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 24, 2014
Ruling #8: a) Evidence of Accused’s Political Views
b) Challenge for Cause
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 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] To prove those charges, the Crown intends to rely extensively on conversations between Mr. Hersi and an undercover officer. The officer will testify that in some of these conversations Mr. Hersi expressed sympathy for alleged and convicted terrorists, including Omar Khadr, the Toronto 18, and individuals detained under Security Certificates. Mr. Hersi seeks to exclude this evidence, on the ground that its prejudicial effect outweighs any probative value it might have.
[3] By way of background, Mr. Khadr was 15 years old when he was taken prisoner in July 2002 by U.S. Forces in Afghanistan. He was alleged to have thrown a grenade that killed an American soldier in the battle in which he was captured. About three months after his capture he was transferred to Guantanamo Bay and placed in the adult detention facilities: see Canada v Khadr, 2010 SCC 3. In 2010 he pleaded guilty to war crimes and in 2012 he was repatriated to Canada to serve the remainder of his sentence.
[4] The Toronto 18 is the label given by the media for the 2006 Ontario terrorism case from this jurisdiction. It involved a plot to detonate bombs at the Toronto Stock Exchange, CSIS Headquarters and a military base east of Toronto.
[5] A Security Certificate is a mechanism by which the Government of Canada can detain and deport foreign nationals and non-citizens living in Canada on the basis that they are a threat to national security, amongst other grounds. It leads to the detention of the named individual, and during the review by a Judge of the Federal Court the person may be deprived of some or all of the reasons with which the certificate was issued and instead be represented by a Special Advocate: see Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[6] This request by Mr. Hersi’s counsel was not originally framed as a separate application, as it should have been. Instead, Mr. Slansky raised it in the alternative, as part of his motion to add a related question to the challenge for cause procedure. As he put it in his factum filed on the “Challenge for Cause” motion, the evidence “should be excluded [and] if it is excluded, a challenge for cause on this basis will not be needed.”
[7] As I explain below, Mr. Hersi’s motion is allowed in part; the evidence regarding Khadr and the Toronto 18 is excluded, obviating the need for me to determine whether related questions should be permitted as part of the challenge for cause procedure. However, evidence related to Security Certificates is allowed. Therefore, in the latter part of this decision, I also consider whether that evidence justifies a related question during the challenge for cause procedure.
Factual Background
[8] 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 (the undercover officer) to do the same.
[9] To prove the charges, the Crown intends to rely significantly on conversations Mr. Hersi had with the undercover officer. The 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.
[10] In some of the conversations Hersi expressed sympathy and support for certain public figures associated with terrorism, in particular Omar Khadr, the Toronto 18, and individuals subjected to Security Certificates. With respect to Khadr, he noted that Khadr was only 15 when he was arrested simply for defending himself; that he had undergone many years of torture at Guantanamo Bay, followed by an unfair military trial, and that people were unjustly trying to block his return to Canada.
[11] As for the Toronto 18, Hersi expressed the view that one of the men was receiving an unfairly harsh sentence, far out of proportion to the role he played in the crime. He also stated that several of the men had been set up by paid “snitches”, and still others had very little involvement.
[12] With respect to individuals detained under Security Certificates, Hersi remarked that the practice is unfair because the individuals affected are not told what they are alleged to have done. He opined that the practice is unconstitutional and is being used primarily against Muslims.
A. Evidence of Accused’s Political Views
Submissions and Analysis
[13] The issue here is whether the probative value of this evidence outweighs any prejudicial effect it might have. That requires me to balance the extent to which the proposed evidence supports what is at issue in the case, against any moral prejudice (bad personhood) or reasoning prejudice (unnecessary consumption of time or distraction of jury). A fuller discussion of this balancing process is set out in my companion decision on this case, dealing with the admissibility of military and ideological evidence: see R. v. Hersi, 2014 ONSC 1368, paras. 9-23.
[14] Mr. Slansky’s position regarding this evidence is twofold: first, he argues it is of minimal probative value, because while Hersi expresses sympathy for individuals associated with terrorism, he does so based on concerns about their unfair treatment before the law. He does not approve of terrorists in principle or of terrorist activity.
[15] Second, Mr. Slansky maintains that the proposed evidence is highly prejudicial. This is so both on a moral basis - despite the reasonableness of Mr. Hersi’s views a jury is likely to interpret his comments as approval for terrorists and their actions – and on a reasoning basis, because in order to neutralize those comments and put them in a fair context, significant evidence will have to be led to demonstrate the varied and controversial circumstances of Khadr and the Toronto 18.
[16] The Crown argues the conversations in issue are relevant to demonstrate how the relationship of trust evolved between the two men, and to corroborate the officer’s testimony that Hersi ultimately confided in him that he intended to travel to Somalia to join Al-Shabaab. This alleged statement was made before the wiretap was in place. The Crown maintains that without evidence of these divulgences along the way, the jury may question how Hersi grew to trust the officer with his grand plans, and therefore question whether he ultimately said what is alleged. These earlier conversations, where they share similar views about Khadr and the Toronto 18, are the “stepping stones in the trust building process” between the men. In other words, says the Crown, they are an important part of the narrative.
