



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ali, 2019 ONCA 1006

DATE: 20191220

DOCKET: C65466

Watt, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Ayanle Hassan Ali

Respondent

Jason J. Wakely and Bradley Reitz, for the appellant

Nader R. Hasan, Emily Quail, and Maureen Elaine Addie,
    for the respondent

Anil K. Kapoor and Dana Achtemichuk, for the intervener,
    the Criminal Lawyers Association

Heard: June 24, 2019

On appeal from the acquittal entered by Justice Ian A.
    MacDonnell of the Superior Court of Justice, on May 14, 2018, with reasons
    reported at 2018 ONSC 2838.

Watt J.A.:

[1]

If a person can be a group, can that same person also commit an offence
    for the benefit, or at the direction of, or in association with that same group
    of which he is the only member?

[2]

Ayanle Hassan Ali (the respondent) attacked three members of the
    Canadian Forces at a local recruiting centre. He was, the Crown alleged, his
    own terrorist group. The Crown also alleged that the respondent committed
    several indictable offences for the benefit of, at the direction of, or in
    association with that terrorist group of which he was the only member.

[3]

Two highly qualified forensic psychiatrists agreed that the respondent
    suffered from a mental disorder, schizophrenia, which rendered him incapable of
    knowing that his conduct was morally wrong.

[4]

At the conclusion of the respondents trial, the presiding judge found
    him not guilty of committing various indictable offences for the benefit of, at
    the direction of, or in association with his own terrorist group. And not
    criminally responsible on account of mental disorder for the underlying
    indictable offences alleged to have been committed.

[5]

The Crown appeals and asks that a new trial be ordered on the principal
    offences charged  breaches of s. 83.2 of the
Criminal Code
 with that
    trial limited in its scope.

[6]

These reasons explain why I have concluded this appeal fails and should
    be dismissed.

The Background Facts

[7]

The trial proceeded on the basis of an Agreed Statement of Facts
    together with the testimony of the two forensic psychiatrists who shared the
    same view of the nature and effect of the respondents major mental illness.

The Initial Attack

[8]

On March 14, 2016, the respondent walked into a Canadian Forces
    Recruiting Centre. When an officer tried to screen him for security purposes,
    the respondent punched the officer repeatedly in the head. The respondent then
    pulled a large kitchen knife out of a folder he was carrying and lunged at the
    officer with slashing and stabbing motions. The officer, who had been seated at
    a desk, suffered a three-inch gash on his arm.

The Intervention

[9]

Another officer intervened. He jumped over a desk, armed himself with a
    chair as a shield against a knife attack, and moved the respondent away from his
    wounded colleague. The respondent engaged this second officer. But the attack
    failed because of the chair the officer held in front of him.

The Advance and Second Attack

[10]

The respondent ran past the first two officers further into the
    recruiting centre. He chased a female officer, who had come out of her office,
    further into the recruiting centre. He swung his knife at her more than once,
    narrowly missing the back of her neck.

The Third Attack

[11]

Confusion and chaos followed. The respondent encountered another officer
    who had slipped on some spilled coffee and fallen to the floor. He slashed and
    stabbed this officer who suffered a small cut to his left lateral/mid-chest
    either from his fall or a stab by the respondent.

[12]

The respondent lost control of the knife when it struck the floor as he
    attempted another stabbing motion.

The Apprehension

[13]

The respondent ran towards the rear of the recruiting centre. There, a
    door led to another internal room but not to an exit from the building. The
    door was partially closed. Several officers blocked the entry. Although
    recollections differed about the precise sequence of events, in the end, the
    respondent was tackled, grounded and subdued. Officers seized the knife after
    it came loose from the respondents hand.

The Observations of the Respondent

[14]

By all accounts, the events in the recruiting centre ended about a
    minute after they had begun. The respondent ran around frantically. He was
    listening to his iPod: the Quran, Chapter Two appeared on the screen. The
    respondent was muttering a prayer as officers tried to subdue him. He was
    incoherent and unresponsive to commands, laughing, smiling, giggling as if he
    were on something.

