CITATION: R. v. Ader, 2017 ONSC 7052
COURT FILE NO.: 16-30357
DATE: 2017/12/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ALI OMAR ADER
Accused
Croft Michaelson, Timothy Radcliffe, Xenia Proestos, for the Crown
Trevor Brown, Samir Adam, Tyler Botten, for the Accused
HEARD: In Ottawa October 5,6,10-13,16-19, 2017
REASONS for decision
R. Smith J.
[1] The accused Ali Omar Ader (“Ader”) is charged with unlawfully taking Amanda Lindhout (“Amanda”) hostage in Somalia, and conveying threats to kill her with the intention of inducing any other person or government to pay a ransom contrary to s. 279.1 (2) of the Criminal Code. Amanda and Nigel Brennan (“Nigel”) were taken hostage on August 23, 2008 and held in deplorable, terrifying conditions by their captors for almost 15 months until their release on November 25, 2009.
[2] The accused communicated ransom demands and threats to harm Amanda if the ransom of $2 million was not paid to the hostage takers. He also acted as the negotiator for the hostage takers during much of Amanda’s captivity.
[3] The Crown’s position is that Ader was a party to the hostage taking under s. 21(1) (b) of the Criminal Code by aiding the hostage takers to commit the offence by communicating the ransom demands and threats and by acting as the negotiator to assist the hostage takers to obtain a ransom for Amanda’s release. The Crown alleges that he aided the hostage takers in return for monetary gain and was paid $10,000 for his assistance.
[4] The accused does not deny that he acted as the negotiator and translator for the hostage takers but submits that he has a valid defence because he was acting under duress. If the Crown proves beyond reasonable doubt that Ader did not act under duress, then the accused admits that his actions of communicating the ransom demands and negotiating the ransom on behalf of the hostage takers would make him a party to the offence charged.
Issues
[5] The issue to be decided is therefore:
Has the Crown proven beyond a reasonable doubt that the accused was not acting under duress by communicating and negotiating the ransom demanded by the hostage takers?
Acknowledgements
Amanda
[6] I wish to acknowledge Amanda’s courage and strength while she was held hostage in deplorable conditions and subjected to extreme physical, sexual and emotional abuse by the hostage takers.
Lorinda Stewart
[7] Amanda’s mother, Lorinda Stewart (“Ms. Stewart”), did a superlative job of acting as the negotiator to secure her daughter’s release and to save her life. She treated the accused so well during the negotiations that he began to believe she was his friend and referred to her as “Mum Lorinda”. She played a very important role in keeping Amanda alive in extremely difficult circumstances.
Nigel’s Heroic Conduct
[8] After Nigel and Amanda had been held in captivity in appalling and very dangerous conditions for about 12 months, the hostage takers offered to release only Nigel in return for a $320,000 ransom that his family had been able to raise. Nigel told his hostage takers that neither he nor his family would accept this offer, unless Amanda was also released at the same time. I find that Nigel’s conduct in refusing the chance to be released and to save himself, unless Amanda was also released at the same time, was quite heroic. As a result of his refusal of this offer, he was forced to spend another 3 months in captivity and continued to put his own life at great risk.
Finding of Facts Related to the Hostage Taking
[9] The identity of the accused is not an issue. The accused admits that he was the person who called himself Adam and communicated and negotiated the ransom demands for the hostage takers.
[10] In August 2008, Amanda, a Canadian citizen, and Nigel, an Australian citizen, travelled to Somalia. Amanda was a freelance journalist and Nigel was a photographer, and they intended to report on the conditions in displaced persons camps near Mogadishu, Somalia.
[11] On August 23, 2008, Amanda, Nigel and three Somalians (their cameraman/translator, driver and unarmed security guard) were taken hostage by an unidentified group of gunmen, masked and armed with assault rifles, while traveling to a displaced persons camp.
[12] The hostages were told by an individual named Ahmed, who spoke English quite well, that they would be taken to meet the “commander.” Later that same day, Amanda and Nigel were taken to a small, dark and dirty room and met Ader who introduced himself as “Adam” and identified himself as “the commander” of the hostage taking group. Ahmed advised them that if they caused any problems they would be killed.
[13] Shortly after their first meeting, Ader returned and advised Amanda that she and Nigel would be held for ransom. Amanda responded that they might as well kill her, as her family had no money and her government would not pay a ransom. Ader told them that their families would have 24 hours to pay, and if they did not pay, they would be killed. Amanda testified that the accused looked at her coldly and asked her “are you ready to die”. He then obtained contact information from Amanda and Nigel for their families.
