His Majesty The King v. Nathaniel Veltman, 2023 ONSC 3734

Court File No.: CR-21-174 Date: 2023-06-23 Ontario Superior Court of Justice

Between: His Majesty The King, Applicant – and – Nathaniel Veltman, Respondent

Counsel: Jennifer Moser, Counsel for the Provincial Crown Sarah Shaikh and Lisa Matthews, Counsel for the Federal Crown Christopher Hicks and Peter Ketcheson, Counsel for the Respondent

Heard: January 23, 24, 25, 26, 27, 2023, February 1, and 2, 2023

Ruling on Admissibility of Ideological Evidence and Expert Evidence

Pomerance J.

[1] Nathaniel Veltman is to stand trial on four counts of first-degree murder and one count of attempted murder. The charges arise out of an event on June 6, 2021, in which a group of pedestrians was struck by a vehicle alleged to have been driven by the accused. Four of the pedestrians were killed and one was injured. It is alleged that the accused deliberately targeted a Muslim family in order to carry out a terrorist attack.

[2] The trial is scheduled to commence in September 2023 and run for 12 weeks.

[3] The Crown alleges two alternate bases of liability for first degree murder: planning and deliberation pursuant to s.231(2) of the Criminal Code; and terrorist activity pursuant to s.231(6.01) of the Criminal Code.

[4] In support of the allegation of first-degree murder, the Crown seeks to tender two categories of evidence. The first consists of documents and videos found by the police on the accused’s computer, phone, and USB drives. The documents contain various assertions of belief consistent with extremist right-wing ideology. The Crown alleges that one of the documents – A White Awakening – was authored by the accused and served as his “manifesto”. Other documents include “manifestos” authored by other individuals, a copy of Mein Kampf, authored by Adolf Hitler, and videos of mass killings. The Crown argues that these documents are admissible as documents in the possession of the accused. It is said that they are highly probative of the accused’s motivations and are necessary to prove that the accused was engaged in an act of terrorism as defined in the Criminal Code.

[5] The second category of evidence is linked to the first. The Crown proposes to call Dr. Barbara Perry, as an expert witness, to testify about the right-wing extremist movement in Canada. It is said that Dr. Perry’s evidence is necessary to explain the phenomenon of right-wing extremism, to define terms found in the documents, and to provide necessary background and context.

[6] The defence resists the admission of this evidence, arguing that it constitutes bad character evidence. The defence argues that the evidence should not be admitted as it carries prejudicial impact that far exceeds probative value.

[7] I have determined that the documents found in the possession of the accused are admissible, with some exceptions. As for the expert opinion evidence, I have determined that the testimony of Dr. Perry is not admissible at the trial. I will explain the bases for these conclusions in the reasons that follow.

The Evidence Proffered by the Crown

Evidence Seized from the Accused’s Residence

[8] After the events giving rise to the charges, London police officers attended the accused’s apartment and executed a search warrant. An Acer laptop was seen on a computer desk, as was a Samsung cell phone and a Kingston 64 GB USB flash drive. A blue Lexar Mini 64 GB USB flash drive was seen on a small orange table to the right of the computer desk. A Seagate 2 terabyte hard drive was located in a desk drawer near a sheet of paper with passwords written on them. At 8:41 p.m., Officer Eddy saw that the Acer laptop was powered on and the user account on screen was “nate” which was password protected.

[9] Items seized from the apartment included the following:

a. An alleged “manifesto” entitled ‘A White Awakening’. The Crown alleges that the accused authored this document and that it expresses the ideology that led him to commit the offences before the court. This document contains direct quotes from Mein Kampf, authored by Adolf Hitler.

b. A copy of Mein Kampf – the NEW Ford Translation by Adolf Hitler. The copy of Mein Kampf had several passages that were highlighted or accompanied by handwritten notes.

c. A manifesto authored by Brenton Tarrant, the man responsible for the Christchurch, New Zealand mosque shootings. Evidence would indicate that the accused opened the Tarrant manifesto just 20 minutes before leaving his apartment on the day of the incident, and that the document was open for about 11 minutes.

d. Two copies of a manifesto authored by Anders Breivik entitled: “2083 – A European Declaration of Independence”. These were found on a cellular device. Breivick was responsible for 2011 terrorist attacks in Norway where he murdered 77 people, including many teenagers. The Crown seeks to introduce only the first page of this document.

e. Two videos of mass shootings were found to have been downloaded on a USB drive. The Crown does not propose to play those videos but wishes to elicit evidence of their existence.

A. ‘The White Awakening’

[10] The Crown proposes to introduce a redacted version of the document entitled ‘A White Awakening’, as summarized below:

(a) Advocating for the advancement and protection of “European peoples worldwide” and the creation of “a society where all white people have a sense of belonging”, with “completely reformed” governments;

(b) Calling for a “white nationalist” rebellion or defence against multiculturalism and non-white immigration;

(d) Advocating for western countries to embrace Christianity as part of a renewed white identity; and,

(e) Calling Muslims a threat to white society, claiming they operate rape “gangs” and should be “DRIVEN OUT OF OUR COUNTRIES, FAST”.

