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 21, 24, and 27 2014

Ruling #9: Admissibility of Military and Ideological Evidence

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 faces 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. He is to be tried before a jury.

[2] Mr. Hersi seeks to exclude various documents found on his laptop computer and details of his internet searching activity that the Crown has indicated it wishes to rely upon at trial. The applicant argues that the proposed evidence is inadmissible because it is irrelevant, constitutes bad character evidence, is unduly prejudicial and/or constitutes a violation of his s. 2(a) and (b) Charter rights. The Crown maintains the documents and searches are admissible to prove motive, purpose, intent and knowledge.

[3] The court conducted a voir dire on this issue. As with the other pre-trial motions on this case, Mr. Hersi did not testify or provide any affidavit evidence.

Factual Background

[4] On March 29, 2011, Mr. Hersi was arrested at Pearson Airport as he was attempting to board a flight bound for Cairo, Egypt. He was charged with having attempted to participate in the activities of the terrorist group Al-Shabaab and with having counseled another person to do the same. That other person happened to be an undercover police officer who had been installed in the applicant’s workplace and had “befriended” him, following a tip from his employer.

[5] To prove these charges, the Crown will be relying on the evidence of the undercover officer who met with the applicant approximately thirty times over the course of the investigation, from October 16, 2010 to March 25, 2011. The last eleven meetings were recorded pursuant to a wiretap authorization. It is alleged that during their conversations, Mr. Hersi outlined a plan to travel to Somalia in order to join Al-Shabaab, and counseled the officer on how he could do the same.

[6] The evidence at issue in this application was obtained as a result of analysis conducted by Cpl. Lonnee of the RCMP, on the laptop computer found in Mr. Hersi’s possession when he was arrested. Cpl. Lonnee is a forensic computer analyst who, since 2003, has been employed full-time with the R.C.M.P.’s Integrated Technological Crime Unit (I.T.C.U.) He testified at the voir dire conducted on this issue. There is no dispute, for the most part, on the reliability of the methods he used to retrieve various documents and records from the computer, or on the accuracy of the results reported by him.

[7] The evidence identified by Cpl. Lonnee as a result of his analysis falls into two categories:

• Documents found on Mr. Hersi’s laptop, some of which Mr. Hersi gave to or discussed with the undercover officer; and

• Internet searches conducted on the laptop.

[8] Importantly, although Mr. Hersi concedes (through his counsel) that he was one of the users of this computer, he denies that he had exclusive access to it; he suggests that other persons with access may be responsible for documents or searches found within.

Governing Legal Principles

1. Relevance

[9] The relevance of proposed evidence must be assessed in the context of the particular facts in issue. As the Supreme Court stated in R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, at para. 38:

Relevance depends directly on the facts in issue in any particular case. The facts in issue are in turn determined by the charge in the indictment and the defence, if any, raised by the accused…To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to “increase or diminish the probability of the existence of a fact in issue.”…As a consequence, there is no minimum probative value required for evidence to be relevant…[Citations omitted, emphasis added]

[10] Although relevance is a legal question for the trial judge, there is no specific legal test to identify relevant evidence. It is a question of logic that will turn on the facts of each case. Consequently, a determination of relevance can usually be made on the basis of counsel’s outline of the anticipated evidence. As stated in Paciocco, D.M. and Stuesser, L. The Law of Evidence, 5 ed. (Toronto, Ontario: Irwin Law Inc., 2008) at p. 30:

There is no legal test for identifying relevant evidence. Relevance is a matter of logic. To identify logically relevant evidence, ask, “Does the evidence assist in proving the fact that my opponent is trying to prove?”

[11] To be admissible the proposed evidence does not need to reach a particular level; it should be considered in the context of the entire case and the competing positions of the Crown and defence. Nor must the evidence have a direct connection to the facts in issue; circumstantial evidence may be equally relevant: R. v. Watson (1996), 1996 4008 (ON CA), 30 O.R. (3d) 161 (C.A.) at p. 171-3.

2. Exclusion of Relevant Evidence

[12] The general assumption is that all relevant evidence is admissible, but that the weight to be given to the evidence is a question for the trier of fact. That is subject to the discretion of the trial judge to exclude evidence where the prejudicial effect outweighs the probative value: R. v. Morris, 1983 28 (SCC), [1983] 2 S.C.R. 190.

[13] The two exclusionary rules that the defence argues operate in this case are the “bad character rule” and the “prejudice rule”.

