



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. N.Y., 2012
    ONCA 745

DATE: 20121105

DOCKET: C50614

Goudge, Feldman, and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

N.Y.

Appellant

Brian Greenspan, Mitchell Chernovsky, and Faisal Mirza,
    for the appellant

John North, Amber Pashuk, and Maria Gaspar, for the
    respondent.

Heard: March 28, 2012

On appeal from the judgment of Justice John R. Sproat of
    the Superior Court of Justice, sitting in Youth Justice Court, dated September
    25, 2008, with reasons reported at 2008 CanLII 51935 (ON SC).

R. A. Blair
    J.A.:

BACKGROUND..................................................................................................

FACTS...............................................................................................................

1.

The Lead-Up to the Camps..................................................................

2.

The Washago Camp............................................................................

3.

The Appellants Acts of Participation
    in the Terrorist Group.................

a.

Removal of the
    Surveillance Camera..................................................

b.

Shoplifting.........................................................................................

c.

The Rockwood Camp.........................................................................

THE PROCEEDINGS BELOW...........................................................................

ANALYSIS........................................................................................................

1.

Misapprehension of the Evidence.......................................................

2.

Admission of the Appellants
    Post-Arrest Statement............................

a.

Review of the Trial
    Judges Analysis of the Appellants Post-Arrest Statement Under the Traditional
Collins
Test......................................................................

b.

Application of the
    Modern
Grant
Test to the Trial Judges Finding........

3.

Admissibility of Hearsay: The
    Co-Conspirators Exception..................

a.

Application of the
    Co-conspirators Exception to the Hearsay Rule.......

b.

Were a Conspiracy or
    Common Criminal Design, and the Appellants Participation in it, Established?
    The Carter Steps...........................................................

c.

The Rare Case 
    Necessity and Reliability.........................................

i.

Necessity........................................................................................

ii.

Reliability........................................................................................

4.

Abuse of Process..............................................................................

a.

Shaikh as
    Confidential Informant or State Agent..................................

b.

Entrapment........................................................................................

c.

Shaikhs Conduct Did
    Not Otherwise Warrant A Stay..........................

DISPOSITION..................................................................................................

APPENDIX..........................................................................................................




BACKGROUND

[1]

The appellant, N.Y., was convicted of knowingly participating in or
    contributing to the activities of a terrorist group contrary to s. 83.18 of the
Criminal Code
.
Along with three other young persons and fourteen
    adults, he was charged following a police investigation that uncovered a plot
    to commit very public acts of terrorism, including bombing attacks on power
    grids and against various targets such as the Canadian Security Intelligence
    Service, the Royal Canadian Mounted Police, the Parliament buildings, the
    Toronto Exchange Tower, and an unspecified military target.

[2]

The charge arose out of N.Y.s participation in what the trial judge
    found to be two terrorist training camps held in rural Ontario  the first
    between December 18 and 31, 2005, at Washago, and the second between May 20 and
    22, 2006, at Rockwood  and certain other activities related to the terrorist
    plans being fostered at those camps. In particular, the trial judge found that
    N.Y. participated in and aided the terrorist group by attending the Rockwood
    training camp, shoplifting camping supplies and walkie-talkies for the group,
    and removing a law enforcement surveillance camera found in the apartment
    complex of one of the leaders of the terrorist group.

[3]

N.Y. was two months shy of his 18th birthday when he attended the
    Washago camp and was therefore a young person as defined in the
Youth
    Criminal Justice Act
, S.C. 2002, c. 1, s. 2 at that time. He was an adult by
    the time he attended the Rockwood camp, however.

[4]

The Crowns case consisted of agreed facts, videos recovered from seized
    computers depicting activities at the training camps, tapes of intercepted
    communications between members of the alleged terrorist group, and the evidence
    of a confidential police informant, Mubinoddin Shaikh, who participated in the
    camps and gave evidence about the activities of members of the group.

[5]

N.Y. did not testify, nor did he call any evidence in his own defence at
    trial. His defence, essentially, was that he was a young, immature,
    easily-influenced, recent convert to Islam, who came under the persuasive spell
    of Shaikh and one of the lead conspirators, Fahim Ahmad. He claims he did not
    know that the camps and activities were designed to further terrorist plans;
    rather, he thought they were camps to promote Islamic principles.

[6]

In very careful and thorough reasons, Sproat J. generally accepted
    Shaikhs evidence and concluded that most of the Crowns other evidence was
    incontrovertible. In the end, he did not accept N.Y.s defence and after a
    39-day trial, including several pre-trial motions, found N.Y. guilty of the
    offence as charged.

[7]

On appeal, N.Y. submits that the trial judge erred by,

·

misapprehending the evidence and making findings based on
    speculation and inferences not founded on the evidence;

·

admitting into evidence the appellants post-arrest statement
    despite having found that the police had breached his rights under ss. 10(a)
    and 10(b) of the
Canadian Charter of Rights and Freedoms
;

·

relying on hearsay evidence of comments made by Ahmad, and the
    interpretation of those comments, led through the witness, Shaikh; and

·

failing to enter a stay of proceedings at the end of trial on
    abuse of process grounds, in particular, in failing to find that Shaikh was a
    state agent rather than a confidential informant, and in failing to give
    sufficient weight to what were alleged to be overbearing and illegal acts on
    Shaikhs part.

[8]

I would not give effect to any of these submissions, and for the
    following reasons would dismiss the appeal.

FACTS

[9]

The facts are exhaustively laid out in the trial judges reasons for judgment.
    I reiterate here only those necessary to explain the issues and my reasons for
    dismissing the appeal. As the trial judge noted, most of the Crowns case was
    uncontradicted in terms of what, in fact, occurred. However, there were, as he
    said, competing interpretations and arguments regarding the significance of
    the evidence.

[10]

The
    terrorist group was comprised of two sub-groups  one from Scarborough, the
    other from Mississauga. Ahmad led the Scarborough group. Another man, Zakaria
    Amara, led the Mississauga group.

1.

The Lead-Up to the Camps


[11]

During
    the Fall of 2005, CSIS was investigating these groups of young men for what it believed
    to be an emerging terrorist plot. In August 2005, two men had been arrested
    carrying weapons across the border from the United States into Canada. These
    two men were ultimately charged along with the appellant. One of them, Ali Mohammed
    Dirie, was Ahmads brother-in-law and it turned out that Ahmad had paid for the
    rental vehicle that the two men had used to cross the border. In November 2005,
    CSIS received information about a meeting at the Taj Banquet Hall in Toronto
    and directed Shaikh to attend it in order to further the investigation by developing
    an association with Ahmad, Amara, and others.

[12]

At
    that time, Shaikh was a confidential informant of CSIS. He went to the Taj
    Banquet Hall on November 27, 2005, where he identified Ahmad, Amara, and others,
    including the appellant, in attendance. He initiated a conversation with Ahmad,
    during which they engaged in various jihad-oriented exchanges concerning
    terrorist activities. Shaikh impressed Ahmad with his knowledge of, and ability
    to acquire, weapons and with his potential as a terrorist trainer. Ahmad
    provided Shaikh with various publications concerning jihad and the
    justification for killing, assaulting, defaming, and stealing from non-believers.

[13]

Later,
    on November 29, Ahmad told Shaikh that he had planned a training camp, that he
    needed a trainer, and that there were plans to attack targets including the
    RCMP, CSIS, the Parliament buildings, and power grids. Ahmad asked whether
    Shaikh could train guys to do this stuff and Shaikh assured Ahmad that he
    could. On December 5, 2005, Shaikh helped Amara purchase a rifle and 1,000
    rounds of ammunition, using Shaikhs licence to purchase firearms.

2.

The Washago Camp

[14]

The
    Washago Camp followed shortly thereafter  from December 18 to 31, 2005. The
    appellant and other young participants were told that the camp was to be an
    Islamic religious retreat with outdoor physical activities linked to its religious
    purpose. Although designed to appear as such a retreat, however, the program incorporated
    various activities involving combat-like manoeuvres including firing paintball
    weapons at a target while negotiating an obstacle course and training in the
    firing of real handguns. In his various interventions throughout the camp,
    Ahmad made combat-related references and suggested they were living under
    conditions similar to the
mujahideen
in Chechnya. Shaikh participated
    as a trainer, which involved giving instruction in the use and firing of
    handguns. The appellant participated in all of these various activities.

[15]

During
    the camp there were three formal 
halaqahs,
 or gatherings. At the
    first, the participants listened to an audio presentation entitled
The Constants
    on the Path of Jihad
. This presentation advised that fighting was a
    religious obligation. The second

halaqah
consisted of a
    forceful speech by Ahmad, outlined more fully below, one view of which is
    certainly that he encouraged those attending the camp to engage in the fight
    for Islamic dominance. The third
halaqah
was led by Shaikh, during
    which he posed questions to the group and discussed the oppression of Muslims
    abroad. The
halaqahs
, as well as many of the physical activities
    described above, were videotaped.

[16]

A
    measure of the nature of Ahmads exhortation at the second
halaqah
can
    be taken from the following passages, excerpted from the video (which the trial
    judge, and we, have had the opportunity to view):

Well were here to kick it off man. Were here to get the
    rewards of everybody thats gonna come after us *God willing* if we dont a
    victory *God willing* our kids will get it. If not them, their kids will get it
    [] if not them the five generations down somebody will get it *God willing*.
    This is the promise of Allah. *God help and victory is near*. Its coming. When
    its gonna come doesnt matter man, this is our path we stick to it no matter
    what the trials are.



But you know what your minds gotta be on this place. Your minds
    and your hearts have to be here. You go back, youre living with society and
    you have to put on that face, you know what, were a bunch of peace lovers you
    know what I love all these *non-believers* yup I love your wealth I love your
    women. (laughing) I love everything about you.



Our mission is here. This is where we come back at the end of
    the day. We all got our missions, which we gotta fulfill. We all know what we
    gotta do when we go back whether its like enrol in school and be patient and
    this and that but at the end of the day, but especially the young guys I dont
    know, how involved well be able to get you guys again and again and how often
    but this is the hearts. This is where the hearts are okay



So although our bodies will be with the *non-believers* roaming
    around, going to work, trying to get money, sucking up to your boss and this
    and that, you know the typical idea of nice uh, do *favours* with the parents
    this and that Our hearts are with the people of *heaven*, our hearts are with
    this group right here and everybody else thats given the Covenant for us to be
    part of this, who are not here but *God willing* they are here with their
    hearts, alright. So you go back *God willing* remember, doesnt matter what
    trials you face it doesnt matter what comes your way. Our missions greater,
    whether we get arrested, whether we killed, we get tortured, our missions
    greater than just individuals. Its not about you or I or this Amir or that
    Amir, its not about that. Its about the fact that this has to get done. Rome
    has to be defeated. And we have to be the ones that do it, no holding back,
    whether its one man that survives, you have to do it. This is what the
    Covenants all about, you have to do it. And *God willing* we will do it. *God
    willing* we will get the victory.



What whos gonna say anything about it. We destroyed your
    armies, you got nothing. We broke your knees. Rome, Rome, you guys realize who
    youre messing with. This is Rome. This is the one empire thats never been
    defeated. [] Its like a friggin monster man. You cut off one hand, another
    grows here, cut that off, another one grows here, cut that off, another one,
    another one, another one. Finally, you had to leave the entire Europe because
    the Muslims are too close to their shores. And here they came to North America
    and they got their fortress, they got their walls, they got their um, patriot
    missiles or whatever the heck they call them trying to you know defend their
    airspace and this and that, but you know what here we are we entered your lands,
    we already started striking cause you know what this training is striking at
    them.



And it puts fright in their hearts, man, it freaks them out.
    Imagine were walking the streets of downtown or even Washington or youre in
    front of the White House and you raise the banner of *There is no God except
    God*. Is anybody ever gonna think of facing us. *There is no God except God* in
    the White House. *God is Great* in the streets of downtown. You know what, this
    is what the changes are all about. Nobody counts on you and you prove em
    wrong. And w I know like all you guys dont get involved from the first step
    and you guys havent been involved for whatever reason but for the ones that
    have been, man weve seen the help of Allah. Small or big, weve seen the help
    of Allah.

[]

And weve seen the help and it will come in bigger and from
    different forms. Its just, we just gotta stick with it man. If it takes long
    so be it. We just gotta stick with it because this is our mission.

[Words within asterisks were translated from Arabic]

[17]

The
    trial judge concluded that the appellant may not have appreciated the nature of
    the camp, or the purpose of the groups activities and plans, when he agreed to
    attend and arrived at the Washago Camp. The appellant was young and naive and
    as a recent convert to Islam was anxious to learn more about that religion. The
    trial judge found that by the conclusion of the camp, however, the appellant
    understood the nature of the group and the terrorist intentions of Ahmad, and
    also understood that Ahmad considered him to be a member of the terrorist group.
    There was ample evidence to support these findings.

