Court File and Parties

COURT FILE NO.: CR-20-472 DATE: 20210331

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Mr. H. Piafsky, D. Quayat, and Mr. B. McGuire, for the Crown

• and -

HALEEMA MUSTAFA

Mr. F. Mirza and Ms. K. Gates, for the Accused

HEARD: March 26, 2021, by Zoom Videoconference

REASONS FOR DECISION ON SECTION 525 DETENTION REVIEW

STRIBOPOULOS J.

Introduction

[1] On August 26, 2020, Ms. Mustafa was arrested and charged with terrorism offences. By way of direct indictment, Ms. Mustafa and her husband (Ikar Mao) jointly face charges that they:

(1) … on or about June 27, 2019, at the City of Mississauga, did leave Canada, for the purpose of committing an act or omission outside Canada, that, if committed in Canada, to wit, participate in an activity of a terrorist group, would constitute an offence contrary to Section 83.18(1), thereby committing an offence contrary to Section 83.181 of the Criminal Code of Canada.

(2) …. between July 3, 2019 and July 13, 2019 both dates inclusive, in the Republic of Turkey did knowingly participate in or contributed to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity thereby committing an offence contrary to Section 83.18(1) of the Criminal Code of Canada.

The indictment does not particularize the terrorist group, but the Crown alleges it was the “Islamic State,” also known as “ISIS” and “Daesh.”

[2] Since her arrest seven months ago, Ms. Mustafa has not had a bail hearing. A jury trial is scheduled for June 2021, but it seems rather unlikely to proceed then, given the COVID-19 pandemic and its ongoing impact on the court’s usual operations.

[3] Ms. Mustafa appeared before the court by Zoom videoconference, with her consent, for a detention review under s. 525 of the Criminal Code, R.S.C. 1985, c. C-46 (“the Criminal Code”). That provision requires the court to determine whether Ms. Mustafa’s continued detention is justified under s. 515(10) of the Criminal Code: s. 525(5); see also R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105, at para. 46. Because Ms. Mustafa has not yet had a bail hearing, the court was required to conduct one “from the ground up”: Myers, at para. 56. Given that she faces terrorism charges, Ms. Mustafa bears the burden of demonstrating why her detention is not justified: Criminal Code, s. 515(6)(a)(iii).

Evidence in Support of the Charges

[4] At the hearing, the parties filed various documents summarizing the evidence against Ms. Mustafa and her husband. There is little dispute concerning the evidence, although Ms. Mustafa plans to contest the admissibility of much of it based on alleged Charter breaches in the seizure and search of various electronic devices by police.

[5] On June 27, 2019, Ms. Mustafa and her husband flew from Canada to Tunisia. They told their family and friends they were taking the trip to attend Mr. Mao’s cousin’s wedding.

[6] Once in Tunisia, the couple soon purchased airline tickets to Istanbul, Turkey. They flew to Istanbul on July 3, 2019. In late June and early July, Ms. Mustafa sent her family in Canada messages detailing the couple’s supposed itinerary while in Tunisia. Even after they had already arrived in Turkey, in her messages home, Ms. Mustafa claimed the couple were visiting different locations in Tunisia.

[7] Nearly two weeks after leaving Canada, on July 11, 2019, the couple finally sent an email to their families and friends revealing the true purpose of their trip. In the email, Mr. Mao wrote that:

Haleema and I have decided to leave the country around the date of June 20^th in order to make hijra for the sake of Allah. You might think this is something that could have been done publicly and with consultation, but honestly, this was not possible for several reasons, many of which I can’t share with you now.

In the email, Mr. Mao writes that the idea originated with Ms. Mustafa. The email anticipates questions that its recipients might have concerning the couple’s decision and attempts to answer them.

[8] In Arabic, the word “hijrah” means “departure” or “migration.” However, ISIS also used that term to refer to migration to the Islamic State. At the height of its military success, after seizing substantial territory across northern Syria in 2014, the Islamic State produced propaganda urging Muslims throughout the world “to make hijrah” to the territories under its control. That propaganda described their “caliphate” as a utopian society, based on the original Islamic governance model developed by the Prophet Mohammed in the seventh century.

[9] The email suggests the couple did not believe stories about the Islamic State in “western media,” which Mr. Mao characterized as the “enemy of Islam.” Mr. Mao questioned whether it made “sense for a rational Muslim to accept what they say about our own Muslim brothers and sisters without verification?” He referenced having a religious obligation not to live amongst “disbelievers.” In a portion of the email, purportedly written by Ms. Mustafa, she encourages its recipients to “please try and do some research and join us whenever you’re able to disconnect yourselves from all your affairs.”