[15]

To some of the officers, the respondent appeared to be having a seizure.
    His eyes rolled back in his head. He foamed at the mouth. He laughed
    frequently. His affect was flat. He was not there, lost in the clouds. He
    told a paramedic that Allah had sent him to kill people.

The Post-Arrest Searches

[16]

Apart from the iPod, officers at the Recruiting Centre found no devices
    in the clothing or attached to the respondents body when they strip-searched
    him at the centre. Police conducted a warranted search at the respondents
    home. There they found a lab notebook with entries from earlier in the month of
    the attack. The entries recounted the respondents everyday struggles and his
    complaints about government surveillance. There were entries about Jihad and
    martyrdom and how to break free from his distractions and thoughts to become a
    productive member of society. Other writings indicated that he had a licence,
    the green light, to kill. He lamented having no money for AK 47s or rockets.

The Terrorist Group

[17]

Investigators searched all the electronic devices they found on the
    respondent at the Recruiting Centre and at his home. They found no evidence of
    any connection with any other person or group.

[18]

It was not alleged at trial that the respondent was a member of any
    group other than that of which he was the only member.

The Expert Evidence of Mental Disorder

[19]

Dr. Philip Klassen, a forensic psychiatrist and the Vice-President,
    Medical Affairs at Ontario Shores Centre for Mental Health Sciences, examined
    the respondent on behalf of the Crown to determine whether, from a psychiatric
    perspective, the respondent was criminally responsible for his conduct.

[20]

Dr. Klassen concluded that the respondent suffered from schizophrenia, a
    major mental illness. The issue of criminal responsibility was complicated by
    the respondents limited insight and his religious ideation. Dr. Klassen was
    satisfied that despite his major mental illness, the respondent appreciated the
    nature and quality of his conduct: he was aware that he was attacking soldiers
    with a knife and intended to kill them. The doctor was also satisfied that the
    respondent knew his conduct was legally wrong. However, the respondent did not
    know his conduct was morally wrong.

[21]

Dr. Gary Chaimowitz is a forensic psychiatrist and the Head of Service
    for the Forensic Psychiatry Program, at St. Josephs Healthcare in Hamilton. He
    examined the respondent at the request of the defence.

[22]

Dr. Chaimowitz agreed that the respondent suffered from schizophrenia.
    He also agreed that the respondent appreciated the nature and quality of his
    conduct: he intended to attack the soldiers, motivated by a desire to be
    martyred when they (the soldiers) killed him. The respondent knew that his
    conduct was legally wrong.

[23]

It was Dr. Chaimowitzs opinion that the respondent did not know his
    conduct was morally wrong. The respondent thought that his conduct was morally
    justified, a conclusion driven by his sense of persecution, which he
    experienced as a function of his psychosis. The doctor acknowledged the
    possibility that the conduct was driven by the respondents Jihadist ideology
    more than by his delusions. But, Dr. Chaimowitz explained, when the
    respondents entire history, including the recent changes in his behaviour, the
    escalation of his symptoms, and the conviction with which the delusions from
    his mental illness drove his behaviour, he was satisfied that it was the mental
    disorder that drove the respondents behaviour and deprived him of the
    knowledge of the moral wrongfulness of his conduct.

The Decision of the Trial Judge

[24]

The trial judge found the respondent not guilty of committing the
    various indictable offences for the benefit of, at the direction of or in
    association with a criminal organization. He then focused on the various
    predicate or underlying offences as included within the principal offences
    charged under s. 83.2 and found the respondent NCRMD in relation to those
    offences.

The Grounds of Appeal

[25]

The Attorney General advances a single ground of appeal: that the trial
    judge erred in holding that a person cannot be convicted of an offence under s.
    83.2 of the
Criminal Code
, R.S.C. 1985, c. C-46

when that person
    is the only member of the terrorist group for which the offence was committed.

[26]

If the appellant is correct, a further issue arises concerning the
    disposition which should be made in this court concerning future proceedings.