[14] On August 24, 2008, John Lindhout (Amanda’s father) received a voice message on his telephone answering machine at his residence in Alberta advising him that Amanda had been taken hostage and was being held for ransom. The message stated:
Okay, my name is Adam, I am from Mogadishu. Amanda is in our hands…Call me, at this time it is 6, 6 am… You can call me 0025215379037. Goodbye. And we want from you one and a half million dollars.
The Brennan family in Australia received a similar voicemail about Nigel shortly thereafter.
[15] The RCMP, through Ms. Stewart (Amanda’s mother and spokesperson for the Lindhout family), began a negotiation process with the accused Ader, who identified himself as the sole spokesperson and a commander representing the group holding Amanda and Nigel. With support and direction from RCMP handlers, Ms. Stewart conducted release negotiations with the accused. Her communications were intercepted by the RCMP.
[16] On the second occasion, Ader arrived with Ahmed and took the hostages to another house. Amanda was kept in a filthy room with mold on the walls and a wet foam mat on the floor. She asked the accused for a pen and notebook and he brought her a bag of supplies the next day. On this occasion the accused called her mother and let Amanda speak to her. Both the accused and Amanda told her mother that the hostage takers wanted money from the government and not from her family.
[17] Amanda believed that Ader, Ahmed, Mohamed and Abdullah were in a leadership role with the hostage takers. These individuals arranged to make a ransom demand video. Amanda was given a script to read that was prepared by Ader. The hostages sat on the ground in front of several young soldiers armed with assault rifles with their faces covered. The accused operated the camera and arranged to have the video published on Al Jazeera television.
[18] Ader uttered several threats, stating that the hostages would be harmed or killed unless the ransom was paid. Ader further stated that the members of the group holding Amanda and Nigel were friends of his, that the members were poorly educated and that they were extremely dangerous.
[19] Ader reiterated on several occasions that he was the individual the families needed to deal with in order to have Amanda and Nigel released from custody. Ader was steadfast in demanding a ransom which fluctuated between $1.5 million USD and $5 million USD.
[20] On November 2, 2008, the accused expressed frustration with dealing with rotating negotiators for the hostages in Nairobi: “I can understand that they are intelligence but what is this reason after two or three, four weeks it’s another person.” On November 28, 2008, the accused confirmed to Ms. Stewart that the supplies she had sent to the hostages had been delivered. The next time the accused and Ms. Stewart spoke was on December 13, 2008.
[21] On December 13, 2008, Amanda was awakened in the middle of the night and driven into the desert by members of the group. She was taken out of the car, forced to her knees, and told that they planned to behead her. She recalled someone having a knife. At the height of Amanda’s distress, a call was made via a cellular phone to Ader, who was on the line and connected Amanda to her mother. In the call, Amanda told her mother that the group had decided to give her family one week to pay the ransom demanded or they would kill her. Amanda was hysterical during the phone call. Ader was not present but was aware of the threats that were made.
[22] Approximately 10 minutes before this call, the accused had contacted Amanda’s mother. He said, “My friend has said to me that you should talk to Amanda but we have little time.” Ten minutes later, he called Ms. Stewart and said they had little time. He said that she should not waste her time and not waste their time. He then connected her with Amanda after speaking briefly to another individual. The accused can be heard prompting Amanda to “tell her”; Amanda then tells her mother about the threat to kill her if the ransom is not paid within one week.
[23] On January 14, 2009 the accused sent an email to Ms. Stewart with the subject: “Danger is coming soon to Amanda and Nigel if you don’t pay the ransom we want!!!!!” In the message, he clarified the ransom demand was $2.5 million.
[24] After about three months in captivity Amanda and Nigel attempted to escape. They ran to the mosque in the village where they were being held and asked for protection. They were returned to the hostage takers. After the attempted escape they were shackled with heavy chains around their ankles with padlocks; they couldn’t sit up or lie back. During her confinement Amanda was forced to wear a niqab, and was repeatedly sexually and physically assaulted.
[25] The accused never participated in the physical or sexual assaults against Amanda. His role was to arrange the communications between the hostages and the hostages’ families, to communicate and negotiate the ransom demands of the hostage takers, and to issue threats to kill the hostages if the ransom was not paid. Amanda only saw the accused during the first 3 months of her captivity but she always heard the accused’s voice on the phone when calls were arranged to allow her to speak with her mother.
[26] The intercepted phone calls filed as Exhibit #1 confirm Amanda and Nigel’s evidence that the accused was the person who organized the communication between the hostage takers and the hostages’ families. The telephone communications also confirm beyond reasonable doubt that the accused made ransom demands, threatened to kill Amanda if the ransom demanded was not paid, and negotiated the amount of the ransom for the hostage takers. The accused does not deny that he performed this role, but alleges that he was acting under duress.
