Court File and Parties

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

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

Ruling on Editing the Accused’s Statements

POMERANCE J.

[1] It is well settled that trial judges have a duty to edit statements made by accused persons to remove utterances that are clearly irrelevant, prejudicial, or that pose a risk of unfairness to the accused. The goal is to remove offending material while still maintaining the true meaning of the statements. Justice Watt put it this way in the recent case of R. v. Boucher, 2022 ONCA 40, at paras. 125-126:

As a matter of general principle, a statement or record of interview of an accused tendered in evidence by the Crown and found to be voluntary may be edited to excise parts that are irrelevant to the issues in play at trial or unfairly prejudicial to the accused: R. v. Beatty, [1944] S.C.R. 73, at p. 76; R. v. Holcomb (1973), 12 C.C.C. (2d) 417 (N.B.S.C., A.D.), at pp. 420-421, aff'd [1973] S.C.R. vi.

A trial judge who admits a statement or record of interview that requires editing must ensure not only that irrelevant or unnecessarily prejudicial contents are excised, but also make certain that what remains retains its proper meaning when considered in relation to the whole of the statement: R. v. Kanester, [1966] 4 C.C.C. 231 (B.C.C.A.), at pp. 244-245, rev'd on other grounds, [1966] S.C.R. v.

Areas of Agreement

[2] In this case, the Crown and defence agree on many of the necessary edits. It is common ground that the accused’s statements contain utterances that are marginally relevant and introduce a risk of prejudice. For example, the accused spoke about wishing to kill doctors who perform abortions. Crown and defence agree that the jury should not hear these utterances, as they shed little to no light on the issues and could arouse negative sentiment against the accused. They should, and will, be excised.

[3] Counsel have jointly identified various other passages to like effect. I agree with the edits that have been jointly proposed, and the statements shall be modified accordingly.

Areas of Contention

[4] Other proposed edits are contentious. The Crown opposes some of the edits requested by the defence on the basis that the utterances in question have probative value that exceeds prejudicial effect.

[5] At issue are the following categories:

a. The defence seeks to excise the accused’s assertions that “I am not planning on pleading insanity…I want the world to know why I did what I did so I’m gonna…I’m just gonna tell you”. These statements appear at various times during the statements made to Detective Boudreau. b. The defence seeks to redact the accused’s references to having committed a terrorist act. c. The defence seeks to redact the accused’s statements that he was inspired by other mass killers and hoped that his own actions would inspire others.

[6] In evaluating the defence requests, I have been guided by two important factors:

1. There is a distinction between evidence that is incriminating and evidence that is prejudicial; and,
2. The right to a fair trial must consider both the interests of the accused and societal interests in the effective detection and prosecution of crime.

[7] Dealing with the first factor, it is important to distinguish between evidence that is incriminating in the sense of proving the charges, and evidence that is prejudicial in the sense of leading to impermissible reasoning. Stated differently, there is an important difference between evidence that is unfortunate for the defence and evidence that is unfair. Evidence is not excluded merely because it operates to the detriment of the accused. To the contrary, the Crown must be entitled to lead that evidence that can legitimately, as opposed to erroneously, support an inference of guilt. It was put in these terms by Charron J.A. in R. v. L.B., [1997] O.J. No. 3042 (C.A.), 35 O.R. (3d) 35, at paras. 23-24:

Prejudice in this context of course, does not mean that the evidence might increase the chances of conviction but rather that the evidence might be improperly used by the trier of fact. It is one thing for evidence to operate unfortunately for an accused but it is quite another matter for the evidence to operate unfairly. The trier who learns of the accused’s previous misconduct may view the accused as a bad man, one who deserves punishment regardless of his guilt of the instant offence and may be less critical of the evidence presently marshalled against him. [Emphasis added.]