[10] Despite the couple’s intention to immigrate to the Islamic State in the summer of 2019, it appears they faced significant challenges in realizing that goal. By then, a coalition of military forces led by the United States had effectively degraded the Islamic State through sustained military operations. In the summer of 2019, the Islamic State no longer controlled any significant territory in Syria and only had a tiny foothold in Iraq’s Salah ad-Din province. In other words, as a practical matter, there was no “state” remaining for anyone to migrate into by that time.

[11] Not surprisingly, the couple’s email alarmed Ms. Mustafa’s family and led her father to contact the RCMP soon after he received it. His call precipitated the investigation that culminated in the charges Ms. Mustafa now faces. At around the same time, he also contacted Turkish authorities out of concern for the couple’s safety.

[12] On July 12, 2019, Turkish authorities arrested Ms. Mustafa and Mr. Mao in Sanliurfa, Turkey, a city located 50 km north of the Syrian border. They charged them with being members of a terrorist organization, “Daesh.” The couple remained in custody pending their trial, culminating in a Turkish court finding them not guilty of the charges on October 16, 2019. Their release from custody followed their acquittal.

[13] On October 19, 2019, Mr. Mao returned to Canada with his brother-in-law (his sister’s husband). On his return, Canadian police, armed with a warrant, seized numerous electronic devices in his possession. These devices were bereft of any data; apparently, they were wiped clean. However, Turkish authorities had extracted data from these same devices during their investigation, and Mr. Mao was carrying a copy of the stored data, which Canadian police also seized and eventually examined.

[14] Mr. Mao also had a notebook in his possession that contained handwritten entries that corresponded with advice provided in a document available online entitled, “Hijrah to the Islamic State (2015).” Amongst the entries in the notebook, beneath the heading “Real Itinerary” was written, “Make way to town of Akcakale.” The “Hijrah to the Islamic State (2015)” suggests entering Syria by travelling from Sanliurfa to Akcakale, Turkey, and then crossing the border into Tel Abyad, Syria.

[15] The next day, October 20, 2019, Ms. Mustafa returned to Canada with her father. The police seized Ms. Mustafa’s father’s phone. It contained a WhatsApp message from Mr. Mao’s brother-in-law, sent to his wife on October 19, 2019, advising her to let Ms. Mustafa’s father know that the authorities had a warrant for their devices and “to get rid of everything.” Ms. Mustafa’s father’s phone showed online queries about how to erase data from an Android phone. On her return to Canada, the police also seized Ms. Mustafa’s smartphone, but it did not contain any data. The phone was reset to its factory settings, consistent with the advice provided in the WhatsApp message her father received.

[16] During their investigation, the police interviewed witnesses and executed numerous search warrants. That included at Mr. Mao’s residence and at the home of Ms. Mustafa’s parents, where she was living at the time. They seized additional electronic devices during these searches and also subjected them to forensic examination. The police investigation, including forensic analysis of the various seized devices, revealed much of the evidence just summarized. Additionally, through their investigative efforts, police discovered the following:

• On June 16, 2019, Ms. Mustapha quit her job at Canada’s Wonderland, citing a pre-existing medical condition as the reason.
• On June 18, 2019, a copy of the publication entitled “Hijrah to the Islamic State (2015)” was downloaded onto Mr. Mao’s computer.
• Someone used Mr. Mao’s phone and computer to search for items recommended in the publication “Hijrah to the Islamic State (2015)” for travellers to purchase. On June 22, 2019, numerous articles from that list were purchased using Mr. Mao’s Amazon account and shipped to the couple’s residence in Markham.
• On June 19, 2019, someone placed an ad for the sale of Ms. Mustafa’s car on Kijiji, which was then changed several times. An update to the ad on June 26, 2019 provided: “[t]his car needs to be gone.” The couple sold the car the next day for just $1000. They did so while on their way to the airport for their flight to Tunisia.
• In the six-weeks preceding their departure from Canada, Ms. Mustafa closed four different bank accounts. The couple kept open a joint bank account they had. In total, during that period, together, they transferred $4,483.07 into the joint account. They used these funds to purchase their plane tickets to Tunisia and then to Turkey.
• Using a profile on “couchsurfing.com,” Mr. Mao posted that he and his wife were looking for accommodation in Sanliurfa, Turkey, because they were moving there to learn Turkish and Arabic.
• Various searches using Mr. Mao’s devices concerned migrating to the Islamic State and other information regarding ISIS. Amongst the keyword searches was “Tel Abyad,” the Syrian town on the border with Akcakale, Turkey. In a Twitter conversation, another user tells Mr. Mao that they need to “get from Tel Abiad [sic] from the Turkish side to the ‘Islamic State.’” Examination of one of Mr. Mao’s devices revealed a Google Translate search on July 4, 2019, querying “is there a bus from Sanliurfa to Akcakale.”
• Police found encrypted social media accounts on Mr. Mao’s phone, including for “Telegram.” An account on that platform associated with his phone downloaded ISIS propaganda videos.
• The couple deleted their various social media accounts before and just after leaving Canada.
• Examination of Mr. Mao’s computer revealed someone used it to access an Instagram account on July 9, 2019, and then search for people known to Ms. Mustafa. Additionally, someone used the computer to conduct various searches at around the same time, including for an ISIS publication.