[27] Amanda testified that she initially believed that “Adam” and an individual known to her by the name “Ahmed” were in charge of the group as they had introduced themselves as “commanders.” Amanda later explained that “Adam” was not a “commander” as he had introduced himself, but rather part of the hierarchy of the group.
[28] Around the time that the ransom payment negotiations were being concluded, Amanda and Nigel were visited by “Ahmed”, who said that if they were prepared to personally make up the shortfall in the ransom, it might help facilitate their release. Amanda and Nigel both signed written agreements promising to pay large sums of money to the hostage takers after they were released from captivity.
[29] Amanda testified that the accused did not threaten her but he was not respectful to her. On the first day of her captivity, the accused referred to an individual called “YaYa” as his brother and the accused asked her coldly if she was ready to die. She felt that his statement had a surreal quality about it and that it was not comical, but rather real and scary.
[30] The phone was always put on speaker when she spoke with her mother. One of the young soldiers told her that the accused was lower in the hierarchy of the hostage takers than Ahmed and she believed him.
[31] Nigel corroborated Amanda’s evidence and testified that the accused played the role of arranging communications between them, the hostage takers and their families or representatives. Nigel testified that he observed that the accused was at ease with the leaders of the hostage takers and did not appear frightened. He believed that Ahmed was in charge.
[32] Nigel observed Ahmed, YaYa and Ader talking together. They appeared friendly with each other and all three seemed to be of equal standing. He believed that someone named Ali held a lesser position of power in the group. The accused was never armed but the younger gunmen showed respect for him.
[33] Nigel was able to identify the accused from a photo lineup conducted in Australia. Identity is not an issue in any event.
[34] Nigel was not certain if the accused or Ahmed asked Amanda if she was prepared to die. I accept Amanda’s evidence that the accused asked Amanda if she was prepared to die.
[35] The hostages were finally released on November 25, 2009, after being held hostage for about 15 months.
Communications between the Accused and A.K.
[36] On January 1, 2010, after the hostages were released, the accused left a voicemail on Ms. Stewart’s phone stating that he wanted to establish contact with Amanda. The police decided to establish contact with the accused and have an undercover agent, A.K., pretend to be the agent for Amanda and her family.
[37] The communications between the accused and the undercover agent A.K. occurred over a number of years, commencing on June 25, 2009 until the accused was arrested in Canada on June 10, 2015.
[38] When A.K. first spoke to the accused, he held himself out as a representative of Amanda and her family. In the June 25th and June 29th calls, the accused described himself as a mediator during the hostage taking and told A.K. that he had “letters” Amanda had written while in captivity. He offered to sell them to the family.
[39] In these calls, the accused told A.K. he had Amanda’s “letters” and would email samples of them. The accused subsequently emailed copies of the “letters” that Amanda later confirmed were her notes that she had written while in captivity.
[40] The undercover scenario quickly evolved to A.K. portraying himself as someone with connections in the book publishing industry who could facilitate a “book deal.” The accused described a book he was writing about Somalia that he believed would make him a millionaire. A.K. purported to be able to work with him to have the book published.
[41] On December 9, 2010, the accused revealed his true identity as Ali Omar Ader to A.K. in an email communication. On December 11, 2010, the accused sent another email to A.K. in which he confirmed that his real name was Ali Omar Ader. He also emailed A.K. copies of his Bachelor of Arts degree and his passport. Both of these documents were in the name of Ali Omar Ader.
Admissions by the Accused to A.K. in Mauritius
[42] A.K. arranged to meet with Ader in Mauritius to sign a contract to retain him as his book agent. During dinner at the hotel in Mauritius on May 30, 2015 the accused told A.K. that he was an Islamist politician with the Islamist Courts Union, and that he was one of the original jihadists. He said that he changed his e-mail address and the SIM cards in his cell phone often to avoid being traced. One of the e-mail addresses he used was an address which was his nickname when he was living in the forest as a fighter. The name means something like a “camera” in Somali. Ader told A.K. that he had worked with the gang that had kidnapped Amanda.
[43] On May 31, 2015 the accused told A.K. that during the afternoon of the hostage taking he was asked if he would translate and negotiate a ransom for the group of hostage takers. He agreed to do so for a share of the reward. He said he received $10,000 from the ransom but felt cheated out of a larger share. The accused explained that they had planned to kidnap an Italian citizen but he left the hotel before he could be kidnapped and so they decided to kidnap Amanda and Nigel.
[44] Ader told A.K. that he had filmed the Al Jazeera video, which was corroborated by Amanda and Nigel’s evidence at trial. He also stated that he made the arrangements with Al Jazeera to have the video publicized.