3.

The Appellants Acts of Participation in the
    Terrorist Group

[18]

The
    appellant left the Washago Camp with Amara on December 30, 2005, and continued
    to associate with Ahmad closely until his arrest on June 3, 2006. It was during
    this period that the activities the trial judge concluded gave rise to the
    appellants guilt took place. They were threefold.

a.

Removal
    of the Surveillance Camera

[19]

First,
    in January 2006, Ahmad discovered a surveillance camera hidden in an exit sign
    in the hallway of his apartment building. The appellant was found to have
    removed the surveillance camera at Ahmads request.

b.

Shoplifting

[20]

Secondly,
    the appellant engaged in a number of shoplifting exploits for the purpose of
    acquiring equipment for the group. At sometime around January 2006, he
    shoplifted a number of walkie-talkies that, according to Ahmad, were to be used
    for the groups activities. Further, on February 2, 2006, he was arrested for
    shoplifting camping utensils, an LED clip light, an axe, and an 18-inch machete
    from a Canadian Tire store. In his post-arrest statement, the appellant
    admitted to shoplifting the items, but denied stealing for the purposes of the
    group; instead, he said he shoplifted the items for the fun of it and
    possibly to sell to friends. The trial judge did not accept this explanation.

c.

The
    Rockwood Camp

[21]

Finally,
    the appellant attended a second training camp held at Rockwood between May 20
    and May 22, 2006. While some of the activities at the Rockwood Camp appear
    somewhat more benign than those at the Washago Camp  hiking and boating, for
    example  a number of them bore the mark of a resistance group conducting
    covert operations. The participants wore military fatigues and marched around
    holding 18-inch knives. They sat around a fire talking about their grievances
    against the United States  particularly with respect to the attacks by that
    country against Iraqi civilians  and expressing their beliefs that it is the
    obligation of Muslims to help Muslims abroad and that the wrath of God would
    come down on people who committed injustices. Ahmad demonstrated tucks and
    rolls and taunted those who could not perform them. The video depicts images of
    young men sitting cross-legged with their faces masked. They had a document in
    front of them with large knives laid out at the top and the bottom of the
    document and a walkie-talkie positioned nearby.

[22]

One
    witness, Sahl Syed, who attended the Rockwood Camp, testified that Ahmad had
    the video made to resemble videos released on the internet by resistance
    groups, and seen as well on CNN and CBC. Notably, the video also depicted one
    of the leaders crossing a creek, carrying Ahmad on his shoulders, and exhorting
    the participants: [M]ost of the rivers and stuff is all from North America
    that go into the States and... and that like... almost the easiest access to
    get in through. So, thats most likely going to be... lot of our missions going
    to be with water. As the trial judge noted, the appellant and Mr. Syed were
    seen on the video in the area just before this demonstration; following the
    statement, they crossed the creek.

THE PROCEEDINGS BELOW

[23]

To
    provide context, I observe that this terrorist conspiracy  however it may have
    been portrayed in some quarters as the hapless fantasies of a group of naive,
    unsophisticated, young men who did not know what they were doing  was
    nonetheless a conspiracy of considerable reach.

[24]

Eighteen
    suspects were initially arrested by the police, including the appellant and three
    other young persons. Seven were released or the charges against them ultimately
    withdrawn or stayed. Amara pleaded guilty to leading the bomb plot and was
    sentenced to life imprisonment. Ahmad pleaded guilty to leading the terrorist
    group and was sentenced to imprisonment for 16 years. Five other participants
    pleaded guilty to being involved in various aspects of the conspiracy and were
    sentenced to periods of imprisonment ranging from 7 to 20 years. Three of the
    adults were found guilty after trial and sentenced to periods of imprisonment
    ranging from 6 and one-half years to life.
[1]

[25]

N.Y.
    was the only young person convicted. The charges against the other three young
    persons were withdrawn or stayed following a preliminary hearing. N.Y. was
    sentenced to 30 months in prison, the equivalent of time served. He does not
    appeal the sentence.

[26]

I
    turn now to a consideration of the errors said to have been committed by the
    trial judge.

ANALYSIS

[27]

The
    relevant provisions of the
Criminal Code
provide as follows:

83.18 (1) Every one who knowingly participates in or
    contributes 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 is guilty of an indictable offence and liable to
    imprisonment for a term not exceeding ten years.

(2) An offence may be committed under subsection
    (1) whether or not

(
a
) a
    terrorist group actually facilitates or carries out a terrorist activity;

(
b
) the
    participation or contribution of the accused actually enhances the ability of a
    terrorist group to facilitate or carry out a terrorist activity; or

(
c
) the
    accused knows the specific nature of any terrorist activity that may be facilitated
    or carried out by a terrorist group.

(3) Participating in or contributing to an
    activity of a terrorist group includes

(a) providing, receiving or recruiting a person
    to receive training;

(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;

(c) recruiting a person in order to facilitate
    or commit

(i) a terrorism offence, or

(ii) an act or omission outside Canada that, if
    committed in Canada, would be a terrorism offence;

(d) entering or remaining in any country for the
    benefit of, at the direction of or in association with a terrorist group; and

(e) making oneself, in response to instructions
    from any of the persons who constitute a terrorist group, available to
    facilitate or commit

(i) a terrorism offence, or

(ii) an act or omission outside Canada that, if
    committed in Canada, would be a terrorism offence.

(4) In determining whether an accused
    participates in or contributes to any activity of a terrorist group, the court
    may consider, among other factors, whether the accused

(
a
) uses
    a name, word, symbol or other representation that identifies, or is associated
    with, the terrorist group;

(
b
) frequently
    associates with any of the persons who constitute the terrorist group;

(
c
) receives
    any benefit from the terrorist group; or

(
d
) repeatedly
    engages in activities at the instruction of any of the persons who constitute
    the terrorist group.

1.

Misapprehension of the Evidence

[28]

The
    appellant contends the trial judge erred in holding that the only reasonable
    inference to be drawn from the circumstantial evidence was that the appellant intended
    by his acts to enhance the ability of the group to carry out its terrorist
    activities. In this respect, he says that the trial judge failed to comply with
    the principle that where the Crown relies upon circumstantial evidence to prove
    intent, the inferences drawn must be the
only
reasonable inferences
    capable of being drawn from the facts: see
R. v. Rhee
,
2001 SCC
    71, [2001] 3 S.C.R. 364, at para. 35.

[29]

Specifically,
    the appellant argues that the trial judges rejection of viable alternative
    explanations of innocence, was the result of a misapprehension of the evidence,
    and the making of inconsistent findings or unwarranted inferences concerning a
    number of issues, including:

a)

the appellants
    reasons for shoplifting;

b)

the removal of the
    surveillance camera;

c)

the trial judges
Vetrovec
analysis;

d)

the appellants interest in resistance efforts overseas;

e)

the impact of Ahmads speech during the second

halaqah
at the Washago Camp and of the presence of the firearm at that camp; and

f)

the appellants understanding of the terrorist nature of the Rockwood
    Camp.

[30]

There
    is a fine line between an argument based upon misapprehension of the evidence,
    inconsistent findings and unwarranted inferences, on the one hand, and an
    argument which is, in substance, an attempt to persuade an appellate court to
    re-try the case and substitute its own  or, more particularly, the appellants
     take on the evidence for that of the trial judge. The appellants argument
    falls into the latter category, in my view. Rather than list here the numerous errors
    alleged by the appellant, I have attached an Appendix containing a chart that
    details the factual findings challenged by the appellant and the evidence
    available to support them. As this chart  based on a similar chart contained
    in the Crowns factum  makes clear, there was ample evidence to support the
    trial judges findings and the inferences he drew from those findings. I am not
    persuaded that he made any significant findings that were inconsistent with the
    evidence.

[31]

Nor
    am I persuaded that the trial judge ran afoul of the
Rhee
principle by
    concluding, on the basis of the evidence properly admissible and accepted by
    him, that the appellant, by his actions, intended to enhance the terrorist
    goals of the conspiracy. In this regard, I find the observations of McEachern
    C.J.B.C. in
R. v. To
, 1992 CanLII 913 (B.C.C.A.), at para. 41, concerning
    the assessment of competing inferences, apt:

It must be remembered that we are not expected to treat real
    life cases as a completely intellectual exercise where no conclusion can be
    reached if there is the slightest competing possibility. The criminal law
    requires a very high degree of proof, especially for inferences consistent with
    guilt, but it does not demand certainty.

[32]

I
    would not give effect to this ground of appeal.

2.

Admission of the Appellants Post-Arrest
    Statement

[33]

At
    the conclusion of a blended
voir dire
attacking the admissibility of
    the appellants post-arrest statement, the trial judge concluded (a) that the
    statement was voluntary, (b) that the appellants s. 10(a) and s. 10(b) rights
    under the
Charter
had been violated, but (c) that, nonetheless, the
    statement should be admitted into evidence pursuant to s. 24 of the
Charter
.
    The appellant accepts the ruling that his statement was voluntary and that his
Charter
rights were breached, but seeks to have the statement excluded on the basis
    that the trial judge erred in his analysis under s. 24(2) of the
Charter
.

[34]

Sections
    10(a), 10(b) and 24 of the
Charter

provide as follows:

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the
    reasons therefor;

(b) to retain and instruct counsel
    without delay and to be informed of that right.

24(1) Anyone whose rights or freedoms,
    as guaranteed by this Charter, have been infringed or denied may apply to a
    court of competent jurisdiction to obtain such remedy as the court considers
    appropriate and just in the circumstances.

(2) Where, in proceedings under
    subsection (1), a court concludes that evidence was obtained in a manner that
    infringed or denied any rights or freedoms guaranteed by this Charter, the
    evidence shall be excluded if it is established that, having regard to all the
    circumstances, the admission of it in the proceedings would bring the
    administration of justice into disrepute.

[35]

As
    the trial judge noted, the
Charter

issue arises in this case because
    of a police error in explaining to the appellant the reason for his arrest and
    detention.

[36]

The
    appellant was advised by the arresting officer that he was being detained because
    of his participation in a terrorist group. When he asked for clarification, the
    arresting officer told him it was because he attended the terrorist training
    camp at Washago in December.

[37]

Sergeant
    Tost, the interviewing officer, did not speak to the arresting officer because
    of time constraints and therefore did not know exactly what the appellant had
    been told about the charges he faced. Sergeant Tost advised the appellant that
    one of the charges he was facing occurred in December, before the appellant
    turned 18, and had to do with a camp. He told the appellant that the charges
    were serious, the Crown had a right to seek an adult sentence, and that the
    appellant should speak to a lawyer.

[38]

The
    appellant did speak to duty counsel. He was then taken for a videotaped
    interview, at which time Sergeant Tost made it clear that the appellant was
    facing two separate charges, which were read to the appellant as follows:

·

Between March 1, 2005, and June 1, 2006, he knowingly
    participated in the activities of a terrorist group for the purpose of
    enhancing the ability of a terrorist group; and

·

Between November 27 and December 21, 2005, he knowingly
    participated in the activities of a terrorist group by receiving training.

[39]

Sergeant
    Tost explained that the latter charge concerned the Washago Camp. However, the
    charges relating to the period extending to June 1, 2006, included within their
    ambit the surveillance camera incident, the shoplifting of the camping
    equipment and the walkie-talkies, and the appellants further attendance at the
    Rockwood Camp  some of which, at least, occurred after the appellant attained
    the age of 18 and was no longer a young person within the meaning of the
Youth
    Criminal Justice Act
.

[40]

The
    appellant was never given an opportunity to speak to counsel with the knowledge
    that he was being charged with matters relating to any activity other than his
    participation at the Washago Camp. In particular, he did not have an
    opportunity to speak with counsel with the understanding that his activities
    regarding Rockwood were under scrutiny. Then, during the interview, the appellant
    lied. He told Sergeant Tost that the last time he had been on a camping trip
    with Ahmad was in December 2005, when he had actually been to the Rockwood Camp
    a few weeks earlier. The lie proved to have some significance at trial because
    the trial judge ultimately considered it as a factor in determining the
    credibility of the appellants statement and of his defence generally.

[41]

In
    his ruling on the admissibility of the statement, the trial judge did not
    accept the Crowns submission that Sergeant Tosts subsequent explanation of
    the two charges cured any initial misstatements suggesting that the appellants
    jeopardy related only to allegations of terrorist activity during the Washago
    Camp (when the appellant was still a young person). The trial judge concluded
    that there had been no breach of the appellants s. 10(a) and s. 10(b) rights
    with respect to the allegations arising out of the Washago Camp, but that there
    had been a breach of those rights insofar as the appellants statement related
    to the remaining allegations.