Ground #1: The Interpretation of Section 83.2

[27]

As I begin, I find it helpful to briefly sketch out the common ground
    between the parties and identify the areas of controversy. After that, I will
    set out the relevant passages of the trial judges reasons before reviewing the
    parties positions and the principles that control our decision.

The Common Ground

[28]

The appellant and respondent agree on three things.

[29]

First, that a terrorist group within s. 83.01(1) can consist of a
    single individual. A terrorist group is an entity and an entity is defined
    in s. 83.01(1) as including a person.

[30]

Second, that the respondent is his own terrorist group. He is not a
    member of any listed entity or terrorist group.

[31]

Third, that the respondent was suffering from a mental disorder 
    schizophrenia  when he committed the offences charged. This rendered him
    incapable of knowing his conduct was morally wrong.

The Controversy

[32]

The parties disagree about whether, as a matter of law, the person
    committing the indictable offence (the principal) can be the only member of the
    terrorist group for whose benefit, at whose direction, or in association with
    whom the offence is committed. In other words, can the person committing the
    offence and the terrorist group be one and the same?

The Reasons of the Trial Judge

[33]

The trial judge concluded that s. 83.2 of the
Criminal Code
does not capture
an individual who
    committed an indictable offence alone in pursuit of his own personal terrorist
    agenda:

The Crowns approach to the interpretation of s. 83.2 focuses
    almost entirely on the wording of the provision. The wording is obviously
    important but statutory interpretation cannot be founded on the wording alone.
    Rather, the words of an Act are to be read in their entire context and in
    their grammatical and ordinary sense harmoniously with the scheme of the Act,
    the object of the Act, and the intention of Parliament.

When the interpretation of s. 83.2 is approached in that
    manner, and when the objective of Part 11.1 of the
Code
, the method by
    which Parliament has sought to achieve that objective, the wording of s. 83.2,
    the role that s. 83.2 plays in the anti-terrorism scheme, and the relationship
    that s. 83.2 has with other provisions of Part 11.1 are considered together and
    as a whole, the inexorable conclusion is that the intention of Parliament in
    enacting. 83.2 was to proscribe the kinds of
associative
conduct that
    support, facilitate and contribute to terrorist activity. The kind of lone-wolf
    criminal conduct engaged in by the defendant was not intended to be captured by
    s. 83.2. Parliament understood that such conduct was subject to prosecution
    under the existing provisions of the
Criminal Code
and was content to
    simply bolster the sentencing options available for that conduct by enacting s.
    83.27. There was no need to do more.

Accordingly, the Crown has failed to prove that the defendants
    attack on the military personnel at the Recruiting Centre was for the benefit
    of, at the direction of or in association with a terrorist group and he is
    found not guilty on each of the nine counts under s. 83.2. However, he is not
    entitled to be found not guilty of the included offences of attempted murder,
    assault causing bodily harm, assault with a weapon and carrying a weapon. The
    agreed facts establish that he committed the
actus reus
of each of
    those offences and that he did so with the requisite intent. Whether he should
    be found guilty of those offences depends on whether at the time of the attack
    he was suffering from a mental disorder so as to be exempt from criminal
    responsibility. It is to that issue that I now turn [footnote omitted].

[34]

The trial judge explained that it was not enough to establish liability
    that, as a matter of law, a single person could be a terrorist group and that,
    as a matter of fact, the respondent was such a group. Other principles of
    statutory interpretation, such as the associated words doctrine, suggest the
    terrorist group must be an entity separate and apart from the principal who
    commits the indictable offence. After all, the anti-terrorism legislation is
    focused on associative activity. Parliament could have captured the lone wolf
    terrorist in Part II.1 but did not do so. What is more, the appellants
    interpretation renders other statutorily-created offences redundant and leads
    to absurd results.

The Arguments on Appeal

[35]

The appellant contends that, properly interpreted, s. 83.2 applies to
    the lone wolf who commits an indictable offence to advance the goals of his own
    self-constituted terrorist group. To that end, the appellant identifies four
    errors made by the trial judge that resulted in his flawed conclusion.

