



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order prohibiting disclosure of a witness identity
    has been made in this proceeding pursuant to s. 486.31 of the
Criminal Code
and shall continue. This section of the
Criminal Code
provides that:

486.31 (1) In any
    proceedings against an accused, the judge or justice may, on application of the
    prosecutor in respect of a witness, or on application of a witness, make an
    order directing that any information that could identify the witness not be
    disclosed in the course of the proceedings if the judge or justice is of the
    opinion that the order is in the interest of the proper administration of
    justice.

(2) The judge or
    justice may hold a hearing to determine whether the order should be made, and
    the hearing may be in private.

(3) In
    determining whether to make the order, the judge or justice shall consider


(a) the right to a fair and public hearing;


(b) the nature of the offence;


(c) whether the witness needs the order for their security or to
    protect them from intimidation or retaliation;


(d) whether the order is needed to protect the security of anyone
    known to the witness;


(e) whether the order is needed to protect the identity of a
    peace officer who has acted, is acting or will be acting in an undercover
    capacity, or of a person who has acted, is acting or will be acting covertly
    under the direction of a peace officer;


(e.1) whether the order is needed to protect the witness's
    identity if they have had, have or will have responsibilities relating to
    national security or intelligence;


(f) society's interest in encouraging the reporting of offences
    and the participation of victims and witnesses in the criminal justice process;


(g) the importance of the witness' testimony to the case;


(h) whether effective alternatives to the making of the proposed
    order are available in the circumstances;


(i) the salutary and deleterious effects of the proposed order;
    and


(j) any other factor that the judge or justice considers
    relevant.

(4) No adverse
    inference may be drawn from the fact that an order is, or is not, made under
    this section. S.C. 2015, c. 20, s. 38(3).




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hersi, 2019 ONCA 94

DATE: 20190211

DOCKET: C59184

Doherty, Miller and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamed Hersi

Appellant

Paul Slansky, for the appellant

Croft Michaelson, Q.C., Xenia Proestos and Stephen
    Oakey, for the respondent

Heard: January 23, 2019

On appeal from the conviction entered by Justice Deena F.
    Baltman of the Superior Court of Justice, sitting with a jury, on June 25,
    2014, and from the sentence imposed on July 24, 2014, with reasons reported at
    2014 ONSC 4414.

Doherty J.A.:



I



[1]

The appellant was convicted by a jury of one count of attempting to
    knowingly participate in or contribute to the activities of Al-Shabaab, a
    terrorist group; and one count of counselling another person (an undercover
    police officer) to knowingly participate in or contribute to the activities of
    Al-Shabaab: see
Criminal Code
, R.S.C. 1985, c. C-46, s. 83.18. The
    trial judge imposed consecutive sentences of five years imprisonment, the
    maximum sentence available, on each count. Taking into account credit for
    presentence custody, the trial judge imposed a total sentence of 9 years, 7 ½
    months.

[2]

The appellant appeals conviction and sentence. For the reasons that
    follow, I would dismiss the appeal.


II



[3]

In October 2010, the appellant was working as a security guard in an
    office tower in downtown Toronto. It came to his employers attention that the
    appellant was in possession of material suggesting radical and violent beliefs.
    The employer contacted the police.

[4]

The police began an investigation. They arranged for an undercover
    officer (UC) to go to work at the building where the appellant worked. The UC
    became friendly with the appellant over the ensuing months. They had many
    conversations about many things.

[5]

The UC testified that, during those conversations, the appellant
    expressed support for Al-Shabaab, a well-known terrorist organization in
    Somalia. He told the UC that he planned to travel to Somalia via Egypt and to
    join Al-Shabaab. He would do whatever they asked him to do in support of the
    groups Jihadist goals. The UC also testified that the appellant actively counselled
    him to do the same thing.

[6]

The appellant was arrested on March 29, 2011 at Pearson Airport. He was
    waiting to board a flight to England with a connecting flight to Cairo, Egypt.
    The appellant had quit his job in Toronto and booked a one-night stay at a
    hostel in Cairo. The Crown alleged that the appellants travel plans showed
    that he was on his way to join Al-Shabaab, just as he had told the UC he would
    do.