[42]

The
    appellant does not contest these conclusions on the appeal. The issue is
    whether the trial judge erred in then refusing to exclude the contents of the
    statement under s. 24(2) of the
Charter
.

[43]

In
    arriving at his decision not to exclude the appellants statement, the trial
    judge did not have the benefit of the Supreme Court of Canadas decision in
R.
    v. Grant,
2009 SCC 32, [2009] 2 S.C.R. 353, which reformulated the test to
    be applied on a s. 24(2) application. He relied on the traditional test
    articulated in
R. v. Collins
,
[1987] 1 S.C.R. 265. The
Collins
factors to be considered in determining whether evidence should be excluded are
    (i) the effect of admission on the fairness of the trial; (ii) the seriousness
    of the violation; and (iii) the effect of excluding the evidence on the
    administration of justice.

a.

Review of
    the Trial Judges Analysis of the Appellants Post-Arrest Statement Under the
    Traditional
Collins
Test

[44]

The
    trial judge concluded that trial fairness would not be adversely affected by
    admission of the statement. He was satisfied that the appellant would not have
    acted any differently in his interview with Sergeant Tost had he known that the
    police were also interested in the surveillance camera incident, the
    shopliftings, and the Rockwood Camp. The trial judge was also satisfied that
    the police had not acted in bad faith.  Drawing on
R. v. Bartle
,
    [1994] 3 S.C.R. 173, at p. 213, in making the former finding, the trial judge
    relied on the following as positive evidence supporting the inference that
    [the appellant] would not have acted any differently ... had his rights been
    fully respected:

·

N.Y. understood he was arrested for the very serious offence of
    terrorist activity in relation to the

Washago

camp;

·

after being advised of his right to remain silent and his right
    to consult counsel in relation to the

Washago

camp
    allegations, N.Y. volunteered that it was just a camping trip;

·

N.Y. received legal advice based upon the fact he faced this
    very serious charge;

·

Sergeant Tost made clear at the beginning of questioning that
    there were two charges, one relating to the

Washago
camp and the second relating to activities over the
    period March 1, 2005, to June 2, 2006;

·

N.Y. stated that he had been advised by counsel that he should
    not say anything, or not much of anything, to the police;

·

despite legal advice in relation to the

Washago

camp charge, and advice from Sergeant Tost there was a
    second broader charge, N.Y. chose to speak to the police at some length
    offering guarded and generally exculpatory answers;

·

the shopliftings and other activities flowed from and were a
    continuation of the activities at the

Washago

camp; and

·

N.Y.s approach to all of the questioning was to the same effect,
    namely that there was no terrorist motivation or, if there was, it was lost on
    him.

[45]

In
    addition, the trial judge was satisfied that if, despite the foregoing
    evidence, there was some reason why the appellant would have acted differently
    if he had been aware of the other allegations, this was a matter clearly
    within his knowledge and he had not provided any evidence that he would have
    acted differently. This was a factor in favour of the Crown having satisfied
    its onus of establishing that the appellant would have given his statement in
    any event, had he been fully apprised of his rights: see
Bartle
, at p.
    213, where Lamer C.J. observed that if there is positive evidence that the
    accused would not have acted differently, an accused who fails to provide
    evidence that he or she would have acted differently  a matter clearly within
    his knowledge  runs the risk that the Crown will satisfy its burden of
    persuasion.

[46]

The
    implications of the questioning about the Rockwood Camp and the appellant's lie
    that he was not there is troubling as it turned out to be a factor in the trial
    judge's ultimate assessment of N.Y.'s credibility. There is no easy way to know
    if the appellant would have decided to stay silent, or if he would have told
    the truth had he known that his participation at Rockwood formed part of the
    underpinning charges against him.

[47]

Nonetheless,
    the trial judge made the finding that the appellant would not have acted
    differently. That finding was open to him to make and there was ample evidence
    to support it.

[48]

As
    the trial judge noted, the appellant knew that he was being charged with
    participating in terrorist activities, a very serious charge; yet, against the
    advice of his lawyer, he chose to speak with the police. Sergeant Tost informed
    him at the beginning of the interview that there were two charges: one relating
    to the Washago Camp, and a second relating to the activities between March 1,
    2005, and June 2, 2006. Nevertheless, N.Y. disclosed a wide range of activities,
    which the trial judge concluded were so closely related that they could be
    considered as part of a single transaction. These included the shoplifting of
    the walkie-talkies and the camping equipment, which post-dated the Washago Camp
    (and for which the appellant gave an exculpatory explanation  he did so for
    personal reasons because he was a shoplifter, and not at the direction of
    anyone else). In general, as the trial judge found, the appellants approach to
    all questioning was that there was no terrorist motivation or, if there was,
    it was lost on him.

[49]

Moreover,
    in making the finding the trial judge was aware  indeed, it was common ground
     that the appellant had falsely stated he only attended one camp. This fact
    was expressly noted by the trial judge in the course of assessing the Crowns
    argument about the potential significance of the statement as corroboration of
    other evidence, particularly that of Shaikh, in the context of what the Crown
    was anticipating to be a vigorous attack on the credibility of [Shaikh] at trial
     an anticipation with which, as the trial judge noted, the defence did not
    take issue. It is clear, therefore, that the trial judge made his finding
    fully recognizing the potential significance of the lie about the attendance at
    the Rockwood camp in the credibility exercise that would roll out at trial.

[50]

The finding that the appellant would not have acted differently
    if he had known the police were interested in matters subsequent to the Washago
    Camp was coupled with another significant step in the trial judges analysis:
    the finding that in spite of the police error in explaining the full extent of
    the appellants jeopardy and their failure to afford him a further opportunity
    to consult counsel fully appraised of that jeopardy, the police acted in good
    faith.

[51]

In concluding that the police acted in
    good faith, the trial judge relied on the testimony of Sergeant Tost and
    Constable Delguidice, the arresting officer who misinformed N.Y. that he was
    being charged because he attended the terrorist training camp at Washago in
    December. The trial judge was well-satisfied that Constable Delguidice acted
    in good faith, and that his intention was not to mislead; rather, his error was
    the result of the fact that he only possessed a general knowledge of the case
    and was unprepared to go beyond telling NY that he was being charged with
    terrorist activities. The trial judge found that his response would have been
    accurate if he had prefaced his statement by saying that the Washago camp was
    only one example of terrorist activity. However, the trial judge also
    recognized that Constable Delguidice did not want to engage in conversation
    with N.Y. because he knew that it was not his role to conduct the interview.
    Further, N.Y. responded by starting to explain his conduct and Constable
    Delguidice, not wanting to elicit a confession, thought that the less said the
    better.

[52]

Sergeant Tosts failure to rectify the
Charter
violation was also inadvertent. He began his interview by stating that
    there were two separate charges. While this may have warranted repetition, he
    was under time constraints to finish the interview and he had every reason to
    believe that NY had been properly advised by Constable Delguidice.

[53]

These two findings  that the appellant would not have
    acted any differently and that the police acted in good faith  were the
    underpinnings for the trial judges conclusion that the first
Collins
factor
    (the impact on trial fairness) would not be compromised by the admission of the
    statement.  For similar reasons, he concluded that in all the circumstances,
    the breach of the appellants ss. 10(a) and 10(b) rights was relatively minor
    (the second
Collins
factor). Finally, the foregoing factors, coupled
    with the serious na
ture of the criminal charges facing the appellant and
    the relative importance of the statement to the Crowns case at trial, all
    favoured the conclusion that the exclusion of the evidence would tend to bring
    the administration of justice into disrepute (the third
Collins
factor).

[54]

Would
    the same result follow if the newly-formulated
Grant
criteria were
    applied to the facts before the trial judge? In my opinion it would.

b.

Application
    of the Modern
Grant
Test to the Trial Judges Finding


[55]

Since
Grant
, the courts role in a s. 24(2) analysis is to assess and
    balance (i) the seriousness of the breach, (ii) the impact of the breach on the
Charter
-impacted rights of the accused; and (iii) the interest of
    society in having criminal matters determined on their merits. These concerns, while
    not precisely tracking the categories of considerations set out in
Collins
,
    capture the factors relevant to the s. 24(2) determination as enunciated in
Collins
and subsequent jurisprudence:
Grant
, at para. 71.

[56]

In
    arriving at this overall approach to the admissibility or exclusion of evidence
    in the event of a
Charter
breach, the Supreme Court retreated somewhat
    from the principle that evidence classified as non-discoverable conscriptive
    evidence was almost automatically to be excluded on trial fairness grounds. The
    Court observed that this general understanding had erroneously evolved since
Collins
and a later decision of the Court in
R. v. Stillman
, [1997] 1 S.C.R.
    607: see
Grant
, at paras. 64-65. Evidence was classified as conscriptive
    when an accused, in violation of his
Charter
rights, is compelled to
    incriminate himself at the behest of the state by means of a statement, the use
    of the body or the production of bodily samples:
Stillman
,
at
    para. 80, per Cory J.

[57]

Thus,
    to the extent there ever was one, since
Grant
there is no general rule
    that a statement obtained in violation of a
Charter
right, as in this
    case, is to be automatically excluded. Indeed, even prior to
Grant
, the
    Supreme Court had recognized that there may be circumstances  albeit rare 
    where, if the statement would have been made in any event, notwithstanding the violation,
    the impact of the breach may be tempered and the all-but-automatic exclusion rule
    not applied. As the Court noted in
Grant
, at para. 96:


when a statement is made spontaneously following a
Charter
breach, or

in exceptional circumstances where it can confidently be said
    that the statement in question would have been made notwithstanding the Charter
    breach

(see
R. v. Harper
, [1994] 3 S.C.R. 343)
,
the
    impact of the breach on the accuseds protected interest in informed choice may
    be less.

Absent such circumstances, the analysis under this line of
    inquiry supports the general exclusion of statements taken in breach of the
Charter
.
[Emphasis added.]

[58]

Accordingly,
    just as they were central to the trial judges analysis under the
Collins
criteria, the findings that the police violation was inadvertent, that the
    police acted in good faith, and that the appellant would have acted no
    differently had the breach not occurred, are central to the
Grant
analysis as well.

[59]

Any
Charter
violation is serious, but not all violations are equal on the
    seriousness spectrum. Given the finding that the police violation was
    inadvertent, that the police acted in good faith, and that the appellant would
    have acted no differently had the breach not occurred, it cannot be said that
    the breach here is sufficiently serious that admission of the statement would
    send the message the justice system condones serious state misconduct (the
    first
Grant
factor). For similar reasons, the impact of the breach on
    the
Charter
-protected interests of the accused is attenuated as well;
    the impact cannot have been significant if the appellant would have made the
    statements he made in any event (the second factor). Finally  particularly
    given the foregoing  societys interests in having a serious case
,
such
    as this case, adjudicated on the merits is high (the third factor).

[60]

All
    of these considerations, taken individually, and balanced and assessed as a
    whole, weigh in favour of admissibility, in my opinion. The admissibility of
    the statement would not bring the administration of justice into disrepute.

[61]

I
    would not give effect to this ground of appeal either.

3.

Admissibility of Hearsay: The Co-Conspirators
    Exception

[62]

A
    significant part of the Crowns case was based on the evidence of Shaikh about his
    conversations with Ahmad and statements that Ahmad had made to him about the
    activities and statements of other members of the terrorist plot, including the
    appellant. The appellant argues that this evidence should have been excluded,
    or at least not afforded ultimate reliability.

[63]

At
    its heart, the appellants complaint is that Shaikhs evidence does not possess
    the required indicia of necessity and reliability  the twin pillars
    underpinning the principled approach to the admissibility of hearsay testimony
    developed by the Supreme Court of Canada in
R. v. Khan
, [1990] 2
    S.C.R. 531 and
R. v. Starr
, 2000 SCC 40, [2000] 2 S.C.R. 144. This is
    primarily because Ahmad was available to testify and be subjected to
    cross-examination. Therefore, his evidence should not be permitted to go in
    through the mouth of another witness through whom he could not be
    cross-examined (the necessity factor). Also, Ahmads evidence was riddled with
    lies and exaggerations and therefore could not be tested by cross-examination
    and subjected to the in-court assessment of the trial judge (the reliability
    factor).

