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 23 & 24, 2014
Ruling #4: Expert Evidence on Islamophobia
Publication Ban
Publication Ban
An order has been made prohibiting the publication of any information that could identify the undercover officer
Baltman J.
Introduction
[1] Mohamed Hersi is charged with two terrorism offences: an attempt to participate and counselling to participate, both contrary to s. 83.18 of the Criminal Code. The case is to be tried by a jury.
[2] The defence seeks to call Dr. Barbara Perry, a sociologist and university professor, to provide testimony at the trial on the existence of Islamophobia within the GTA and the improper association of terrorism with Muslims.
[3] The court conducted a voir dire on this issue, during which Dr. Perry testified. On February 10th, 2014, I issued a ruling dismissing the application, with reasons to follow. These are my reasons.
Background
[4] On March 29th, 2011, as Mr. Hersi was about to board a flight to Egypt, he was arrested and charged with two terrorism offences: first, that he attempted to participate in the activities of the Somali-based terrorist group Al-Shabaab, and second, that he counselled another (an undercover officer) to do the same.
[5] To prove the charges, the Crown intends to rely significantly on conversations Mr. Hersi had with an undercover officer. The undercover officer was installed in Mr. Hersi’s workplace in October 2010, following a tip from his employer. He “befriended” Mr. Hersi, and over the next several months they had numerous conversations. Until January 28, 2013, the officer’s recollection of those conversations is captured in his detailed notes. Thereafter, with the benefit of a “consent” wiretap authorization, the conversations were recorded verbatim.
[6] The defence alleges that the notes made by the officer prior to any recording contain impressions and conclusions that reflect “an Islamophobic attitude”, and that it is apparent from some of the officer’s comments that he unfairly linked Muslim beliefs to terrorist ideology.
[7] The defence is particularly concerned about numerous occasions where Mr. Hersi is alleged to have warned the officer that they must be discreet about what they say and do, so that people do not conclude they are involved in terrorist activity. The defence maintains that while the officer interpreted those comments as indicative of a guilty mind, a fairer and more accurate interpretation is that they reflect a well-founded awareness by Mr. Hersi of Islamophobia, and thus an understandable concern on his part that his innocent behaviour not be misconstrued.
[8] To support that argument, the defence wishes to elicit evidence from Dr. Perry about the existence of Islamophobia, and the unwarranted tendency to link Muslims with terrorist acts. Such evidence, says the defence, will counteract or at least neutralize the unfairly prejudicial inferences that the officer drew from Mr. Hersi’s alleged comments.
[9] The Crown also seeks to tender evidence of various web searches and electronic documents retrieved from Mr. Hersi’s computer. These include:
• searches about Al-Shabaab and individuals associated with it;
• searches relating to travel to Egypt and from Egypt to Somalia;
• searches/documents on guns, weapons and warfare;
• searches of individuals associated with terrorism;
• searches about Inspire Magazine and its publisher (an Al-Qaeda affiliate).
[10] The defence alleges that given a widespread tendency to link Muslims with terrorism, Dr. Perry’s evidence is needed to educate the jury that Muslims are no more inclined to commit terrorist acts than any other group. Otherwise a jury will draw an unfairly adverse inference from the fact that Mr. Hersi, a Muslim, conducted online searches regarding terrorism and its perpetrators.
Overview of Dr. Perry’s evidence
[11] Dr. Perry holds a PhD in Sociology from Carleton University. She is currently the Associate Dean of the Faculty of Social Science and Humanities at the University of Ontario Institute of Technology (UOIT). Her major areas of study and teaching are hate crimes, identity and justice, and human rights violations. She has written and lectured extensively on race and diversity, hate crimes, Islamophobia, and the victimization of Muslims in Canada. She has never previously testified in court in relation to any of these issues.
[12] She has never interacted with Mr. Hersi or the undercover officer, and in fact knows very little about this case other than it alleges involvement in terrorism.
[13] The following are the highlights of her evidence relevant to this motion:
• Islamophobia is relatively widespread throughout Ontario; she estimates that approximately 30% of the population are distrustful or hold negative views toward Muslims; within that group about one third (i.e. approximately 10% of the overall population) perceive there is a connection between Islam and terrorism;
• She has never broken that analysis down by region, and therefore cannot say whether it is the same within the GTA;
• However, she agrees that people in urban settings who interact regularly with Muslims are more likely to view them positively;
• There is no basis in fact for believing that Muslims are more likely than other religious groups to be involved in terrorism;
• Most people are also very aware that Islamophobia exists in others; however, the people who hold Islamophobic views are unlikely to admit that to others, or even to themselves;
• Despite the alleged “prevalence” of Islamophobia, the vast majority of Muslims (e.g. approximately 80%) do not believe that most Canadians are hostile or hold unfavorable views towards them;
• She knows nothing about the undercover officer involved in this case, including his ethnic origins or religious beliefs; however, she agrees those factors may be very relevant to his susceptibility to Islamophobia;
• She has never met Mr. Hersi and has no information as to whether he has experienced Islamophobia or is concerned about it;
• Without knowing anything about how Mr. Hersi perceives the world or the views held by the undercover officer, she cannot opine on whether this investigation was improperly influenced by prejudicial views against Muslims.
Test for Admissibility
[14] 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.
[15] 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, i.e. it tends to make the existence or non-existence of a fact more or less likely.