[45] A.K. had prepared a contract to be signed at the Mauritius meeting, wherein he agreed to represent the accused as his book agent. One of the clauses required the accused to disclose his involvement in Amanda’s hostage taking. A.K. made notes of their conversation immediately afterwards which he used to refresh his memory and he testified that the accused told him that his involvement in Amanda’s hostage taking was as follows:
(a) After 3:00 p.m. on August 23rd, 2008 near prayer time, an old man named Mohamed asked him if he was interested in work translating for a ransom in the Amanda Lindhout hostage taking. He replied that he was interested for a share of the proceeds. He was then taken by the old man to the house where the hostages were held and received $10,000 as payment for assisting the hostage takers;
(b) He interrogated Amanda to negotiate with her family and the government;
(c) After 3 months he was asked to leave because Al-Shabaab were tracking the group through his cell phone; sometimes he would stay with the group but he would come and go;
(d) He paid for the SIM cards he used and the phone calls which he made;
(e) At Ader’s last meeting with the hostages after about 3 months in captivity, he gave Amanda a paper and pen;
(f) He filmed the Al Jazeera video and then took the film to Al Jazeera and turned it from a local issue into an international issue. He was proud of this;
(g) He used the e-mail kaimeno@gmail.com, which was his uncle’s name;
(h) He did not know about the “knife to the throat” incident on December 13, 2008 but he put the call through as requested;
(i) He sent the e-mail to make the initial contact for a ransom with the government and Ms. Stewart from his e-mail at abti232@hotmail.com;
(j) At the end of the hostage taking he was deceived by the group, by the Hawala manager, and by a member of the Somali National Security Agency;
(k) He did not know what happened to Amanda’s letters as he gave them to the Somali Intelligence Agency.
[46] A.K. gave the accused a $500 signing bonus when he signed the contract to hire him to act as his book agent.
[47] A.K. testified that he did not recall the accused ever telling him that he was forced into his role to assist the hostage takers, rather he specifically told him that he did so for a share of the ransom money.
[48] In A.K.’s first phone calls to the accused in June of 2009 the accused said he was acting on humanitarian grounds for Amanda. The accused did not mention this in his statements made to A.K. either at the meeting in Mauritius or in Ottawa, where he told A.K. that he assisted the hostage takers for a share of the ransom money.
Admissions by the Accused to A.K. at the Hilton in Ottawa
[49] A meeting was arranged for the accused to meet with the “book publisher” at the Hilton hotel in Ottawa on June 10, 2015. The meeting was video recorded, which is part of the evidence. The accused stated that he felt bad about being part of the group of hostage takers and he wanted to apologize to Amanda. He didn’t like the aggression to Amanda. He agreed that he filmed the Al Jazeera video and called Al Jazeera to get international attention.
[50] At this meeting he told A.K. and the undercover “publisher” about his involvement in Amanda’s hostage taking. The accused repeated the same admissions that he had made to A.K. in Mauritius. In addition he said that he had prayed to Allah (a special prayer) before agreeing to be a translator for the hostage takers. His motivation for assisting the hostage takers was to gain a share of the ransom money. Ader was arrested following this meeting.
Issue #1:
Has the Crown proven beyond a reasonable doubt that the accused was not acting under duress by communicating and negotiating the ransom demanded by the hostage takers?
Analysis
[51] The accused has admitted that if his defence of duress is not successful, then his actions of communicating ransom demands, making threats to kill Amanda if the ransom was not paid, and negotiating the ransom on behalf of the hostage takers would make him a party to the offence of hostage taking.
Test for Duress
[52] In R. v. Ruzic, 2001 SCC 24, at para. 100, the Supreme Court discussed the defence of duress and stated that “[t]he accused must certainly raise the defence and introduce some evidence about it. Once this is done, the burden of proof shifts to the Crown under the general rule of criminal evidence. It must be shown, beyond a reasonable doubt, that the accused did not act under duress.”
[53] In this case the accused has introduced some evidence of a possible defence of duress which has an air of reality. As a result the burden of proof shifts to the Crown to prove beyond a reasonable doubt that he was not acting under duress.
[54] The common law as opposed to the statutory defence of duress applies to a party to a criminal offence. In the decision of R. v. Ryan, 2013 SCC 3, at para. 81, the Supreme Court set out the test to be met. Paragraph 81 reads as follows:
81 The defence of duress, in its statutory and common law forms, is largely the same. The two forms share the following common elements:
(a) There must be an explicit or implicit threat of present or future death or bodily harm. This threat can be directed at the accused or a third party.
(b) The accused must reasonably believe that the threat will be carried out.
(c) There is no safe avenue of escape. This element is evaluated on a modified objective standard.
(d) A close temporal connection between the threat and the harm threatened.
(e) Proportionality between the harm threatened and the harm inflicted by the accused. The harm caused by the accused must be equal to or no greater than the harm threatened. This is also evaluated on a modified objective standard.
(f) The accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association.