[64]

The
    appellant recognizes that in
R. v. Mapara
, [2005] 1 S.C.R. 358, the
    Supreme Court of Canada confirmed the continued existence of the
    co-conspirators exception as a valid exception to the hearsay rule and refused
    to set it aside or alter it in spite of the development of the principled
    approach to hearsay. However, the appellant makes two points with respect to
    this exception to the rule. First, he submits that
Mapara
did not
    confirm the continued existence of the exception for cases where, as here, the
    co-conspirator whose statement is sought to be tendered (Ahmad) is available to
    testify (in
Mapara
, the co-conspirators were not available to testify).
    Secondly, he submits that the trial judge erred in importing conspiracy-law
    principles into the terrorist context, and additionally, that in doing so the
    trial judge conflated the proof of admissibility of the hearsay with proof of
    the elements the Crown was required to prove for the terrorist offence with
    which the appellant was charged.

[65]

Finally  returning to where he began  the appellant contends
    that, even if Shaikhs testimony might otherwise be admissible under the
    co-conspirators exception to the hearsay rule, this is one of those rare
    cases where the evidence should nonetheless have been excluded, or at least not
    found to be ultimately reliable on necessity and reliability grounds:
Starr
,
    at para.
214;
Mapara
, at para. 34; and
R v. Chang
(2003), 173 C.C.C. (3d) 397 (Ont. C.A.), at paras. 125, 132.

[66]

I
    do not accept these submissions. While the issues of necessity and reliability
    run through much of the debate, I will start with the co-conspirators
    exception.

a.

Application
    of the Co-conspirators Exception to the Hearsay Rule

[67]

Under
    the co-conspirators exception to the hearsay rule, hearsay evidence about the
    acts and declarations of an accuseds alleged co-conspirators, done or said in
    furtherance of the conspiracy or a common criminal design, is presumptively
    admissible. In
Mapara
, at para. 8, McLachlin C.J. summarized the exception
    in this way:

The co-conspirators exception to the hearsay rule may be
    stated as follows: Statements made by a person engaged in an unlawful
    conspiracy are receivable as admissions as against all those acting in concert
    if the declarations were made while the conspiracy was ongoing and were made
    towards the accomplishment of the common object (J. Sopinka, S.N. Lederman and
    A.W. Bryant,
The Law of Evidence in Canada
(2nd ed. 1999), at p.303). Following
Carter
,
[2]
co-conspirators statements will be admissible against the accused only if the
    trier of fact is satisfied beyond a reasonable doubt that a conspiracy existed
    and if independent evidence, directly admissible against the accused,
    establishes on a balance of probabilities that the accused was a member of the
    conspiracy.

[68]

On
    the issue of necessity, McLachlin C.J. adopted the analysis of this Court in
Chang
,
    at para. 105, that necessity will arise from the combined effect of the
    non-compellability of a co-accused declarant, the undesirability of trying
    alleged co-conspirators separately, and the evidentiary value of
    contemporaneous declarations made in furtherance of an alleged conspiracy. On
    the issue of reliability, the Chief Justice ultimately concluded that the
    conditions of the
Carter
rule provide sufficient circumstantial
    guarantees of trustworthiness necessary to permit the evidence to be received
    (para. 27). She arrived at this conclusion despite inherent reliability
    concerns arising out of the character of the declarants and the suspicious
    activities in which they are engaged (para. 19). Concerns at the threshold
    reliability level were adequately met, in the end, by the fact that the
    co-conspirators exception only becomes applicable once the trial judge has
    determined,

a)

that the first two
    requirements of the
Carter
test for conspiracy have been met, namely,
    that the existence of a conspiracy has been established beyond a reasonable
    doubt, and that the accused has been found on the balance of probabilities,
    based on evidence directly admissible against him or her, to have been a member
    of the conspiracy; and,

b)

that only those
    statements made in furtherance of the conspiracy may be considered.

[69]

In
    her reasons, McLachlin C.J. placed considerable emphasis on the latter point
    (para. 26).

[70]

The
    appellant argues, however, that
Mapara
was a case in which the
    co-conspirators were not available to testify because they were being tried
    together. The hearsay testimony was therefore necessary. He contends that the
    Supreme Court did not intend to extend the reach of its ruling to situations
    where, as here, the declarant is available to be called as a witness. Cases
    where the declarant is available to testify must therefore be analysed, he
    says, under the mantle of the rare case scenario and in accordance with the
    necessity and reliability considerations set out in the principled approach to
    the admission of hearsay. In this respect, he relies upon the subsequent
    decision of this Court in
R. v. Simpson
, 2007 ONCA 793, 230 C.C.C.
    (3d) 542.

[71]

Mr.
    Simpson was convicted of various drug-related offences. The Crown alleged that
    he was the supplier to a drug dealer named Williams, who in turn sold cocaine
    to several undercover officers. At trial, one of the undercover officers
    testified that she had conversations with Williams in which Williams indicated
    that he had obtained drugs from his guy. The undercover officer interpreted
    this to be his supplier, Simpson. She also testified that Williams then phoned
    Simpson and attended at the premises Simpson rented. Williams was not called at
    trial. He had originally been charged as a co-accused, but had resolved those
    charges by the time of Simpsons trial.

[72]

Writing
    for the court, LaForme J.A. conducted a careful analysis of the relationship
    between the co-conspirators exception and the principled approach to hearsay
    evidence. He underscored this Courts statement in
Chang
that the
    necessity component is satisfied in the context of the co-conspirators
    exception by the combination of three justifications, not simply one relating
    to the quality or unique character of the evidence alone. To repeat, the three
    justifications are the non-compellability of the co-accused declarant, the
    undesirability of trying alleged co-conspirators separately,
and
the
    evidentiary value of contemporaneous declarations made in furtherance of an
    alleged conspiracy (emphasis added):
Chang
, para. 105.

[73]

At
    the end of the day, however, the decision in
Simpson
was founded on
    the rare case scenario as articulated in
Starr
and
Mapara
,
    namely that [i]n rare cases, evidence falling within an existing exception
    may be excluded because the indicia of necessity and reliability are lacking in
    the particular circumstances of the case:
Mapara
, para. 15; see also
Simpson
,
    paras. 12, 27. In all of the circumstances of
Simpson
, LaForme J.A.
    concluded that the evidence of the undercover officer about Williams
    statements concerning Mr. Simpson did not meet the necessity and reliability
    tests and should not have been admitted. He allowed the appeal and set aside
    the conviction.

[74]

Chang
raised, but left open, the question whether the co-conspirators exception
    should apply at all, or in some modified form, where the declarant is available
    to testify. In
Simpson
, LaForme J.A. concluded that the Court in
Mapara
limited its decision on the issue of necessity to circumstances where the
    declarant was unavailable (at para. 35). As Williams was available (no reason
    was given for not calling him), LaForme J.A. focussed his analysis on the
    indicia of necessity and reliability, although he did so under the rubric of
    the rare case scenario. He concluded that there were not sufficient indicia
    of necessity and reliability in that case, and that the statement of the
    undercover officer should not have been admitted. He allowed the appeal. I
    concurred in that decision.

[75]

Like
    the trial judge, however, I do not understand
Simpson
to stand for the
    proposition that the co-conspirators exception to the hearsay rule  that is,
    that the out-of-court declarations are presumptively admissible  may never
    apply where the declarant is available to testify. Indeed, at para. 36, LaForme
    J.A. said:

There is no doubt in my mind that the availability of the
    declarant,
in some circumstances
, can support the rare exception in
    which the
Carter
test
might yield
to that required by
Starr
.
    In other words, the availability of the co-conspirator declarant as a witness,
may
    require
that the declaration be adduced through the testimony of the
    declarant. [Emphasis added.]

[76]

This
    is a far cry from stating that the co-conspirators exception cannot apply at
    all when the declarant is available to testify.

[77]

Indeed,
    such a proposition would be inconsistent with the flexible approach taken to
    the notion of necessity in the jurisprudence since the development of the
    principled approach. As the trial judge noted in his ruling on admissibility,
    necessity is broader than unavailability of the declarant and extends to the
    nature and quality of the evidence. He relied upon the following statement in
Chang
,
    at para. 105, for that opinion:

under the principled approach, necessity can be grounded in
    more than just the unavailability of the declarant.
In Smith
,
[3]

Lamer C.J.C
.
held at pp. 933-934 that the criterion of necessity
    must be given a flexible definition, capable of encompassing diverse situations.
What these situations will have in common is that
the relevant
    direct evidence
is not, for a variety of reasons, available. Necessity of
    this nature may arise in a number of situations. He then cited Wigmores
    suggestion that
the categories of necessity should include not only
    instances where the declarant is unavailable for the purpose of testing through
    cross-examination, but also situations where we cannot expect  to get
    evidence of the same value from the same or other sources.
In our view, in
    the case of co-conspirators declarations, necessity will arise from the
    combined effect of the non-compellability of a co-accused declarant, the
    undesirability of trying alleged co-conspirators separately, and the
    evidentiary value of contemporaneous declarations made in furtherance of an
    alleged conspiracy. [Emphasis added.]

[78]

Chang

did not say that the combined effect of its three listed factors is the
only
way in which necessity may be found in the case of co-conspirators
    declarations. Others as well as Lamer C.J. in
Smith
,
have noted
    that it is
the availability of the evidence, not the availability of the
    witness
, that is of ultimate significance, and that, while co-conspirators
    may be physically available, their testimony rarely is: see e.g.
R. v. Barnes
,
    (2007) O.J. No. 468 (S.C.), at para. 16;
R. v. Pilarinos
, 2002 BCSC
    855, 2 C.R. (6th) 273, at para. 14;
R. v. Lam
, [2005] A.J. No. 307, at
    paras. 38-45; and
Wilder
, at paras. 672-81.

[79]

I
    therefore conclude that the trial judge was correct when he determined that the
    theoretical availability of Ahmad to testify at the instance of the Crown or
    the defence was not an insurmountable impediment to the application of the
    co-conspirators exception in the circumstances of this case. I will return to
    his analysis of the necessity criterion later in these reasons.

b.

Were a
    Conspiracy or Common Criminal Design, and the Appellants Participation in it,
    Established? The Carter Steps

[80]

The
    appellant further argues, however, that the trial judge erred in importing the
    co-conspirators exception into the terrorist context without proof that a
    conspiracy or common criminal design existed. In this way, the appellant seeks
    to deflect the application of the exception by undermining the trial judges
    findings that a conspiracy or joint criminal design to engage in terrorist
    activities did, in fact, exist and that the appellant was probably a member of
    that plot. This attack cannot succeed, however. As the Crown argues, the
    terrorist group was the joint criminal enterprise. By definition a terrorist
    group includes an entity that has as one of its purposes or activities
    facilitating or carrying out any terrorist activity:
Criminal Code
,
    s. 83.01. The notion of a joint criminal enterprise is inherent in that
    definition.

[81]

The
    trial judge found the evidence that a terrorist group headed by Ahmad and Amara
    existed to be overwhelming. The groups grand design was to attack, and
    level, major symbols of Canadas political, security, military, and financial
    infrastructure. There was abundant evidence in the form of the intercepted
    communications (admitted on consent), the videos, the Agreed Statement of Fact,
    and the direct evidence of the acts of Ahmad, Amara and others, to support that
    finding.

[82]

The
    appellant does not seriously challenge the finding that the conspiracy existed,
    but argues that he was unaware of the details of the grand scheme and that
    there was insufficient evidence to establish that he agreed to join and
    participate in such a conspiracy. I disagree.

[83]

The
    trial judge also found that by the end of the Washago Camp the appellant
    understood the terrorist nature of the group in which he had become involved,
    the terrorist intentions of Ahmad, the purpose of the camp, and the fact that
    Ahmad considered him to be part of the group. Thereafter, the appellant
    continued his close association with Ahmad, attended other meetings of the
    group, and participated in further activities designed to further the common
    criminal enterprise and to enhance the development of the terrorist plot.

[84]

The
    evidence to support these findings includes:

·

The appellants attendance at the Washago Camp, together with the
    evidence of the
halaqahs
, the video, and the training on live weapons
    at that Camp;

·

His attendance at a meeting on March 11, 2006, with a number of
    the Washago group where graphic jihadist material was viewed on Ahmads
    computer;

·

His subsequent attendance and participation at the Rockwood Camp
    and, in particular, the river-crossing exercise captured on video and conducted
    as part of the activities there;

·

His shoplifting activities, including the theft of camping
    supplies, a machete, and of a number of walkie-talkies;

·

The fact that the police ultimately seized camping equipment, machetes,
    and a dozen two-way radios/walkie-talkies from Ahmads house;

·

The fact that the video of the Rockwood Camp showed the presence
    of a walkie-talkie;

·

The appellants close association with Ahmad from November 27,
    2005, through June 3, 2006; and

·

The fact that in one of the intercepted telephone conversations
    between Ahmad, another youth (against whom the charges were ultimately
    withdrawn) and the appellant, the youth referred to the appellant as having a
    new guy in the sense of a recruit (the intercepts were admitted into evidence
    by agreement).