[11] The Crown alleges that this document was authored by the accused. The Crown will call a digital forensic analyst to establish that the user of the laptop, Seagate hard drive, and Lexar USB (all found in the accused’s apartment) accessed, edited, and saved the document multiple times between May 4, 2021 and June 5, 2021, the day before the alleged crimes.

[12] The Crown will also seek to introduce evidence to indicate that the document, ‘A White Awakening,’ contains direct quotes from Mein Kampf, authored by Adolf Hitler. That book was found on a shelf in the accused’s apartment. The 12 quotes that appear in ‘The White Awakening’ are highlighted in the copy of Mein Kampf found in the accused’s apartment.

B. Brenton Tarrant’s manifesto “The Great Replacement”

[13] Police located a copy of Tarrant’s manifesto on a Kingston USB device found on a computer desk next to the laptop in the accused’s apartment. Digital forensic evidence will be called to establish that the USB stick was placed in the laptop, and the manifesto opened, about 20 minutes before the accused left his home on June 6, 2021.

[14] “The Great Replacement” manifesto contains sentiments similar to those found in ‘A White Awakening’, and includes the following assertions:

(a) The number of white people in Western and European countries are declining because of falling birth rates and mass immigration, resulting in a “white genocide”;

(b) Tarrant’s attack at the Christchurch Mosque was intended to show “invaders” that the “white man still lives”, to take revenge, and to create an atmosphere of fear;

(c) Tarrant justified his attack on Muslims because they are “invaders”, have a high fertility rate, and “seek to occupy my peoples lands”;

(d) Expressions of hatred for Muslims living in “our lands”;

(e) Justification for killing Muslim children; and

(f) Advocating for killing the Pakistani and Muslim “rapists” who operate in the United Kingdom and European countries.

C. Breivik Manifesto

[15] Another document found in the accused’s apartment was the manifesto authored by Anders Breivik, entitled “2083-A European Declaration of Independence”. Two copies of this document were found on a Samsung cellphone, found on a charging pad on a computer desk. The Crown alleges that one copy was downloaded on April 16, 2021, and that the other was downloaded on May 29, 2021, both using the Tor browser.

[16] The Crown does not seek to tender the contents of the Breivik manifesto. The Crown seeks to lead evidence of the fact that it was on the Samsung phone, the dates it was downloaded, and the images on the front cover.

D. Mass Shooting Video

[17] The Kingston USB contained two livestream videos of other terrorist attacks. One was the video of Tarrant’s attack at the Christchurch mosque. According to forensic evidence, this video was downloaded on March 25, 2021, and was accessed six times, the most recent being the day before the alleged crimes. The second video portrays a shooting attack on a synagogue in Germany. It was downloaded on May 5, 2021, and was accessed on three occasions, the most recent being four days before the alleged crimes.

[18] The Crown does not propose to tender these videos as evidence but does seek to lead evidence that they were in the accused’s possession, with evidence of when they were accessed.

E. Religious Material

[19] The Crown seeks to tender religious material found in the accused apartment, namely (1) the Holy Bible; (2) The Book of Mormon; and (3) five copies of Creation magazine. The Crown intends to tender photographs of the front covers of these documents.

Items the Crown Does Not Seek to Tender

[20] The Crown has determined that it will not seek to lead evidence of the following evidence found in the accused’s apartment:

(a) Three books found on the same shelf: (1) the contents of Mein Kampf by Adolf Hitler (except the highlighted passages as noted above); (2) Jewish Supremacism by David Duke; and (3) …the truth shall set you free by David Icke;

(b) Eight pages of stapled documents showing pictures and addresses of abortion clinics in Ontario;

(c) The proposed redacted passages in ‘A White Awakening’; and References to “DStormer”, which is a web address on the dark web that links to antisemitic content; this was written on a piece of paper (along with passwords) found in the computer desk drawer.

Video Surveillance

[21] Detective Jason Eddy reviewed surveillance footage obtained from the Peavey Mart hardware store located at 1435 Hyde Park Road, London. The video depicts, at 8:40 p.m., a black Dodge Ram pickup truck southbound on Hyde Park Road at the intersection of South Carriage Road and Hyde Park Road. The truck accelerates and veers into a group of people crossing the road.

Earlier Events

[22] The accused was residing at 34 Covent Market Place in June 2021. Surveillance footage from the building shows the accused entering his apartment building at 7:29 p.m. EDT, and then leaving the apartment building at 7:58 p.m. EDT, 42 minutes before the events giving rise to the charges.