[16] 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. At this stage, the trial judge considers the legal relevance of the proposed evidence. In Abbey (para. 82), Doherty J.A. distinguished between logical relevance and legal relevance:
Relevance can have two very different meanings in the evidentiary context. Relevance can refer to logical relevance, a requirement that the evidence have a tendency as a matter of human experience and logic to make the existence or non-existence of a fact in issue more or less likely than it would be without that evidence. Given this meaning, relevance sets a low threshold for admissibility and reflects the inclusionary bias of our evidentiary rules. Relevance can also refer to a requirement that evidence be not only logically relevant to a fact in issue, but also sufficiently probative to justify its admission despite the prejudice that may flow from its admission. This meaning of relevance is described as legal relevance and involves a limited weighing of the costs and benefits associated with admitting evidence that is undoubtedly logically relevant.
[References omitted, emphasis added]
[17] 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, methodology and impartiality. 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.
[18] 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.
[19] 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.
Submissions and Analysis
[20] The Crown does not take serious issue with whether the proposed evidence met the four preconditions in the first step of the analysis. Its major dispute is with the second step, under the cost benefit analysis. It maintains that on the facts of this case, the proposed evidence is highly speculative and largely unnecessary, and therefore of limited probative value. For the following reasons, I agree.
[21] As noted above, on several occasions the undercover officer indicated in his notes that Mr. Hersi advised they should both be careful of what they said, lest people conclude they were terrorists. Mr. Slansky argues that without Dr. Perry’s evidence to the effect that it is reasonable for Muslims to perceive that others associate them with terrorism, the jury will draw an adverse inference and assume those comments are indicative of a guilty mind.
[22] My response to that concern is fivefold. First, given Dr. Perry’s evidence on the voir dire that 4 out of 5 Muslims do not perceive Canadians generally to be Islamophobic, her evidence at trial is not likely to demonstrate that that was the probable explanation for Mr. Hersi’s alleged comments.
[23] Second, even if some Muslims do worry that others will unfairly or inaccurately associate them with terrorism, there is absolutely no evidentiary basis to say that Mr. Hersi thinks that way, or that that influenced any comments he may have made to the undercover officer. Dr. Perry has never spoken to Mr. Hersi and knows nothing about him. More importantly, Mr. Hersi did not testify or advance any evidence on this voir dire regarding the motivation for his comments. Consequently, Dr. Perry’s evidence would be highly speculative.
[24] Third, without evidence from Mr. Hersi to the effect that his comments were misconstrued, there is also no basis to suspect that the undercover officer’s impressions were influenced by antipathy toward Muslims. And Dr. Perry knows nothing about the officer; she agreed that without knowing his background, religion or personal beliefs, she cannot say whether Islamophobia played any role in this investigation. Thus her evidence on this point too would be highly speculative.
[25] Fourth, if Mr. Slansky suspects the officer’s conclusions were tainted by an unfair or stereotypical view of Muslims, he is free to explore that in cross-examination at trial. Ordinary members of a jury can form a correct judgment about prejudice and profiling of Muslims without the assistance of a “social science” expert. They do not require expert evidence to understand that profiling or bias based on race, culture or religion exists. These are well known facts, and well understood concepts; as Dr. Perry stated, most people are well aware of the existence of Islamophobia. Thus, as Doherty J.A. noted at para. 94 of Abbey, this type of evidence is unnecessary:
It seems self-evident that an expert opinion on an issue that the jury is fully equipped to decide without that opinion is unnecessary and should register a “zero” on the “benefit” side of the cost-benefit scale. Inevitably, expert opinion evidence that brings no added benefit to the process will be excluded.
[26] Fifth, and finally, depending on the evidence that emerges at trial, this concern can be addressed with an appropriate cautionary instruction to the jury.
[27] As for Mr. Slansky’s concern regarding the prejudicial effect of evidence of a Muslim reading online material about terrorism, I do not think the jury requires an expert on Islamophobia to tell them that that evidence does not, on its own, prove the knowledge or intention needed to convict Mr. Hersi. That said, when that evidence is placed in the context of someone who has also expressed interest in travelling to a foreign country in order to join a terrorist group, it may be highly relevant. Ultimately that is for the jury to decide. Again, to the extent there is a risk that the jury may place undue weight on that factor, that can be addressed in my instructions.
[28] For all those reasons I conclude the proposed evidence is unnecessary, highly speculative and of little probative value.
[29] I also have some concerns about the reliability of the proposed evidence. I found it very difficult to discern – either from her report or her testimony - the precise evidentiary foundation upon which Dr. Perry opines, or the methodology she used in arriving at her opinion. Her conclusions appear to be based on some combination of focus groups, surveys and interviews of Muslims within Canada, along with an analysis of various media reports (e.g. Maclean’s magazine). She also relies on existing literature in the field. Importantly, the individuals who were interviewed or formed part of the surveys and focus groups were not selected randomly, but were referred by others who had previously participated in the study – creating more of a “snowball” effect than any kind of reliable, random sampling.
[30] She is also inclined to overstate the evidence in order to make her point. For example, in her report she asserted the federal government’s list of terrorist entities identifies “only” Muslim and Tamil organizations. In cross-examination, it was pointed out to her that 9 out of the 49 entities listed (i.e. approximately 20%) fall outside that description. And she stated in her report there are “few, if any” positive images of Muslims in the media, ignoring the highly acclaimed CBC show “Little Mosque on the Prairie”, which ran for six seasons (2007-2012) and was broadcasted nationally and internationally.[^1]
[31] Consequently, despite Dr. Perry’s assertion that her research is evidence based and conforms to proper scientific methodology, that was not apparent either from her report or her testimony.
Conclusion
[32] In sum, I find the proposed evidence both unreliable and highly speculative, and therefore of very limited, if any, probative value. The application is dismissed.
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 #4: Expert Evidence on Islamophobia
Baltman J.
Released: March 5, 2014
[^1]: The show was created and produced by a Muslim woman and featured several positive Muslim characters, including a doctor, professor, businessman and former lawyer.