[17] During their investigation, the police placed both Ms. Mustafa and Mr. Mao under surveillance after they returned to Canada. They also obtained tracking warrants to monitor their whereabouts. Despite intense surveillance over the ten months preceding her arrest, the police did not observe Ms. Mustafa engaging in any suspicious activities. Her primary contacts were with family and friends, and she only travelled to visit family and friends and to attend school.

[18] The police also interviewed people who knew Ms. Mustafa and carefully scrutinized her online activities. Despite these investigative efforts, the police failed to unearth any evidence that Ms. Mustafa had ever engaged in criminal behaviour in the past or that she ever expressed any interest in doing so in future. Notably, the police did not locate any evidence that Ms. Mustafa had ever said anything to people she knew or posted anything online promoting or justifying violence in any forum.

[19] As a result, the Crown’s case against Ms. Mustafa depends entirely on the evidence concerning her apparent efforts to relocate to the Islamic State in the summer of 2019. The Crown will rely on that evidence in its attempt to prove beyond a reasonable doubt that Ms. Mustafa left Canada to participate in the terrorist activities of the Islamic State and that, while in Turkey, she participated in that group’s terrorist activities.

Ms. Mustafa’s Circumstances

[20] Ms. Mustafa is 23 years old. She was born and raised in Canada. Despite the serious charges she now faces, Ms. Mustafa has no prior criminal record.

[21] After being acquitted of the charge she faced in Turkey, Ms. Mustafa voluntarily returned to Canada. Between October 2019 and her arrest in August 2020, she lived with her parents and three sisters at the family’s home in Markham. The family has lived in Markham for over 20 years.

[22] On November 10, 2019, Ms. Mustafa briefly moved to Guelph to live with Mr. Mao and his family. However, that same day, Mr. Mao was arrested, culminating in him entering into a terrorism peace bond under s. 810.011 of the Criminal Code. After Mr. Mao’s arrest, Ms. Mustafa returned to live with her parents and sisters in Markham.

[23] Before Ms. Mustafa and Mr. Mao left Canada in late June 2019, they lived in a basement apartment in her grandparent’s house, also in Markham.

[24] After graduating from high school, Ms. Mustafa attended York University from 2015 to 2016 to study Human Rights and Equity. She left York for Seneca College, where she completed a two-year program that earned her a Social Worker Services Diploma. Ms. Mustafa returned to York University for the 2018-2019 academic year, where she continued her studies in the Human Rights and Equity program.

[25] At the time of her arrest, in August 2020, Ms. Mustafa was working for Concentrix, where she provided technical support to its customers over the phone.

The Release Plan

[26] Ms. Mustafa proposes a surety release, with Saira Hayat Khan serving as her surety. The proposal is for Ms. Mustafa to live with Ms. Khan at her home in Markham. She agrees that her father’s role as a potential witness would make it inappropriate for her to live with her parents.

[27] Ms. Khan is 34 years of age. She is a Canadian citizen and a graduate of the University of Toronto. Ms. Khan does not have a criminal record.

[28] Ms. Khan works for City Blast, a real estate lead generation service. Additionally, she operates a blog and also does contract work in online marketing and advertising. At present, Ms. Khan works from home, but she anticipates that could change in September 2021 once public health concerns due to the pandemic allow for a return to in-person work. City Blast’s office is in downtown Toronto.

[29] Ms. Mustafa’s father is Ms. Khan’s first cousin. The families are very close; Ms. Khan and Ms. Mustafa grew up together. Due to the difference in their ages, Ms. Khan babysat Ms. Mustafa when she was a child. Ms. Khan testified that Ms. Mustafa considers her an aunt. She respects and listens to her.

