Court File and Parties
Court File No.: CR-22-5627
Date: 2025-02-27
Ontario Superior Court of Justice
Between:
His Majesty the King
and
Seth Bertrand, Accused
Appearances:
- Xenia Proestos and David Schermbrucker, for the Crown
- Bobby Russon, for the Accused
Heard: February 7, 2025
Restriction on Publication
This Ruling is subject to an order pursuant to s. 486.31 of the Criminal Code directing that any information that could identify witnesses, namely police officers known as “Undercover Officer Eric” or “UCO Eric” and “Undercover Officer Alex” or “UCO Alex”, not be disclosed in the course of the proceedings. Those witnesses were permitted to testify using pseudonyms.
Further, the court made an order pursuant to s. 486.5 of the Criminal Code directing that any information that could identify these witnesses shall not be published in any document or broadcast or transmitted in any way.
Ruling on the Motion for a Directed Verdict
carroccia j.:
The Charge
[1] The accused is charged with the following offence:
THAT Seth Bertrand, between February 4, 2021, and May 20, 2021, both dates inclusive, in Windsor, Ontario, and elsewhere did knowingly participate in or contribute to, directly or indirectly, the activities of a terrorist group, to wit: Atomwaffen Division also known as AWD, National Socialist Order, and NSO, for the purpose of enhancing the ability of the terrorist group to facilitate or carry out a terrorist activity, contrary to section 83.18(1) of the Criminal Code.
[2] After the Crown closed its case, the defence brought a motion for a directed verdict. This is my ruling on that motion.
The Position of the Parties
[3] For the purpose of this motion, the defence concedes that the Crown has adduced evidence as it relates to the following essential elements of the offence:
i) That the accused did knowingly participate in or contribute to
ii) The activities of a terrorist group.
[4] When he filled out an application to join the Atomwaffen Division and was asked whether he had any “unique/useful skills”, the accused stated that he had skills as a mechanic. He also offered his “loyalty”. The accused acknowledges that this was some evidence that he offered to participate in or contribute to the activities of a terrorist group.
[5] The defence also acknowledges that based on the evidence of Dr. Garth Davies who was qualified as an expert to offer opinion evidence on the identification of specific ideologically motivated violent extremist groups including Atomwaffen Division (AWD) and National Socialist Order (NSO) that there is some evidence before the court that both of those organizations were terrorist organizations.
[6] The defence focused their submissions on the issue of whether the Crown has adduced any evidence that the participation in, or contribution to the terrorist organization by the accused was “for the purpose of enhancing the ability of the terrorist group to facilitate or carry out a terrorist activity”.
[7] The defence submits that the evidence of the mens rea of the offence is lacking, in that there is no evidence from which the court could infer that the actions of the accused were undertaken for the purpose of enhancing the ability of the terrorist group to facilitate or carry out a terrorist activity.
[8] The defence submits that there is no evidence as to the extent of Mr. Bertrand’s knowledge about AWD and, although he might be ideologically aligned with them, there is no evidence before the court from which the court could infer that his application to join AWD was for the purpose of enhancing the ability of the terrorist group to facilitate or carry out terrorist activity.
[9] The Crown submits that there is some evidence before the court on each essential element of the offence including that the accused applied to the AWD to join the group, offering his skills with a view to enhancing the group’s ability to carry out acts of terror in the name of white supremacy and their related ideology.
[10] The Crown suggests that on a motion for a directed verdict, the court cannot make findings of fact, but must consider the evidence as a whole. The court must review the circumstantial evidence to determine whether the inferences that the Crown asks the court to draw may reasonably be drawn from that evidence.
[11] In this case, in addition to the accused’s application to join AWD, the Crown relies on the actions of the accused as well as the statements made by him in online chats, to the undercover officer when he did not know he was speaking to the police, and in the statements made following his arrest to support the position that the accused intended to enlist in a terrorist group for the purpose of enhancing the ability of the terrorist group to facilitate or carry out a terrorist activity.
[12] The Crown submits that the law is clear; if the evidence is circumstantial and there are competing inferences to be drawn from the evidence, the court must draw the inference most favourable to the Crown on a motion for a directed verdict.