Ader’s Evidence of Duress
[55] The accused testified as follows:
i. He was 40 years of age, was born in Somalia, had 5 children, and his current wife was not the mother of his children. His first wife died on October 21, 2012.
ii. He obtained a BA and generally worked as a teacher or an assistant teacher. He was an Islamic politician with the Islamic Courts Union party. He spoke English.
iii. The Ethiopian military entered Somalia sometime in December of 2006. Somalia was in a state of civil war between the Transitional Federal Government and Al-Shabaab forces during the period Amanda was held hostage.
iv. Somalia is a tribal society and he was from the Ajuran tribe that had ruled East Africa for 400 years but was no longer a powerful tribe in Somalia.
v. He had no role in the kidnapping or planning of the hostage taking. There is no evidence to contradict his evidence in this regard and there was no evidence that he was a party to a conspiracy where he knew that threats or coercion to commit an offence were a possible result (paragraph (f) of the Ryan decision).
vi. He became involved when an armed group of men captured him in the Bakaara Market as he was walking home after work. One of the armed men shot a pistol and ordered him to go with them. He initially refused but after they shot at his feet and told him that if he didn’t come with them “he was going to die”, he then went with them against his will. The group of armed men then drove him to the house where the hostages were staying. His evidence is that the same hostage takers who kidnapped Amanda also kidnapped him.
vii. He knew that the leader of the group was called Ahmed. He initially testified that he didn’t know Ahmed very well and later testified that he didn’t know him at all before he was kidnapped.
viii. After praying he, Ahmed and Mohamed entered a room where a white man and a girl were being held. He stated that he was unaware the hostages were there before entering the room. Ahmed told him to give instructions to the hostages and he wrote down what he was told to do. He was told to tell the hostages that he was the leader of the group and that his name was Adam. He asked the hostages about why they were in Somalia as the hostage takers suspected that they were spies for the government.
ix. He was unable to leave the group because there was no transportation at that time. He told the hostages that they wanted ransom money. He testified that he was forced to act as the translator and did not do so willingly.
x. He had no place to escape to because of the civil war and because the armed clans abused weaker people, and he was from a weak clan. He said he was forced to make the calls demanding and negotiating the ransom.
xi. He said there were three time periods. During the first 3-4 month period, he was held hostage and forced to make calls from where the hostages were kept. At one point he was taken to a place inhabited by wild animals and forced to make phone calls to Amanda’s mother and to Nigel’s family.
xii. Others always listened when he made all of the phone calls to make sure he followed their instructions. The calls took place in the Bakaara Market in Mogadishu in large commercial buildings, so the hostage takers could watch him.
xiii. Ahmed and the armed men drove him to the Bakaara Market to make the calls to demand payment of a ransom.
xiv. He was held as a hostage for about 3-4 months in the Bakaara Market. Ahmed gave him the SIM cards for the phone. Initially he stayed in the apartment with Ahmed, YaYa, Sheik Kadir and the armed soldiers. He testified that he did not see his wife, children, or family members during this first 4 month period, when he was held under guard by Ahmed and the armed soldiers.
xv. When he refused to make a call on one occasion he was tortured. A member of the group once fired a shot at him, but he moved to one side and the bullet grazed his arm leaving a small scar. He continued to make calls on behalf of his hostage takers because his life and his family’s lives were in danger if he didn’t participate.
xvi. In mid-January of 2009, he allegedly escaped from the hostage takers to the Government side during a battle between Government forces and the resistance. He went to live in his sister’s home who is a Government police officer and was free from the hostages’ control for about 3 months. This was the second period.
xvii. After about 3 months he rejoined the hostage takers because they had attacked his house and tried to abduct his son, but his wife resisted. An attacker then stabbed his wife in her stomach with a bayonet on the end of his rifle. He testified that his wife died from this injury.
xviii. He didn’t know who attacked his wife but they left a phone number at his home where his wife was stabbed. He called the phone number and Ahmed answered. Ahmed chastised him and told him something worse would happen and that at least a member of his family would be killed if he didn’t return to assist them with the negotiations. He went to see his wife and son at the hospital and then surrendered himself to the hostage takers because of the threat to kill a member of his family.
[56] The accused initially made an error in his evidence on the time that his wife was stabbed and died. If his wife was stabbed in the stomach with a bayonet on the end of a rifle when the hostage takers attempted to abduct his son, this would have occurred between January and March of 2009. Ader testified that the attackers left a note with a phone number at his home at this time. He testified that his wife died from these wounds, but she died in 2012, three years after the alleged stabbing in 2009.
[57] Counsel brought the accused back to explain the time inconsistency and the accused then testified that the stabbing caused internal injuries to his wife which took a long time to heal and she died 3 years later from the wound. The accused’s evidence about this incident is not in harmony with the preponderance of probabilities to a practical and informed person.