[30] Ms. Khan acknowledges the charges are serious. She testified that she would diligently supervise Ms. Mustafa on bail, ensuring that she attends all of her scheduled court dates and complies with any conditions the court imposes.

[31] Ms. Khan owns her home, which she purchased ten years ago. She has amassed a substantial amount of equity in it, and she also has a significant amount of savings and some other smaller investments. Ms. Khan is prepared to pledge $100,000. to secure Ms. Mustafa’s release on bail. She testified that this represents a considerable sum to her. She maintained that she would not hesitate in calling the police if Ms. Mustafa were breaching her bail conditions because she would not want to risk losing that money.

Positions of the Parties

[32] The parties made submissions concerning the primary, secondary, and tertiary grounds for ordering pre-trial detention: Criminal Code, ss. 515(10)(a)-(c). The apparent strength of the Crown’s case figured prominently in their submissions.

[33] Defence counsel, Mr. Mirza, submits that the Crown faces considerable challenges in proving its case. He argues that there is no evidence that Ms. Mustafa ever did anything, in Turkey or elsewhere, that would materially enhance the ability of a terrorist group to facilitate or carry out its terrorist activities (the actus reus for the participating offence): see R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555, at para. 50-52. Mr. Mirza also emphasizes that the offences charged have demanding subjective mens rea requirements: Khawaja, at para. 45-49. Given the absence of evidence that Ms. Mustafa ever encouraged or supported the use of violence by anyone, he submits it will be difficult for the Crown to prove the charges against her.

[34] Turning to the primary ground, Mr. Mirza emphasizes that Ms. Mustafa is Canadian. Her immediate and extended family are all in Canada. Her roots in the community, her voluntary return after the trial in Turkey, and that she remained here during the ten months before her arrest, despite knowing she was under investigation, all confirm that she does not pose a flight risk, argues Mr. Mirza.

[35] Under the secondary ground, Mr. Mirza argues that several factors counsel against concluding that Ms. Mustafa poses a substantial likelihood of committing offences while on bail that would endanger public safety. First, she does not have a criminal record. Second, there is an absence of evidence that she has ever acted violently or ever encouraged or supported the use of violence. Finally, while under intense surveillance for over ten months before her arrest, police never observed her doing anything that raised public safety concerns.

[36] Finally, Mr. Mirza argues that, considering all of the circumstances, Ms. Mustafa’s release on bail would not undermine confidence in the administration of justice. He acknowledges the charges are serious, and, if convicted, Ms. Mustafa likely faces a sentence of imprisonment in the range of four to five years. However, Mr. Mirza emphasizes that the Crown faces real challenges in proving the charges. Taking all of the circumstances into account, including the release plan, he argues that Ms. Mustafa’s release on bail would not undermine confidence in the administration of justice.

[37] Finally, should the court have any concerns regarding Ms. Mustafa’s release on bail, Mr. Mirza submits that appropriately tailored conditions can effectively address them and that the court can trust Ms. Khan to strictly enforce any terms of release. As a result, Mr. Mirza argues that the court should grant Ms. Mustafa bail.

[38] On behalf of the Crown, Mr. Piafsky concedes that there is no direct evidence that either Ms. Mustafa or Mr. Mao ever committed any acts of violence or that they ever encouraged or justified the use of violence. Nevertheless, he maintains that the Crown has a strong case.

[39] Mr. Piafsky argues that the evidence overwhelmingly establishes that, when they left Canada in late June of 2019, Ms. Mustafa and Mr. Mao intended to move to the Islamic State. He notes that, by that time, the Islamic State consisted of little more than a small group of guerilla fighters. Mr. Piafsky argues that, given the couple’s desire to relocate to what remaining territory the group still controlled, there is an inescapable inference that they were planning on closely associating themselves with its most violent element and its terrorist activities. He argues that Ms. Mustafa’s efforts to take up residence in the Islamic State and thereby contribute to sustaining it through her presence would necessarily only serve to enhance its ability to carry out its terrorist activities: see R. v. Abdirahman-Khalif, [2020] HCA 36, at paras. 41-43. On that basis, Mr. Piafsky argues the Crown has a strong case against Ms. Mustafa.

[40] It is against that backdrop that Mr. Piafsky argues that Ms. Mustafa has failed to justify her release on bail. In taking that position, he emphasizes the apparent strength of the Crown’s case and Ms. Mustafa’s demonstrated pattern of deceiving her family and friends to make her way to the Islamic State. Given all of that, combined with the fact that the Islamic State is the most hated and notorious terrorist group on the planet, Mr. Piafsky argues that the court should have grave concerns under the primary, secondary, and tertiary grounds when it comes to Ms. Mustafa’s potential release on bail.