[7]

The appellant testified in his own defence. He denied that he ever told
    the UC that he intended to join Al-Shabaab, or that he counselled the UC to
    join Al-Shabaab. The appellant testified that he was opposed to the terrorist
    ideology of groups like Al-Shabaab.

[8]

The jurys verdicts turned in large measure on what they made of the
    conversations between the UC and the appellant. The jury had to decide what was
    said, and what was meant in those conversations. The conversations between
    October 16, 2010 and January 28, 2011 were not recorded. Instead, the UC made
    detailed notes. The appellant also offered his version of those conversations
    in his testimony. He maintained that the UC lied about those conversations to
    implicate the appellant in the charges.

[9]

The conversations between the UC and the appellant after January 28,
    2011, up until the appellants arrest on March 29, 2011, were intercepted and
    recorded pursuant to a judicial authorization. The recordings and transcripts
    of the conversations were before the jury. The Crown and the appellant offered
    significantly different interpretations of those conversations.


III



The Conviction Appeal

[10]

The
    appellant advances approximately 15 grounds of appeal. Nine challenge various
    rulings made by the trial judge in the course of the trial. The rest allege multiple
    errors in the trial judges instruction to the jury.

[11]

The
    court required submissions from the respondent on two issues:

·

Did the trial judge err in holding that the lost evidence did
    not result in a breach of the appellants s. 7 rights, and, if so, what was the
    appropriate remedy?

·

Did the trial judge misdirect the jury on the
actus reus
component of an attempt?

[12]

I
    will not address individually the arguments on which the court did not call on
    the respondent. They are devoid of any merit. In respect of the grounds of
    appeal that challenge the trial judges rulings, other than the ruling in
    respect of the lost evidence, I am in substantial agreement with the reasons
    provided by the trial judge.

[13]

The
    grounds of appeal asserting that the jury instructions were legally flawed, unbalanced,
    misleading, and confusing are also without merit. The trial judges
    instructions on legal matters of some complexity were well-organized, correct,
    and carefully balanced. She provided the jury with a clear description of the
    elements of the offences, a full and fair summary of the evidence relevant to
    each element, and an accurate and even-handed statement of the respective
    positions of the parties. The administration of justice was well-served by this
    charge to the jury.

[14]

I
    now turn to the two issues on which we required submissions from the Crown.

A.

Did the trial judge err in her ruling on the lost evidence?

(i)

The trial proceedings

[15]

At
    the end of the evidence, but before the jury charge, the appellant moved for a
    stay of proceedings. He argued that the police had destroyed relevant evidence
    and prejudiced his ability to make full answer and defence, thereby infringing
    his rights under s. 7 of the
Canadian Charter of Rights and Freedoms
.
    The appellant maintained that the s. 7 violation was sufficiently egregious to
    necessitate a stay of the criminal proceeding. The trial judge dismissed the
    motion: see
R. v. Hersi
, 2014 ONSC 4101.

[16]

The
    stay motion focused on the UCs destruction of certain text messages between
    himself and the appellant, and on the police failure to download the data from
    the UCs cellphone at the end of the investigation. The UC had been given a
    specific cellphone to use during the investigation.

[17]

The
    UC acknowledged that he had destroyed text messages between himself and the
    appellant. He testified that all of the destroyed messages were exchanged on a
    single day in October 2010, very early in the investigation. The UC testified
    that he made verbatim copies of the contents of the text messages before
    destroying them. He also stated that he destroyed the text messages because
    they contained only social chatter, or discussions about plans to meet at some
    later time. In the UCs assessment, there was nothing of substance in the texts.

[18]

The
    UCs evidence was contradicted by the evidence of a police officer who had
    prepared an affidavit in support of a wiretap application in December 2010.
    That officer indicated in the affidavit that all text messages sent or received
    by the UC before December 10, 2010 had been destroyed by him. The trial judge
    concluded that it was likely that the contents of the affidavit, which was sworn
    at the time of the relevant events, were accurate, and that the UC had
    destroyed text messages exchanged with the appellant between October and
    December 10, 2010.