[23] The Crown seeks to lead evidence establishing that the accused accessed certain digital material in the time frame leading up to the alleged crimes. The Crown offered the following timeline as a summary of relevant dates and events:

March 25, 2021

2:31 AM – ChristChurch Mass Shooting downloaded on Acer
2:32 AM – “The Great Replacement” saved on Kingston USB
2:37 AM – ChristChurch Mass Shooting accessed
2:37 AM – ChristChurch Mass Shooting copied to Kingston USB

March 30, 2021

2:36 AM – ChristChurch Mass Shooting accessed

April 3, 2021

5:28 PM – ChristChurch Mass Shooting accessed

April 10, 2021

11:59 PM – ChristChurch Mass Shooting accessed

April 16, 2021

3:52 AM – Used Samsung phone to download Breivik manifesto

May 4, 2021

10:59 AM – A White Awakening saved as “idk.txt”

May 5, 2021

7:20 PM – Halle Germany Synagogue shooting video – downloaded
8:50 PM – Synagogue shooting video – copied to Kingston USB

May 11, 2021

Bill of sale for truck (dated)

May 15, 2021

5:56 AM – Halle Germany Synagogue shooting - accessed

May 19, 2021

Delivery date for truck noted on bill of sale

May 23, 2021

9:26 PM – ChristChurch Mass Shooting accessed

May 24, 2021

3:49 AM – idk.txt accessed

May 29, 2021

2:58 AM – Used phone to download Breivik manifesto
4:50 AM – idk.txt accessed
6:06 AM – Halle Germany Synagogue shooting video - accessed
6:21 AM – ChristChurch Mass Shooting - accessed

June 1, 2021

5:36 AM – idk.txt accessed
2:56 PM – Last time “A White Awakening” was modified – the first time it is seen labelled as “A White Awakening” from the original file idk.txt. Now present on both Seagate and Lexar. The version “notepad” means he converted it to PDF or printed it as PDF.
3:12 PM – idk.txt is deleted from Seagate hard drive
3:12 PM – .txt and PDF versions are on Seagate and the hard drive is disconnected from the Acer

June 2, 2021

4:56 PM – Halle Germany Synagogue shooting video – accessed

June 5, 2021

12:54 PM – Both .txt and PDF versions of “A White Awakening” are accessed on Lexar USB
6:41 PM – ChristChurch Mass Shooting accessed

June 6, 2021

7:29 PM – Entered his building
7:37 PM – Lexar connected to Acer laptop and 7 seconds later disconnected
7:38 PM – “The Great Replacement” was launched from Kingston USB on Acer and viewed on browser
7:50 PM – Kingston USB disconnected from laptop
7:58 PM – Left his building
8:40 PM – (killing of the Afzaal family and attempted murder)

[24] The timeline establishes a temporal nexus between some of the documents and the alleged offences. The evidence indicates that the accused opened the Tarrant manifesto at around 7:38 p.m. on June 6, 2021, minutes before leaving his house, with the document open for over 11 minutes. It was just an hour after the document was accessed that the Afzaal family was struck by the accused’s truck. Similarly, the accused viewed the video of the Christchurch mass shooting, which targeted Muslims, at about 6:41 p.m. the day before.

Characterization of the Evidence

[25] A preliminary question to be addressed is how to characterize the material found on the accused’s computer. The Crown argues that this evidence is presumptively admissible as documents found in the possession of the accused. The defence argues that this evidence is presumptively inadmissible as bad character evidence.

[26] It seems to me that both positions are correct. The fact that the accused was in possession of the material does imbue it with probative value though it does not follow that the evidence is automatically admissible. Whether or not the “documents in possession” doctrine strictly applies in this case, it is not a complete answer to admissibility question. Whenever evidence carries the potential for prejudice – by potentially eliciting feelings of antipathy toward the accused – there must be a voir dire to determine whether probative value is outweighed by prejudicial effect. This, of course, is the overarching calculus in all determinations of admissibility. It is particularly important here, where the evidence has both probity and prejudice. The court must consider the risk that the jury will use the evidence for an improper purpose; and the extent to which prejudice can be circumvented through clear and direct limiting instructions to the jury.

Positions of the Crown and Defence

[27] The Crown argues that the documents are probative of intention, motive, and animus. It is said that, collectively, the evidence establishes planning and deliberation, motive, animus against Muslim individuals, and the elements of a terrorist act. The Crown alleges that the accused left his apartment with the intention of finding a Muslim family to kill, and that he killed the Afzaal family as part of a larger religious, political or ideological purpose objective or cause. The ideology, broadly speaking, calls for white people to create a new society. A subset of this ideology, and the alleged impetus for the offences, calls for white individuals to instill fear in Muslims, kill them, and drive them out of European and Western countries.

[28] The defence argues that the evidence is, at best, of marginal relevance. The defence says that the subject matter is in general violent, racist and reprehensible, and depicts several mass killings which are likewise public knowledge. The Crown’s labelling of this evidence as ‘ideological evidence’ is merely rebranding bad character evidence with a more palatable label. This evidence is being tendered for no purpose other than to show that the Respondent is a ‘bad person’ by asking the jury to infer that he is associated with, or approves of, the subject matter and the described ideologies.

Analysis

[29] The admissibility of this evidence hinges on the issues to be determined by the jury.

[30] The evidence, broadly described as ideological evidence, has probative value as it relates to proof of planning and deliberation. The fact that the accused accessed certain material shortly before setting out in his truck on the day in question would suggest that this material played a role in his motivations at the critical time. The Crown alleges that the accused set out to deliberately target a Muslim family. If that be proved, the offence is one in which the killings were planned and deliberate. That is, it would establish a pre-concerted plan to kill members of the Muslim community, considered and carried in a deliberate non-impulsive fashion.