[17] The Crown also maintains these conversations are relatively “benign”, as they do not demonstrate support for terrorism or terrorist activities. Rather Mr. Hersi is simply expressing sympathy for some of the individuals affected, because of their personal circumstances. When his remarks are seen in context, they do not reflect badly on Hersi.
[18] I disagree with the Crown on both counts. First, the conversations are not essential to the narrative, or to explain how Hersi came to trust the officer over time. Many other conversations along the way arguably achieve that purpose, including those where the following topics were discussed:
• The operation of Islamic law in Somalia;
• Hersi’s family and his mother’s views about violence in Somalia;
• Hersi’s plans to travel to Egypt;
• Hersi’s views about the violence and political unrest in Somalia, and the reasons therefore;
• Hersi’s views about how people view Muslims, and Islamophobia in general;
• Hersi’s belief that people view his Imam as a terrorist;
• Hersi’s rationalization of the practices of Somali pirates;
• The death of Hersi’s relatives during the civil war in Somalia;
• Hersi’s views on articles from Inspire magazine, an Al Qaeda publication;
• Hersi’s friend who went to Somalia to join Al-Shabaab, and later died;
• Hersi’s belief that every Muslim should die fighting for jihad;
• Hersi’s cousin who was arrested trying to blow up a mall in Ohio;
• How to travel to Somalia without raising suspicions;
[19] In addition to those conversations, the men shared several “bonding” activities, such as restaurant meals, attending a mosque together and tickets to a basketball game, all of which undoubtedly helped to build a trusting relationship.
[20] Second, I do not view the opinions Hersi expressed regarding Khadr and the Toronto 18 as necessarily benign. They are at the very least highly controversial. While some people may see Khadr as a child soldier who was unfairly imprisoned and prosecuted, others may be of the view that he both knew about and supported his father’s role in Al-Qaeda operations, and therefore deserved his fate.
[21] As for the Toronto 18, their levels of culpability varied considerably. Several of them had their charges stayed or entered peace bonds; others pleaded guilty; still others were convicted after trial. Moreover, any reference by Hersi to members of that group is likely to trigger some concern amongst jurors, particularly as the defendants in that case were accused of targeting government buildings in the G.T.A., i.e. the very geographic area where the jurors in this case will be drawn from.
[22] This leads to the other problem of admitting such evidence, namely reasoning prejudice. Without an appreciation of the complicated circumstances involving both Khadr and the Toronto 18, a jury might conclude that Hersi was expressing approval of terrorist acts. I therefore agree that if the evidence goes in, Mr. Slansky is entitled, if not obliged, to expand upon it considerably in order to put Mr. Hersi’s apparent sympathies in their proper context. This may well result in a lengthy and complicated analysis of 19 different offenders and their respective roles. I am concerned that this evidence will be both confusing and very time consuming.
[23] In sum, there is very little to be gained and much to be lost in embarking on those subjects. Consequently, I agree with Mr. Slansky that the conversations regarding Khadr and the Toronto 18 should be excluded from evidence.
[24] I arrive at a different conclusion, however, regarding their discussion about Security Certificates, for two reasons. First, this discussion is part of a larger conversation that casts some important light on Hersi’s fear of surveillance. Second, the conversation is not overly prejudicial; it arises on only one occasion, and is not detailed or lengthy. Moreover, Hersi points out that the process is not constitutional, a legitimate point that the Supreme Court of Canada agreed with; the provisions were struck down in 2007 until the special advocate procedure was added: see Charkoui v Canada 2007 SCC 9 and IRPA ss. 77-83.
[25] I therefore conclude that the discussion regarding individuals detained under Security Certificates is admissible.
B. Challenge for Cause
[26] The Crown and defence have already agreed on the following two questions for the Challenge for Cause procedure:
Would your ability to judge the evidence in this case fairly be affected by the fact that the accused is black?
Would your ability to judge the evidence in this case fairly be affected by the fact that the accused is Muslim and he is charged with terrorism related offences?
[27] As an additional part of the challenge for cause, Mr. Slansky also seeks to pose the following question:
- Some evidence in this case will suggest that the accused had sympathetic and supportive views regarding persons subjected to security certificates. Would this affect your ability to judge this case fairly?
[28] I would not allow a challenge for cause question based on Mr. Hersi’s expressed sympathy for people named in a Security Certificate, because I do not see any realistic potential for prejudice to the accused. I consider it highly unlikely that potential jurors will view his criticism of this process as supportive of terrorism or people who engage in terrorism. There is no evidence before me that a widespread bias exists in the community against people who question the validity of Security Certificates. On the contrary, a wide range of people, including parliamentarians and judges, have publicly voiced concern about the process. To the extent any jurors might be biased against someone who criticizes the Certificate process, a proper instruction from the bench should suffice.
Conclusion
[29] The application is allowed in part, as follows:
a) Conversations regarding Khadr and the Toronto 18 are excluded from evidence;
b) Conversation regarding persons subjected to Security Certificates is admissible;
c) No question regarding Mr. Hersi’s views of the Security Certificate process will be permitted as part of the challenge for cause.
[30] As with other motions on this trial relating to the admission or exclusion of evidence, this ruling is subject to revision depending upon how the evidence unfolds at trial.
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 #8: a) Evidence of Accused’s Political Views
b) Challenge for Cause
Baltman J.
Released: March 5, 2014