[41] Finally, Mr. Piafsky questions whether the release plan would effectively address the likely risks that Ms. Mustafa would pose on bail. He notes that the proposed surety was reluctant to concede that Ms. Mustafa must have been radicalized before she left Canada. Further, the surety was also reluctant to acknowledge that the behaviour of Ms. Mustafa’s father in likely counselling his daughter to destroy evidence was problematic. Given this, Mr. Piafsky argues that Ms. Khan’s apparent loyalty to Ms. Mustafa and her family makes her a less than suitable surety.

Law and Analysis

[42] The decision whether to release Ms. Mustafa on bail depends on an application of the primary, secondary, and tertiary grounds: Criminal Code, ss. 515(10)(a)-(c). More specifically, whether Ms. Mustafa has shown that her detention is not justified on any of these three bases. Before considering each of the legislated criteria, it is sensible to begin by addressing the apparent strength of the Crown’s case, which figured prominently in the submissions of both defence and Crown counsel.

[43] The apparent strength of the Crown’s case can often prove a crucial consideration when applying each of the criteria for granting or denying bail. For example, if the Crown’s case is strong and the offence charged is serious, pre-trial release may give rise to both flight and public safety concerns: see Gary T. Trotter, The Law of Bail in Canada, 3d ed. (Toronto: Thomson Carswell, 2010), at pp. 3-6 to 3-7, 3-19 to 3-22, and 3-34 to 3-37. Additionally, under the tertiary ground, it is one of the circumstances the court must consider in deciding whether detention is necessary to maintain confidence in the administration of justice: Criminal Code, s. 515(10)(c).

[44] The two charges that Ms. Mustafa faces are rooted in the participation offence: Criminal Code, s. 83.18(1). To prove count one, an inchoate crime, the Crown must establish not only that Ms. Mustafa left Canada (actus reus) but also that she did so “for the purpose” of committing the participation offence (mens rea): Criminal Code, s. 83.181. The “for the purpose” language establishes a “high mens rea threshold”: Khawaja, at para. 45-47; see also R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at paras. 31-32. The accused must specifically intend his or her actions to have this general effect: Khawaja, at para. 46; see also R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 16-18. In the context of the offence in s. 83.181, that means the Crown must establish that when going abroad, Ms. Mustafa subjectively intended to commit the participation offence, with all that that necessarily entails.

[45] In count two, Ms. Mustafa faces a charge of participating in the activities of a terrorist group: Criminal Code, s. 83.18(1). In Khawaja, the Supreme Court of Canada authoritatively interpreted the elements of that offence. The actus reus reaches the actions of anyone who “participates in or contributes to … any activity of a terrorist group”: Khawaja, at para. 50 (emphasis in original), interpreting Criminal Code, s. 83.18(1). However, reading the provision in context, the Supreme Court interpreted this language as requiring that an accused’s conduct more than negligibly enhance the ability of a terrorist group to facilitate or carry out a terrorist activity: Khawaja, at para. 50. In this case, that means the Crown must prove Ms. Mustafa did something that had the effect of more than negligibly enhancing the ability of the Islamic State to carry out its terrorist activities.

[46] Additionally, in terms of the mens rea, the Crown must not only prove the accused “knowingly” carried out their assistive act but that he or she did so “for the purpose” of enhancing the ability of the terrorist group to facilitate or carry out terrorist activity. That requires that the accused specifically intend his or her actions to have this general effect: Khawaja, at para. 46. Stated differently, the accused must intend for his or her actions to enhance the ability of the terrorist group to carry out or facilitate a terrorist activity: Khawaja, at para. 46. In this case, this means the Crown must prove beyond a reasonable doubt that Ms. Mustafa specifically intended her actions to enhance the Islamic State’s ability to carry out a terrorist activity.

[47] Like with any offence, there may be direct evidence of the accused’s intention, or it may be inferred from the circumstantial evidence, including from the nature of the accused’s actions: Khawaja, at para. 48; see also R. v. Seymour, 1996 CanLII 201 (SCC), [1996] 2 S.C.R. 252, at para. 19; R. v. Buzzanga and Durocher (1979), 1979 CanLII 1927 (ON CA), 49 C.C.C. (2d) 369 (Ont. C.A.), at p. 378.