[31] The ideological evidence has even greater probity when it comes to the terrorism allegation, pursuant to s. 231(6.01) of the Criminal Code. I agree with the Crown that the ideological evidence is at the core of what must be proved under that section. The terrorism allegation may be said to subsume the allegation of planning and deliberation. If an act of murder is motivated by political ideology and is calculated to intimidate a segment of the public, it would seem that, by necessity, the murder is also planned and deliberate. The converse is not true. It is obvious that a murder may be planned and deliberate without constituting a terrorist act.

[32] Section 231(6.01) provides as follows:

Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an indictable offence under this or any other Act of Parliament if the act or omission constituting the offence also constitutes a terrorist activity.

[33] The definition of terrorist activity is found in s.83.01(1)(b) of the Criminal Code. For purposes of s.231(6.01), terrorist activity is defined as follows:

(b) an act or omission, in or outside Canada,

(i) that is committed

(A) in whole or in part for a political, religious or ideological purpose, objective or cause, and

(B) in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada, and

(ii) that intentionally

(A) causes death or serious bodily harm to a person by the use of violence,

(B) endangers a person’s life,

(D) causes substantial property damage, whether to public or private property, if causing such damage is likely to result in the conduct or harm referred to in any of clauses (A) to (C), or

(E) causes serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy, protest, dissent or stoppage of work that is not intended to result in the conduct or harm referred to in any of clauses (A) to (C),

and includes a conspiracy, attempt or threat to commit any such act or omission, or being an accessory after the fact or counselling in relation to any such act or omission, but, for greater certainty, does not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law.

[34] Based on the above, the Crown must prove the following elements of a terrorist act:

a. An act that intentionally caused death and/or bodily harm;

b. An act that was in whole or in part committed for a political, religious or ideological purpose, objective or cause; and

c. An act that was in whole or in part committed with the intention of intimidating the public, or a segment of the public, with regard to its security… or compelling a person, a government, or a domestic or an international organization to do or refrain from doing any act.

[35] The Crown states that ‘The White Awakening’ and other documents speak directly to the question of whether the accused acted for a political, religious or ideological purpose; and whether the act was intended to intimidate the public. The Crown argues that the digital evidence is not only relevant and admissible, but necessary if the Crown is to prove the elements of first-degree murder under s.231(6.01) of the Criminal Code.

[36] ‘The White Awakening’ is the most salient document, in that there is evidence from which it could be inferred that it was authored by the accused. Not only did the size of the document change when it was accessed on the accused’s computer, the passages quoted from Mein Kampf correspond to the very passages highlighted in the copy of Mein Kampf seized from the accused’s apartment. It is open to inference that the accused copied those passages from the book into the ‘A White Awakening’ document. The other documents, while not authored by the accused, were accessed by him, including at times proximate to the alleged offences. One might infer from access that the accused had an interest in the subject matter. One might also infer from the timing of access that the content of the documents bore on the accused’s state of mind: see R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555, at para. 25. It will be for the jury to decide on the inferences to be drawn from the evidence. It is, however, directly relevant to the essential elements of the offence, particularly proof of terrorist activity.

[37] On the question of prejudice, the Crown argues that the crimes themselves are “horrific, disturbing and viciously violent” and that the impact of the ideological evidence will pale in comparison to the impact of the charged conduct: see R. v. Moo, 2009 ONCA 645, at para. 108; R. v. Zekarias, 2022 ONCA 314, at para. 9. The Crown states that the features of the evidence that are prejudicial – in that they portray the accused as racist and anti-immigration- are the very features that imbue the evidence with probative value. The evidence does not reveal the commission of other crimes but rather relates directly to the offences charged in the indictment. Further, the Crown argues that the jury will hear about the Respondent’s motive and ulterior intent, as well as the horrific nature of the crime, and the risk of prejudice flows from the nature of the crime itself. The Crown says that limiting instructions will suffice to curb the prejudicial impact of the evidence, which is necessary to sustain the allegation of a terrorist act.

[38] It is true that the crimes to be tried are themselves highly disturbing and likely to arouse emotional reactions on the part of jurors. However, the horror of the alleged offence requires the court to be more, rather than less vigilant in protecting the accused’s fair trial rights. It is precisely in a case such as this, which has achieved some measure of notoriety, that the court must take pains to ensure that any potential prejudice, however minor, is averted to the extent possible.

[39] At the same time, there is a critical distinction between evidence that is incriminating and evidence that is prejudicial. Perhaps more accurately, there is a distinction between the use of evidence for a proper purpose – to prove an element of the offence – and the use of evidence for an improper prejudicial purpose – to punish the accused for being a bad person. Probity and prejudice are not necessarily counterweights, in the sense that as one goes up the other goes down. In some cases, such as this one, probity and prejudice may increase in tandem. Here, the elements that make this evidence probative are, to some extent, the same elements that make it prejudicial. The portrayal of the accused as someone who ascribes to distasteful extremist views is a source of moral prejudice. It may arouse a desire to punish the accused, or an impulse to conclude that, because he holds those views, he is the sort of person to commit a hate crime. The issue is not whether the accused is the sort of person to commit the alleged crime; the issue is whether the accused did commit the alleged crime. Yet this same evidence speaks to the latter issue – whether the accused was, in fact, motivated by terrorist related intentions when he drove into the victims. The elements of probity and prejudice overlap with one another in the circumstances of this case.