[85]

There
    was therefore ample evidence directly admissible against the appellant to
    support the finding, on a balance of probabilities, that the appellant was knowingly
    a member of the joint criminal enterprise with a common criminal purpose,
    namely the pursuit of a plan to carry out terrorist activities in Canada.

[86]

The
    appellant complains that in conducting the
Carter
analysis for
    purposes of assessing the admissibility of Shaikhs hearsay testimony, the
    trial judge somehow conflated the proof of admissibility of the hearsay with
    the elements the Crown was required to prove. In this way, if I understand the
    argument correctly, the trial judge erred by merging proof of participation in
    the offence and proof of membership in the conspiracy. Why? Because, says the
    appellant, the effect of such an approach is to lower the standard for
    admissibility, since proof of membership in a terrorist group (requiring only
    proof of participatory acts) involves a lower threshold than proof of probable
    membership in a conspiracy (requiring proof of an actual agreement).

[87]

This
    argument does not assist the appellant. First, I am not persuaded the trial
    judge adopted such an approach. Secondly, even if he did, he conducted the
    admissibility inquiry on the basis of the
Carter
approach to the
    establishment of a
conspiracy
. He concluded there was a conspiracy and
    that the appellant was a probable member of it. He therefore applied the higher
    threshold analysis the appellant submits was called for.

[88]

In
    any event, although this is a case involving participation in or contribution
    to the activities of a terrorist group, I am satisfied that the trial judges
    application of the co-conspirators exception to the hearsay rule was correct.
    The principles rendering out-of-court acts and declarations of co-conspirators
    done or made in furtherance of the conspiracy presumptively admissible, can
    apply by analogy, to similar acts and declarations of participants in the
    activities of the terrorist group where a common criminal intent or joint
    criminal enterprise relating to the activities of the terrorist group is
    established. I agree with the trial judges view that the co-conspirators
    exception extends beyond conspiracies to other situations where there is a
    common criminal intent or design or a common criminal enterprise:
R. v.
    Koufis
, [1941] S.C.R. 481, at p. 488;
R. v. Wilder
, [2003] B.C.J.
    No. 2884 (B.C.S.C.), at para. 649; S. Casey Hill, David M. Tanovich & Louis
    P. Strezos,
McWilliams Canadian Criminal Evidence
, loose-leaf
    (consulted on 8 October 2012), (Toronto: Canada Law Book, 2011) at pp. 7-138,
    7-141; and David Watt,
Watts Manual of Criminal Evidence

(Toronto:
    Carswell, 2012) at 370-71
.

[89]

A
    conspiracy is complete upon proof of an agreement to carry out an unlawful act:
R. v. OBrien
, [1954] S.C.R. 666, at p. 668; and
R. v. Paradis
,
    [1934] S.C.R. 165, at p. 168. It was not necessary for the appellant to be
    aware of all of the details of the scheme, or of everyone who was involved or
    their respective roles. It is sufficient that he be aware of the general nature
    of the common design and agrees to adhere to it:
R. v. Cotroni
, [1979]
    2 S.C.R. 256, at p. 276;
R. v. Root
(2008), 241 C.C.C. (3d) 125 (Ont.
    C.A.), at para. 68; and
R. v. Khawaja
, (2006) 214 C.C.C. (3d) 399
    (Ont. S.C.), at para. 36.

c.

The Rare
    Case  Necessity and Reliability

[90]

Hearsay
    evidence that meets the
Carter
requirements is presumptively admissible.
    But the trial judge was nonetheless required to consider whether the hearsay
    evidence led through Shaikh  particularly that of Ahmad  should have been excluded
    on the basis that this was one of those rare or exceptional cases where
    necessity and reliability concerns trumped the application of the
    co-conspirators exception. He did so, and I see no basis for interfering with
    his conclusion to admit the evidence.


i.

Necessity


[91]

Even
    though Ahmad was theoretically available to be called to testify by either the
    Crown or the defence, the trial judge was satisfied that the necessity
    requirement had been met for purposes of admissibility on two bases. First, he
    relied upon what he viewed as the far superior nature and quality of the
    co-conspirators evidence as spoken at the time  supported as it was by
    Shaikhs generally contemporaneous reports and notes, and by various
    intercepted communications. Secondly, he concluded that, even though Ahmad and
    other declarants may have been available to testify, they were unlikely to be cooperative
    witnesses and therefore the true nature of their evidence was not available in
    that sense. These were both appropriate considerations, in my view.

[92]

As
    noted above, and as the trial judge observed, necessity can be grounded in more
    than the availability of the witness; it must be given a flexible definition,
    and may arise in cases in which one cannot
expect
to get evidence of
    the same value or quality from other sources: see
Chang
, at para.
    105, and
R. v. Smith
, [1992] 2 S.C.R. 915, at pp. 933-34. Statements
    made by co-conspirators in furtherance of the common design assist in providing
    a picture of the conspiracy that is unlikely to emerge were the evidence to be
    given directly by the co-conspirator at trial several years after the events. In
United States v. Inadi
, 106 S.Ct. 1121, at 1126 (1986), the United
    States Supreme Court made the same point very succinctly: Conspirators are likely
    to speak differently when talking to each other in furtherance of their illegal
    aims than when testifying on the witness stand.

[93]

Here,
    in addition to the foregoing factors, the trial judge properly pointed out that
    he was being asked to consider the value, or what [he took] to be the nature
    and quality, of the evidence that one can reasonably expect from a
    co-conspirator called to testify, two years after the fact, as to the words
    spoken by ten or more co-conspirators at various meetings, camps and in
    conversation over a period of six month. This distinguishes
Simpson
,
    where the requirement of necessity was held not to have been met. In this
    regard, the trial judge noted in his ruling on admissibility of hearsay:

Each case falls to be decided on its facts. If we consider
    cases on a spectrum, at one end would be cases, similar to N.Y., in which the
    Crown alleges a multi-party conspiracy over an extended period of time. At the
    other end of the spectrum would be a case such as
Simpson
, in which
    there was really one question for the declarant if called to give evidence:
    Were you Mr. Simpsons drug supplier on the offence date. There would be no
    reason to think that the declarant would not have a clear memory on that
    straightforward point. Thus, in
Simpson
the quality of the evidence of
    the declarant would be at least equal to that of the police officer assuming,
    as the Court did, that the declarant would be co-operative.

[94]

I
    agree with this distinction and with this analysis.

[95]

Whether
    the far superior nature and quality of co-conspirators declarations in
    furtherance of the conspiracy are sufficient in themselves to meet the
    requirements of the co-conspirators exception or to overcome necessity
    concerns need not be addressed in this case. The combination of that
    consideration with the second ground for the trial judges decision that
    necessity concerns had been met  the declarants would likely be uncooperative
    witnesses  is sufficient, in my view.

[96]

There
    was ample evidence to support the trial judges conclusion about the likely
    lack of cooperation, including the wisdom of the jurisprudence, reflected
    above, that while declarants in conspiracy cases may be physically available to
    testify, the true quality of their evidence is not likely to be. Ahmad and the
    other declarants were still in the process of being prosecuted, albeit in
    separate trials. In addition, part of the record that was put before the trial
    judge by agreement on the admissibility motion consisted of what was called
    Evidence of the Declarants Unwillingness to Cooperate. This evidence
    included intercepted communications in which Ahmad expressed his disrespect
    for, and distrust of, authority, his willingness to defy it, and his view that
    lying is justified when it is in a situation that somehow relates to Islam. The
    evidence also included statements by Ahmad and Amara to the effect that they
    were prepared to kill the police if approached.

[97]

The
    trial judge made no error in concluding that the necessity requirement had been
    met in the circumstances of this case. Nor did he err in concluding that both
    threshold and ultimate reliability concerns had been met, in my view.


ii.

Reliability


[98]

Statements
    admitted pursuant to the co-conspirators exception to the hearsay rule possess
    sufficient circumstantial indicators of threshold reliability as explained
    earlier in these reasons. As McLachlin C.J. observed in
Mapara
,
    compliance with the first two stages of the
Carter
process may provide
    some corroboration of the statements at issue but, more importantly, provides
    circumstantial indicators of reliability (at paras. 24, 26):

24.  Proof that a conspiracy existed beyond a reasonable doubt
    and that the accused probably participated in it does not merely corroborate
    the statement in issue.
Rather, it attests to a common enterprise that
    enhances the general reliability of what was said in the course of pursuing
    that enterprise
. It is similar in its effect to the
res gestae
exception to the hearsay rule, where surrounding context furnishes
    circumstantial indicators of reliability. The concern is not with whether a
    particular statement is corroborated, but rather with circumstantial indicators
    of reliability.



26. In addition to these preliminary conditions, the final
Carter
requirement, i.e. only those hearsay statements made in furtherance of the
    conspiracy can be considered,
provides guarantees of reliability in the
    more immediate circumstances under which the statement is made. In
    furtherance statements have reliability enhancing qualities of spontaneity
    and contemporaneit
y
to the events to which they relate (
Chang
,
    at paras. 122-23). They have
res gestae-type qualities, being the very
    acts by which the conspiracy is formulated or implemented and are made in the
    course of the commission of the offence
(
Chang
, at para. 123). This
    minimizes the motive and opportunity for contrivance (
Chang
, at
    para. 124). The characters doubtful reputation for veracity is not a factor at
    this stage of the analysis. Rather, it is to be taken into account by the jury
    when assessing the ultimate reliability of such characters statements. [Emphasis
    added.]

[99]

In
    this sense, while it may go to the necessity analysis and to trial fairness
    concerns, absence of the declarants ability to testify does not deprive
    statements made in furtherance of the conspiracy  where the
Carter
requirements have been met  of the circumstantial indicators of reliability
    that supports their admissibility. The
Carter
screening still clothes
    them with those characteristics. Accordingly, whether the presumptive
    admissibility effect of compliance with the co-conspirators exception, as
    confirmed in
Mapara
, applies to situations where the declarant is
    available to testify, the underlying circumstantial indicators of
    trustworthiness emerging from compliance with
Carter
remain as a
    starting point for the rare case analysis.

[100]

In addition to
    the foregoing, the appellant argued strongly that Ahmads lack of credibility
    and reliability rendered his statements inadmissible. As the trial judge noted,
    the chief complaint was that Ahmads evidence was riddled with exaggeration and
    fabrication so that when, in his conversations with Mr. Shaikh, he makes
    reference to N.Y. he may be making things up to give the impression his plans
    are moving forward or exaggerating the role N.Y. actually played. The trial
    judge rejected this argument, however, as he was entitled to do so on the
    record, because of the built-in circumstantial indicators of reliability where
    evidence is admitted under the co-conspirators exception, and because similar
    reliability concerns are characteristic of most such evidence in conspiracy
    cases. As the Court noted in
Mapara
, at para. 36, [such] weaknesses
    go to the ultimate weight of the evidence, which is for the jury to decide.

[101]

In addition, circumstantial
    guarantees of the trustworthiness of the statements, for threshold
    admissibility purposes, were found in numerous recorded, intercepted
    communications (the admissibility of which was not challenged), Shaikhs
    contemporaneous notes of his encounters with the declarants in the form of his
    Source Debriefing Reports to his superiors, and his own notes. These are
    relevant considerations in determining threshold admissibility: see
R. v.
    Khelawon
, [2006] 2 S.C.R. 787. Indeed, at trial, appellants own counsel
    acknowledged that theres no question that [Shaikhs] evidence is of high
    quality in terms of reliability of documentation.

[102]

Finally, the
    trial judge was entitled to find that, although Ahmad was of extremely
    unsavoury character whose statements were regarded with the greatest care,
    Ahmad had not lied about everything. This included statements admitted for the
    truth of their contents to show (a) that there was in fact a terrorist group,
    (b) that the appellant committed acts in furtherance of the aims of the
    terrorist group (i.e., stealing stuff for [Ahmad], shoplifting walkie-talkies
    and camping equipment, and removing the surveillance camera), and (c) that
    Ahmad had told the younger members of the group at the Washago Camp to keep
    silent about what Shaikh took to be the more nefarious aspects of the Camp.

[103]

The appellant
    argued at trial, and again on appeal, that Ahmad was grandiose, delusional, and
    totally incredible and that anything he said concerning the appellant should
    simply be ignored. The trial judge did not accept this position. He
    acknowledged that Ahmad was generally untrustworthy with no compunction about
    lying if it suited his purposes, but pointed out that sometimes those purposes
    were strategic and consistent with advancing the aims of the group. For
    example, exaggerating the number of members in the group and suggesting that he
    had access to large and imminent infusions of cash and weapons served to boost
    morale and placate doubts.

