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 Applicant
Applicant
- and -
MOHAMED HERSI
Paul Slansky, for the Respondent
Respondent
HEARD: January 20, 24, and 27 2014
Ruling #3 (+ Addendum):Expert Evidence on Somalia and Al-Shabaab
Publication Ban
An order has been made prohibiting the publication of any information that could identify the undercover officer
Baltman J.
Introduction
[1] On March 29, 2011, Mohamed Hersi was arrested at Pearson airport as he was about to board a flight to Egypt. He was charged with two terrorism offences: first, that he attempted to participate in the activities of the Somali based terrorist group Al-Shabaab; second, he counselled another person (an undercover officer) to do the same.
[2] To prove these charges, the Crown intends to rely primarily on conversations Mr. Hersi allegedly had with the undercover officer, and the results of computer analysis conducted on a computer Mr. Hersi had allegedly been using in the weeks leading up to his arrest. The Crown anticipates this evidence will demonstrate that Somalia and Al-Shabaab were frequent topics of discussion and internet searches, and that Mr. Hersi not only knew that Al-Shabaab was a terrorist group but that he knowingly attempted to participate -and encouraged another to participate - with the specific intention of enhancing the ability of Al-Shabaab to carry out terrorist activity.
[3] The Crown sought to call Matthew Bryden, an investigator and advisor on peace and security issues in the Horn of Africa, to provide testimony in two areas:
a) Al-Shabaab, particularly its origins, history, location, membership, ideology, beliefs, practices, and recruitment methods;
b) Somalia, particularly its geography, regional divisions, and political organization, and the significance of Al-Shabaab within that context.
[4] The court conducted a voir dire on this issue, during which Mr. Bryden, who is currently located in Nairobi, testified by video link. On February 10th, 2014, I issued a ruling allowing the proposed evidence, with reasons to follow. These are my reasons.
Test for Admissibility
[5] Expert evidence is an exception to the general rule excluding opinion evidence. In R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, the Supreme Court of Canada set out the four criteria to be met before expert evidence can be admitted. The party seeking its admission must demonstrate, on the balance of probabilities, that it is:
I. Relevant to an issue in the case;
II. Necessary to assist the trier of fact;
III. Offered by a qualified expert;
IV. Not the subject of any other exclusionary rule.
[6] More recently, in R. v. Abbey, 2009 ONCA 624, Doherty J.A. introduced a two-step process when considering the admissibility of expert opinion evidence. Doherty J.A. did not alter the Mohan factors, rather he suggested a logical order to their application. In step one, the judge considers the following four “preconditions” to admissibility:
• The proposed opinion must relate to a subject matter that is properly the subject of expert opinion evidence;
• The witness must be qualified to give the opinion;
• The proposed opinion must not run afoul of any exclusionary rule; and
• The proposed opinion must be logically relevant to a material issue.
[7] Provided the proposed evidence satisfies all those preconditions, the court moves onto the second, “gatekeeper” stage, wherein it performs a cost-benefit analysis: the trial judge must decide whether the probative value of the evidence outweighs its prejudice. This involves a limited weighing of the costs and benefits associated with the admission of the evidence: Abbey, para. 82.
Submissions and Analysis
Step One: Preconditions to Admissibility of Matthew Bryden’s evidence
i) Are the areas of proposed evidence, namely a) Somalia and b) Al-Shabaab, properly the subject of expert opinion evidence?
[8] A topic is properly the subject of expert opinion evidence when ordinary people are unlikely to form a correct judgment about it without the help of persons with special knowledge: R. v. Lavallee, 1990 95 (SCC), [1990] 1 S.C.R. 852 at para. 27.
[9] Both Somalia as a country and Al-Shabaab as an organization are topics that arise frequently in Mr. Hersi’s internet browsing and in his conversations with the undercover officer. Without the benefit of Mr. Bryden’s evidence many, if not most, Canadians would be unable to understand the meaning of those references, or place them in context. I therefore easily conclude that these topics are properly the subject of expert evidence.
ii) Is Mr. Bryden a qualified expert?