[40] Recognizing this, the task of the court is to strike a careful, nuanced, and thoughtful balance between the competing interests at stake. The Crown is entitled to lead evidence that is necessary to prove the charges. The defence is entitled to the guarantee of a fair trial, and a verdict that represents a dispassionate review of the evidence, rather than moral repugnance or other adverse sentiment.

[41] Admission of the ideological evidence will necessitate careful, direct, and strong limiting instructions that delineate what can and cannot be done with the evidence in question. These instructions will direct jurors to monitor, identify and acknowledge their emotional reactions and to set such reactions aside when deciding the case. Jurors will be instructed that they must not use this evidence to conclude that the accused is a bad person, or that he should be punished for his views, or that he is the sort of person who would do this and therefore must have done it. Jurors will be told that, while they be repulsed by the documented ideas found in the accused’s possession, they must not act on that emotion, but rather, must view the evidence dispassionately, applying logic and reason rather than emotions such as anger, fear, or outrage.

[42] Given the nature of the allegations before the court, such instruction would be advisable even without the ideological evidence. The point is to ensure that jurors are not inflamed; that they judge the allegations with intellectual rigor rather than instinctive aversion.

[43] The law presumes that jurors will understand and apply these instructions. The contemporary view is that jurors are clever, competent, and conscientious participants in the criminal process. As noted in such cases as R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 and R. v. Corbett, [1988] 1 S.C.R. 670, 64 C.R. (3d) 1, we should not make too much of the risk that jurors will be overwhelmed by evidence or disregard judicial instructions. The law presumes that jurors honour their oaths and affirmations. Experience teaches that jurors do take their role very seriously and do their best to live up to the law’s expectations.

[44] This is not to say that anything and everything is admissible. Sometimes the amount of prejudice is simply too great to resist. As it was evocatively described by Binnie J. in R. v. Handy, 2002 SCC 56 (“Handy”), at para. 40 speaking about bad character evidence: “The policy of the law recognizes the difficulty of containing the effects of such information which, once dropped like poison in the juror’s ear, “swift as quicksilver it courses through the natural gates and alleys of the body”: Hamlet, Act I, Scene v, ll. 66-67.”

[45] Unlike Handy, and other similar fact cases, the evidence in this case does not allege disreputable conduct crimes beyond the scope of the indictment. It is directly relevant to, and of a similar nature to the crimes charged. While the language of propensity is more often employed in true similar fact cases, the evidence in this case discloses specific rather than general propensity. The documents found in the accused’s possession go beyond a general propensity for hatred of non-white individuals. They disclose (subject to the jury’s findings) both a specific propensity for hatred of Muslim individuals and a specific propensity to act upon that hatred in violent fashion. In other words, there is a clear and cogent nexus between the specifics of the documents and the specifics of the crimes to be proved: see R. v. McCullough, 2021 ONCA 71.

[46] I note, as well, that the Crown is not the only party that associates the accused with extremist right-wing ideology. The accused himself took pains to link himself to these views in his statement to police. The defence argues that it is prejudicial for the accused to be associated with other mass murderers, such as Breivik and Tarrant. However, when speaking to Detective Boudreau, the accused was quick to identify individuals who were inspiration for the crimes that are now to be tried. He was inspired by others, just as he hoped that others would be inspired by his actions. The documents proffered by the Crown do not introduce brand new concepts. For the most part, they confirm what the accused said – in voluntary and enthusiastic terms – about his motivations when speaking to police: see R. v. Abdulle, 2023 ONCA 32.

[47] This is something of a double-edged sword. That is, to the extent that the accused addressed these issues in his statement to police, it could be said that the documentary evidence is unnecessary or superfluous. The Crown is entitled to prove its case, but there is a point at which evidence may have a “pile on” effect: see R. v. Mills, 2019 ONCA 940, at para. 137. I do not find that to be the case, at least not on the record as it currently exists.

[48] The defence has not indicated the position that it will take regarding the content of the accused’s statement. The accused has the right to withhold disclosure of the positions he will take at trial. However, the accused having chosen to remain silent (which is his entitlement), it must be presumed that everything is in issue. I have admitted edited versions of the accused’s statements. Should the accused seek to distance himself from what he said to police, the Crown may rely on the documents to show that the statements accurately reflected the accused’s thinking process. Similarly, the timing of access of the documents may further support the Crown theory.

[49] Of course, it will be for the jury to decide what if any inferences are drawn from this evidence. However, to the extent that the evidence is capable of yielding incriminating inferences, and has probity on the central issues at trial, it is properly admitted, subject to clear and direct limiting instructions on proper and improper use. I find that the probative value is sufficiently high as to outweigh the prejudicial effect.