[19]

The
    trial judge also heard evidence that, as of March 2011, when this undercover
    operation ended, the Toronto Police Service did not routinely download the data
    from a cellphone used by a UC. The officer in charge of this operation had
    requested that the data be downloaded, but it was not. In his testimony, he
    acknowledged that he may not have been clear in making his request. The trial
    judge ultimately accepted that the failure to download the data resulted from a
    miscommunication between officers, which resulted in the police following their
    usual practice of not downloading the data.

[20]

The
    trial judge made several findings of fact that were important to the outcome of
    the stay motion. She accepted the UCs evidence that the texts were brief and related
    to insignificant matters. She also accepted his evidence that he made handwritten
    notes, which copied verbatim the contents of each text. Finally, she
    characterized the failure to preserve the data from the cellphone as showing at
    most a careless handling of that information.

[21]

The
    trial judge gave careful consideration to the many arguments advanced by the
    appellant at trial. He argued that the police had deliberately destroyed the
    text messages and deliberately failed to preserve the data on the cellphone so
    that they could fabricate conversations in which the appellant indicated his
    intention to join Al-Shabaab and counsel the UC to do the same. The appellant
    maintained that if the data existed, it would show that it was the UC who
    encouraged him to join Al-Shabaab.

[22]

The
    trial judge gave several reasons for rejecting the appellants submissions. She
    noted that it would have been very risky for the police to have deliberately
    lied about the contents of the text messages since the police would have no way
    of knowing whether the appellant could retrieve those text messages from his
    own device. The trial judge also rejected the appellants evidence on these and
    other matters as entirely untrustworthy and riddled with contradictions.
    She explained why she came to that very negative view of the appellants
    evidence.

[23]

The
    nature of the issues presented on the stay motion required the trial judge to make
    findings of fact. To make those findings, she had to make credibility
    assessments. The appellants submission that she was not entitled to make
    factual findings in the context of the lost evidence application
    misunderstands the nature of the application.

[24]

This
    court must defer to the trial judges findings absent material misapprehension
    of evidence, or a failure to have regard to relevant evidence. She did neither.
    I approach the merits of her refusal to stay the proceedings by accepting her
    findings of fact.

(ii)

Was there a s. 7 breach?

[25]

As
    the trial judge correctly observed, a claim asserting a breach of s. 7 based on
    evidence lost or destroyed by the prosecution proceeds in two steps. First, the
    court determines whether the loss or destruction of the evidence results in a
    breach of s. 7 based on an interference with the accuseds right to make full
    answer and defence. Second, if there is a s. 7 breach, the court must determine
    the appropriate remedy. A stay of criminal proceedings is the appropriate
    remedy only in extraordinary circumstances:
R. v. Carosella
, [1997] 1
    S.C.R. 80, at para. 52;
R. v. OConnor
, [1995] 4 S.C.R. 411, at para.
    82;
R. v. La
, [1997] 2 S.C.R. 680, at paras. 17-24.

[26]

In
    this case, the police destroyed text messages between the UC and the appellant,
    and destroyed or lost data from the UCs cellphone. The loss or destruction of
    material in the possession or control of the police will constitute a breach of
    the right to make full answer and defence if the material was disclosable under
    the broad relevance standard established in
R. v. Stinchcombe
, [1991]
    3 S.C.R. 326, and
R. v. Egger
, [1993] 2 S.C.R. 451, and the
    prosecution fails to show that the loss or destruction of the material was not
    the consequence of unacceptable negligence by the police:
La
, at para.
    22;
R. v. Bero
(2000), 151 C.C.C. (3d) 545, at para. 30 (Ont. C.A.).

[27]

The
    communications between the UC and the appellant during the relevant time
    period, including the text messages, were clearly relevant. The Crowns case
    rested largely on communications between the appellant and the UC. The fact
    that the UC viewed the particular communications as of no significance had no
    effect on their relevance in the
Stinchcombe
sense of that word.