The Evidence
[13] Since the defence does not dispute that there is some evidence before the court of the accused’s participation in the activities of a terrorist group in the form of his application to become a member of AWD/NSO, I will only briefly address the evidence as it relates to those elements of the offence.
[14] Prior to submitting his application to join Atomwaffen Division, the accused wrote graffiti on the WETrans Support Centre Building on two occasions, on February 15 and 20, 2021 where he wrote the words “fuck fags” on the building and drew a swastika.
[15] Mr. Bertrand then applied online on February 21, 2021, to join Atomwaffen Division. In that application/questionnaire under the question “Why should we bother to recruit you?” the accused wrote:
I have wanted to be apart of something big ever since I was redpilled the NSO/AWD has been the biggest when i was running my division i strived to be as good as you guys plus i have already proven myself worthy of another divisions trust a stunt of mine made it in local news
Under the question “Anything else?” he wrote the following:
If I do get accepted I promise all my loyalty to you i want nothing more then to be apart of a group that’s actually doing things to help save/protect the white race “if he wish not to fight in a world where struggle is the way of life then he does not have the right to exist”-adolf hitler.
[16] Not long after submitting that application online, on February 22, 2021, the accused again wrote offensive graffiti on the WETrans Support Centre building and threw a brake rotor through the front window. On February 24, 2021, he was found by the police loitering outside of the same building. Later that same evening the accused signed into an online chat group for the National Partisans Movement using the name “Thewaffenman” with a profile picture of him in a so-called “siege mask”.
[17] As part of an Agreed Statement of Facts, it was agreed that Mr. Bertrand posted a voice message in that online chat saying: “let me show you how I proved my worthiness to you guys, hold on you gonna fuckin love this” and then uploaded a series of screenshots of media coverage of the recent graffiti and damage to the WETrans Centre caused by him.
[18] There was additional discussion and commentary in the online chat about whether the police would be able to identify Mr. Bertrand. On February 26, 2021, the accused uploaded a voice post which stated the following: “look on the bright side, if I do end up going to jail, um, I can recruit people from inside the prison”. In February of 2021, the accused uploaded to the internet a recruiting poster for AWD which included an image of a person wearing a siege mask and the words “you who are hated are needed now more than ever”.
[19] On March 6, 2021, the accused sent an email to the Folkish Resistance Movement, using his student email account attempting to join them. He indicated that he was “willing to perform activism”, that he had military training and was good with cars.
[20] Then, on two dates in March 2021, the accused was observed on home security video outside a residence at 1145 Tuscarora Street in Windsor where he punctured the tires on a vehicle parked outside of the residence on each of those occasions. On May 20, 2021, Mr. Bertrand left a note outside of the residence which was occupied by a same sex married couple. The note said “The AtomWaffen knows who you are!” and contained Nazi symbols and the words “hail Hitler”.
[21] Mr. Bertrand had a meeting with an undercover RCMP officer which was surreptitiously recorded and adduced as evidence at this trial after it was determined to be admissible. In that statement, he admitted to participation in the offences of mischief at WETrans and to harassing a gay couple on Tuscarora Street.
[22] The accused told the undercover officer the details of the mischief offences he committed including drawing swastikas on the door and window of the WETrans building and writing words that denote slurs against gay people and racial slurs as well. He said that the morning after doing that, he texted people in the Inkjet Division and the National Partisans to advise them of what he had done.
[23] Mr. Bertrand referred to Atomwaffen Division as a “domestic terrorist organization” when he was explaining it to the undercover officer.
[24] After his arrest, when the accused was questioned by Sergeant Schedewitz of the RCMP, he said that at the time he applied to the AWD he believed that people of a different race “were out to get us”. The accused stated that he learned about the Atomwaffen Division and “they’re a paramilitary terrorist organization so, of course, back then, I was, I wanted to jump on that”. Later in the statement he said that when he submitted his application “they weren’t really registered as a terrorist organization. It was still the newly beginning paramilitary group.”
[25] And later, he indicated that at the time of his arrest, he did not want to be involved in terrorist groups anymore, but “there was a point in my life where I thought that was the best way to live and that’s fucking wrong obviously”.