[8] The second point is one that dates back to the decision of the Supreme Court of Canada in R. v. Seaboyer, [1991] 2 S.C.R 577, namely, that the right to a fair trial must account for the interests of both the accused and the state. Fairness to the accused is a core feature of our justice system. However, trials should also be seen as fair by dispassionate, informed, and reasonable members of the public. As it was put by Watt J.A. in R. v. Spackman, 2012 ONCA 905, at para. 102:

Trial fairness is not the exclusive preserve of those charged with crime. A fair trial is a trial that appears fair, not only from the perspective of the accused, the person on trial, but also from the perspective of the community: Harrer, at para. 45; R. v. Bjelland, [2009] 2 S.C.R. 651, at para. 22. A fair trial is a trial that satisfies the public interest at getting at the truth, but at the same time preserves basic procedural fairness for the accused: Harrer, at para. 45.; Bjelland, at para. 22.

[9] I will now deal with each of the categories of defence edits in turn.

Insanity

[10] The first group of utterances consists of the accused’s insistence that he will not plead insanity at his trial. Examples include the following:

• “I’m not planning on pleading insanity. I’m not planning on claiming that I was ah in a psychotic state. I’m not…I want.. I want the world to know why I did what I did…”.
• “Q. [provided for context] when we first starting talking you said that uh you know people might, you wanted, you wanted to tell the truth, you didn’t want to uh hide behind or uh, an insanity thing.
• A. No because that would, that would complete…that would ruin the message, then that would take away the message… of what I’m trying to say”.

[11] These utterances are relevant to the issues at trial. They could be taken to mean that the accused was aware of the consequences of his actions and that, despite that knowledge, he acted in a deliberate, conscious, informed, and voluntary fashion when he drove into the Afzaal family. This is one, but not the only, inference that could be drawn from these statements. They are relevant to proof of the required mental state for murder and attempted murder.

[12] These statements are also potentially relevant to a mental disorder defence, should one be raised at trial.

[13] Recently, the defence brought an application for a psychiatric assessment of the accused to canvass whether a mental disorder defence might be available to him. I granted the application, directing that the assessment report not be shared with the court or the Crown unless the defence decides to put the accused’s mental state in issue. Should the accused invoke s.16 of the Criminal Code, and advance a mental disorder defence, his insistence that he was “not planning on pleading insanity” could take on additional relevance. I do not suggest that these statements would be dispositive of the mental disorder issue. An accused person may experience a mental disorder without appreciating the existence or impact of the mental disorder. Nonetheless, the accused’s perception, or at least assertion, that he was not labouring under a mental disorder is evidence that bears on his state of mind at the time of the events.

[14] Whether or not mental disorder is raised, the assertion is relevant to core issues at the trial and should not be excised. The significance of the utterances will be for the jury to decide.

The Reference to Terrorism

[15] In his statements, the accused spoke of having committed a terrorist act. An example is the following:

• “I admit that it was terrorism. I admit it. It was terrorism…I’m not like I’m not gonna try to get a lighter sentence by saying it was just murder not terrorism, it’s like I’m not trying to, uh, I think like by definition it probably does qualify as terrorism”.

[16] The defence argues that this is “loose talk” that should be concealed from the jury. It is said that the accused likely does not understand the legal nuances of the terrorism offence and is not in a position to judge whether his actions qualify as such.

[17] I do not agree that these references should be excised.

[18] First, it is not clear to me that the accused is necessarily unschooled in the nuances of the term terrorism, given his admitted internet research and his study of others who have engaged in terrorist activity. More importantly, the law has never required that an admission by an accused be rooted in precise knowledge of the law. If an accused confesses to murdering someone, the admissibility of the confession does not hinge on the accused’s knowledge of the essential elements of the offence.

[19] That is the critical point. The acknowledgement of terrorism could be seen as an admission of guilt. The question of what the accused actually meant by the term, and his understanding of the concept will be for the jury to decide. The jury may well find that the accused was engaged in “loose talk” or was incorrect in his characterization of his actions. Conversely, the jury may see this as an incriminating utterance that supports the case for the Crown.