[104]

It is well accepted
    that a trial judge may accept all, none, or some of the evidence of a witness. That
    the trial judge here might have taken a view contrary to the appellants is not
    the issue. It was open to the trial judge on the record to take the view of the
    evidence that he did and to accept the forgoing inculpatory statements about
    the groups terrorist activities and the appellants role in them.

[105]

It was also open
    to him as well to find that the impugned statements were made in furtherance of
    the common criminal design. In his Reasons for Judgment, the trial judge states
    the following:

The in furtherance of the objects of the group requirement is
    met in that:

(a)

Ahmad
    informing Shaikh about the discovery of the surveillance camera was to draw on
    his perceived security competence with a view to protecting the group;

(b)

Amara
    questioning Ahmad about N.Y. stealing 16 walkie-talkies and other items was a
    report by one leader of the group to another; and

(c)

Ahmad and
    Amara discussing the arrests at Canadian Tire two days before and Ahmads
    statement that they were stealing for him were reports as to an important event
    affecting the security of the group. For example, Amara would logically want to
    know if N.Y. was acting on his own or as directed, and what, if anything, he
    disclosed to the police.

[106]

Similarly, Ahmads
    statements that helped establish the existence of the terrorist group  for
    example, his statements to Shaikh about planning a terrorist camp, his need for
    a trainer to train guys to do this stuff, his expected targets, his
    exhortation to the youth members of the Washago group to keep quiet about the
    criminal nature of the Camps activities, and his comments about the size of
    his group and the pending availability of large amounts of cash and weaponry
    (albeit exaggerated)  were all designed to encourage and advance the objects
    of the group. They were made in furtherance of the common criminal design.

[107]

Moreover, as the
    Crown points out, many of Ahmads out-of-court declarations were corroborated
    by other extrinsic evidence. His bragging to Shaikh about the appellants theft
    of the walkie-talkies is supported by (i) a telephone intercept of January 23,
    2006, in which the appellant called Ahmad and asked whether he could drop some
    stuff off at Ahmads house; (ii) a further telephone intercept shortly
    thereafter in which Ahmad advised Amara that the appellant had acquired six
    walkie-talkies for the group, (iii) video footage of the Rockwood Camp showing
    the appellant as part of a group sitting cross-legged, faces masked, reading a
    document flanked by large knives and a walkie-talkie; (iv) items seized by
    police from Ahmads home, as described above; and (v) the appellants admission
    in his interview with Sergeant Tost that he stole walkie-talkies. Ahmads
    statement to Shaikh that he intended to purchase property for training purposes
    or a hideout was supported by intercepted telephone conversations. These
    intercepts showed that in February 2006, Ahmad, Shaikh and others travelled to
    Opasatika, a northern community, to scout out a safe house that could be used
    for these purposes. Finally, Ahmads statement to Shaikh that he intended to
    hold a training camp came to fruition when the Washago Camp was, in fact, held.

[108]

For all of these
    reasons I am satisfied that the trial judge was correct to consider, and apply,
    the co-conspirators exception to the hearsay rule in the circumstances of this
    case, and to conclude  based on a thorough examination of the record  that
    this was not one of those rare cases where the evidence should be excluded,
    nonetheless, because the required indicia of necessity and reliability were
    lacking in the particular circumstances. I see no basis for interfering in his
    findings and conclusions in this regard.

4.

Abuse of Process

[109]

At the end of
    trial, the appellant applied for a stay of proceedings pursuant to s. 24(2) of
    the
Charter
on the basis of an alleged abuse of process. In essence
    his submission was, and is, that Shaikhs state-authorized conduct at the
    Washago Camp and his role as leader in inducing the appellant (and other young
    people) to embrace the ways of terrorism were so offensive that they offend the
    communitys sense of fair play and decency, and undermine the integrity of the
    justice system. They ought not to be countenanced, therefore, and a stay of
    conviction ought therefore to be imposed.

[110]

Counsel for the
    appellant break this argument down into three separate, but related
    submissions, contending that the trial judge erred (i) in finding that Shaikh
    was not a state agent, (ii) in failing to find that Shaikh committed a range of
    criminal offences and that this and other misconduct amounted to an abuse of
    process, and (iii) in failing to find that that Shaikh used a position of
    authority to exploit a distinctly vulnerable youth, contrary to community
    values of decency.

[111]

Counsel submit
    these questions required careful judicial scrutiny of whether Shaikh operated
    as a state agent, as opposed to a mere confidential informant, at the Washago
    Camp. They also required a careful analysis of whether Shaikhs conduct in
    relation to the young recruits, including the appellant, constituted entrapment
    and/or offended the communitys sense of decency and fair play in a manner sufficient
    to justify a stay of conviction. The difficulty with the appellants position,
    however, is that the trial judge did conduct the very types of analyses and
    evaluations that the appellant contends were required. He simply came to a
    different conclusion on the facts as he found them than the appellant would
    have liked.

a.

Shaikh as
    Confidential Informant or State Agent

[112]

The appellant
    argues that the trial judge erred on the facts in finding that Shaikh, a paid
    civilian, was not a state agent. The appellant points to Shaikhs key
    leadership role at the Washago Camp as military trainer, his superior religious
    knowledge, and his influence over the target group of youths, including the
    appellant. In particular, the appellant contends that the trial judge relied
    too heavily on the fact that Shaikh had not signed a Letter of Agreement with
    the RCMP at the time of the training camp, thus misconstruing the indicia of
    agency and elevating form over substance.

[113]

These
    submissions cannot succeed, in my view.

[114]

First, whether
    an actor is a state agent, as opposed to a confidential police informant, is a
    question of mixed fact and law.  The trial judge was entitled to make the
    findings he made, and we see no basis for interfering with his conclusion that
    Shaikh was not a state agent at the time of the Washago Camp.

[115]

Secondly, while Shaikh
    did in fact play a leadership role  perhaps even a key role  in relation to
    the targeted youth, the trial judge found as a fact that the Washago Camp would
    have taken place, and the events would have unfolded, much as they did whether
    Shaikh or someone else had been there. Chad had already been secured as a
    potential trainer before Shaikh became involved, for example. The trial judge
    found that the relationship between Shaikh and the RCMP had little or no impact
    in terms of what happened at the Camp.

[116]

The finding that
    Shaikh was not a state agent at the time of the Washago Camp was based on the
    combination of a number of facts as found by the trial judge:

·

Shaikh wished to be treated as a confidential informant, and was
    treated in that fashion by the RCMP in accordance with their legal obligation;

·

Shaikh had not signed a Letter of Agreement with the RCMP at the
    time of the Washago Camp (he did so in February and from that point on was
    admittedly a state agent);
[4]

·

Although the RCMP encouraged him to attend the Camp, Shaikh was
    given no direction as to what he was to do there, except that he was to keep
    his eyes and ears open and was not to break the law (the fact that he did break
    the law, at least in relation to the firearm that was present  and lied to the
    police about its presence  cannot amount to an indicia of control by the RCMP);

·

Shaikhs presence at the Camp was not covered by a false identity
    or a state-fabricated story;

·

The Washago Camp was planned by Amara and Ahmad prior to any
    relationship between Shaikh and the RCMP, and prior to any contact between
    Shaikh and the terrorist leaders or the targeted youth; another individual,
    Chand, had been recruited as a trainer; unbeknownst to Shaikh, Amara brought
    the handgun and ammunition to the Camp; Ahmad supplied the jihadi video
    presentations and made his exhortation to the group; in short, the information
    and indoctrination presented to the appellant was not influenced or affected by
    any state action;

·

There was limited contact between the appellant and Shaikh after
    the Washago Camp, and not a great deal of contact during it;

·

It was Ahmad, not Shaikh, who counselled the appellant that it
    was permissible and even laudable to steal from non-believers; and

·

The appellants guilt was based on acts that occurred after the
    Washago Camp (shoplifting, removing the surveillance camera, and attending the
    Rockwood Camp.

[117]

It is true, as
    the appellant points out, that there were other factors at play on the record: Shaikh
    was at least partially motivated to attend the Camp by his desire to help the
    RCMP interrupt a terrorist plot (enhanced by police blandishments about the
    importance of his doing so); he would be compensated only if he went to the
    camp; and before he attended the Camp Shaikh had decided that he would do so
    and testify if necessary. However, the trial judge concluded that the
    determining factors leading Shaikh to attend the Camp were his moral and
    religious convictions (an interest in the de-radicalization process, a sense of
    pride in frustrating the terrorist plans, and his moral obligations under Islam)
    rather than the direction of the RCMP or the compensation for attending.

[118]

Counsel for the
    appellant robustly attack many of the foregoing findings, thereby seeking to
    enhance the role of Shaikh and his influence over the appellant and others. 
    But, all of the findings were supported on the record and were open to the
    trial judge to make, as was his ultimate finding that Shaikh had not acquired
    the status of state agent at that time. I see no basis for interfering with
    them.

[119]

The appellant
    placed some emphasis on the trial judges use of the lack of a signed Letter of
    Agreement in concluding that Shaikh was not a state agent, arguing that he misconstrued
    the indicia of agency in this respect or that he improperly elevated form over
    substance in his analysis. I do not agree.

[120]

It is apparent
    from the foregoing findings that the lack of a formal Letter of Agreement
    between Shaikh and the RCMP at the time of the Washago Camp was only one of a
    number of factors the trial judge assessed in making his finding that Shaikh
    was not a state agent. The transformation from confidential informant  Shaikhs
    status when he came to the RCMP from CSIS  to state agent is a subtle one, as
    the trial judge noted. A Letter of Agreement is one of the final steps and its
    absence in this case was telling.

[121]

To understand
    this, it is helpful to recognize the significant difference between a
    confidential informant and a police agent and the states obligations in
    relation particularly to the former.

[122]

A confidential
    informant is a voluntary source of information to police or security
    authorities and is often paid for that information, but does not act at the
    direction of the state to go to certain places or to do certain things. A state
    agent does act at the direction of the police or security authorities and, too,
    is often paid. The state agent knows that if charges are laid, his or her
    identity may be disclosed to the defence and that he or she may be required to
    testify. A major distinction is that a confidential informant is entitled to confidentiality
    (subject to innocence at stake considerations) and may not be compelled to
    testify  protections that are vital to the individuals who provide such
    information, as they often put their lives on the line to provide information
    that may be vital to state security. A state agent is not afforded such a
    shield.

[123]

The state has an
    obligation to protect the confidential nature of an informants identity and it
    is a big step for a confidential informant to become a state agent. The RCMP
    therefore had a clear duty to protect Shaikhs status as a confidential
    informant until the police were sure that he had agreed to cross the Rubicon
    into police-agency territory, and Shaikh had much to consider before agreeing. The
    trial judge found that in January 2006 Shaikh was still discussing the
    implications of becoming a state agent with his family, and that at the time he
    attended the Washago Camp he was still undecided but was prepared to go to the
    Camp and run the risk that it would not be possible to protect his
    confidentiality. His belief in Islam compelled him to do this.

[124]

A Letter of
    Agreement is not a mere formality. Before it can be executed, the police must
    interview the individual and prepare a risk assessment to determine the nature
    of the support that will be provided (including, in this case, whether it would
    extend to the relocation of Shaikh and his family). As the trial judge
    observed, Shaikh could make no informed and effective waiver of his rights to
    confidentiality until he had this information. The Letter of Agreement would
    make it clear that Shaikh was voluntarily waiving any confidentiality
    privileges that he had, and would specify the expectations and obligations of
    the RCMP. The fact that Shaikh had not executed such a document before the
    Washago Camp was a legitimate consideration for the trial judge to weigh in
    determining whether Shaikh had or had not become an agent of the state at that
    time.

[125]

Whether Shaikh
    was or was not a state agent was an important issue for the defence because if
    he were, that fact would lend more force to the appellants arguments on
    entrapment and abuse of process. I would not interfere with the trial judges
    finding that Shaikh was not a state agent. That said, the trial judge concluded
    that, even if he were wrong in making that finding, it would have made no
    difference because a stay was not justified on either of the other two
    arguments raised by the appellant  entrapment and Shaikhs conduct as an
    affront to the communitys sense of fair play and decency.

[126]

I turn to those
    arguments now.

b.