[58] The final period was after Ader returned to the hostage takers until the hostages’ release. He stated that the group began to lose trust in him and think that he was an obstacle. The group insisted that he maintain the ransom demand at $2 million.
[59] The accused admitted that he continued to interpret for the group and that he made and heard Amanda’s hysterical phone call with her mother on September 7, 2009 where she said that she was being tortured. He testified that he continued to make the phone calls for the hostage takers because he had no place to go.
[60] Ahmed and Mohamed did not release him until the hostages were finally freed and then Ahmed took his phone from him. He was not present for the transfer of money when the hostages were finally released.
[61] The accused couldn’t remember ever telling anyone that he was forced by the hostage takers to assist them by acting as their translator/negotiator. He testified that at one point he waved his hand when speaking with A.K. which implied he was not responsible for the kidnappings. I find that waving his hand does not constitute evidence that Ader was acting under duress. The accused never indicated in any phone call or e-mail throughout the 15 months that he was forced to participate and assist in the hostage taking. To the contrary in his statements made to A.K. in Mauritius and in Ottawa he admitted that he voluntarily accepted the offer to work as a translator/negotiator for the hostage takers in return for a share of the ransom reward, and he admitted he was paid $10,000 for his assistance.
[62] At trial Ader testified he did not receive any money for assisting the hostage takers. His evidence was contradicted by his admissions to A.K. made both in Mauritius and in Ottawa. Ader testified that he tried to tell A.K that he was threatened but A.K. was not interested and when he started to tell him about this A.K. went for a smoke. Ader testified that he told A.K. that “he had no choice but to do this”. This evidence is directly contradicted by the evidence of A.K., whose memory was refreshed by notes he made at the time and who stated that the accused told him that he participated and agreed to assist the hostage takers in order to receive a share of the reward and received $10,000 USD. I find that Ader’s evidence was unbelievable and does not raise a reasonable doubt and I accept the evidence of A.K. beyond a reasonable doubt, as his memory was refreshed by notes made at the time and he had no motive, to lie.
[63] Ader testified that he decided not to tell A.K. that he was also kidnapped and was forced to act under duress because he only told A.K. what he was interested in. This was Ader’s explanation for allegedly lying to A.K. in Mauritius about assisting the hostage takers for a share of the ransom money. Ader testified that he lied to A.K. in Mauritius because he was afraid A.K. would not trust him, his financial source could be lost and he felt a lack of safety. His explanation for allegedly lying to A.K. for these reasons makes no sense. I find that Ader’s evidence is not in harmony with the preponderance of probabilities to a practical and informed person and is not believable and does not raise a reasonable doubt. It would have been in Ader’s interest to minimize his involvement in the hostage taking by telling A.K. he was forced to assist the hostage takers because of threats made to kill or cause bodily harm to him or members of his family. Such an explanation would have reduced his culpability, reduced any bad publicity, and would not have harmed but assisted the sales of his book, which would have preserved his income source and would have enhanced A.K.’s trust in him.
[64] The accused’s explanation, for lying to A.K. and the alleged publisher in Ottawa by stating that he had participated in the hostage taking for a share of the ransom reward and that he had received $10,000, was that he was concerned about his safety when travelling back to Somalia and he didn’t want to lose his dream of publishing a book. I find that his evidence in this regard is made up excuses which do not accord with the preponderance of probabilities to a practical and informed person, makes no sense and is completely unbelievable and does not raise a reasonable doubt.
Factors for Duress from Ryan
a) Was there a threat to kill or cause bodily harm to Ader or members of his family?
[65] I find that the accused’s evidence that the hostage takers threatened to kill or cause bodily harm to him or to members of his family was unbelievable and did not accord with the preponderance of probabilities to a practical and informed person. I also find that his evidence did not raise a reasonable doubt. I am also satisfied on the whole of the evidence that the Crown has proven beyond a reasonable doubt that there was no implicit or explicit threat of present or future death or bodily harm to the accused or to members of his family for the following reasons:
(a) The accused admitted to A.K. in Mauritius that he had voluntarily decided to assist the hostage takers as a translator and a negotiator for a share of the reward and that he had been paid $10,000. I find that A.K. was a very credible witness and refreshed his memory with detailed notes made at the time. I accept his evidence beyond a reasonable doubt. I find that the accused made these admissions to A.K. voluntarily and without prompting because they were true.
(b) I do not accept the accused’s evidence that he ever told A.K. that he was threatened or had no choice but to assist the hostage takers. The accused was unclear about this in his evidence and made no mention of any threats to kill or cause bodily harm to him or members of his family in any e-mail or phone call over a 15 month period. I accept A.K.’s evidence beyond a reasonable doubt that the accused never told him that he or his family had been threatened with death or bodily harm.