[28]

The
    relevance of the data in the cellphone used by the UC is perhaps less clear,
    although some of that data was clearly relevant given that it was connected to
    some of the conversations relied on by both the Crown and the defence. The
    values animating the disclosure regime established in
Stinchcombe
favour
    a finding of relevance in a close case. I view the data as relevant and
    disclosable. As it was disclosable, the police had an obligation to preserve it
    so that it could be disclosed:
R. v. Satkunananthan
(2001), 152 C.C.C.
    (3d) 321, at para. 75 (Ont. C.A.).

[29]

The
    determination of whether the loss or destruction of the material constituted a
    breach under s. 7 depended on whether the prosecution had shown that the loss
    and destruction of the material was not brought about by unacceptable
    negligence:
Satkunananthan
, at para. 75. The trial judge found that
    neither the destruction of the text messages, nor the failure to preserve the
    data was caused by unacceptable negligence. I accept that finding as it
    applies to the data, but cannot accept the finding as applied to the text
    messages.

[30]

The
    phrase unacceptable negligence suggests conduct which is more than merely
    negligent. However, my review of the cases indicates that the reasonableness of
    the police conduct resulting in the loss or destruction of the evidence is a
    touchstone of the inquiry. The more obvious the importance of the evidence, the
    higher will be the degree of care expected of reasonable police officers:
La
,
    at para. 21.

[31]

The
    evidence accepted by the trial judge established that at the time the
    undercover operation ended in March 2011, the police did not, as a matter of
    practice, take steps to download the information from the cellphones used by
    the UCs. The officer who requested that the data be downloaded acknowledged
    that he may have been misunderstood in the circumstances. Nor, in my view, is
    the relevance of the data so obvious as to create a presumption that the police
    should have understood the need to save that data. The trial judge concluded that,
    on the facts as she found them, the failure to download the data did not amount
    to unacceptable negligence. That finding was reasonably open to her and we have
    been offered no basis upon which we could properly interfere with it.

[32]

The
    trial judges finding that the destruction of the text messages was not
    unacceptable negligence was predicated on the UCs evidence that the messages
    contained only discussions about plans to meet and other social chitchat. It is,
    however, no part of the police function when considering whether material
    should be preserved for disclosure purposes to assess the potential significance
    beyond a consideration of relevance in the broadest sense. In my view, it is
    unacceptable that, almost 30 years after
Stinchcombe
, the UC could
    operate under the belief that he need save only relevant material that he
    viewed as significant.

[33]

I
    think a reasonable officer in the position of the UC would have appreciated
    that the prosecution would ultimately turn largely on the communications
    between himself and the appellant, and that it was therefore important to
    preserve all communications between them. Indeed, the UC seemed to appreciate
    the need to preserve the content of the text messages since he went to the
    trouble of making verbatim handwritten copies of the contents before destroying
    the actual text messages.

[34]

Given
    the nature of the investigation, the destruction of the text messages fell well
    below what should be expected of a reasonable police officer properly informed
    of the prosecutions disclosure obligations. The Crown failed to show the
    absence of unacceptable negligence. The destruction of the text messages
    interfered with the appellants ability to make full answer and defence, and
    breached his s. 7 rights.

(iii)

What is the appropriate remedy for that breach?

[35]

Although
    the trial judge found no breach, she did address the appropriate remedy on the
    assumption that she had found a breach. The trial judge determined that a s.
    24(1) remedy would not have been appropriate. She did, however, give the jury a
    lost evidence instruction. In that instruction, she told the jury that if
    they found the prosecutions explanations for destroying the evidence
    inadequate, they could infer that the lost evidence would not have assisted
    the Crown. That inference could, in turn, impact on whether the Crown had
    proved its case beyond a reasonable doubt.

[36]

I
    address the appropriate remedy in the context of the s. 7 breach limited to the
    destruction of the text messages. Section 24(1) requires the court to impose
    the appropriate and just remedy in the circumstances. In making that
    judgment, the actual prejudice caused to the defence is a significant
    consideration. Here, there was none. The trial judge found that the appellant
    had available to him the substance of the text messages in the form of the UCs
    verbatim notes: see
R. v. Bradford
(2001), 52 O.R. (3d) 257, at para.
    8 (C.A.);
Satkunananthan
, at para. 84.