[10] I find that Mr. Bryden is eminently qualified to testify in the proposed areas. For over twenty three years, he has been actively investigating and reporting on peace and security issues inside the Horn of Africa. A significant portion of his time has focused on Somalia and, in particular, Al-Shabaab. Some of his specific qualifications to testify on those matters include the following:
• He is currently the Chair of Sahan Research, a think tank (employing approximately 20 people) which specializes in research and training on peace and security issues in the Horn;
• He has conducted a detailed study of Al-Shabaab for the U.S. National Defense University;
• He supervised an extensive research, monitoring and verification program in Somalia for a UN agency;
• Between 2008 and 2012 he led a UN sanctions monitoring team investigating a range of threats to security in the Horn of Africa, including insurgency, terrorism, piracy and arms embargo violations;
• As Director of the International Crisis Group he led a research and advocacy team addressing conflict prevention and security issues across the Horn;
• As consultant to a UN Expert Panel on Somalia he investigated the activities of extremist and terrorist groups in Somalia;
• He has developed a wide range of contacts with political leaders, diplomats, military and intelligence officials, intergovernmental organizations and NGO’s across the region;
• He is a regular speaker at international conferences and seminars on peace and security, and has served as an expert witness in several judicial proceedings in the U.S. and Finland;
• He is fluent in Somali, French and English and has authored numerous publications in peer reviewed journals on Somalia, with several articles focusing on Somali terrorism;
• He is frequently consulted by government and media agencies worldwide about Al-Shabaab and its effects on national and international security.
[11] Mr. Slansky has two main objections to Mr. Bryden’s qualifications. First, he argues that Mr. Bryden lacks the necessary expertise, because he reports solely on “what he has been told” by others, rather than on first-hand knowledge or observations.
[12] I disagree. Mr. Bryden has been living and working in the Horn of Africa for over twenty years. It was apparent from his testimony that much of his knowledge is based on field work and first hand observations. He is truly “on the ground”, as opposed to a pure academic who has no direct experience of the region. He is fluent in Somali and fully steeped in the region’s politics, tribal divisions and ethnic tensions. He has developed working relationships with leaders both in government and insurgency groups, including former members of Al-Shabaab. I find he is actively and directly engaged in peace and security issues within the region.
[13] Mr. Slansky’s second objection is that Mr. Bryden is biased, because he previously advocated for the succession of Somaliland, a territory within the northwest region of Somalia that has struggled for self-determination. To support that assertion, during cross-examination he confronted Mr. Bryden with various internet publications and newsletters that criticized Mr. Bryden’s reports to the UN, based on that alleged bias.
[14] My response is threefold: first, many of the publications were of dubious authorship and repute; second, they appeared to be motivated not by a well-founded claim of bias, but rather by individuals associated with organizations identified by the Monitoring Group Mr. Bryden led as violating various UN sanctions. It is somewhat predictable therefore that they bear a grudge against him. Importantly, although Mr. Bryden repeatedly explained to Mr. Slansky that the Group’s lengthy report supported its findings, Mr. Slansky never referred to the report itself, instead relying on the comments of others about what it allegedly contained. That Mr. Bryden was repeatedly hired by the UN to monitor and report on security issues in the region, and continues to this day to be an advisor to the federal government in Somalia, suggests that he has acquired significant credibility around the Horn of Africa, irrespective of those criticisms.
[15] Third, throughout the three hours of cross-examination there was virtually no challenge to Mr. Bryden’s expertise on Al-Shabaab, its organization, or recruitment methods, which are the key areas for which the Crown seeks his evidence. In other words, the alleged bias (regarding Somaliland) is irrelevant to the proposed testimony.
[16] For those reasons I conclude there is no reliable basis to conclude Mr. Bryden lacks the necessary knowledge or independence.
iii) Does the proposed opinion run afoul of any other exclusionary rule?
