COURT FILE NO.: CRIM J(S)1557/11
DATE: 20140724
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Iona Jaffe/James Clark, for the Respondent
Applicant
- and -
MOHAMED HERSI
Paul Slansky, for the Applicant
Respondent
HEARD: May 21, 2014
Ruling #11: Lost Evidence
Publication Ban
An order has been made prohibiting the publication of any information that could identify the undercover officer
Baltman J.
Introduction
[1] On March 29, 2011, Mohamed Hersi was arrested at Pearson airport as he was about to board a flight to Egypt. He was charged with 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. On May 30, 2014, following a two and a half month trial, the jury returned guilty verdicts on both counts.
[2] In the period leading up to these charges Mr. Hersi was working as a security guard in an office building in downtown Toronto. This case was triggered by the discovery of various documents on Mr. Hersi’s USB key, which was found at the dry cleaners where his uniform was being cleaned. As a result the police got involved and, on October 16, 2010, an undercover officer (“UC”) was installed at Mr. Hersi’s workplace under the pretext of conducting an audit. The UC “befriended” Mr. Hersi, and they soon began to spend time together both at work and outside.
[3] The UC was the Crown’s key witness at trial. He met with the accused on approximately 30 occasions, the last 11 of which were recorded pursuant to a wiretap authorization. Over the course of their relationship the accused and the UC exchanged numerous text messages. The UC also kept a written record of those exchanges in his notes.
[4] The accused seeks a stay of proceedings because the UC deleted one or more of the text messages from his phone and the police have been unable to retrieve any data from the UC’s phone.
[5] Counsel argued this motion on May 21^st^, after all the trial evidence had been heard but before the jury was charged. Further evidence was led on the motion. On May 23, 2014, I dismissed the motion, with reasons to follow. These are my reasons.
The Legal Framework
[6] Consideration of a lost evidence or “Carosella” application involves two steps. First, the Court considers whether there has been a breach of the right to make full answer and defence, as protected by s.7 of the Charter. Second, the Court considers the appropriate remedy. A stay of proceedings is reserved for the clearest of cases where it is necessary in the interests of justice: R. v. Carosella, [1997] 1 S.C.R. 80.
i) Establishing a breach or an abuse of process
[7] The Crown’s duty to disclose all relevant information in its possession gives rise to an obligation to preserve relevant evidence. When the prosecution has lost evidence that should have been disclosed, the Crown has a duty to explain what happened to it. If the evidence was not lost or destroyed due to unacceptable negligence, or the police conduct was reasonable, the duty to disclose has not been breached.
[8] In determining whether the police conduct was reasonable, the Court should consider the circumstances surrounding the lost evidence, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in trying to preserve it: R. v. La, [1997] 2 S.C.R 680, paras. 20 -21; R. v. Satkunananthan, [2001] O.J. No. 1019 (C.A.), para. 75.
[9] A failure to produce evidence may also be an abuse of process where it involves a serious departure from the Crown’s duty to produce evidence. One example – although not an exhaustive one – is the deliberate destruction of evidence in order to evade disclosure, as occurred in Carosella. See La, para. 22.
[10] Even where the Crown has not breached its duty to disclose, the loss of a document may, in extraordinary circumstances, be so prejudicial that it impairs the right of an accused to receive a fair trial. To make out a breach of s. 7 of the Charter on the ground of lost evidence, the accused must establish actual prejudice to his right to make full answer and defence: La, para. 24
ii) The appropriate remedy
[11] Given the societal interest in a verdict on the merits, a stay is rarely granted. Whether the case involves a s. 7 breach because of failure to disclose, or an abuse of process, a stay will only be granted in the clearest of cases, where the failure to disclose has irreparably prejudiced the right to full answer and defence or irreparably harmed the administration of justice: La, para. 2; R. v. Knox, [2006] O.J. No. 1976 (C.A.) para. 32.
[12] The fact that a piece of evidence is missing that may be of some relevance to the defence does not establish irreparable harm. Actual prejudice only occurs when the lost evidence prevents the accused from putting forward a defence. While a defence may be more difficult as a result of the missing evidence, that alone does not constitute irreparable harm: R. v. Bradford, [2001] O.J. No. 107 (C.A.) at paras. 7-8.
[13] In determining whether actual prejudice exists the Court must consider whether there has been an adequate substitute for the missing disclosure. Where the contents of the missing disclosure are produced in another form and disclosed to the defence, any impairment to the right to make full answer and defence will not justify a stay: Satkunananthan, at para. 84
The Factual Framework
[14] Much of the pertinent evidence is undisputed, highlights of which are contained in an agreed statement of fact filed at trial. To summarize:
• The UC and Mr. Hersi first met on October 16, 2010; from that date until March 25, 2011, they met on approximately 30 occasions.
• The last eleven conversations, between January 28^th^ and March 25^th^, 2011, were intercepted pursuant to a judicial wiretap order.