[36]

First, the appellant says the trial judge misconstrued the legislative
    purpose of Part II.1. The overriding objective of the Part is not, as the trial
    judge held, related to associative activity. Rather, the objective of Part II.1
    is to prevent the commission of terrorist activity,
all
terrorist
    activity, whether that of a group or of a lone actor. The purpose of the
    legislation in Part II.1 is the prevention and prosecution of terrorism
    offences. This interpretation does not render other provisions of Part II.1,
    such as ss. 83.202 and 83.27, redundant.

[37]

The trial judges interpretation does not account for lone wolf
    terrorists who take steps, not amounting to an attempt, to carry out a
    terrorist activity. Nor does it consider the normative importance (namely
    deterrence) of labelling terrorist activity correctly. By excluding the lone
    wolf from the ambit of Part II.1, the trial judge misconstrued and undermined
    Parliaments preventative purpose in enacting the anti-terrorist legislation.

[38]

Second, the appellant contends it is awkward but not implausible to
    describe a single individual as a group committing an offence for the
    benefit of, at the direction of or in association with himself, that is to
    say, his one-person terrorist group. The connective among these three modes of
    committing this offence is the disjunctive or. The lone wolf interpretation
    of s. 83.2 is supportable if just one of these three modes applies. And for
    the benefit of does so.

[39]

Third, the appellant argues no ambiguity inhabits the phrase in association
    with found in s. 83.2. This section requires a connection between the
offence
and the group, not the accused and the group. Interpreted in this way, the
    phrase is applicable to the lone wolf.

[40]

Fourth, the appellant says the trial judge incorrectly used the
    associated words rule in his interpretation of s. 83.2. This error is twofold:

i.

the
    legislation was not ambiguous, so the rule does not apply; and

ii.

if
    the rule is applicable, the judge misidentified the common objective of the
    disjunctive modes.

[41]

The respondent rejects the appellants position and advances three reasons
    for why the trial judges conclusion that s. 83.2 does not apply to individuals
    acting alone was correct.

[42]

First, the respondent points out that the language for the benefit of,
    at the direction of or in association with a terrorist group is not unique to
    s. 83.2. This phrase appears elsewhere in Part II.1, as for example, in ss.
    83.18(3), 83.201 and 83.21(1). These terms have, as their common sense meaning,
    one that excludes individuals, such as the respondent, who act alone.

[43]

Second, the respondent says a single person cannot be at one and the
    same time the principal and the one-person group for whose benefit the offence
    is being committed. The respondent accepts that a single person can constitute
    or be a terrorist group. But if the relevant group is but a single
    individual, then the principal, the person who commits the indictable offence,
    must be different from the person who is the terrorist group. The respondent
    cites the following principles of statutory interpretation to support its
    position:

·

Presumption against tautology:
Parliament is presumed to
    have been acting purposefully and logically when it enacted s. 83.2. Common
    sense indicates that when a person does something intentionally, they do so for
    their own benefit. To require nothing more would mean that every indictable
    offence committed for an ideological purpose potentially falls within the sweep
    of s. 83.2 and collapses the essential elements

of indictable offences
    and those of terrorist offences.

·

Same words same meaning principle:
the phrase for the
    benefit of, at the direction of or in association with appears in s. 467.12(1)
    regarding criminal organizations. Under this provision, there must be a nexus
    between the indictable offence and the criminal organization such that where a
    principal intends the indictable offence to advance their own purpose, rather
    than that of the organization, the section has no application. The same result
    should follow here despite the requirement that a criminal organization consists
    of three or more persons.

·

Associated words rule:
because at the direction of and
    in association with in s. 83.2 contemplates the principal and terrorist group
    as separate entities, the phrase for the benefit of should be read in a
    harmonious way to the same effect.

[44]

Third, the respondent says legislative intent does not rebut the
    governing principles of statutory interpretation. Parliaments purpose in
    enacting s. 83.2 was to punish those who aid, abet, or participate in terrorist
    groups. Parliament did so by expanding the law to prohibit certain associative
    activities (
e.g.
, the inclusion of the existence of a terrorist group as
    an essential element of several offences included in Part II.1) and in forbidding
    certain preparatory conduct that enables and assists terrorist groups. The
    respondents position will not deprive law enforcement of the tools necessary
    to prosecute lone wolf terrorists.