[50] For all of these reasons, I find that the ideological evidence is, in theory, admissible at the accused’s trial. I will now turn to the manner in which it may be presented to the jury.

Manner of Presentation

[51] While the Crown is entitled to introduce ideological evidence at trial, it is appropriate to curate the extent of this evidence, and the manner of its presentation. The balance of competing interests demands that there be some selectivity in what is placed before the jury. The Crown has already exercised admirable restraint in choosing what it wishes to tender. Commending the Crown for its efforts, I would narrow the selection even further.

[52] The document entitled ‘A White Awakening’ is admissible as redacted by the Crown, as is the evidence tending to suggest that the accused authored the document on his own digital devices. That document will be available for consideration by the jury, but it is important that those portions relied upon by the Crown be read into the record in the courtroom. That is, I am concerned about simply marking the document as an exhibit and leaving it to the jury to read it in the jury room. Any evidence to be considered by the jury must be introduced in open court. To the extent that the Crown relies on particular portions of that document, all such portions must be clearly identified and read into the record as part of the Crowns case.

[53] The Crown proposes to introduce evidence of Brenton Tarrant’s “The Great Replacement” manifesto at trial. The evidence would indicate that this document was accessed just 20 minutes before the accused left his apartment on June 6, 2021. This manifesto contains sentiments similar to those expressed in ‘A White Awakening’. However, “The Great Replacement” is over 70 pages long, containing small font in single spaced prose. The Crown seeks to introduce the full document into evidence at trial. The Crown does not propose to read the full document into the record but proposes that it be introduced as an exhibit and available for perusal by the jury during deliberations.

[54] It is neither necessary nor desirable to introduce this document in its entirety. The Crown is at liberty to adduce evidence summarizing the content of the manifesto and quoting from portions that are particularly pertinent to this case. However, to leave the entire document with the jury is to invite potential misuse of the evidence. Unlike ‘A White Awakening’, there is no suggestion that the accused authored any portions of “The Great Replacement”. Even if the jury were to find that it inspired the accused’s actions, it does not necessarily follow that the accused agrees with the document in its entirety. Moreover, it is dangerous to leave 70 pages with the jury with the suggestion that they may read and interpret passages as they wish. Particularly when it comes to evidence of this nature, it is critical to know precisely what is and is not within the jury’s contemplation. I am not prepared to leave to chance what the jury happens to read or how it happens to interpret it.

[55] Therefore, as it relates to this document, the Crown may lead evidence of the front page of the document, and selected passages. It may lead evidence of the timing of the accused’s access. However, the full document is not itself admissible at trial. The call of probity is readily met without introducing the full exposition of Tarrant’s views.

[56] I agree with the following proposals offered by the Crown:

Only the front cover of the Breivik manifesto be introduced along with where it was found and the dates that it was downloaded onto the accused’s computer.
Regarding the mass shooting videos, the Crown will lead evidence only of the Tarrant attack at the Christchurch mosque and will only lead evidence that the video was found in the accused’s possession and the timing of access.
The Crown will not tender evidence of the book Mein Kampf by Adolf Hitler, but will only lead evidence of the fact that the book was found in the accused’s apartment, that various quotes were highlighted, and that those same portions appear in the document ‘A White Awakening’.

Identity of the Digital Forensic Expert

[57] The officer who testified on the admissibility voir dire was involved in the investigation into the alleged offences. Among other things, he executed the warrant at the accused’s apartment. As a consequence, this officer cannot testify in the capacity of a digital forensic expert. His active involvement in the investigation precludes him from being able to meet the test for absence of bias. This is not a criticism of the officer. It is a function of the role that he played. Courts have held that, despite the best of intentions, an officer cannot be both an investigator and expert in the same case: see R. v. McManus, 2017 ONCA 188.

[58] During submissions, I raised concern about the capacity of this officer to offer expert opinion evidence before the jury. The Crown advised that the digital data would be reviewed by a new, independent expert and that that person would be called to introduce the evidence at the trial.

Admissibility of Expert Testimony of Dr. Barbara Perry

[59] The Crown seeks to lead expert opinion evidence from Dr. Barbara Perry at trial on the topic of right-wing extremism in Canada.

[60] Dr. Perry has devoted her academic studies to this topic and has authored various publications setting out her observations and conclusions. The Crown seeks to call her to testify at trial in order to explain “arcane” terms found in the accused’s statements to police, and the document found on his computer. The Crown further argues that Dr. Perry’s evidence provides a context for understanding the nature and scope of the accused’s ideological views.

[61] Dr. Perry testified on the admissibility voir dire. I am satisfied that Dr. Perry is qualified in that she has specialized knowledge in the subject matter. While I recognize her expertise, I nonetheless find that her testimony is not admissible at the accused’s trial. The probative value of her testimony is outweighed by the potential prejudicial effect.