Entrapment

[127]

In my view, the
    argument that the state entrapped the appellant into embracing the terrorist
    plans and committing the crimes that underpinned his conviction for the
    terrorist offence fails for two reasons. First, it was Ahmad and Amara who
    provided the opportunity for the appellant to do these things, not the state
    acting through Shaikh. The RCMP was acting on a reasonable suspicion that the
    appellant was already engaged in terrorist activities, or it was making a
bona
    fide
inquiry into potential terrorist activities in which he happened to
    be involved. Secondly, even if the state, acting through Shaikh, did provide
    the opportunity, it did not go beyond providing an opportunity and induce the
    commission of the offence. These are the requirements for entrapment: see
R.
    v. Mack
, [1988] 2 S.C.R. 903, at p. 964-65, per Lamer J.

[128]

As to the first
    branch of the test, before the Washago Camp, the appellant was at the Taj
    Banquet Hall meeting and was seen there associating with and deferring to
    Ahmad. Ahmad had shared his plans to attack and destroy major Canadian
    institutions with Shaikh at that meeting. The appellant attended the Camp at
    the invitation of Ahmad, not Shaikh. When the appellant appeared for the supply
    run on the eve of the Camp, he seemed to the police to be part of a small group
    of young men embarking on a journey to a suspected terrorist training camp. The
    police were therefore acting on a reasonable suspicion that the appellant was
    already engaged in the terrorist plan or, at least, found himself in a position
    where his involvement was the object of a
bona fide
inquiry.

[129]

Once at the
    Camp, Shaikh could scarcely avoid interacting with the appellant and the others
    without undermining his purpose.

[130]

As to the second
    branch of the test, the trial judge properly found that it was not the state
    acting through Shaikh, but rather Ahmad and Amara who created the opportunity
    for the appellant to become involved and, following the Camp, induced him to
    commit the shoplifting offences, remove the surveillance camera, and attend the
    subsequent Rockwood Camp. As outlined above, Ahmad and Amara had already
    planned the Washago Camp before Shaikh became involved. Also, the trial judge
    found that the Camp and the training events would have evolved as they did
    regardless of whether Shaikh or someone else had been the designated trainer.
    It was Ahmad, in particular, who had a continuing influence on the appellant
    after the Camp and who was his confidant, leader, and 
amir
. It was
    Ahmad who instigated the shoplifting incidents and who arranged to have the
    appellant remove the surveillance camera. It was Ahmad who persuaded him to
    attend the Rockwood Camp. Shaikh had very little contact with the appellant
    following the Washago Camp.

[131]

Entrapment
    evokes societys view that there are inherent limits on the power of the state
    to manipulate people and events for the purpose of attaining the specific
    objective of obtaining convictions:
Mack
, at p. 941. However, it is
    also clear that a finding of entrapment is not to be made lightly, and only in
    the clearest of cases. Lamer J. also observed in
Mack
, at pp. 975-76,
    that:

More fundamentally, the claim of entrapment is a very serious
    allegation against the state. The state must be given substantial room to
    develop techniques which assist it in its fight against crime in society. It is
    only when the police and their agents engage in a conduct which offends basic
    values of the community that the doctrine of entrapment can apply.

[132]

In
Mack
,
    at p. 966, Lamer J. outlined a series of factors to be considered when
    assessing the second branch of the entrapment test (going beyond opportunity to
    inducement). The trial judge considered each of these factors and, in applying
    them to the facts of the case, arrived at the following findings:

(a)

The criminal activity and threat
    being investigated was of the utmost seriousness and alternative techniques
    were not available to detect what was said, done, and planned at the camp;

(b)

An average person, with both
    strengths and weaknesses, in the position of N.Y., would not have been induced
    to commit a terrorist offence by anything Shaikh did. As stated, Shaikhs
    presence had little impact on how the camp unfolded;

(c)

Shaikh did not persist or make an
    attempt to have N.Y. commit an offence;

(d)

As to timing, the planning of the
    camp preceded any involvement by Shaikh;

(e)

Shaikh did not exploit any
    vulnerability of N.Y. to the extent N.Y. was vulnerable as a young and recent
    convert. Shaikh moderated the indoctrination N.Y. was receiving from Ahmad and
    others. Certainly, Shaikh had nothing to do with the respect and affection N.Y.
    had for Ahmad;

(f)

Shaikh did not
    threaten N.Y. in any way;

(g)

The conduct of Shaikh was not
    directed at undermining other constitutional values; and

(h)

The conduct that resulted in N.Y.
    being found guilty occurred after he turned 18 and had little connection to
    Shaikh and, in the case of the second camp, no connection at all to Shaikh.

[133]

In making these
    findings  which, again, were all supported on the record  the trial judge
    specifically took into account N.Y.s youth, relative naiveté and position as
    a recent convert to Islam with limited religious knowledge at the time he first
    met Ahmad and his associates. Contrary to the appellants submissions, he
    expressly applied, and agreed with,

the general principles advanced by the defence derived from the
Youth Criminal Justice Act
and related jurisprudence to the effect
    that [he accepts] the following:

(a)

A young person is usually far more easily impressed and influenced by
    authoritarian figures;

(b)

In creating a separate criminal justice system for young persons,
    Parliament has recognized the heightened vulnerability and reduced maturity of
    young persons; [and]

(c)

 age plays a role in the development of judgment and moral sophistication.
    [Citations omitted.]

[134]

The trial judge
    did not err in dismissing the defence of entrapment.

c.

Shaikhs
    Conduct Did Not Otherwise Warrant A Stay

[135]

At the heart of
    the appellants stay application is an underlying theme (also important to the
    entrapment argument): Shaikhs conduct  both in its pervasive criminality and
    in its objective of luring vulnerable and impressionable young men into
    terrorist pursuits  was so egregious as to shock the conscience and, in its
    totality, to constitute an affront to the communitys sense of fair play and
    decency in relation to a youth. To countenance such conduct would undermine
    the integrity of the justice system. A stay of conviction should therefore be
    imposed.

[136]

In the
    appellants view, Shaikhs criminal conduct was pervasive at the Washago Camp. He
    committed a number of crimes in relation to the 9 mm handgun brought to the
    Camp by Amara  including acquiring ammunition for it and using it to train
    recruits in the use of firearms. More significantly, counsel argue, Shaikh was
    liable for prosecution under virtually every provision [in the
Criminal
    Code
] relating to terrorism because of the activities he engaged in at
    the Camp. These acts included training in counter-surveillance techniques;
    teaching camp attendees to undertake military activities such as marching,
    running obstacle courses, and handling and shooting firearms; and tacitly
    endorsing jihadist statements by Ahmad and other communications.

[137]

The trial judge
    did not accept these submissions but concluded, in any event, that even if
    Shaikh had engaged in the criminal and other conduct alleged, the conduct was not
    sufficiently egregious to justify the rare case imposition of a stay of
    conviction. I agree with him in this regard.

[138]

Whether Shaikh
    had actually participated in terrorist-related offences turned on the question of
    his motive in attending the Washago Camp and undertaking the activities he
    engaged in:
Criminal Code
, s. 83.18(1). The trial judge found that
    Shaikhs motive was not to enhance the ability of the terrorist group to
    facilitate or carry out a terrorist activity. Rather, it was the opposite:
    Shaikhs motive was to disrupt the group and foil the terrorist plans.

[139]

In holding that an
    additional level of subjective intent (or motive) was an essential element of
    the offence to be proved by the Crown, the trial judge relied on the decision
    of Rutherford J. in
Khawaja

to that effect. This Court upheld
    Rutherford J. on the issue of motive as an essential element of the offence of
    participating in terrorist activities (although it disagreed that the existence
    of the motive requirement rendered s. 83.18 unconstitutional):
R. v.
    Khawaja
, 2010 ONCA 862, 103 O.R. (3d) 321. Leave to appeal to the Supreme
    Court of Canada was granted. The appeal was argued in June of this year and the
    decision remains under reserve.

[140]

In relation to
    the firearms-related offences, the trial judge agreed that Shaikh may have
    committed a crime in purchasing ammunition for the handgun Amara had brought to
    the Camp  a relatively minor crime in the overall scheme of things  but he
    declined to find that Shaikh had committed a crime in utilizing the handgun to train
    the recruits. His rationale was that the defence of necessity may well apply in
    the circumstances. Shaikhs evidence was that it was necessary for him to take
    control of the handgun, under the pretext of providing instruction, to protect
    himself and others (Amara was inexperienced with weapons, had referred to
    hollow point bullets as cop killers, and had threatened to put a bullet in
    the head of any CSIS agent who might confront him). As the trial judge
    observed, [a] refusal by Shaikh to hold or fire the gun would be a strong
    indicator that he was a police informant or agent, a distinction unlikely to
    matter much to Ahmad or Amara.

[141]

While I am
    inclined to agree with the trial judge in this analysis (even though the Crown
    disavowed reliance on necessity at trial), I do not have to resolve the issue
    of whether the technical defence of necessity would apply for purposes of the
    appeal. As noted above, I am satisfied that even if Shaikhs impugned conduct during
    the Camp activities amounts to criminal activity, neither his conduct nor that
    of the RCMP in relation to the Washago Camp justified the imposition of a stay
    of conviction in the circumstances.

[142]

A stay of
    proceedings is an exceptional remedy to be employed only in rare cases and as a
    last resort. Here, we are concerned with the application of the courts
    residual power to impose a stay where the impugned conduct does not touch on
    trial fairness or other procedural rights under the
Charter
but is
    otherwise so egregious that it contravenes fundamental notions of fairness and
    justice and thus undermines the integrity of the justice system:
R. v.
    OConnor
, [1995] 4 S.C.R. 411, at para. 73, per LHeureux-Dubé.

[143]

In
R. v.
    Regan
, [2002] 1 S.C.R. 297, at para. 55, LeBel J. summarized the concept
    in this fashion:

[M]ost cases of abuse of process will cause prejudice by
    rendering the trial unfair. Under s. 7 of the
Charter
, however, a small
    residual category of abusive action exists which does not affect trial
    fairness, but still undermines the fundamental justice of the system.
When
    dealing with an abuse which falls into the residual category, generally
    speaking, a stay of proceedings is only appropriate when the abuse is likely to
    continue or be carried forward. Only in exceptional, relatively very rare
    cases will the past misconduct be so egregious that the mere fact of going
    forward in the light of it will be offensive
[Emphasis added.] [Citations
    omitted.]

[144]

In addition, not
    all illegal police conduct will result in an abuse of process. As Doherty J.A.
    noted in
R. v. Jageshur

(2002), 169 C.C.C. (3d) 225 (Ont. C.A.),
    at para. 19,

[t]he ultimate question is not legality, but whether the police
    conduct was sufficiently egregious so as to shock the conscience of the
    community and demand that the court not lend its process to a prosecution
    flowing from such conduct. This inquiry demands not only a qualitative
    assessment of the nature of the misconduct, but also a consideration of the
    societal interests served by allowing the prosecution to proceed despite the
    police misconduct. [Citations omitted.]

[145]

Finally, in
    deciding whether or not to grant a stay based on its residual category powers,
    a court must balance the interests in granting a stay against societys
    interest in having a trial on the merits. All of the foregoing principles were
    canvassed in this Courts recent decision in
R. v. Zarinchang
, 2010
    ONCA 286, 99 O.R. (3d) 721, at para. 60:

However, the residual category is not an opened-ended means
    for courts to address ongoing systemic problems. In some sense, an accused who
    is granted a stay under the residual category realizes a windfall. Thus, it is
    important to consider if the price of the stay of a charge against a particular
    accused is worth the gain. Does the advantage of staying the charges against
    this accused outweigh the interest in having the case decided on the merits? In
    answering that question, a court will almost inevitably have to engage in the
    type of balancing exercise that is referred to in the third criterion [i.e.,
    balancing of the interests in granting a stay against societys interest in
    having a trial on the merits]. It seems to us that a court will be required to
    look at the particulars of the case, the circumstances of the accused, the
    nature of the charges he or she faces, the interest of the victim and the
    broader interest of the community in having the particular charges disposed of
    on the merits.

[146]

Zarinchang
involved a stay granted on a pre-trial
Charter
motion.  I would simply
    add that, in my view, the foregoing considerations apply with even greater
    force where, as here, a stay is sought to be imposed after an otherwise proper
    conviction has been entered, particularly in a case of this nature.

[147]

Here, the trial
    judge reviewed and applied the foregoing principles. As I have noted before, the
    relevant findings were open to him on the record. Having found that Shaikh
    committed, if anything, a minor offence relating to ammunition, the trial judge
    concluded that the appellant was clearly not entitled to a stay remedy. But he
    did not stop there. He also concluded that, even if Shaikh had inadvertently
    participated in terrorist offences and committed other firearms offences with
    respect to the use of the handgun, the police conduct did not amount to the
    very serious type of unacceptable behaviour necessary to justify a stay. I
    agree with those conclusions.