[37]

Nor
    did the destruction of the text messages prevent the appellant from
    cross-examining the UC on the truth of his claim that he deleted only text messages
    for one day. The appellant was able to point to conflicting evidence from
    another police officer, given under oath in his affidavit in support of the
    wiretap application. There was no prejudice to the appellants right to make
    full answer and defence.

[38]

I
    also do not accept that the destruction of the text messages, while
    inappropriate, had any adverse effect on the integrity of the trial process or
    the prosecution. Once again, I look to the factual findings of the trial judge.
    On those findings, there is not a trace of police misconduct aimed at subverting
    the course of justice or thwarting the prosecutions disclosure obligations.

[39]

Although,
    unlike the trial judge, I would find a breach of the appellants s. 7 rights to
    make full answer and defence flowing from the destruction of the text messages,
    I agree with the trial judge that no remedy beyond an appropriate jury
    instruction was appropriate and just in the circumstances.

B.

The instruction on the
actus reus
component of attempt

[40]

Count
    one in the indictment charged the appellant with attempting to commit the
    substantive offence created by s. 83.18(1) of the
Criminal Code
. The
    trial judge instructed the jury that the essential elements of the offence as
    charged in count one included the requirement that:

Mr. Hersi [the appellant] knowingly attempted to participate in
    or contribute to, directly or indirectly, any activity of Al-Shabaab.

[41]

The
    trial judge further instructed the jury that, to prove this element of the
    offence, the Crown had to first prove that the appellant did something that
    amounted to an attempt to participate in or contribute to, directly or
    indirectly, any activity of a terrorist group. The trial judge defined
    participation and contribution by reference to both the relevant provisions in
    the
Criminal Code
and to the normal meaning of those words. She
    specifically told the jury that merely joining a terrorist group did not prove
    participation in or contribution to the terrorist activities of that group. She
    said:

What is necessary is that the proposed participation or
    contribution is something more than trivial; it must be an act that, if
    completed, would materially enhance Al-Shabaabs ability to carry out a
    terrorist activity.

[42]

The
    heart of the trial judges instructions in respect of the
actus reus
component of attempt is set out below:

As I mentioned earlier, an attempt is an act taken toward the
    commission of an offence that goes beyond mere preparation. In this case, the
    conduct alleged to constitute an attempt to participate in or contribute to
    Al-Shabaab is that at the point he was arrested Mr. Hersi was headed to Somalia
     with Egypt as a stop along the way  in order to offer his skills for the
    benefit of Al-Shabaab.
In other words, if you find that
    at the point he was arrested Mr. Hersi was in fact heading to Somalia (via
    Egypt) in order to offer his skills for the benefit of Al-Shabaab, as I have
    defined those terms, then this first requirement is satisfied.
[Emphasis
    added.]

[43]

The
    trial judge then summarized the evidence that was relevant to whether the
    appellant was on his way to the airport to travel to Somalia via Egypt to join
    Al-Shabaab when he was arrested. She told the jury that if those acts were proven
    beyond a reasonable doubt by the Crown, those acts constituted an attempt and
    the jury should move on to a consideration of the other essential elements of
    count one. Those elements focused on the appellants state of mind. The trial
    judge told the jury:

I instruct you that proof beyond a reasonable doubt of the
    conduct I have just described is proof of an attempt to participate in or
    contribute to the activities of Al-Shabaab, however you, as the judges of the
    facts, decide if the conduct I have just described has been proved beyond a
    reasonable doubt.

[44]

The
    trial judges instructions are true to the division of labour prescribed in s.
    24(2) of the
Criminal Code
:

The question whether an act or omission by a person
    who has an intent to commit an offence is or is not mere preparation to commit
    the offence, and too remote to constitute an attempt to commit the offence, is
    a question of law.

[45]

It
    is for the trial judge to decide, as a matter of law, where on the evidence the
    line between preparation and attempt must be drawn. It is for the jury to
    decide whether, on the facts as found by them, that line has been crossed. As Martin
    J.A. explained in
R. v. Breese
(1984), 12 C.C.C. (3d) 491, at p. 510:

Under s. 24 it is for the jury to find what acts were done by
    the accused and the intent with which they were done. It is for the judge to
    decide whether the acts, if the jury find them to have been done by the
    accused, go beyond mere preparation and constitute an attempt.
Accordingly, the jury should be instructed that if they find
    the accused did certain acts (found by the trial judge to go beyond mere
    preparation) with the intention of committing the offence alleged that
    constitutes an attempt to commit the offence.
[Emphasis added.]