The Governing Principles

[45]

This appeal involves a question of statutory interpretation. Specifically,
    whether s. 83.2 applies to a person who is at once the principal who commits
    the indictable offence and the only member of the terrorist group whose
    interests are advanced by its commission.

[46]

The modern principle of statutory interpretation requires that we read
    the words of the section in their entire context and in their grammatical and
    ordinary sense harmoniously with the scheme of the Act, the object of the Act
    and the intention of Parliament:
Application under s. 83.28 of the

Criminal
    Code (Re)
, 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 34, citing E.A.
    Driedger,
Construction of Statutes
,
2nd ed. (Oxford: Butterworth-Heinemann, 1983), at p. 87. This approach
    acknowledges the many-sided nature of statutory interpretation and the need to
    read textual considerations with the legislative intent and established legal
    norms:
Application under s. 83.28 of the

Criminal Code (Re)
, at para. 34
. See also,
Re Rizzo
    & Rizzo Shoes Ltd
., [1998] 1 S.C.R. 27, at para. 21
; Bell
    ExpressVu Limited Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at
    para. 26.

[47]

In our interpretation of a legislative provision, such as s. 83.2, we
    must form an impression of the meaning of its text. But we do not stop there.
    We must then infer what rules the legislative authority intended to enact. This
    we do by taking into account the purpose of the provision and all relevant
    context. This is so regardless of whether we consider the provision to be
    ambiguous: Ruth Sullivan,
Sullivan on the Construction of Statutes
(6th ed, 2014), at para. 2.2.

[48]

To determine whether a statutory provision applies to a specific factual
    matrix, we must consider:

i.

the
    meaning of the text of the provision;

ii.

the
    intention of the legislating authority; and

iii.

the consistency of the
    proposed interpretation with established legal norms.

See, Sullivan, at para.
    2.3-2.5; 2.8.

The Textual Meaning

[49]

Section 83.2 of the
Criminal Code
creates and punishes an indictable offence:

Every one who commits an indictable
    offence under this or any other Act of Parliament for the benefit of, at the
    direction of or in association with a terrorist group is guilty of an
    indictable offence and liable to imprisonment for life.

[50]

To establish an alleged
    offenders guilt of this offence, the Crown must prove the three essential
    elements beyond a reasonable doubt:

·

predicate offence;

·

terrorist group; and,

·

nexus/relationship.

The Predicate Offence

[51]

An offence is deemed to be an indictable offence if the enactment
    creating that offence provides that the offender may be prosecuted for the
    offence by indictment:
Interpretation Act
, R.S.C. 1985, c. I-21, s.
    34(1)(a). Each underlying or predicate offence is either exclusively indictable
    or may be prosecuted by indictment.

The Terrorist Group

[52]

The term terrorist group is exhaustively defined in s. 83.01(1) of the
Criminal Code
as the entity the interests of which are advanced, to some
    degree at least, by the commission of the predicate offence:

(a) an entity that has as one of its purposes or activities
    facilitating or carrying out any terrorist activity, or

(b) a listed entity,

and includes an association of such entities.

[53]

Two components of the term terrorist group require special mention.

[54]

Section 83.01(1) defines a terrorist activity as having a conduct and
    a mental or fault component:

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

(i) that is committed

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

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

(ii) that intentionally

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

(B) endangers a persons life,

(C) causes a serious risk to the
    health or safety of the public or any segment of the public,

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

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

and includes a conspiracy, attempt or threat to commit any
    such act or omission, o
r being an accessory after the fact or
    counselling in relation to any such act or omission
.

[55]

The conduct component includes not only an act or omission, but also a
    conspiracy, attempt or threat to commit any act or omission, or being an
    accessory after the fact to an act or omission that causes a consequence
    described in any of subparagraphs (b)(ii)(A) to (E):
R. v. Khawaja
,
    2010 ONCA 862, 273 C.C.C. (3d) 415 at para. 81, affd 2012 SCC 69, [2012] 3
    S.C.R. 555.