[62] The role of the judge as gatekeeper is particularly critical when it comes to expert opinion evidence. Such evidence can facilitate informed fact finding by providing the jury with the tools necessary to evaluate other evidence at the trial. However, such evidence can distort the fact-finding process, by overwhelming the jury, or by causing the jury to abdicate its duties in favour of deference to the expert witness. An opinion cloaked in the mystique of expertise may attract a disproportionate weight and significance.

[63] Dr. Perry’s evidence is of academic interest as it relates to the phenomenon of extreme racism in Canada. It is however of minimal necessity in this case and has the potential to erroneously ascribe particular beliefs and viewpoints to the accused. There is a danger that the evidence will paint the accused with a broader brush than is warranted and that this evidence will exacerbate the potential prejudice attaching to the documents found in the accused’s possession.

[64] More specifically:

It is not clear to me that the evidence meets the threshold requirement of necessity; and
The cost of admitting the evidence outweighs its benefits. The evidence does not have the legal and logical relevance necessary to warrant admission.

[65] I will explain these conclusions in the reasons that follow.

The Test for Admission of Expert Opinion Evidence

[66] The admissibility of expert evidence must be guided by the rigorous two stage test set out in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, recently summarized in R. v. Biddersingh, 2020 ONCA 241, at para. 37:

In determining whether expert evidence is admissible, the trial judge must engage in the two-stage test adopted by the Supreme Court of Canada in White Burgess, Langille, Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182. At the first stage, the trial judge must determine whether the threshold requirements of admissibility are met: a) the evidence must be logically relevant; b) it must be necessary to assist the trier of fact; c) it must not be subject to any exclusionary rule; d) the expert must be properly qualified, including being willing and able to fulfil their duty to the court; and e) for any opinions based on novel science or science used for a novel purpose, the underlying science must be reliable: R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40, at paras. 47-48; White Burgess, at para. 23. If these requirements are met, the trial judge must advance to the second stage, in which they are required to fulfil a “gatekeeping role”: Abbey, at paras. 48, 53; White Burgess, at paras. 20, 24. As the gatekeeper, the trial judge must determine whether the benefits of the evidence outweigh its potential risks, considering such factors as legal relevance, necessity, reliability, and absence of bias: Abbey, at para. 48; R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 28.

Necessity

[67] I will begin by examining the threshold criteria for admissibility. I am particularly concerned with the necessity criterion. Dr. Perry’s evidence might be of interest to the jury. It might even be helpful. However, it is not necessary in the sense that the jury requires this evidence to make a properly informed decision.

[68] The Crown seeks to introduce Dr. Perry’s evidence as an interpretive tool, to explain terms and concepts found in the documents possessed by the accused, and to provide context for this material. Some of Dr. Perry’s evidence is of a historical nature, setting out the evolution of the extreme right-wing movement in Canada. It is proposed that she describe the panoply of diverse beliefs that may fall under the umbrella of right-wing extremism. She would testify about persons perceived as “heroes” within this movement, including Brenton Tarrant, Anders Breivik, and others. She would also provide a glossary of sorts for the jury, to explain the significance of symbols, such as the crusader cross, the “ok” hand symbol, the significance of Adolf Hitler to the movement, and the anti-Muslim stereotype of “Muslim grooming gangs”.

[69] In other words, Dr. Perry is proffered as a witness to explain the meaning of documents found in the accused’s possession. However, to my mind, these documents do not require much in the way of interpretation. Their meaning is, for the most part, self evident and self explanatory. The most significant document, ‘A White Awakening’ tends to speak for itself.

[70] To the extent that explanation is required, the accused offered such explanation in his own words in his statement to police. The accused explained in his statement why he used the “ok” hand symbol at the scene of his arrest; why he painted a crusader’s cross on his t-shirt; why he was wearing body armour, among other things. Of course, it is the meaning ascribed to these terms by the accused that matters at this trial; not the meaning that might be ascribed by others. Given the nature of the other evidence before the court, I cannot conclude that the jury needs Dr. Perry’s evidence to make sense of the accused’s ideological beliefs.

[71] Similarly, there is little need for interpretation of the accused’s statements to police. The accused himself provided fulsome accounts of why he did what he did. There is little mystery surrounding those statements and little need for elucidation of underlying or background connections.

[72] Other aspects of Dr. Perry’s evidence involve matters sufficiently notorious as to fall within the knowledge of the lay public. For example, it is said that Dr. Perry will explain the significance of Adolf Hitler to the extremist right-wing movement in Canada. I question whether an expert is necessary to explain the nexus between Adolf Hitler and white supremacism, given the notoriety of the Holocaust and the atrocities perpetrated in Nazi Germany. It is highly doubtful that this falls outside of the common sense and experience of Canadian jurors.

[73] Some terms, such as replacement theory, are not as notorious, and may not be familiar to lay jurors. The Crown may urge a particular interpretation upon the jury and the defence may urge another. It will be for the jury to determine what the phrase meant to the accused, in the context of the evidence as a whole. There is passing reference to replacement theory in the evidence but is it does not occupy a significant space. Viewed in the context of the evidence as a whole, it is not so mysterious as to require or warrant elucidation by an expert.