• At the beginning of the investigation the UC was issued a cellphone; during their relationship the UC and Mr. Hersi exchanged numerous text messages on that phone;
• The UC testified that throughout the investigation he transcribed into his notes a verbatim record of all text messages exchanged with Mr. Hersi, which has been disclosed to the defence.
• That record, if it is accurate, indicates that their text exchanges were brief and mostly consisted of idle chatter or arrangements about where and when to meet;
• At trial both the UC and his “handler”, Officer Mancuso, testified that on one occasion in October 2010, near the beginning of the investigation, the UC deleted text messages exchanged that day, not realizing he was supposed to maintain them. When Mancuso learned of this she instructed him to preserve all future messages.
• The UC testified that he did not delete any further messages beyond that October date; however Constable Warr, in his affidavit of January 2011 in support of the wiretap order, stated that the UC deleted all text messages up to December 10^th^, 2010.
• Once interceptions began on January 28^th^, 2011, the text messages exchanged between the UC and Mr. Hersi were intercepted and transcribed by civilian monitors; the UC also continued to transcribe each text message exchange in his notes.
• The UC turned in his cellphone at the conclusion of the investigation; however, the Toronto Police Service could not locate any data that may have been saved on that telephone, including text messages sent and received between December 10^th^, 2010 and January 28^th^, 2011.
• Detective Peter Wehby was in charge of the undercover operation section of the Toronto Police Service at the time this investigation concluded; in his experience, it was not then a common occurrence to download data from the phones of UC operators.
• Det. Wehby recalls that he asked Constable Mancuso to back up the data from the UC’s phone; he thinks she may have misunderstood him to mean “back up” the phone by ensuring the officer’s notes were complete.
• After the investigation was over, Wehby searched for the data from the UC’s phone; he located the SIM card but the Toronto Police Technological Section did not have a record of data being downloaded from the phone.
• Mr. Hersi testified that he no longer had access to text messages from his phone relating to that period.
[15] The only real evidence in dispute concerns whether the UC deleted text messages from only one day, as he maintained at trial, or whether he deleted all the text messages up to December 10^th^, as asserted by Constable Warr in his affidavit of January 24, 2011.
[16] In my view it is likely that Warr’s affidavit contains the more accurate version, as it was prepared in the midst of the investigation, when memories were fresh, whereas the UC’s evidence at trial came over three years later. Ultimately this matters little, because even on the assumption that Warr’s version is correct, for the reasons set out below I am satisfied that a) there was nothing of consequence in the texts, and b) whatever information was in them was fully transcribed in the UC’s notes.
Submissions and Analysis
[17] The defence urges me to arrive at two conclusions from the evidence: first, that the UC intentionally deleted text messages that would incriminate him (the UC), and second, that the police then deliberately “lost” the UC’s phone containing any remaining text messages, in order to hide evidence that would help the defence.
[18] What is the evidence from the cellphone that the UC and his bosses allegedly wanted to conceal? According to Mr. Hersi’s testimony at trial, it consisted primarily of text messages from the UC to Hersi in which the UC overtly mentions Al-Shabaab and Omar Hammami, an American citizen who became a fighter and recruiter for Al-Shabaab. The defence maintains these messages would demonstrate that it was the UC who extolled the virtues of Al-Shabaab and counselled Mr. Hersi to become a terrorist, not the other way around.
[19] In my view, there is no merit to that theory. It is highly unlikely the UC would have broached such topics in text messages, for the simple reason that it would have scared off Mr. Hersi. As the evidence at trial demonstrated, Mr. Hersi was extremely surveillance conscious. He frequently cautioned the UC to not trust anyone or openly discuss controversial topics. When just the two of them were alone in a car on January 28, 2011, Mr. Hersi would not even utter the word “Shabaab” or “Somalia” out loud. Instead, he told the UC “we’re gonna speak like this” and referred to the location as “there”. He then proceeded to tell the UC how new recruits get assigned positions within Al-Shabaab.
[20] On February 22, 2011, in the context of warning the UC not to trust anyone, he told the UC “remember, don’t say anything on your emails that will incriminate you…” The UC replied “Uh I don’t think I have…” Significantly, Mr. Hersi didn’t contradict the UC on that point by reminding him of all the allegedly “incriminating text messages” he had previously sent. Mr. Hersi’s explanation at trial, to the effect that he drew a distinction between incriminating emails and incriminating texts, strikes me as utter nonsense. He did not contradict the UC on this point because the UC had not sent either version.
[21] Even as late as March 1^st^, after the men had known each other for several months and Mr. Hersi believed the UC was a true friend, when the UC mentioned the name “Mr. Hammami” Mr. Hersi cautioned him to “speak in ambiguous terms always”.
[22] Given that level of vigilance, it is incredible that Mr. Hersi would have tolerated overt references to Hammami in text messages.