[56]

The mental or fault component of terrorist activity consists of three
    parts:

i.

intending to bring about any consequence described in subparagraphs
    (1)(b)(ii)(A) to (B);

ii.

further
    intending to bring about either consequence described in subsection
    (1)(b)(i)(B); and,

iii.

for a
    political, religious or ideological purpose, objective, or cause in subsection
    (1)(b)(i)(A).

In other words, the fault
    element requires the Crown to prove the accuseds intention to bring about any
    consequence prohibited in the definition; an ulterior intention with respect to
    a further consequence; and a specified purpose or motive:
Khawaja
, at
    paras. 82-86.

[57]

Section 83.01(1) defines an entity as

entity means a person,
    group, trust, partnership or fund or an unincorporated association or
    organization.

[58]

The inclusion of a person in the exhaustive definition of entity
    means a single (natural) person can constitute a terrorist group:
R. v.
Khawaja
,

2012 SCC 69, [2012] 3 S.C.R.
    555, at paras. 26 (S.C.C.),
Khawaja
(Ont. C.A.), at para. 78;
United
    States of America v. Nadarajah
, 2010 ONCA 859, 266 C.C.C (3d) 447 at para.
    20, affd 2012 SCC 70, [2012] 3 S.C.R. 609.

The Nexus/Relationship

[59]

Section 83.2 targets indictable offences connected to the activities of
    a terrorist group and to advancing its interests. This element may be
    established on any of the three alternative bases in the section: for the
    benefit of, at the direction of, or in association with.

[60]

These words bear their normal, natural, everyday meaning, and share a
    common objective: to suppress terrorist activity:
R. v. Ansari
, 2015
    ONCA 575, 330 C.C.C. (3d) 105, at para. 168. See also,
R. v. Venneri
,
    2012 SCC 33, [2012] 2 S.C.R. 211, at para. 53. The single connective or is
    disjunctive. It signals that the relationships are alternatives, that is to
    say, that proof of any one will suffice to establish this element of the
    offence. Proof of all is not required: see
e.g.
Venneri
, at
    para. 53.

[61]

The Supreme Court in
Venneri
discussed the meaning of in
    association with in the context of the s. 467.12 criminal organization
    provision. That provisions use of in association with is analogous to s.
    83.2, so I find the reasoning persuasive to the interpretation of s. 83.2 in
    this case.

[62]

The phrase in association with captures indictable offences that
    advance, in some measure at least, the interests of a terrorist group, even if
    they are neither primarily for its benefit nor directed by the group:
Venneri
,
    at para. 54. The phrase requires a connection between the predicate indictable
    offence and the terrorist group, not simply an association between the
    principal who commits the indictable offence and the terrorist group:
Venneri
,
    at para. 55.

[63]

An offender may commit an indictable offence in association with a
    terrorist group of which the offender is not a member. However, membership in
    the group can be a relevant factor in determining whether, in all the
    circumstances, the required relationship or nexus between the offence and the
    group has been adequately established:
Venneri
, at para. 56.

The Intention of Parliament

[64]

The purpose of the
Anti-terrorism Act
is the prosecution and
    prevention of terrorism offences:
Application under s. 83.28
, at para.
    40.

[65]

The Acts preamble is evidence of this purpose. It speaks to the
    challenge of eradicating terrorism; the need to strengthen Canadas capacity to
    suppress, investigate, and incapacitate terrorist activity; and the need for
    legislation to prevent and suppress the financing, preparation, facilitation,
    and commission of acts of terrorism.

Adherence to Interpretative Norms

[66]

An interpretation must not only comply with the legislative text and
    promote the legislative intent. It must also conform to accepted legal norms:
Sullivan
,
    at para 2.9. The presumption against tautology; same word, same meaning principle;
    the associated words principle; and the presumption against absurdity are the
    legal norms relevant to this case.