[148]

In the Summer
    and Fall of 2005, the RCMP was faced with a dangerous and potentially lethal
    threat to the security of the Canadian public. Information which they believed
    to be credible indicated that a terrorist plot was brewing and that it involved
    the procuring of firearms (the August weapons importation across the border by
    Dirie, Ahmads brother-in-law) and the planned attacks on various military,
    security, financial and political targets (a military base, buildings housing
    important financial institutions, Parliament, and the headquarters of CSIS and
    RCMP). The police had to act, and did. In my view, they did so in an entirely
    reasonable fashion, and are to be commended for their measured and effective
    response.

[149]

The RCMP had a
    trusted and able informant in Shaikh who, in turn, earned the trust and
    confidence of the leaders of the terrorist group. He was invited by those
    leaders to attend a terrorist training camp intended to recruit new members. The
    RCMP therefore encouraged Shaikh to attend the camp and to report his
    observations to them. Shaikh was instructed not to commit any crimes. The
    police had no other investigative techniques or means of surveillance available
    to them at that time.

[150]

Even counsel for
    the appellant, in his trial submissions, conceded the seriousness of the
    situation and the limited options open to the police:

The allegations were grave and urgent. There were limits to
    surveillance. They hadnt received that Part 6 authorization yet. They had no
    other source of information. And the threat appeared to be immediate.

[The RCMP] knew that this was a terrorist training camp.

[151]

Neither Shaikh
    nor his handlers knew that guns would be involved. When he arrived at the Camp,
    Shaikh discovered that Amara had brought the handgun. He lied to the police
    about the presence of weapons but, as explained above, felt that he had to take
    possession of the handgun for his own safety and that of others at the Camp. He
    also felt that he had to participate as a weapons trainer to justify the need
    for possessing the gun and because of his role at the Camp. Similarly, he had
    to participate in the other activities of the group in order to preserve the
    secrecy of his undercover role and to be seen to be performing the role that he
    had been asked by Ahmad and Amara to perform. Otherwise, his cover would have
    been blown and the entire investigation compromised.

[152]

In
Khawaja
,
    at para. 231, this Court highlighted the unique level of terrorist crimes:

To be sure, terrorism is a crime unto itself. It has no equal. It
    does not stop at, nor is it limited to, the senseless destruction of people and
    property. It is far more insidious in that it attacks our very way of life and
    seeks to destroy the fundamental values to which we ascribe  values that form
    the essence of our constitutional democracy.

[153]

This context
    notwithstanding, the appellant argues that the conduct of Shaikh and the RCMP
    would shock the conscience of the Canadian community, particularly in view of
    the appellants youth. Quite the contrary, in my view. Had the police not acted
    as they did to protect the security of the Canadian public, the conscience of
    the Canadian community would have been shocked. That the appellant happened to
    be two months shy of his eighteenth birthday when he attended the Washago Camp
    (albeit an adult when he engaged in the shoplifting activities, removed the
    surveillance camera, and attended the Rockwood Camp) does not alter this
    analysis. While undercover operatives in Shaikhs position are required to act
    within the parameters of the law, it is unrealistic  given the seriousness and
    urgency of the situations in which they find themselves  to expect that they
    will be able to act as if they were unvarnished models of purity, and both
    refrain from engaging in the activities they are underground to investigate and
    dissuade other participants from getting drawn into those activities, whether
    they are young persons or not.

[154]

Similarly, the
    trial judge correctly rejected the institutional failure argument advanced by
    the appellant. To impose on the police an obligation to ensure that undercover
    operators infiltrating a potential terrorist camp be equipped with some sort of
    strategy to warn youth (who may or may not be present) of the potential error
    of their ways, is neither tenable nor realistic. The prospects of such a
    strategy subverting the investigation, and possibly endangering the safety of
    the operative, are limitless. In my opinion, there was simply no obligation on
    the state in these circumstances to actively dissuade or protect the appellant
    from the influence of the other camp attendees. Likewise, the state was not
    obligated to refrain from engaging with young persons in the course of the type
    of investigation that Shaikh was participating in, or to be proactive in
    protecting the appellant and others from exposure to criminal activity.

[155]

This is not one
    of the exceptional or relatively very rare cases where the conduct of the
    police, its informant, or agent would justify a stay of conviction; the trial
    judge made no error in exercising his discretion to that effect.

DISPOSITION

[156]

For all of the
    foregoing reasons, I would dismiss the appeal.

R.A. Blair J.A.

I agree S.T. Goudge
    J.A.

I agree K. Feldman
    J.A.

Released:





APPENDIX



Factual Finding
          Challenged by the Appellant

Evidence to
          Support the Finding and Response



The trial judge put too much weight on what the appellant
          saw and heard at the Washago camp because,

·

the criminal terrorist intent of the group was equivocal, and

·

the appellant had an undeveloped understanding of
          social, political and religious references.

The trial judge found it inconceivable that by the end
          of the camp there was any doubt about its purpose:

·

At the Washago Camp, the appellant was exposed to terrorist
          rhetoric and exhortations, combat training, firearm training while wearing masks
          and camouflage clothing, shooting of an unregistered 9 mm semi-automatic
          firearm, and participated in videos of the activities.

·

The trial judge specifically turned his mind to the
          appellants age, education and other personal circumstances and stated that
          he was cognizant of and made full allowance for the very factors that the
          appellant now claims he did not consider.



The trial judge engaged in impermissible speculation when
          he concluded that the appellant would not have stolen items without having been
          instructed by Ahmad that it was permissible to do so.

The trial judge relied on the following evidence:

·

Shaikhs testimony that the appellant and two other youths were
          members of the procurement unit, tasked by Ahmad to steal materials for his
          overall purpose. Members were taught by Ahmad that it was acceptable to steal
          from non-believers.

·

Ahmads frequent discussions about the justification for
          stealing from non-believers with Shaikh. This belief was contained in a
          document given to Shaikh by Ahmad soon after they met, entitled Blood,
          Wealth and Honour of the Disbelievers.

·

Ahmad was the appellants mentor. By the end of 2005, the
          appellant was an earnest Muslim who had made his faith the centre of his
          life. Shaikh testified that the appellant would have done what he was told
          to do regarding his faith and that he was very eager to be accepted in his
          new religion.

·

The trial judge found, N.Y. was highly motivated to follow
          what he understood to be the precepts of Islam as interpreted by Ahmad. This
          is a reasonable conclusion based on the evidence.

·

In his post-arrest statement, the appellant told police that
          Ahmad reads a lot of books and that the appellant learns from him. The
          appellant said that he had been chilling with [Ahmad] for like a long time.
          The appellant said that he sought Ahmads advice on issues, such as how to
          deal with worldly life, family, marriage and why past people used violence
          to spread Islam.

·

Intercepted communications demonstrate that Ahmad guided the
          appellant on matters of faith and that Ahmad directed the appellant to
          shoplift:

-

Ahmad
          told Amara that he told the appellant that shoplifting was 
halal
.

-

Ahmad
          told Amara the appellant had stolen two walkie-talkies and told him they
          needed probably another two.

-

Ahmad
          appears very proud of the appellants past and planned future thefts. For
          instance, Ahmad said that the appellant had become the most professional
          (laughs) like yo, let me show you what he got and [y]o hes so slick about
          it.

-

Amara
          asks Ahmad whether he feels bad about the appellants shoplifting as now
          hes hooked.



The trial judge misapprehended the appellants post-arrest
          statement relating to the theft of the walkie-talkies because he found it
          corroborated Ahmads comments.

Ahmads statements regarding the appellants shoplifting were
          confirmed to some extent by the appellants admission.

The trial judge was well aware, having carefully reviewed
          this evidence within the reasons for judgment, that the appellant denied
          stealing the walkie-talkies for the group and instead claimed that he
          shoplifted them for the fun of it and possibly to sell to friends.



There was insufficient evidence to justify the conclusion
          that the appellant removed the hidden surveillance camera from outside Ahmads
          apartment.

The trial judges finding is supported by the following:

·

intercepted communications;

·

Shaikhs testimony on January 23, 2006, Ahmad told him that he
          found a surveillance camera hidden inside an exit sign outside of his
          apartment and that the appellant removed the camera;

·

Ahmads statement to Amara that same evening about finding the
          surveillance camera hidden in the exit sign, and telling Amara  I ripped
          uhlike some brother, he took down the whole thing;

The trial judge found there was no reason for Ahmad to
          mislead his trusted associates about these routine and mundane statements.
          This conclusion was not unreasonable.



If the appellant removed the surveillance camera, there
          was insufficient evidence that he did so with the intent to enhance the
          ability of the group to facilitate or carry out a terrorist activity.

When the appellant removed the surveillance camera he had
          been aware of the terrorist nature of Ahmads group for, at least, several
          weeks.

By disabling the hidden surveillance camera, the appellant
          assisted the group in avoiding detection by law enforcement. This evidence
          supports the trial judges conclusion that the appellant intended to enhance
          the ability of Ahmads terrorist group to carry out terrorist activity.



The appellant argues that

(i) the appellants interest in resistance efforts
          overseas cannot support a finding that he had the requisite
mens rea
to participate in domestic terrorist activity, and

(ii) the trial judge wrongly placed the onus on the appellant
          to prove that he intended to go abroad at the same time that Ahmad sought to
          execute his attack in Canada.

The trial judge found that N.Y. could readily contribute
          to Ahmads efforts in Canada, while expressing an intention totravel
          overseas. That conclusion is entirely sound:

·

it was not inconsistent for the appellant to express an
          interest in fighting in foreign conflicts while also knowingly participating
          in and contributing to Ahmads domestic terrorist;

·

nothing in the trial judges reasons suggests that he
          improperly shifted the burden of proof;

·

the trial judge correctly observed that there was absolutely no
          evidence that the appellant planned to be fighting in another country when
          Ahmads group planned an attack in North America;

·

even if there had been compelling evidence that the appellant
          intended to fight in foreign conflicts at the same time as Ahmad planned to
          conduct a terrorist attack in Canada, given his contribution and
          participation, the appellant would still be guilty under s. 83.18.



The trial judge misapprehended Syeds evidence when he
          found that the appellant would have understood the terrorist nature of the Rockwood
          Camp.

The trial judge was satisfied that by the time N.Y. went
          to the Rockwood camp, he had a full appreciation of the terrorist nature of
          the group
:

·

The appellant had a long-standing relationship with Ahmad prior
          to the Rockwood Camp, including the Washago Camp. Thus, he was in a better
          position than Syed to understand the terrorist nature of the Rockwood Camp.

·

In contrast, Syed had known Ahmad for about two weeks prior to
          the Rockwood Camp. During that time their relationship only involved three or
          four brief exchanges of pleasantries.

The trial judge found Syed was a very reluctant witness
          whose evidence was coloured with his sympathy towards the appellant. His
          evidence was also contradicted.



The trial judge erred by failing to consider that the
          appellant was unaware of the second camp before it began in light of Syeds
          evidence.

·

While Syed testified that he was not told about the Rockwood
          camp until shortly before he left for the camp that does not mean that the
          camp was actually a last minute decision or that the appellant was not
          aware that there would be a second camp that weekend;

·

Even as early as the Washago camp, Ahmad and some of the other
          leaders talked about holding a second training camp;

·

By the conclusion of the Washago camp, the appellant was not
          only aware that the group planned to hold a second camp but Ahmad told the
          appellant he would be going to that camp;

·

During his post-arrest statement on June 3, 2006, the appellant
          admitted that after he was arrested for shoplifting camping equipment in
          February, 2006, he told the police officer that he could not attend court in
          March because he had a camping trip planned.







[1]
The convictions, pleas, and sentences were widely reported in the
    media. See also
R. v. Amara
, 2010 ONCA 858, 275 O.A.C. 155;
R. v.
    Gaya
, 2010 ONCA 860, 272 O.A.C. 242;
R. v. Khalid
, 2010 ONCA 861,
    272 O.A.C. 228; and
R. v. Abdelhaleem
, [2010] O.J. No. 5693 (S.C.).



[2]

R. v. Carter
, [1982] 1 S.C.R. 938.



[3]

R. v. Smith
, [1992] 2 S.C.R. 915.



[4]
The state is obliged to protect the identity and confidentiality
    of a confidential informant. A Letter of Agreement could not be signed until it
    was clear Shaikh was willing to the step from informant to state agent. Nor
    could the RCMP have obtained an order under s. 25.1 of the
Criminal Code
before
    that time. An order under s. 25.1 would provide statutory justification for the
    commission of crimes in accordance with the requirements of that provision.


