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 18, 2014
Ruling #7: Motion for Particulars
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 in Al-Shabaab, both contrary to s. 83.18 of the Criminal Code.
[2] Mr. Hersi has brought a motion pursuant to s. 587 of the Code for an order that the Crown particularize the counts, with the following additional details:
• The part of Al-Shabaab with which the applicant was attempting to participate or counsel the participation;
• The mode of participation under s. 83.18(3); and
• The means by which this mode was being attempted and counselled.
[3] On February 24, 2014, I issued a ruling dismissing this application, with reasons to follow. These are my reasons.
Factual Allegations
[4] In October 2010, following a tip from Mr. Hersi’s employer, an undercover officer was installed at the applicant’s workplace. The undercover officer befriended Hersi, and over the next several months they had numerous meetings and conversations. Over the course of those conversations, the applicant outlined his plan to travel to Somalia (via Egypt) and participate in Al-Shabaab. It is these conversations that comprise the core of the evidence against Mr. Hersi.
[5] Although it is alleged that the applicant intended to participate in the activities of Al-Shabaab, the exact means of his participation or contribution are unclear. In part, that is because the applicant anticipated being placed within the group according to his particular skills and abilities. As he explained it to the officer, “they can see your qualities….they will put you in position that’s best for your needs”.
[6] 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”.
[7] The applicant was arrested attempting to board a flight to Cairo.
Legal Framework
[8] Section 581(1) of the Code provides that each count in an indictment shall contain sufficient detail of the alleged offence to give the accused “reasonable information” with respect to the act or omission alleged, “but otherwise the absence or insufficiency of details does not vitiate the count.”
[9] Section 583 of the Code stipulates that no count in an indictment is insufficient where, in the opinion of the court, it satisfies the requirements of s. 581. In particular, a count is not lacking only because “it does not specify the means by which the alleged offence was committed.”
[10] However, s. 587(f) provides that particulars may be ordered where the court is “satisfied that it is necessary for a fair trial”, including “further describing the means by which an offence is alleged to have been committed.”
[11] The purpose of particulars is to give the accused reasonable information about the offence charged, so that he can make a full answer and defence. However, particulars are to be distinguished from the Crown’s theory of the case, which it is not bound to prove: R. v. Groot, 1998 2151 (ON CA), [1998] O.J. No. 3674 (C.A.) paras. 14-15. As Watt J. (as he then was) emphasized in R. v. Fatima and Khan, unreported ruling delivered August 26, 2002 (S.C.J.) at para. 40:
To the extent that a demand for particulars is a demand for the prosecution’s evidence, or a specification of the evidence on which the prosecutor relies to prove a particular element of the offence charged, or a basis of liability, the demand must go unanswered.
[12] Watt J. also confirmed that a count “need not specify the nature of an accused’s participation” in an offence. A count that charges an offence in general terms is a valid pleading that leaves open “any mode of participation” in the offence for which there is evidentiary support: paras. 47-48.
[13] Where words used in a count are defined in the Code, those definitions must be read into the charge and considered when assessing the need for further particulars: Rex v. Buck et al, [1932] O.J. No. 398 (C.A.), para. 11. In R. v. Ahmad, [2009] O.J. No. 6149 (S.C.J.), at para. 27, Dawson J. refused a request for further particulars, noting both the extensive Crown disclosure and that terms used in the indictment were defined in the Code:
The difficulty faced by everyone involved in this case is that the definition and charging sections in the anti-terrorism provisions in Part 11.1 of the Criminal Code are written so as to cast a broad net. The statutory provisions are interwoven and somewhat complex. However, both “terrorist activity” and “terrorist group” are defined terms under the Criminal Code. Subject to the constitutional arguments that I am scheduled to hear later concerning the validity of these sections, these definitions provide the accused with a reference point against which to evaluate the lawfulness of the conduct they are alleged to have taken part in. All of that conduct is outlined in the disclosure the Crown has provided to the accused. The comparison of that alleged conduct to the definitions just referred to may require the expenditure of time and effort by all involved, but I cannot say that further particulars are required so that the accused and the court can determine on what basis the accused are liable to be convicted or acquitted. [emphasis added]
[14] Finally, the Crown cannot particularize what it does not know. Where the details of the specific behavior contemplated by the offence charged are not available to the Crown, requiring the Crown to provide particulars would fetter it “with an impossibility”: R. v. Cruickshank, [1992] B.C.J. No. 3063 (S.C.), paras. 5-7, 10.