The Presumption against Tautology

[67]

We presume that legislative bodies avoid superfluous or meaningless
    words. Every word and phrase used in a statute has a meaning and a function. Thus,
    we eschew interpretations that render any portion of a statute meaningless,
    pointless, or redundant:
Winters v. Legal Services Society
, [1999] 3
    S.C.R. 160, at para. 48;
R. v. Katigbak
, 2011 SCC 48, [2011] 3 S.C.R.
    326, at para. 59.

The Same Words, Same Meaning Principle

[68]

We also presume the legislative body uses language in a careful and consistent
    manner. Thus, within a statute, the same words and phrases have the same
    meaning and different words and phrases have different meanings. Unless the
    context clearly indicates otherwise, words and phrases should be assigned the
    same meaning wherever they appear in a statute:
R. v. Zeokowski
,
    [1989] 1 S.C.R. 1378, at p. 1387.

The Associated Words Rule

[69]

The associated words rule may be invoked when two or more terms, linked
    by and or or, serve an analogous grammatical and logical function within a
    provision. The terms draw their colour from each other. We look to a common
    feature among the terms and rely on that common feature to resolve ambiguity or
    limit the scope of the terms:
Sullivan
, at para. 8.58;
R. v.
    Goulis
(1981), 60 C.C.C. (2d) 348 (Ont. C.A.), at pp. 352-353. See also,
Ontario
    v. Canadian Pacific Ltd
., [1995] 2 S.C.R. 1031, at para. 64;
R. v.
    Daoust
, 2004 SCC 6, [2004] 1 S.C.R. 217, at paras. 49-51;
Opitz v.
    Wrzesnewskvj
, 2012 SCC 55, [2012] 3 S.C.R. 76, at paras. 40-43.

[70]

The common theme of the phrasal string for the benefit of, at the
    direction of or in association with in s. 83.2 might be characterized as
    advancing the interests of the terrorist group: Compare,
Venneri
, at
    para. 54. An offence committed for entirely selfish motives would seem to fall
    beyond the reach of these terms:
Venneri
, at para. 54.

The Presumption against Absurdity

[71]

It is a well-established principle of statutory interpretation that the
    legislator does not intend to produce absurd results:
Rizzo
, at para. 27;
R. v. McIntosh
, [1995] 1 S.C.R. 686, at p. 722;
Morgentaler v. The
    Queen
, [1976] 1 S.C.R. 616, at p. 676. The interpretation of legislation
    is not an arid, academic exercise. It involves the application of legislation
    to a group of facts. It has consequences for the persons involved and others
    beyond them. An interpretation that leads to an absurdity may be rejected in
    favour of a plausible alternative that avoids the absurdity.

The Principles Applied

[72]

As I will explain, I agree with the trial judge that a person cannot, at
    one and the same time, commit an offence and be the sole member of a terrorist
    group for which the offense was committed. Consequently, I would reject this
    ground of appeal.

[73]

The words of the section are largely unrevealing about how they should
    be interpreted, except that they appear to contemplate two different
    constituents: the person who commits the indictable offence, a principal under
    s. 21(1)(a), and the terrorist group whose interest the principal seeks to
    advance.

[74]

Section 83.01(1) defines several terms, among them, terrorist group.
    In its normal, natural, everyday sense, the word group refers to a number of
    persons or things, with some common relation or purpose, classed together
    because of the degree of similarity. Despite the inclusion of a person in the
    term entity, the central focus of the definition of terrorist group remains
    on multiple individuals.

[75]

As the trial judge and respondent point out, the position the appellant
    advances  that the principal and the terrorist group may be one and the same
    person  is inconsistent with the modern principle of statutory interpretation.
    The appellants position, for all practical purposes, focuses exclusively on
    the single word person as it appears in the definition of entity. This
    ignores the admonition in
Rizzo
that interpretation involves more than
    a textual analysis and requires consideration of the context in which the words
    appear, Parliaments intent, and the rules of statutory interpretation.