The Legal Principles
[26] Section 83.18(1) of the Criminal Code, RSC 1985, c C-46 makes it an offence for any person to knowingly participate or contribute to any activity of a terrorist group for the purpose of enhancing the ability of a terrorist group to facilitate or carry out a terrorist activity.
[27] Section 83.18(2) states that the offence under (1) does not require that the terrorist group actually facilitates or carries out a terrorist activity, or that the participation or contribution of the accused actually enhances the ability of a terrorist group to facilitate or carry out a terrorist activity.
[28] Participation or contribution to an activity of a terrorist group is defined in s. 83.18(3) of the Code to include the following activities:
(b) providing or offering to provide a skill or an expertise for the benefit of, at the direction of or in association with a terrorist group;
[29] Section 83.18(4) of the Criminal Code sets out the factors that a court may consider in determining whether an accused participated in or contributed to any activity of a terrorist group including whether the accused:
(a) Uses a name, word, symbol or other representation that identifies, or is associated with the terrorist group,
[30] In R. v. Khawaja, 2012 SCC 69, para 48, the Court said the following in relation to the mens rea of this offence:
To convict under s. 83.18, the judge must be satisfied beyond a reasonable doubt that the accused intended to enhance the ability of a terrorist group to facilitate or carry out a terrorist activity. There may be direct evidence of this intention. Or the intention may be inferred from evidence of the knowledge of the accused and the nature of his actions.
[31] In R. v. Ansari, 2015 ONCA 575, Watt J.A. sets out the elements of the offence at para. 179 where he states:
What is excluded from the conduct requirement is “innocent or socially useful conduct that is undertaken absent any intent to enhance the abilities of a terrorist group to facilitate or carry out a terrorist activity”, as well as “conduct that a reasonable person would not view as capable of materially enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity”: Khawaja, at para. 53.
[32] In R. v. Hersi, 2014 ONSC 1217, paras 23-24, Baltman J. said the following in relation to proving the offence:
As noted above, to be convicted under s. 83.18, a person must know that the group with which they are participating is a terrorist group, and act for the specific purpose of enhancing the ability of the terrorist group to carry out a terrorist activity. To make those findings, a trier of fact would necessarily have to be satisfied that the listed entity engages in terrorist activity.
Nor does the listing make the definition of a terrorist group overbroad. Membership in a terrorist group is not, in itself, an offence. No crime is committed under s.83.18 unless the accused not only knew of the group’s existence but also participated in it for the purpose of enhancing its ability to carry out terrorist activity. The offence thus requires an act to be done with a specified degree of knowledge and for a specific purpose.
[33] The test to be applied on a motion for a directed verdict is well known and was succinctly stated by Doherty J.A. in R. v. Kelly, 2017 ONCA 920, para 19:
When the defence moves for a directed verdict of acquittal at the end of the Crown's case, the trial judge must decide whether there is a basis in the evidence upon which a reasonable jury, properly instructed, could convict. In performing that task, the trial judge does not make findings of fact or credibility, but considers whether a reasonable jury, properly instructed, could, on the entirety of the evidence, favourable and unfavourable to the accused, conclude that the Crown has established guilt. The trial judge must view the evidence in the reasonable light that is the most favourable to the Crown: R. v. Arcuri, [2001] 2 S.C.R. 828, [2001] S.C.J. No. 52, 2001 SCC 54, at paras. 21, 29-32; R. v. Jackson, [2016] O.J. No. 6777, 2016 ONCA 736, 33 CR. (7th) 130, at 6-9.
[34] Where there is direct evidence in relation to each element of the offence charged, the matter must go to the jury. In R. v. Arcuri, 2001 SCC 54, para 21, in the context of the test for committal after a preliminary hearing, which the Supreme Court found was identical to the test to be applied on a motion for a directed verdict, the Court said at para. 22:
Thus, if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge's task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial.
[35] Where the evidence is circumstantial, the assessment conducted by the trial judge is different and was explained as follows in Arcuri at para. 23:
The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt’s Manual of Criminal Evidence, supra, at §9.01 … The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.
[36] The standard on a directed verdict application does not differ according to whether the Crown’s case consists of direct or circumstantial evidence, it is only the nature of the judge’s task that varies: see R. v. Bains, 2015 ONCA 677, para 159.
[37] It is not the function of this court on a motion for a directed verdict to make findings of credibility or draw factual inferences.