[48] With the elements of the two offences for which Ms. Mustafa faces charges firmly in mind, taking into account the information presented at the bail hearing concerning the available evidence, it would appear that the Crown does not have an especially strong case. There is no direct evidence that Ms. Mustafa intended to assist the Islamic State in carrying out terrorist activities. Importantly, there is no evidence that Ms. Mustafa has ever promoted or justified the use of violence. If the Crown had such evidence, it could support a reasonable inference that, in endeavouring to immigrate to the Islamic State, Ms. Mustafa intended to enhance its ability to carry out terrorist activity.

[49] Instead, the Crown’s case depends on the trier of fact drawing an inference based on the reality of the Islamic State’s situation in the summer of 2019. By that point, it was just a small group of guerilla fighters, which necessarily meant that joining them would involve assisting in their terrorist activities. It follows, submits the Crown, given the timing of Ms. Mustafa’s efforts to move to the Islamic State, that she must have intended to assist the group with its terrorist activities. Although that is a possible inference, it would seem to be far from irresistible based on the available evidence.

[50] First, drawing that inference would require a trier of fact accepting that Ms. Mustafa had some knowledge of the Islamic State’s actual situation in the summer of 2019. The evidence suggests that she and Mr. Mao were relying heavily on a publication that was four years out of date, which counselled its readers to enter Syria by travelling from Sanliurfa to Akcakale, Turkey, and then crossing the border into Tel Abyad, Syria. By the summer of 2019, northern Syria was no longer under the Islamic State’s control, which only had a tiny foothold in Iraq’s Salah ad-Din province, more than 600 km away from Tel Abyad. That evidence hardly suggests that Ms. Mustafa was well-informed about the reality of the Islamic State’s circumstances in the summer of 2019.

[51] Second, there is the email that Mr. Mao and Ms. Mustafa sent to their family and friends on July 11, 2019. The Crown will undoubtedly rely on it at trial to prove that the couple were planning on immigrating to the Islamic State. It certainly provides strong proof of that. However, the email suggests they did not accept how “western media” portrayed the Islamic State and thought the reporting was unfair and inaccurate. That Ms. Mustafa encouraged her family and friends to conduct their own research and join the couple suggests she believed the Islamic State’s propaganda that it was some kind of Islamic utopia.

[52] Of course, as a judge conducting a bail hearing, it is not my function to try the case. That will be for the jury, which will benefit from seeing and hearing all of the evidence. My only purpose in conducting this review of the law and the evidence made available at the bail hearing is to assess the apparent strength of the Crown’s case and how it might bear on the primary, secondary, and tertiary grounds. In the end, the apparent strength of the Crown’s case against Ms. Mustafa is not a factor that weighs in favour of ordering pre-trial detention on any of the three permissible bases.

(a) The primary ground

[53] Pre-trial detention is justified when necessary to ensure an accused’s attendance in court: Criminal Code, s. 515(10)(a). In all of the circumstances, Ms. Mustafa has demonstrated that it is unnecessary for her to remain in custody to ensure she attends court.

[54] Ms. Mustafa is a Canadian citizen whose immediate and extended family all live in Markham. She does not have a criminal record. After her acquittal in Turkey, Ms. Mustafa was free to go anywhere in the world. She chose to return to Canada. Notably, during the ten months following her return from Turkey and before her arrest, Ms. Mustafa made no effort to flee. Instead, she was living with her parents and seemingly trying to return to ordinary life. At the time, she undoubtedly knew police were investigating her and that she could be arrested and charged at any time.

[55] Nor is this a situation in which the strength of the Crown’s case and the prospect of a lengthy prison sentence would incentivize Ms. Mustafa to flee. As explained, the Crown’s case is not especially strong, and there is a good chance that Ms. Mustafa will be found not guilty of the charges. I find it hard to imagine that she would fail to attend court and needlessly risk becoming a fugitive in these circumstances.

[56] Any flight risk that Ms. Mustafa could potentially pose is more than adequately addressed by the authorities already seizing her passport. The court can effectively restrict her ability to travel by prohibiting her from applying for another passport or leaving Ontario.

[57] Additionally, given their relationship, I cannot imagine that Ms. Mustafa would jeopardize the money Ms. Khan would be pledging to secure her release on bail. This is a situation where the “pull of bail” on Ms. Mustafa will be significant and can only serve to increase the likelihood of her strict compliance with the terms of release to avoid Ms. Khan suffering “undue pain and discomfort”: R. v. Uxbridge Justices, ex parte Heward-Mills, [1983] 1 All E.R. 530, at p. 532, quoted with approval in Canada (Attorney General) v. Horvath, 2009 ONCA 732, 248 C.C.C. (3d) 1, at paras. 40-41.