[76]

The principal focus of the legislation is on associative activity. Under
    s. 83.2, the prosecution must establish a nexus or relationship between the
    principals offence and the group. The legislation aims to suppress terrorist
    activity, specifically, the commission of serious domestic offences that, to
    some extent at least, advance the purposes of a terrorist group. This it does
    by creating an offence for conduct that amounts to an indictable offence to
    advance the interests of a group of which the principal need not even be a
    member. This purpose is not furthered where the principal and group are one and
    the same. Or, put another way, where the offence is committed for the
    principals own purposes.

[77]

The phrases that establish the relationship between the offence and
    terrorist group  for the benefit of, at the direction of and in association
    with  all refer to a bilateral relationship. Two parties. Not one. When
    Parliament wishes to describe conduct done for the self-interest of an actor,
    it uses different language. For example, in s. 4(3)  for the use or benefit
    of himself or of another person. Or in s. 121(1)(a)(ii)  for himself or
    another person. No such language appears in s. 83.2.

[78]

The appellants position also tends to relegate the phrase for the
    benefit of, at the direction of or in association with to mere surplusage. Where
    the principal and terrorist group are one and the same, the principal would
    commit the offence for the benefit of, at the direction of, or in association
    with him or herself. Such an interpretation contravenes the proscription
    against tautology, that is to say, that Parliament avoids inclusion of
    meaningless or superfluous words.

[79]

As the trial judge observed, had Parliament intended to create an
    offence of committing an indictable offence for a terrorist purpose, which is
    the effect of the appellants construction of s. 83.2, Parliament could easily
    have done so. This would capture the lone wolf terrorist. But Parliament
    declined to do so. In these circumstances, it is a reasonable inference that
    Parliament did not intend that s. 83.2 would apply to the lone wolf terrorist.

[80]

But the lone wolf does not escape criminal liability. Consider s.
    83.27(1):

Notwithstanding anything in this Act, a person convicted of an
    indictable offence, other than an offence for which a sentence of imprisonment
    for life is imposed as a minimum punishment, where the act or omission
    constituting the offence also constitutes a terrorist activity, is liable to
    imprisonment for life.

[81]

Section 83.27 subjects a lone wolf terrorist to a potential sentence of
    imprisonment for life, the same punishment as under s. 83.2, for committing an
    indictable offence amounting to a terrorist activity. This provision undercuts
    the appellants submission that to interpret s. 83.2 as inapplicable to the
    lone wolf terrorist leaves a lacuna in Part II.1. The appellants
    interpretation of s. 83.2 in a case such as this would render ss. 83.201 and
    83.202 redundant.

[82]

Therefore, I would not accede to this ground of appeal.

Ground #2: The Issue of Remedy

[83]

The issue of remedy arises only in the event that the verdict of acquittal
    in respect of the offence in s. 83.2 is set aside. The appellant has failed in
    that endeavour; thus the appeal from that acquittal must be dismissed.

[84]

The appellants notice of appeal did not include an appeal from the
    finding that the respondent was not criminally responsible on account of mental
    disorder in respect of the underlying or predicate offences. At trial, it was
    beyond controversy, that at the time he entered the recruiting centre and
    attacked the various officers of the Canadian Forces working there, the
    respondent:

i.

was
    suffering from a mental disorder, schizophrenia;

ii.

appreciated
    the nature and quality of his conduct; and,

iii.

knew that his conduct
    was legally wrong; but,

iv.

did not know that his
    conduct was morally wrong.

This entitled the respondent to
    a finding under s. 672.34 of the
Criminal

Code
that he
    committed the acts that formed the basis of the underlying or predicate
    offences but was not criminally responsible for those acts on account of mental
    disorder.

[85]

Absent an appeal from the not criminally responsible verdict, available
    to the Crown under s. 676(1)(a) of the
Criminal

Code
, there
    is no basis upon which to set aside this finding, let alone give directions
    about the manner in which fresh trial proceedings should be conducted.

Disposition

[86]

I would dismiss the appeal.

Released: DW December 20, 2019

David Watt J.A.

I agree. M. Tulloch
    J.A.

I agree. P. Lauwers
    J.A.