[17] The proposed expert opinion evidence does not violate any other exclusionary rule.
iv) Is the proposed opinion logically relevant to a material issue?
[18] In Abbey (para. 82), Doherty J.A. distinguished between logical relevance and legal relevance. While logical relevance is a precondition to the admissibility of expert evidence, the threshold for its admission is low; the proposed evidence need only, as a matter of human experience and logic, tend to make the existence or non-existence of a fact in issue more or less likely than it would be without that relevance.
[19] The proposed evidence from Mr. Bryden is logically relevant to several of the essential elements that require knowledge and intent. Specifically:
• Mr. Bryden’s evidence about Al-Shabaab is relevant to the requirement in both charges that Mr. Hersi knew that the group in which he attempted to participate or in which he counselled the undercover officer to participate, is a terrorist group. Although Mr. Slansky has conceded that “a group exists using the name Al-Shabaab which has as one of its purposes the commission of terrorist acts”, he has qualified that by suggesting that Mr. Hersi may have only been interested in a “non-violent” stream of the larger organization. Whether any such stream exists is something Mr. Bryden can likely testify to;
• Evidence concerning Somalia and Al-Shabaab would be relevant to establishing that through his words and actions Mr. Hersi was knowingly attempting to participate in or contribute to the activities of Al-Shabaab, and counselling another person to do the same;
• Evidence regarding Al-Shabaab’s organization, recruitment methods and activities is also relevant to the requirement that Mr. Hersi intended that his participation – and that of the undercover officer’s - be for the purpose of enhancing or facilitating Al-Shabaab’s ability to carry out terrorist activity.
[20] The evidence would also assist in interpreting some of the web browsing activity allegedly carried out by Mr. Hersi. Some of the references contained in the sites, e.g. to particular individuals, locations, and events, cannot be understood by the average person without some background or context.
Step Two: Cost/Benefit Analysis
[21] The trial judge is required to perform a cost-benefit analysis to determine whether the probative value of the proposed evidence outweighs any prejudice that may flow from its admission. The “costs” side of the ledger considers any risks inherent in the admission of the evidence, such as its potential to unduly prolong the proceedings and/or confuse, mislead or distract the triers of fact. Moreover, evidence which approaches the ultimate issue in a case will be subjected to greater scrutiny out of concern that its acceptance by the jury will inevitably lead to conviction: R. v. J.J., 2000 SCC 51, [2000] S.C.J. No. 52, para. 37.
[22] The benefit side of the balancing requires “a consideration of the probative potential of the evidence and the significance of the issue to which the evidence is directed”. In assessing probative value, one must consider the reliability of the proposed evidence, taking into account the witness’ expertise, impartiality, and the methodology used by the expert in arriving at his/her opinion. However, the trial judge is deciding “only whether the evidence is worthy of being heard by the jury and not the ultimate question of whether the evidence should be accepted and acted upon”: Abbey, paras. 87-88.
[23] The cost-benefit analysis also requires consideration of the extent to which the proposed evidence is necessary to a proper adjudication of the underlying facts. An “expert” opinion on an issue that a jury can decide on its own provides no benefit, whereas opinion evidence that is essential to a jury’s ability to understand and evaluate material evidence will be of great benefit: Abbey, para. 93.
[24] After considering those competing factors, I conclude that Mr. Bryden’s research and experience have allowed him to develop a specialized knowledge about Somalia, and specifically Al-Shabaab, that is both necessary to this case and sufficiently reliable to justify his testimony on those topics before the jury. The geography and politics of Somalia, and the history, practices and recruitment methods of Al-Shabaab, are areas outside the scope of a typical Canadian jury. Without that evidence the jury may not fully understand the significance of some of the words and conduct attributed to Mr. Hersi.