[74] I find that the testimony of Dr. Perry is not necessary to facilitate an informed verdict. To this extent, one of the threshold requirements for admission is not met. While this would suffice to determine admissibility, I will go on to address other areas of concern.

Legal and Logical Relevance

[75] Dr. Perry testified on the voir dire that there is considerable diversity of opinion falling with the ambit of right-wing extremism. As she put it in her supplementary report:

Right-wing extremist ideologies and worldviews in Canada and beyond are amorphous, situational and fluid. Adherents can best be described as "bricoleurs": people who pick and choose whichever aspect of RWE ideologies, narratives, and ideas that fit their own worldviews and prejudices. As a result, Canadian RWE groups cannot be classified within rigid categories.

[76] She offered a typology of different groups falling under the umbrella of right-wing extremism, each with its own unique grouping of beliefs and ideologies.

[77] The accused in this case did not associate himself with a particular group or sub-group within extremist right-wing culture. As a “lone actor”, the accused deliberately refrained from joining online groups or otherwise posting his views on social media. In his statement to police, he explained his concern that public expression of his ideology would attract the attention of law enforcement. He would be placed on a watch list and that would foil his ability to carry out his plan.

[78] This case is not concerned with what a particular group believes, or what any other individuals who ascribe to right-wing extremism might believe. This case is exclusively concerned with the motivations that led the accused to act as he did. There is a risk that, if Dr. Perry’s evidence is admitted, the jury may ascribe to the accused ideas and opinions that he does not necessarily share. Dr. Perry herself noted the impossibility of categorical attribution in this context, given that adherents pick and choose from a broad range of views based on personal preference.

[79] The Crown must prove that the accused acted pursuant to an ideology, but the concept of ideology does not imply membership in a group or collective. The Cambridge Dictionary defines ideology as “a set of beliefs or principles, especially one on which a political system, party, or organization is based.” The Merriam-Webster defines ideology as “a manner or the content of thinking characteristic of an individual, group, or culture, the integrated assertions, theories and aims that constitute a sociopolitical program, and a systematic body of concepts especially about human life or culture.”

[80] Accepting that there are diverse clusters of opinion within different groups, that the accused did not join any particular group, and that individuals may pick and choose from the various beliefs that comprise right-wing extremism, the views of any particular individual or group may not represent the views of the accused in this case. Therein lies the danger of admitting the evidence. There is a risk that the jury will defer to the expertise of Dr. Perry and tar the accused with a broader brush than is appropriate.

[81] I appreciate that expert evidence has been introduced in other cases alleging terrorist acts. See R. v. Hamdan, 2017 BCSC 1770 (“Hamdan”); R. v. Hersi, 2014 ONSC 1258 (“Hersi”). However, those cases are distinguishable on their facts. In Hamdan, the Crown sought to call an expert in Islamist-inspired terrorism, specifically Sunni extremist groups including Al-Quaeda and ISIS. The accused in this case was charged with counselling offences for the benefit of or in association with a terrorist group, arising from posts he made on Facebook pages and profiles supportive of ISIS and “lone-wolf” terrorists.

[82] In Hersi, the accused was charged with attempting to participate in the activities of the Somalia-based terrorist group, Al-Shabaab, as he was about to board a plane and flee Canada. The Crown sought to call expert evidence through an investigator and advisor on peace and security issues to provide context on the origins, location, membership, and ideology of Al-Shabaab, and of Somalia, and geographic and political organizations and the significance of Al-Shabaab within that country’s context.

[83] In the above cases, expert testimony was necessary to provide context. In those cases, the views of the group were directly relevant to the views of the individual accused. The factual matrix of this case is quite different. The accused did not associate himself with a group, and he offered his own explanations for why he did what he did.

[84] Finally, some aspects of Dr. Perry’s evidence could arouse fear in jurors or lead them to believe that they must convict in order to maintain a safe and peaceful society. Dr. Perry testified on the voir dire about the prevalence of radical movements in Canada, and the dangerous, sometimes fatal consequences that can flow from these movements. This evidence is not only irrelevant, but inflammatory. It could cause jurors to want to punish the accused for his beliefs, rather than the actions that he undertook. It could cause the jurors to believe that their verdict will impact on the future safety of the community. This would be highly problematic. Whatever the risk posed by extremist groups, and whatever the beliefs generally held by extremist groups, the focus of this case must remain sharply and exclusively on what this accused did, and why he did it.

[85] For all of these reasons, I find that the expert opinion evidence is not necessary and that, in any event, the costs of admitting the evidence outweigh the benefits. The testimony of Dr. Perry is not admissible at trial.

Conclusion

[86] For all of these reasons, I find that the ideological evidence is admissible, with some exceptions. The expert opinion evidence is not admissible on the current record.

[87] As the trial unfolds, the factual matrix may shift. Should that be the case and should either the Crown or defence perceive a material change, I invite counsel to bring an application to revisit this ruling as may seem appropriate.

Original Signed by “Justice R.M. Pomerance”

Renee M. Pomerance Justice

Released: June 23, 2023

R. v. Veltman, 2023 ONSC 3734

Case Summary