[58] For all of these reasons, I am satisfied that Ms. Mustafa’s detention is not necessary to ensure her attendance in court.

(b) The Secondary Ground

[59] The Criminal Code requires pre-trial detention where it “is necessary for the protection or safety of the public”: s. 515(10)(b). Under this provision, the “danger or likelihood that an individual will commit a criminal offence does not in itself provide just cause for detention”: R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711, at p. 736. Instead, detention is only warranted where an accused poses a “substantial likelihood” of committing an offence or interfering with the administration of justice, and only where this “substantial likelihood” endangers “the protection or safety of the public”: Morales, at p. 737. A “substantial likelihood” refers “to a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely”: R. v. Manasseri, 2017 ONCA 226 (in Chambers), at para. 87.

[60] In explaining the secondary ground for detention in Morales, the Supreme Court of Canada acknowledged the impossibility of making exact predictions about an accused’s potential for recidivism and future dangerousness: Morales, at pp. 738-39. The law, however, does not require clairvoyance. Instead, it demands a reasoned assessment, based on all the available information, of the probable risk the accused poses if released: Morales, at p. 739.

[61] In assessing the risk of release, a key consideration is the accused’s criminal record. If an accused has a track record of not abiding with court orders, that may provide a basis for concluding that he or she will not be compliant with a proposed plan of supervision and the conditions of release: Trotter, at p. 3-17.

[62] The nature of the charge and the strength of the Crown’s case are also important considerations. As explained above, where an accused faces serious charges and overwhelming evidence, public safety concerns may foreclose bail. That said, the charges the accused faces and the apparent strength of the Crown’s case, although relevant to the secondary ground for detention, should be considered with some caution. No matter the offence charged, the Criminal Code contemplates the potential for bail; the nature of the charge alone can never justify a denial of bail: R. v. LaFramboise (2005), 2005 CanLII 63758 (ON CA), 203 C.C.C. (3d) 492 (Ont. C.A., in Chambers), at para. 31.

[63] Based on all of the evidence considered in light of the governing legal principles, Ms. Mustafa has demonstrated that her detention is not necessary for the protection or safety of the public. I have come to that conclusion for three principal reasons. First, Ms. Mustafa does not have a criminal record. Second, although charged with a terrorism offence, there is no evidence to suggest that she has ever acted violently towards anyone or that she has ever promoted or justified violence. Finally, despite police placing her under intense surveillance over the ten months following her return from Turkey and before her arrest, nothing about her behaviour raised public safety concerns.

[64] To be sure, Ms. Mustafa’s decision in late June 2019 to leave her family, friends, and the life she had in Canada for the Islamic State is most concerning. I cannot entirely discount the possibility that her decision to do so had some unknown malevolent motivation rather than just resulting from naivete.

[65] Although it would undoubtedly be safer to err on the side of caution and decline to grant Ms. Mustafa bail, such an approach would be entirely inconsistent with her constitutionally protected right to be presumed innocent and its corollary, the right not to be denied reasonable bail without just cause: see Charter, ss. 11(d), 11(e); R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, at para. 67. The law requires a reasoned assessment, based on all of the available information, of the probable risk the accused poses if released on bail.

[66] Based on the available evidence, Ms. Mustafa has satisfied me that her detention is not necessary for the protection or safety of the public. There is no reasoned basis for concluding that, if released on bail, she would pose a substantial likelihood of committing an offence or interfering with the administration of justice and thereby endanger the public’s safety.

[67] The only potential basis for concern grounded in fact rather than speculation relates to the possibility of Ms. Mustafa and her father discussing their potential evidence. However, I am satisfied that the release conditions can more than adequately address such a concern.

(c) The Tertiary Ground

[68] The Criminal Code provides that the detention of an accused person in custody is justified if it is necessary “to maintain confidence in the administration of justice, having regard to all the circumstances”: s. 515(10)(c). The provision also sets out a non-exhaustive list of factors that the court must consider in making this determination: s. 515(10)(c)(i)-(iv).

[69] Two of the enumerated factors weigh in favour of ordering detention in this case. The terrorism offences charged are gravely serious: s. 515(10)(c)(ii). And, if convicted, Ms. Mustafa faces a potentially lengthy term of imprisonment: s. 515(10)(c)(iv). In contrast, one of the enumerated factors weighs against ordering detention, as the Crown’s case against Ms. Mustafa does not appear to be especially strong: s. 515(10)(c)(i).