3. The “Bad Character” rule

[14] Character evidence which shows only that an accused is the type of person likely to have committed the offence is inadmissible against an accused who has not put his character in issue. This is generally evidence that falls outside the conduct alleged in the indictment, and serves no purpose other than to discredit the character of the accused. As the Supreme Court put it in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31:

Evidence of misconduct beyond what is alleged in the indictment which does no more than blacken his character is inadmissible. [Emphasis added]

[15] However, even extrinsic evidence which casts a negative light on the accused will nonetheless be admissible if it is relevant to a material issue and its probative value outweighs its prejudicial effect. If the evidence incidentally demonstrates bad character but is also directly relevant to a key element of the Crown’s theory of the case, it will be admissible as long as its probative value outweighs its prejudicial effect and proper instructions in that regard are given to the jury: R. v. F.F.B., 1993 167 (SCC), [1993] 1 S.C.R. 697, para. 71; R. v. S.G.G., 1997 311 (SCC), [1997] 2 S.C.R. 716, paras. 64, 65 and 69.

[16] Because evidence of extrinsic misconduct is presumptively inadmissible, the onus is on the Crown to demonstrate that such evidence is relevant to another issue in the trial (e.g. motive), and that its probative value outweighs its prejudicial effect: Handy, paras. 55 and 101.

4. The “Prejudice” rule

[17] Evidence which is relevant and therefore presumptively admissible can, nonetheless, be excluded where its prejudicial effect outweighs its probative value, its admission would consume significant time out of proportion to its value, or the likelihood of it confusing or misleading the trier of fact outweighs its reliability: R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670 at para. 98; R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 at para. 18. These factors can be referred to under the umbrella term of “prejudicial effect”.

[18] Where the evidence is presumptively relevant but the accused maintains it is unfairly prejudicial, the onus is on him to demonstrate that its probative value is outweighed by its prejudicial effect: R. v. Riley, [2009] O.J. No. 63 (S.C.J.) at para. 23.

5. Balancing Probative Value against Prejudicial Effect

[19] Regardless of which rule is in play and which party bears the onus, the trial judge ends up conducting the same exercise, namely balancing the probative value of the proposed evidence against its prejudicial effect. The probative value of evidence relates to its ability to prove the proposition for which it is tendered. Probative value cannot be assessed in the abstract: the first step is for the party tendering the evidence to identify specifically what material issue it is relevant to. The issues, in turn, arise from the facts alleged in the charge and the defences being advanced: Handy, paras. 73-4; R. v. Ahmad, 2009 84777 (ON SC), [2009] O.J. No. 6154 para. 49.

[20] The next step requires the court to weigh the probative value against the prejudicial effect. In R. v. L.B., 1997 3187 (ON CA), [1997] O.J. No. 3042 (C.A.), at paras. 23-24, Charron J.A. summarized the factors on the each side. On the probative side, the court should consider the strength of the evidence, the extent to which it supports the inference sought to be made from it, and the extent to which the matters it tends to prove are at issue in the proceedings.

[21] On the prejudicial side, the court should consider how discreditable it is; the extent to which it may support an inference of guilt based solely on bad character (general disposition); the extent to which it may confuse issues; and the accused’s ability to respond to it.

[22] Two types of potential prejudice to the accused should be considered: first, “moral prejudice”, meaning the risk of convicting him because he is a “bad person” or someone generally deserving of punishment, rather than based on proof he committed this offence, or second, “reasoning prejudice”, meaning the potential for the evidence to distract the jury from the actual charge before them.

[23] Importantly, a tendency to prove guilt is not the type of “prejudice” that militates against admission. In making this point in L.B., Charron J.A. cited the following passage from Professor Delisle:

Prejudice in this context of course, does not mean that the evidence might increase the chances of conviction but rather that the evidence might be improperly used by the trier of fact. It is one thing for evidence to operate unfortunately for an accused but it is quite another matter for the evidence to operate unfairly. The trier who learns of the accused’s previous misconduct may view the accused as a bad man, one who deserves punishment regardless of his guilt of the instant offence and may be less critical of the evidence presently marshalled against him. [emphasis added]

6. Admissibility of Documents found in an Accused’s Possession

[24] During submissions Mr. Slansky asserted that none of the documents were admissible unless the Crown could demonstrate that Hersi not only read them but also agreed with them. That is clearly not the law.

[25] The “Document in Possession” doctrine stipulates that if the Crown can prove that a document was in the actual or constructive possession of an accused, inferences can be drawn concerning his knowledge or intent. Moreover, if the accused has acted on the document, by recognizing or adopting it in some way, then it is admissible for its truth. In R. v. Turlon, 1989 7206 (ON CA), [1989] O.J. No. 524 (C.A.), at p. 4, the court adopted the following passage from M.N. Howard et al., eds., Phipson on Evidence, 15th ed. (London: Sweet & Maxwell, 2000), at para. 30-10:

Documents which are, or have been in the possession of a party will, as we have seen, generally be admissible against him as original (circumstantial) evidence to show his knowledge of their contents, his connection with, or complicity in, the transactions to which they relate, or his state of mind with reference thereto. They will further be receivable against him as admissions (i.e. exceptions to the hearsay rule) to prove the truth of their contents if he has in any way recognized, adopted or acted upon them.