[23] Moreover, it would have been contrary to the UC’s interests to jeopardize the investigation or do anything to compromise his credibility. For all he knew, Mr. Hersi may have been keeping all the text messages exchanged, or one of their phone providers may be storing them. He would then have been taking an enormous risk lying about the content of the text messages.
[24] Finally, even without those factors, I would give no credence to Mr. Hersi’s assertion that the texts contained anything substantive, because after observing him testify for ten days I found him to be an entirely untrustworthy individual, whose evidence was riddled with contradictions. Some examples include:
• Although Mr. Hersi testified that between November and early January the UC urged him to join Al-Shabaab on several occasions, that is not heard even once in the recorded conversation;
• While in examination in chief he declared he was not interested in living in Somalia, on the wiretap he told the UC that “living in Somalia today is much better than living in Toronto ‘cause when you live in a place where there’s Islamic law, there’s harmony, there’s no more raping or murder’.”;
• In his evidence in chief, Mr. Hersi denied warning the UC not to read Inspire magazine (an online English magazine published by Al Qaeda that promotes a radical interpretation of Islam) because he could go to jail; however, on March 1, 2011, while reading Inspire magazine on the UC’s laptop, he was recorded telling the UC to delete an article from the magazine because “that’s some illegal shit right now”;
• Despite working as a security guard at the time and knowing that the UC was determined to join a terrorist group, he did not alert his boss or his co-workers about the dangerous person in their midst;
• Although Mr. Hersi insisted that he tried repeatedly to dissuade the UC from joining Al-Shabaab 4 or 5 times until January 2011, not once do we hear that in the recorded conversation.
[25] For all those reasons I accept the UC’s evidence that there was nothing of substance in the text messages that would have incriminated the UC or the police force behind him. They consisted of innocuous exchanges that were recorded verbatim in his notes throughout the investigation.
[26] With those findings in place, I turn to the two pronged analysis mandated by the case law:
i) Has there been a breach of the right to make full answer and defence?,
ii) If so, what is the remedy?
i) Was there a breach?
[27] Both the UC and the Toronto Police Force clearly erred: the UC failed to maintain some of the earlier messages on his phone and the police failed to recover any of the phone data after the investigation ended. This was a careless mistake on both their parts. However, I do not consider their behavior, individually or collectively, to constitute “unacceptable negligence”. I say this for two reasons.
[28] First, Det. Wehby’s evidence was that at the time this investigation ended, it was not common for police to download data from undercover officers’ cellphones. This was the first case in which he asked for this to occur. He acknowledged that in hindsight he could have given clearer direction, as his instructions were not followed. He attributed that to it being a new procedure. His evidence in that regard was uncontradicted and I accept it.
[29] Second, at the time the text messages were being exchanged, there was no reason for the police to anticipate their contents would be controversial. I have already found that they contained nothing of substance, and were used solely to set up meetings or for casual chitchat. While it would have been preferable for the UC and his overseers to preserve that evidence nonetheless, I accept that at the time they did not believe it to be of much significance to the investigation.
[30] I therefore conclude there has been no breach of the accused’s right to make full answer and defence. Normally that would end the inquiry. However, in case I am wrong in concluding there was a reasonable explanation for the lost evidence, I will consider the issue of remedy.
ii) What is the remedy?
[31] Even if one viewed the police conduct here as unreasonable, this is not a case for a stay.
[32] First, the integrity of the justice system has not been irreparably harmed. The Crown did not intentionally permit the texts to be destroyed. And nothing in the record suggests that any of the officers involved (the UC, Mancuso, or Wehby) harbored a sinister motive, or displayed a “systemic disregard for the prosecution’s obligation to preserve relevant evidence”: R. v. Bero, [2000] O.J. No. 4199 (C.A.) at para. 45. Collectively, their evidence at most demonstrates careless handling of cellphone preservation without any belief that the phone contained anything of value.
[33] Nor was the accused’s right to make full answer and defence impaired here. Aside from the bare assertion of the defence that the material could somehow have been used to undermine the UC’s credibility, there is no basis whatsoever to conclude they were likely relevant. On the contrary, as I indicated above, there is strong evidence to support the UC’s contention that the text messages were brief and insignificant exchanges.
[34] Finally, in this case there is an adequate substitute for the missing disclosure. I accept the UC’s evidence that he fully recorded the contents of the text messages in his notes; he had no reason not to, and it would be consistent with the very detailed note taking that he conducted of each of his meetings with Mr. Hersi throughout the investigation.
Conclusion
[35] For those reasons the motion was denied.
___________________________
Baltman J.
Released: July 24, 2014
COURT FILE NO.: CRIM J(S)1557/11
DATE: 20140724
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
MOHAMED HERSI
Ruling #11: Lost Evidence
________________________________
Baltman J.
Released: July 24, 2014