(c) The accused repeated the same admission to A.K. at his meeting in Ottawa, only adding that he had prayed a special prayer to Allah to help him decide if he should accept the offer to participate and assist the hostage takers in return for a share of the ransom money.
(d) The accused’s evidence that he lied to A.K. in Mauritius and in Ottawa about assisting the hostage takers for a share of the financial reward and receiving $10,000, because he wanted to tell A.K. something he wanted to hear, to avoid jeopardizing his book deal, and to avoid losing A.K’s trust, makes no sense. If these were his objectives they would have been better served by minimizing his culpability for assisting the hostage takers motivated by greed. If the accused or his family had actually been threatened with death or bodily harm it would have been in his interest to have told A.K. about this fact. Ader would have appeared much more sympathetic, and his story would have been more dramatic and interesting if he told A.K. that he had also been taken hostage as well as Amanda, and was forced to act as the negotiator due to threats of death or bodily harm to him and his family.
(e) Ader never mentioned that he or his family had ever been threatened with death or bodily harm in any of the many intercepted phone calls and e-mails which occurred between 2008 and 2015. Ader also never mentioned that he or his family had ever been threatened either when discussing his role in the hostage taking with A.K in Mauritius or in Ottawa.
(f) Ader’s evidence – that he was randomly picked up by a group of armed men in a market while walking home from work where he had stopped to listen to BBC radio, and that shots were fired at his feet to force him to act as the negotiator – does not accord with the preponderance of probabilities to a practical and informed person. I find his evidence that hostage takers would choose him at random and kidnap him to act as the translator to be unbelievable. The negotiator of a ransom for hostages would have to be a very trusted person by the group because they knew that they were committing a very serious criminal offence.
(g) The accused’s testimony that his wife had been stabbed in the stomach after he escaped in 2009 and died 3 years later also does not accord with the preponderance of probabilities to a practical and informed person. I find that this story was invented by the accused to explain why he would have returned to join the hostage takers after he had allegedly escaped. Ader was initially mistaken about the dates because his wife died 3 years later in 2012. It is highly unlikely that she lingered on from her stabbing injury in 2009 and died 3 years later in 2012.
(h) The accused’s evidence at trial that he was held hostage and was unable to see his wife or family during the initial 3-4 months of the hostage taking was contradicted by his phone call on October 17, 2008 with David O’Meara, the Australian negotiator. During the phone call a child is heard yelling in the background while the phone call is taking place. O’Meara says: “So you are with your family at the moment Adam?” (the alias the accused used). He answered “Um, yes I am with my children Abdirahman, he is two years old.” This evidence contradicts the accused’s testimony that he was kidnapped by the hostage takers and wasn’t allowed to see his wife or family for the first 3 months of the hostage taking. This phone call was made during the first 3 month period. In cross-examination, the accused offered the explanation that his wife and children were allowed to come and live with him and the armed hostage takers for a period of 8 days. His explanation that he would have arranged for his wife and 4 surviving children to come live with his kidnappers who were heavily armed men who had threatened his life, when he was allegedly being held against his will under very dangerous conditions, is completely unbelievable.
(i) The accused testified that Ahmed did not speak English. This evidence was contradicted by Nigel and Amanda and I accept their evidence beyond reasonable doubt as completely credible. Under cross-examination the accused testified that everyone in Somalia speaks a little English which did not explain the contradiction in his evidence.
(j) The accused’s testimony that he was held hostage in a house with the hostages for the first 3-4 months until he escaped was also contradicted by his statements in another phone call with O’Meara on December 14, 2008 where he said that he was walking in the streets. O’Meara says: “Oh, you’re not home?” Ader says: “No. No I, I hear you but I am in the streets I am walking….” The accused states “I walk in the … streets, I’m still walking”. The accused’s statement in this phone call contradicts his evidence that he was being held hostage in a room with the hostage takers until he escaped in January of 2009. In cross-examination the accused stated that he must have been coming back from breakfast and that the hostage takers allowed him to go out and have his meals in a restaurant, often without any supervision. This evidence is unbelievable and contradicts that he was being kept hostage during the first 3-4 month period, as it indicates that he was allowed to go about freely to have his meals in a restaurant without supervision.
(k) Amanda and Nigel’s evidence is consistent with the admissions of the accused in Mauritius and in Ottawa. The accused appeared to be friends with the leaders of the group and was free to come and go as he pleased. In addition, the accused described the hostage takers as his friends in the phone call with O’Meara on December 14, 2008. Ader said: “Last night is my friends calling me, and said to me connect us to Lorinda. I’ve connected and Amanda has talking to her mother and I think what she has told you?”
