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: February 12, 2014
Ruling #6: Exclusion of Wiretap Evidence
Publication Ban
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] To prove those charges, the Crown intends to rely extensively on conversations between Mr. Hersi and an undercover officer, the last eleven of which were recorded pursuant to a consent wiretap authorization under s. 184.2 of the Criminal Code. Mr. Hersi seeks to exclude these recordings, on the ground that the affidavit filed in support of the wiretap order did not disclose any basis to grant it.
[3] On February 18, 2014, I issued a ruling dismissing this application, with reasons to follow. These are my reasons.
Factual Allegations
The Investigation
[4] When the investigation began Mr. Hersi was employed as a security guard for Intercon Security, stationed at large office tower in Toronto’s financial district. An employee at Intercon’s drycleaner found a USB key containing what appeared to him to be suspicious documents, including a document entitled “National Defence: Unit Standard Operating Procedures,” (the “DND Manual”) a copy of the “Anarchist Cookbook”, and copies of the Qur’an. The USB key was given to the Director of Security at Intercon, who determined Mr. Hersi was the owner. He then notified the police.
[5] The DND Manual contains sections such as “information operations” and “firepower; the Anarchists Cookbook contains chapters on “Electronics, Sabotage and Surveillance,” weapons, and explosives. Those documents, combined with religious materials, made the police anxious about Mr. Hersi, particularly as he had access to a large office tower in downtown Toronto. They determined that further investigation was required, and installed an undercover officer in Mr. Hersi’s workplace.
[6] The undercover officer “befriended” Mr. Hersi, and over the next several months – from October 16, 2010 to March 25, 2011 - they met on approximately thirty occasions. The last eleven conversations, between January 28th and March 25th, 2011, were intercepted pursuant to the wiretap order.
[7] Over the entire course of their 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.
[8] 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”.
[9] 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 Wiretap Order
[10] On January 25th, 2011, Justice Wong authorized the police to intercept the applicant’s communications with the undercover officer, pursuant to s. 184.2 of the Code. The Order was based on a lengthy affidavit from Detective Constable Richard Warr, which detailed the investigation that had taken place until January 24, 2011. In his affidavit, Warr described the undercover operation as relayed to him by the undercover officer and gleaned from his review of the officer’s notes.
[11] Based on that information, and the fact that Al Shabaab is a listed terrorist entity, Warr sought authorization to intercept Hersi’s communications with the undercover officer. He indicated his belief that Hersi intended to travel to Somalia to join Al-Shabaab, and that Hersi had assumed the role of advisor to the undercover officer.
The Legal Framework
[12] The applicant was intercepted pursuant to s. 184.2 of the Code, which allows a judge to authorize an interception if he is “satisfied” that “there are reasonable grounds to believe that an offence…has been or will be committed”, and that information concerning that offence will be obtained through the interception sought.
[13] An authorization to intercept communications is presumptively valid. The onus is on the applicant to demonstrate invalidity: R. v. Campbell, 2010 ONCA 588, [2010] O.J. No. 3767, at para. 45, Aff’d 2011 SCC 32, [2011] 2 S.C.R. 549; R. v. Sadikov and Harding 2014 ONCA 72, para. 83.
[14] Where, as here, the challenge is solely to the facial validity of the affidavit, the reviewing judge does not go behind the information disclosed. Nor does she review the authorization de novo. The test is well established[^1]:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.
[emphasis added]
[15] “Reasonable grounds” is a lower standard than a “balance of probabilities” or a prima facie case. As Rosenberg J.A. held in R. v. Jacobson, 2006 12292 (ON CA), [2006] O.J. No. 1527 at para. 22: “If the inference of specific criminal activity is a reasonable inference from the facts, the warrant could be issued.”
Submissions and Analysis
[16] Mr. Slansky’s position is twofold: first, the affidavit does not disclose reasonable grounds to believe an offence has been or will be committed; second, the affiant attempted to “bootstrap” grounds into the affidavit based on Islamophobic assumptions. In my view, neither argument has any merit.
[17] Dealing first with the alleged absence of reasonable grounds, Mr. Slansky asserts that the facts set out in the affidavit fall far short of disclosing any acts sufficient to constitute an “attempt” to participate in the activities of a terrorist group. The statements and actions of Mr. Hersi are too inchoate or speculative to constitute an attempt. Moreover, the crime being contemplated is not sufficiently proximate in time. Consequently, the acts or comments described in the affidavit barely amount to an act of preparation, let alone an attempt.
[18] That is not the same record I am looking at. The chart below, adapted from the Crown’s factum, discloses ample evidence from the affidavit upon which the issuing judge, as of January 25th, 2011, might reasonably have believed that participation in terrorist activities “will be” committed:
The evidence
Date it happened
• The applicant recommended that the officer read a particular issue of “Inspire,” a publication produced by Al Qaeda
• He told the officer it should be every Muslim’s dream to become a shaheed (martyr)
• He told the officer not to disclose it to anyone if he had a plan to go to fight
November 19, 2010
• When asked if he would ever consider joining Al Shabaab, the applicant told the undercover officer that every Muslim should seriously consider it
• The applicant told the undercover officer not to tell anyone about his plans
• He told the officer he could not trust anyone, or he could end up in jail, and “whose cause are you helping if you are in jail”
• He told the officer that you cannot get a direct flight to Somalia. He (the applicant) will go to Cairo. The undercover officer should go to Nairobi. From there, it is easy to cross the Somali border with a Canadian passport and get into southern Somalia
December 10, 2011
• The applicant told the undercover officer he was going to Somalia to join Al Shabaab
• He planned to travel to Egypt, on March 1st, and then to “the motherland to join our brothers in Al-Shabaab”
• He would travel to Egypt first, with family, so it would not look suspicious
• The undercover officer should consider booking a two way ticket to make it look like he is returning to Canada
Jan. 7, 2011
• The applicant told the undercover officer he had been planning on joining Al-Shabaab for 4-5 years
• He said he had plans to “come back to Canada and then leave for good”
• He told the officer to have his “alibi” straight to cover his real motive for going
January 14, 2011
• When the officer expressed doubts, the applicant told him not to listen to those thoughts, as the devil puts them in your head
• He said lots of people in that part of the world support Al Shabaab, so all he had to do to join was go to the local Masjid and meet people
January 14, 2011
[19] Most critical, in my view, is the conversation on January 7th in which Mr. Hersi states his intention to go to Somalia to join Al-Shabaab. Importantly, that declaration is directly linked to his impending trip to Egypt. In other words, in less than two months he will make his way to Al-Shabaab in Somalia, by way of Egypt. That is hardly vague, or distant in time; it is specific, and alarmingly soon. That constitutes reasonable grounds to believe he will commit the offence of participation in a terrorist organization, particularly if one keeps in mind that pursuant to s. 83.18(3)(d) of the Code, participating in or contributing to a terrorist group includes “entering” a country “for the benefit of” a terrorist group. With that before him, the judge would have been remiss not to authorize the intercept.