[38] However, as noted above, where some of the evidence adduced at trial consists of circumstantial evidence, the court must engage in a limited weighing of the evidence to determine whether the evidence is reasonably capable of supporting the inferences that the Crown will ask the trier of fact to draw.
Analysis
[39] In R. v. Ahmad, in considering an application to determine whether the Criminal Code provisions dealing with terrorism offences were vague and violated s. 7 of the Charter, Dawson J. said the following at para. 26:
The general purport of the anti-terrorism sections is that if you do anything that you know may in some way enhance or assist a terrorist organization’s ability to carry out any terrorist activity, and you do it for that purpose, you are at risk of conviction for an offence under s. 83.18(1) or one of the related offence provisions. The area of risk is sufficiently defined, in my view, to allow persons to judge whether their conduct puts them at risk, and to guide the exercise of discretion by legal authorities. Even at the margins there is sufficient circumscription and description to allow informed debate according to the various criteria contained within the legislation.
[40] The issue on this motion for a directed verdict is whether there is some evidence before the court upon which a jury properly instructed could find that by the accused’s participation in or contributions to, the activities of a terrorist group, he intended to enhance the ability of the terrorist group to facilitate or carry out a terrorist activity.
[41] The evidence of the intention of the accused may be inferred from evidence of the knowledge of the accused and the nature of his actions: Khawaja at para. 48.
[42] In his application to AWD, the accused indicates that he wants to be “apart [sic] of a group that is actually doing things to help save/protect the white race”. The accused identifies his “ideology” as: “everyone has a homeland in which they do not leave exept the faggs and the jews they are an enemy [sic]”.
[43] On a motion for a directed verdict, the court must look at the totality of the evidence and where that evidence is circumstantial, engage in a limited weighing to determine whether the evidence is reasonably capable of supporting the inferences that the Crown asks the court to draw.
[44] In this case, there is some direct evidence as to the knowledge of the accused. He told the undercover officer that AWD was a “domestic terrorist organization”. He made conflicting statements to Sgt. Schedewitz after his arrest. At one point he said that he learned that the Atomwaffen Division was a paramilitary terrorist organization and he “wanted to jump on that”. At another point he said that AWD was not registered as a terrorist organization at the time he applied to join them. However, on a motion for a directed verdict it is not my function to weigh that evidence or to make findings of fact or credibility.
[45] Furthermore, the knowledge of the accused can be gleaned from the comments he made in online chats, including identifying himself as “Mr. Waffen” or “the waffenman”. He said that if he went to jail, he could recruit people from inside prison. In February of 2021, he uploaded to the internet a recruiting poster for AWD. On May 20, 2021, he left a note at the residence on Tuscarora with the words “The AtomWaffen knows who you are”. It could be inferred that the accused is aligning himself with Atomwaffen Division.
[46] In R. v. Hersi, 2019 ONCA 94, leave to appeal refused 2022 16725 (SCC), the appellant’s conviction for an offence under s. 83.18(1) of the Criminal Code was upheld. In that case, the evidence obtained through an undercover investigation was that the accused intended to travel to Somalia to join Al-Shabaab and once he got there, he would do whatever they asked him to do in support of the group’s Jihadist goals. The accused was arrested at Pearson airport where he was about to board a flight. Although the accused in that case undertook no specific actions on behalf of Al-Shabaab, his conduct was sufficient to support the conviction.
[47] When reviewed in its totality, in these circumstances, there is some evidence upon which a jury properly instructed could convict. The accused espoused the ideology of an organization that he himself identified as a domestic terrorist organization. He applied to join that terrorist organization, pledged his loyalty, and wanted to be part of the group. He thereafter engaged in conduct that was designed to instill fear, that are hate-motivated crimes to show his commitment.
[48] In my view, on the basis of all the evidence before the court, when I consider whether a reasonable jury properly instructed could convict, and consider whether the reasonable inferences that the Crown seeks to draw from the circumstantial evidence could be drawn, I find that there is some evidence in relation to each of the elements of the offence upon which a jury could convict. On that basis, the motion for a directed verdict will be dismissed.
Maria V. Carroccia
Justice
Released: Orally and in writing – February 27, 2025