[46]

The
    trial judges instruction is also consistent with the model jury instruction
    found in
Watts Manual of Criminal Jury Instructions
, (Toronto:
    Thomson Carswell, 2015), 2d ed., at p. 1076. The author suggests this
    direction:

The conduct alleged in this case is that [describe briefly
    conduct alleged to amount to an attempt]. Proof beyond a reasonable doubt of
    the conduct I have just described is proof of an attempt.

[47]

Although
    the appellant argued at trial and again on appeal that the conduct described to
    the jury by the trial judge could not, as a matter of law, constitute an
    attempt, we did not call on the Crown on this argument. The appellants actions
    could reasonably be seen as the commencement of a journey intended to end with
    the joining of Al-Shabaab in Somalia. We agree with the trial judge that the
    conduct crossed over the line from preparation to attempt. The trial judge
    instructed the jury to that effect and correctly left the necessary fact finding
    to the jury. The charge on the
actus reus
of attempt was correct.


IV



The Sentence Appeal

[48]

The
    trial judge imposed the maximum sentence of five years on each count. She made
    the sentences consecutive and she directed that the appellant should not be
    eligible for parole until he had served one-half of the sentence.

[49]

The
    trial judge made several important findings of fact on sentence. She summarized
    these in her reasons,
R. v. Hersi
, 2014 ONSC 4414, at para. 33:

I conclude (i) Mr. Hersi had long standing plans to join
    Al-Shabaab; (ii) he intended to participate in its violent jihadist activities;
    and (iii) he shared its extremist religious ideology.

[50]

I
    accept these findings of fact. All underscore that the appellant knew exactly
    what he was doing. He was determined to join fellow travellers and engage in
    violent crimes in the name of their terrorist cause.

[51]

This
    court has spoken repeatedly and emphatically on the need to emphasize
    denunciation and deterrence when sentencing for terrorist crimes: see
R. v.
    Khalid
, 2010 ONCA 861, 183 O.R. (3d) 600;
R. v. Amara
, 2010 ONCA
    858, 266 C.C.C. (3d) 422;
R. v. Khawaja
, 2010 ONCA 862, 103 O.R. (3d)
    321, affd 2012 SCC 69, [2012] 3 S.C.R. 555.

[52]

The
    trial judge acknowledged the appellants status as a first offender and other
    positive features in his background. The case law from this court, however,
    dictates that even in those circumstances, a lengthy prison sentence has to be imposed
    for terrorist crimes. The trial judge followed that direction.

[53]

The
    trial judge was also alive to the totality principle, both as it related to the
    ultimate global sentence imposed and the imposition of a period of parole
    ineligibility pursuant to s. 743.6(1.2). She recognized that, in respect of
    terrorism offences, that section required the sentencing judge to declare the offender
    ineligible for parole for one-half of the total sentence imposed, unless
    satisfied that the denunciatory and deterrence goals of the sentence could be
    adequately met by a period of parole ineligibility equal to one-third of the
    total sentence. The trial judge determined that those considerations required
    her to prohibit parole until half of the sentence had been served. I see no
    error in principle in that finding.

[54]

There
    is no doubt that the sentence imposed was severe. It had to be. Terrorists,
    like the appellant, pose an existential threat to the Canadian community and to
    the Canadian way of life. They are not criminals in the normal sense. They are
    worse. Terrorists stand prepared to engage in virtually any form of murder or
    mayhem if it furthers their ideology. When people determined to wreak havoc in
    our community are caught and convicted, the courts must impose sentences that
    reflect the communitys moral outrage and the very real danger posed by those
    individuals to the community. That is what the trial judge did. The sentence
    imposed was fit.


V



[55]

I
    would dismiss the appeal.

Released: DD  FEB 11  2019

Doherty J.A.

I agree. B.W. Miller J.A.

I agree. Gary T. Trotter J.A.