[20] Mr. Slansky correctly observes that there are several other places in the affidavit where Mr. Hersi indicates he is getting a “roundtrip” ticket. He talks about “coming back” from Egypt to continue his schooling, including getting a Master’s degree, so that he can find better employment. At one point he states he is going to Egypt in order to learn Arabic.
[21] I agree that many of those comments can be interpreted to mean that his travelling plans are innocent, and his ultimate goal is to return to Canada and live a productive life. I make three observations, however. First, all but one of those remarks precede the alarming conversation of January 7th; it is natural that as the relationship develops and trust grows, Mr. Hersi would become more revealing about his true intentions, and therefore it is the latter conversations that are more telling.
[22] Second, as the case law makes clear, the authorizing justice makes his or her decision about whether to order the intercept based on the affidavit as a whole, rather than on a piecemeal approach: Sadikov, para. 82; R. v. Spackman 2012 ONCA 905, paras. 222-223. With that in mind, the comment of January 7th must be seen in the context of many other potentially sinister comments by Hersi, as set out in the chart above. This is not a case where the authorizing judge placed undue emphasis on an isolated or unintended remark.
[23] Third, while in the final conversation of January 14th Mr. Hersi states he plans to come “back to Canada”, he adds that thereafter he will “leave for good”. And it is unclear when he is coming back; given the entirety of the evidence, he may be intending to return after he has joined Al-Shabaab. Thus the final conversation is hardly reassuring.
[24] Consequently, I agree with the Crown that the affidavit, as a whole, provides ample basis upon which the authorizing judge could have concluded that participation in terrorist activity has been or will be committed.
[25] I make one final comment in this regard. Even if had doubts about whether the affidavit discloses evidence of sufficient proximity to sustain the “attempt” charge (and I do not), it discloses more than enough evidence of counselling to support the order. On several occasions Hersi advised or instructed the officer on how to become involved in the activities of Al-Shabaab. That alone justified the intercept.
[26] As I noted above, Mr. Slanky’s second argument is that the affiant attempted to “bootstrap” grounds into the affidavit based on Islamophobic assumptions. He refers in particular to the many occasions in which Mr. Hersi cautioned the officer to be discreet about his on-line readings, his travel plans, and his desire to support Al-Shabaab. He repeatedly warned the officer not to do or say anything that might attract attention from the authorities.
[27] The officer inferred from those comments that Hersi had a desire to act surreptitiously, and for an illicit purpose. Mr. Slansky asserts that, on the contrary, they are more logically indicative of a well-founded fear of many Muslims that they will be unfairly accused of criminal activity. Hersi’s reticence, therefore, is both logical and innocent. And the officer’s suspicion of his motives reeks of Islamophobia. If Hersi were white and Christian, the authorities would never have even begun an investigation, let alone attached such nefarious meaning to all his remarks.
[28] In my view, it stretches credulity to interpret some of Hersi’s statements as clearly benign. I note, in particular, his advice to the officer not to trust anyone, or he could end up in jail, and “whose cause are you helping if you’re in jail”, and his instruction to the officer that he should have his “alibi” straight to cover his “real motive” for going abroad. These exhortations appear directly related to discussions about joining Al-Shabaab.
[29] In any case, that there may be alternate explanations for some of Mr. Hersi’s statements does not diminish their value in assessing the sufficiency of the supporting grounds. As the Court of Appeal held in R. v. Lao, 2013 ONCA 285, at para. 59 :
The fact that there may be innocent explanations for certain observations when considered individually does not mean the observations are to be treated as innocuous or ignored. The test is not whether there might be an innocent explanation for an observation but whether the presence of such facts enhances or makes more likely the possibility of a crime.
[30] Consequently, I reject Mr. Slansky’s submission that it is obvious the undercover officer and/or the affiant improperly interpreted events and conversations through an Islamophobic lens. While both men certainly saw many of Hersi’s comments as sinister, a fair reading of the affidavit as a whole provides ample support for both their concern and the authorizing judge’s conclusion.
Conclusion
[31] In sum, the affidavit before the authorizing judge disclosed reasonable, if not ample grounds to believe an offence had been or will be committed. Moreover, I cannot conclude that the officer or the affiant’s observations were improperly influenced by Islamophobic beliefs.
[32] The application is therefore 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 #6: Exclusion of Wiretap Evidence
Baltman J.
Released: March 5, 2014
[^1]: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, para. 56; R. v. Araujo 2000 SCC 65, [2000] S.C.J. No. 65, para. 51