In the phone call of September 24, 2008 with Ms. Stewart, the following was exchanged:
Ms. Stewart: “Do you know them well?”
Ader: “Yes well. I know them well”.
Yet in his evidence at trial he testified that he did not know his abductors and he was just sitting on a street and unknown armed men abducted him. I find that his evidence in this regard was concocted and is unbelievable and does not accord with the preponderance of probabilities to a reasonably informed person.
(l) The accused indicated in many conversations that he was part of the hostage takers by using the description “we” on at least six occasions. This indicates that he was a member of the hostage taking group. For example: “We had Amanda”, or “We published in Al Jazeera”. In the phone call dated September 2, 2008 he states “I am one of them”. On the October 23, 2008 phone call he states that he was the only spokesman and he was one of the group. This evidence is consistent with his admissions to A.K. in Mauritius and in Ottawa. His English is not perfect and so less weight is given to this factor.
(m) The accused was able to make the decision to reduce the ransom demand from $2 million to $743,000. He described himself as the chief negotiator for the group. He told Ms. Stewart on a phone call that he did not stay with the hostages because he was not a foot soldier. His statements are consistent with his admissions made to A.K. in Mauritius and Ottawa.
(n) The accused never mentioned to anyone from 2008 until his arrest in 2015 that he or members of his family had been threatened with death or bodily harm if he did not assist the hostage takers; rather, this was not mentioned until he gave his evidence at trial. If he had assisted the hostage takers due to threats, this would have reduced his culpability for the hostage taking and assisted him in obtaining the book contract. It does not make sense to lie about his involvement to make his conduct appear worse to the publisher and the public who he hoped would buy his book.
(o) The accused’s defence of duress is not supported by any of his recorded conversations and all of the recorded conversations are consistent and support his admissions to A.K. This is very persuasive evidence.
(p) In one conversation the accused asks Amanda’s mother if he could marry Amanda and laughs. Making such a comment is inconsistent with his also being a captive and acting under duress. In his conversations he does not sound frightened and he does not sound like a captive or that he was acting under duress.
(q) The accused’s evidence that Ahmed had kept his cell phone after Amanda’s release was contradicted because he still had the phone after the release of hostages. Ms. Stewart recognized his number when he contacted her after the hostages were released to obtain an e-mail address for Amanda.
(b) Did the accused reasonably believe that the threat would be carried out?
[66] I have rejected the accused’s evidence that any threat to cause him or his family death or bodily harm was ever made and I have found that the Crown has proven beyond a reasonable doubt that no such threat was ever made to the accused or to members of his family. I find that Ader was a willing participant in the hostage taking which is consistent with his admissions to A.K. both in Mauritius and again in Ottawa. However, I do accept the accused’s evidence that Somalia is a dangerous place and that the hostage takers were dangerous and were capable of and prepared to kill the hostages if required. If they had threatened to kill or cause bodily harm to Ader or members of his family, I am satisfied that he could have reasonably believed that the threat would be carried out.
(c) Was There No Safe Avenue Of Escape?
[67] I have found beyond a reasonable doubt that the accused was not taken hostage against his will but rather agreed to participate and aided the hostage takers by acting as their translator/negotiator in return for a share of the ransom money. As a result he had many opportunities to contact the police as he was free to go when and where he pleased, and he had a safe avenue of escape.
(d) Temporal Connection
[68] If the hostage takers had threatened to kill him if he did not act as the translator/negotiator for them, then the temporal connection requirement would have been met. However, I have found that no threat was ever made to kill or cause bodily harm to the accused or members of his family and it is not necessary to analyze the temporal connection.
(e) Proportionality
[69] If a threat had been made to kill or cause bodily harm to the accused or members of his family then acting as the negotiator for the hostage takers would have been proportional, as this would have caused less harm than the harm that would have been caused to the accused or his family by being killed or suffering bodily harm.
(f) Party To Conspiracy
[70] There is no evidence that the accused was part of a conspiracy to take Amanda hostage.
Disposition
[71] For the above reasons I find that the Crown has proven beyond a reasonable doubt that Ader was not acting under duress when communicating and negotiating the ransom for the hostage takers. The accused agreed that if I did not accept his defence of duress, his undisputed actions of translating and negotiating the ransom, and threatening to kill the hostages if the ransom was not paid, he aided the hostage takers which made him a party to the offence of the hostage taking of Amanda.
[72] As a result the accused is found guilty of the charge of taking Amanda Lindhout hostage as set out in count #1.
Justice Robert J. Smith
Released: December 6, 2017
CITATION: R. v. Ader, 2017 ONSC 7052
COURT FILE NO.: 16-30357
DATE: 2017/12/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Crown
– and –
ALI OMAR ADER
Accused
Reasons for decision
R. Smith J.
Released: December 6, 2017