated at paras. 22 and 27 of Nadarajah:
The ambit of the crime created by s.83.18 is not defined exclusively by its actus reus. The mens rea must also be considered.
The two mens rea components [i.e. that the acts of participation be done knowingly, and that the accused have the ulterior intention of enabling the commission of a terrorist activity] considered in combination require a specific and high degree of moral culpability. In our view, the mens rea components serve to significantly narrow the true reach of the offence created by s. 83.18.
[37] Mr. Slansky asks, rhetorically, how an accused can possibly be guilty of facilitating a terrorist group if he never communicated with anyone in that group. He argues there must be at minimum some contact or association with a member of the group. Again, that ignores that both an “attempt” to participate and “counselling” someone to participate are expressly prohibited under s. 83. It matters not whether an accused had any contact with any member of the terrorist group, provided he attempted to participate or counselled someone to participate for the specific purpose of enabling the group to carry out a terrorist activity. This is in keeping with Parliament’s goal of preventing the devastating harm that may result from terrorist activity. It therefore criminalized a wide range of actions that have the potential – and are intended to – materially enhance the abilities of terrorist groups: Khawaja, paras 62-63.
[38] Interestingly, and consistent with that objective, in July of 2013 Parliament amended the legislation to include a specific prohibition against leaving or attempting to leave Canada to participate in the activity of a terrorist group (83.181). As the Interpretation Act[^5] makes clear, this subsequent amendment cannot be taken to suggest that the law existing when Mr. Hersi was charged did not criminalize such behavior: United States of America v. Dynar, 1997 SCC, [1997] 2 S.C.R. 462, at paras 45-46.
[39] During argument Mr. Slansky repeatedly asserted that “the most” the indictment alleges is “an attempt to become a member of Al-Shabaab”, and consequently innocent conduct has been criminalized. That is profoundly incorrect. Membership in a terrorist organization is not criminalized under the Code, and Mr. Hersi has not been charged with anything of the sort.
[40] Mr. Slansky posed various hypotheticals to support his argument that the legislation is overly broad, including a waitress serving coffee to known terrorists, and a doctor providing free medical services to a hospital in Gaza being run by Hamas, thereby freeing up money that Hamas would otherwise spend paying medical workers to instead amass bombs targeting innocent civilians.
[41] These examples are very similar to the ones he raised unsuccessfully before Dawson J., and I would dismiss them for the same reasons (see Ahmad, paras. 76-84). In brief, both scenarios fail to account for the fact that providing a service or skill for the benefit of a terrorist group is not a crime unless it is accompanied by the intention of enabling the terrorist group in question to commit a terrorist act. As our Court of Appeal observed at paras. 23-24 of Nadarajah, not all activities of a terrorist group are terrorist activities:
Even if the acts of participation or contribution are done knowingly, they are not captured by s. 83.18 unless they are done with the further and specific intent of improving the ability of a terrorist group to