[25] For the reasons set out above, I also do not believe his approach or beliefs are tainted by any particular bias. The information he is providing is educational, based on specialized knowledge he acquired through many years of first hand research and interaction with key players on all sides. To the extent he holds any firm opinions about the territory of Somaliland they are unlikely to be relevant to this case: R. v. Shafia 2012 ONSC 1538, paras. 32-35.
[26] I also see little if any prejudicial effect that can flow from the admission of this evidence. The evidence will not be unduly lengthy and it is not likely to confuse or overwhelm the jury. Its primary purpose will be to give necessary context and meaning to the discussions between Mr. Hersi and the undercover officer and to the web browsings undertaken by Mr. Hersi.
[27] Importantly, the Crown does not intend to ask Mr. Bryden’s opinion on the ultimate issue in the case, or even have him address a hypothetical based on the alleged facts of the case. Consequently, Mr. Bryden’s evidence about Somalia and Al-Shabaab, even if accepted in its entirety, would not be dispositive of the verdict, especially if accompanied by clear limiting instructions.
Conclusion
[28] The application is therefore allowed. Mr. Bryden will be permitted to testify on the following areas:
• Al-Shabaab, particularly its origins, history, location, membership, ideology, beliefs, practices, and recruitment methods;
• Somalia, particularly its geography, regional divisions, and political organization, and the significance of Al-Shabaab within that context.
[29] I add a caution, however, regarding the language he may employ in so doing. At several points during cross-examination on the voir dire, in response to questions from Mr. Slansky regarding the potential range of his evidence at trial, Mr. Bryden testified that certain behavior may be “consistent with” Al-Shabaab’s practices, beliefs or methods of recruitment. I echo the concerns expressed by Clark J. at paras. 267-269 of R. v. Gager 2012 ONSC 388, regarding answers indicating that a certain fact is “consistent with” a state of affairs. That language is vague and can be misleading, and therefore generally should be avoided.
Baltman J.
Addendum
[1] After the release of my decision on this motion but prior to the release of my reasons, Mr Slansky asked me to reconsider my ruling in light of the recent Supreme Court of Canada decision in R v. Sekhon, 2014 SCC 15. The decision was released on February 20th, 2014, which was after I had given my ruling on this motion. After hearing submissions from Mr. Slansky and Ms. Jaffe for the Crown, I have decided this case is not cause for reconsideration of my ruling.
[2] The decision in Sekhon does not change my determination that Mr. Bryden is a properly qualified expert to give opinion evidence on Al-Shabaab, particularly its origins, history, location, membership, ideology, beliefs, practices, and recruitment methods; and Somalia, particularly its geography, regional divisions, and political organization, and the significance of Al-Shabaab within that context.
[3] In Sekhon the expert was properly qualified to give testimony on the general background of cocaine importation schemes including distribution chains, primary importation routes, and points of entry in British Columbia. He also described the reasons why drug couriers are used and common practices in their recruitment. Significantly, trial counsel did not object to any of this evidence, nor was any of it challenged on appeal. What was impugned was the testimony that the expert had never encountered a blind courier. This statement was inadmissible as it was not necessary and effectively went to the ultimate issue at trial, the mens rea of the offence: see paras. 18-20 and 77-79.
[4] A similar concern is not present in this case. Mr. Bryden will not be asked to opine on the facts of this case, he will not be asked hypotheticals, and importantly, he will not be allowed to state that certain behavior may be “consistent with” Al-Shabaab’s practices, beliefs or methods of recruitment.
[5] In my view, this request for a reconsideration “based on Sekhon” was nothing more than a renewed attack on Mr. Bryden’s qualifications to opine on various aspects of Al-Shabaab. The argument is the same, and the reasons for rejecting it remain the same: see paras. 10-12 above.
[6] My decision stands.
Baltman J.
Released: March 5, 2014
COURT FILE NO.: CRIM J(S)1557/11
DATE: 20140305
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
MOHAMED HERSI
Ruling #3 (+ Addendum):Expert Evidence on Somalia and Al-Shabaab
Baltman J.
Released: March 5, 2014