Submissions and Analysis
[15] The starting place for whether any particulars are required is the wording of the indictment. In this case it sets out the following two offences:
That he did, between the 16th day of September 2010 and the 29th day of March 2011, both dates inclusive, at the City of Mississauga, in the province of Ontario, and elsewhere unlawfully attempt to knowingly participate in or contribute to, directly or indirectly, any activity of a terrorist group (to wit: Al-Shabaab) for the purpose of enhancing the ability of the terrorist group to facilitate or carry out a terrorist activity thereby committing an offence contrary to s. 83.18 of the Criminal Code.
That he did, between the 16th day of September, 2010 and the 29th day of March, 2011, both dates inclusive, at the City of Toronto, in the Province of Ontario, and elsewhere counsel a person, to wit: --------------[1] to knowingly participate in or contribute to, directly or indirectly, any activity of a terrorist group (to wit: Al-Shabaab) for the purpose of enhancing the ability of the terrorist group to facilitate or carry out a terrorist activity contrary to s. 83.18 of the Criminal Code, thereby committing an offence contrary to s. 464 (a) of the Criminal Code.
[16] Consequently, the two counts as currently drafted specify:
• The dates during which the offences were allegedly committed;
• The place where they were allegedly committed;
• The particular offence allegedly committed (i.e. participation) and reference to the specific section of the Code;
• The specific terrorist group with which the applicant attempted to participate and in relation to which he counselled the undercover officer.
[17] Moreover, the terms “participation”, “terrorist group” and “terrorist activity” are defined in the Code. Read into the counts, these definitions provide further particulars and offer the applicant meaningful “reference points” (Ahmad , para. 27). In addition, the applicant has received extensive disclosure, along with a 38 page chronological bail summary.
[18] Although Mr. Slansky identified in his factum three areas where he was seeking particulars, the focus of his submissions was on the “modes” and “means” of Mr. Hersi’s alleged “participation” in Al-Shabaab. He states that so far all the Crown has alleged is that Hersi attempted to join Al-Shabaab. He correctly notes that according to our Court of Appeal in R. v. Khawaja, 2010 ONCA 862 at para. 6, membership in a terrorist group is not a crime. So, he asks, what exactly is Mr. Hersi alleged to have done by way of participation?
[19] I agree with the Crown that it is not obliged to answer that question, certainly not now, and possibly never. I say that for two reasons: first, as Mr. Hersi himself told the undercover officer, his participation in Al-Shabaab had yet to be determined, because he was awaiting direction from its leaders about how to best implement his particular skills. He was offering himself to Al-Shabaab to be used in whatever way they saw fit. That is why he is charged with an attempt to participate.
[20] Second, the absence of particulars regarding the alleged participation does not prevent Mr. Hersi from providing full answer and defence, or doom him to conviction. As the case law makes clear – and as we have canvassed extensively during submissions on previous pre-trial motions on this case -
merely attempting to participate in the activities of a terrorist group is not, on its own, a crime. Another essential element is that such participation, if completed, would have been for the purpose of enhancing the terrorist organizations’ ability to carry out a terrorist activity: see Ruling #2, R. v. Hersi, 2014 ONSC 1217 para. 17.
[21] In my view, Mr. Slansky’s real complaint is not that particulars are lacking, but rather that the evidence does not support the charge in the indictment. In particular, he has repeatedly asserted that the acts alleged are not sufficiently proximate in time to amount to an “attempt”. My response is twofold: first, I have already rejected that argument in my ruling on the wiretap evidence: see Ruling #6, R. v. Hersi, 2014 ONSC 1286, paras. 17-23. Second, if at the conclusion of the Crown’s case Mr. Slansky truly believes that its evidence falls short of what was expected or required, he has the option of seeking a directed verdict.
[22] As I noted above, the Crown is not obliged to share its theory of the case. Nonetheless the Crown did so during submissions on this motion, stating that Mr. Hersi intended to join Al-Shabaab in Somalia for the purpose of enhancing its ability to carry out terrorist activity, and his attempt to enter Egypt was a step along the way.
[23] Mr. Slansky insists that is not enough; he wants the Crown to state that theory in the form of particulars. I believe his real goal is to lock the Crown into a very narrow and specific definition of participation, something Watt J. and other authorities have expressly stated is not required. Again, the Crown has no obligation to specify the means by which the accused committed the offence: Fatima, para. 4; R. v. Govedarov, 1974 33 (ON CA), [1974] O.J. No. 1837 (C.A.), para. 112; whatever the Crown’s theory may be, the trier(s) of fact are entitled to find liability in whichever mode of participation is supported by the evidence.
Conclusion
[24] In sum, the two counts as specified on the indictment, combined with the definitions to be read in from the Code and the substantial disclosure, furnish adequate particulars. The Crown has no additional obligation to specify the precise means of the accused’s intended participation or counselling.
[25] 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 #7: Motion for Particulars
Baltman J.
Released: March 5, 2014
[1] On consent, there is a publication ban on this individual’s name because he was operating as an undercover officer