[20] The jury will be carefully instructed on the use that can and cannot be made of the utterances. They will be cautioned to consider all potential inferences, including those that are exculpatory. This evidence is unfortunate for the accused, but admission would not be unfair. Probative value is high, and prejudicial effect can be addressed through limiting instructions. To excise these utterances would be to erroneously circumscribe the case for the Crown.

Association with Other Actors

[21] Finally, the defence argues that it is highly prejudicial to allow the jury to hear of the accused’s fascination with notorious mass murderers, such as Brenton Tarrant and Anders Breivik. These passages include the following:

• “…another man that did something similar in the UK. I ah looked him up to see what had happened to him or ah kind of look at what he did and I was like yeah I can do that too and I went and did it”.
• “I did what I wanted to do, but but um, but that is a real threat because more people, if they don’t stop, more people will will copycat what I … but I, I was inspired mainly by Brenton Tarent um he was the main person that inspired me…”

[22] The defence argues that these passages should be excised because they will trigger negative feelings on the part of jurors. I agree that this evidence could trigger emotional reactions amongst jurors. However, the solution to this concern is not to excise relevant probative evidence; it is, rather, to provide a clear limiting instruction outlining the use that can and cannot be made of the evidence at trial.

[23] This evidence is directly linked to the issues that the Crown must prove. If the jury finds that the accused was inspired by others who engaged in terrorist activity, it may find that the accused, like others, was acting pursuant to extremist ideologies and a desire to intimidate members of the Muslim community. To excise these passages would be to denude the statements of their true meaning and would improperly deprive the Crown of important evidence relating to intention, motive, planning, and deliberation.

[24] It bears noting that the accused himself drew the link between his motives to act and crimes committed by other notorious individuals. The Charter protects individuals as against the state. It does not set out to protect individuals from themselves. The case reports are replete with examples of detainees choosing to speak, despite being advised that they should remain silent. The accused in this case chose to speak for his own reasons and did so at some length. He did so in the absence of pressure or coercion and even without much prompting. The accused appeared anxious to explain his thinking processes and the evolution of his views. On his own admission, he wanted people to know what he did and why he did it. While he may now second guess this choice, after the fact regret is not a basis for exclusion.

[25] Having dealt with the broad categories above, I will address the defence requests that I do allow below:

• First statement: lines 234-244, lines 256-272; lines 277-295; line 1120 from “mmm” to 1124; 1141-1147; lines 1843-1855: all reference to abortion clinics to be excised.
• Second statement: all references to abortion clinics to be excised including lines 136-138; 876-902; 953-977; 1010-1015.
• First statement at line 305 the words “because I…I hated Trump before that…” will be excised.
• First statement at line 355 to line 378: references to opposition to the Covid-19 vaccine will be excised.
• First statement lines 1758-1762, in which the officer puts forward a suggestion that the accused does not respond to:
  • MB: …and you had time to…to make a plan and you…you…I think…I don’t…I do not 1759 want to put words into your mouth so please correct me if I miss speaking here 1760 but I believe earlier you said something to the effect of um you had something 1761 bigger in mind, is that accurate?
  • NV: ah I’ll pass that for now
• Second statement: lines 1297-1321: reference to the accused being in custody will be excised.

[26] It is my view that the excision of the above passages, together with those agreed upon by Crown and defence, will remove irrelevant and prejudicial content, while maintaining the true meaning of the accused’s utterances.

[27] Finally, I note that some of the redactions set out in the electronic statement filed by the Crown are not found in the hard copy statement filed in the application record relating to ideological evidence. I attribute this to oversight. Nonetheless, given the number of redactions, and their importance, it is prudent to direct that a redacted version of the video statements be played in court in the absence of the jury before this evidence is formally presented at the trial.

Original Signed by “Justice R.M. Pomerance” Renee M. Pomerance Justice

Released: June 23, 2023