[70] Ultimately, in deciding whether detention is necessary to maintain confidence in the administration of justice, s. 515(10)(c) requires a qualitative rather than a quantitative assessment. The provision involves much more than applying a checklist: see R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 66-69, 87. Ultimately, a judge must consider the four factors “together with any other relevant factors” to determine “whether, in the case before him or her, detention is necessary” to “achieve the purpose of maintaining confidence in the administration of justice”: St-Cloud, at paras. 69, 87.

[71] In assessing whether or not detention is necessary to maintain confidence in the administration of justice, the concern is with public confidence: R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 41; St-Cloud, at para. 72. The measure is the perception of “reasonable members of the community”: St-Cloud, at para. 74. People who are dispassionate, thoughtful, well-informed, and familiar with the basics of the rule of law, the fundamental values of our criminal law, and the rights guaranteed by the Charter, including the presumption of innocence, the right to reasonable bail, and the right to be tried within a reasonable time: St-Cloud, at paras. 72-87.

[72] After considering all of the circumstances, including the factors enumerated in s. 515(10)(c) as they relate to this case, I am satisfied that Ms. Mustafa’s detention is not necessary to maintain confidence in the administration of justice. No doubt, some members of the public will be alarmed to learn that the court has granted an accused terrorist bail. However, under s. 515(10)(c), the court need only concern itself with the potential reaction of thoughtful persons, not individuals who are prone to emotional reactions, who have inaccurate or incomplete knowledge of the circumstances of the case, or who disagree with our society’s fundamental values: St-Cloud, at para. 80.

[73] I am satisfied that reasonable members of the community, fully informed of all the circumstances of this case, would not lose confidence in the administration of justice because of Ms. Mustafa’s release on bail. On the contrary, if such members of the community were fully informed about all the circumstances, including:

• That Ms. Mustafa does not have a criminal record;
• That there is no evidence that she has ever acted violently or encouraged or supported the use of violence by anyone;
• That despite being under intense surveillance over ten months after her return from Turkey and before her arrest, police did not observe any concerning behaviour on her part.
• That the Crown’s case against her appears weak and unlikely to result in convictions;
• That, while on bail, Ms. Mustafa will be residing with and supervised by a law-abiding and responsible member of the community, someone she respects and listens to who is pledging a substantial sum of money; and
• The conditions of release the court will be imposing;

I believe they would lose confidence in the administration of justice if the court did not release Ms. Mustafa: see St-Cloud, at para. 86-87.

Conclusion

[74] For all of these reasons, the court orders Ms. Mustafa’s release on bail on the following terms:

1. With one named surety, Saira Hayat Khan, pledging $100,000.00 but with no deposit;

2. Subject to the following conditions:

(a) That she reside with her surety, at 139 Stonechurch Crescent, Markham.

(b) That she remain in her surety’s residence at all times, except:

i. While travelling directly to, while at, or returning directly from:

• the courthouse for scheduled court appearances;
• her lawyer’s office for scheduled meetings;
• her place of employment;
• an educational institution where she is a registered student to attend scheduled classes;
• a scheduled medical, dental, or counselling appointment;
• a hospital because of a medical emergency involving her or a member of her immediate family (father, mother, sisters, grandparents), her surety, or her surety’s child;

OR

ii. Unless in the immediate and continuous presence of her surety or an adult approved of by her surety, but not including her father (Shahzad Mustafa).

(c) She shall not communicate with her father, Shahzad Mustafa, or her husband, Ikar Mao, about the charges and/or the evidence, unless in the presence of legal counsel;

(d) She shall not use any social media of any kind, including Facebook, Twitter, Instagram, etc. or any similar online communication services, and she shall provide Ms. Khan unrestricted access to any electronic devices she uses to ensure compliance with this condition, and to monitor her use of the Internet.

(e) She shall remain in the Province of Ontario.

(f) She shall not apply for or obtain a passport.

(g) She is not to possess any weapons as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted device, ammunition or explosive substance, or anything designed to be used or intended for use to cause death or injury or to threaten to intimidate any person).

(h) She is not not to apply for any authorization, licence, or registration certificate for any weapon as defined by the Criminal Code.

(i) Commencing on Wednesday, April 7, 2021, and every Wednesday after that, between 8:00 a.m. and 4:00 p.m., she shall report by telephone to the R.C.M.P. by speaking with either Corporal Nicole Simpson or Officer Keith Booth.

Signed: J. Stribopoulos

Released: March 31, 2021

COURT FILE NO.: CR-20-472 DATE: 20210331

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

HALEEMA MUSTAFA

DECISION on section 525 Detention review

Stribopoulos J.

Released: March 31, 2021