[Footnotes omitted, emphasis in original]

[26] See also R. v. Savory (1996), 1996 2001 (ON CA), 94 OAC 318 (C.A.); R. v Emes 2001 3973 (ON CA), 157 C.C.C. (3d) 124 (Ont.C.A.); R. v. Ahmad, 2009 84777 (ON SC), [2009] O.J. No. 6154 (Dawson J.), paras. 12- 38.

[27] More recently, in Ahmad, Dawson J. admitted into evidence numerous articles, documents and videos, many of which were found on the computers of individuals charged with terrorism offences. Justice Dawson concluded (at para. 17) that whether an accused had knowledge of the contents of a document is for the jury to decide. It is not an admissibility issue:

In my view, once possession of the item is established (which in the case of a document requires proof of knowledge of the item but not of its contents) the doctrine provides that knowledge of the contents of the item may be inferred by the trier of fact based on a consideration of all the evidence. However, this is permissive not mandatory and the trier of fact is free to reject such an inference if they decide it is not warranted: Ewart, pp. 245-246, 255-256. [emphasis added]

[28] Consequently, knowledge of the contents of a document is not a precondition to its admissibility. Once the Crown has established possession of the document (i.e. proof of knowledge of the item but not of its contents), knowledge of the contents of the document may be inferred by the trier of fact from all the evidence. In a criminal context, possession of the item is governed by the definition of possession found in s. 4(3) of the Criminal Code: J. Douglas Ewart, Documentary Evidence in Canada (Toronto: Carswell Legal Publications, 1984) at p. 232 – 236.

[29] Mr. Hersi does not dispute that the documents in issue were on his computer, or that he had the computer with him when he was arrested at Pearson Airport. However, he does not admit knowledge of the contents of the documents, or that he was even aware of their presence on his computer. And he specifically does not admit transferring various documents from his computer to a USB key which he then gave to the undercover officer.

[30] In my view, whether Mr. Hersi had knowledge of the contents of the computer and what weight, if any, is to be given them is for the jury to decide. At the very least, the evidence is capable of supporting the inference that he was in possession of the documents and that he conducted the internet searches. He had the laptop with him when he was arrested. It revealed a user profile for “Mohamed Hersi”, along with a spreadsheet titled “Hersi” that contained a worksheet of hours worked and pay received. Several of the documents found on the computer are identical to the documents Mr. Hersi copied onto a USB key for the officer. Although Mr. Hersi maintains (through his counsel) that other people had access to the computer and therefore he may not have been aware of all its contents, there is no evidence before me to that effect. The evidence that does exist strongly suggests the opposite, i.e. it was he and he alone who used the laptop. See Ahmad, paras. 18-23.

[31] Consequently, subject to any concerns about the relevance of the documents found within the computer – which I discuss below – the documents are admissible.

Submissions and Analysis

[32] With those principles to guide me, I will now proceed to apply them to the specific items in dispute. As I noted above, there are two categories of evidence in issue:

a) Documents found on the computer, some of which Mr. Hersi gave to or discussed with the undercover officer;

b) Internet searches conducted on the laptop.

[33] I shall deal with each category in turn.

A. Documents found on the computer

[34] The documents include various electronic books, articles, and manuals. The specific documents in dispute are listed below. The undercover officer will testify that on February 23, 2011, while in his presence, Hersi loaded several of these documents onto a USB key and provided it to the officer. On March 18, 2011, police covertly copied the contents of Mr. Hersi’s laptop computer. Cpl. Lonnee later located each of the above documents in the “books” sub-folder. Documents that Hersi copied and gave to the officer are bolded.

[35] The officer will also testify that they discussed, directly or indirectly, the contents of specific documents. Documents that were allegedly discussed between Hersi and the officer have been underlined.

• Clausewitz Principles of War
• Das Kapital (Karl Marx)
• Fast Food Nation – The True Cost of America’s Diet
• Counterinsurgency (US Army Manual)
• Principles of Guerilla Warfare by Che Guevara
• Anarchy Cookbook Version 2000
• Total Resistance (Swiss Army)
• U.S. Navy Seal Sniper Training Syllabus
• Goebbels – Mastermind of the 3rd Reich
• Inspire Magazine Vol 1 (Summer 2010)
• The Global Islamic Resistance Call, Chapter 8 sections 5 to 7
• Suri: Architect of the New Al Qaeda
• Inspire Magazine Winter Edition

[36] The first question is whether the documents are relevant. In answering that, it is significant that Mr. Hersi disputes that a) he had sole access to the computer; b) he downloaded or accessed these documents; and c) he provided any of them to the undercover officer. It is also clear from Mr. Slansky’s submissions that Mr. Hersi intends to challenge the credibility of the officer in virtually all respects at trial. He alleges the officer has fabricated evidence, in