*** Publicly released document. MS ***
http://www.canlii.org/en/on/onsc/doc/2008/2008canlii51935/2008canlii51935.html
COURT FILE NO.: YC-07-1587
DATE: 20080925
ONTARIO
SUPERIOR COURT OF JUSTICE
(sitting as a Youth Justice Court)
B E T W E E N:
HER MAJESTY THE QUEEN
John Neander and Marco Mendicino, for the Crown
- and -
N.Y.
Mitchell Chernovsky and Faisal Mirza, for the Accused
HEARD: March 25 and 26, 2008, April 1, 9, 14, 15, 18, 21, 23, 24, 29, 2008, May 6, 12, 15, 20, 22, 26, 27, 30, 2008, June 2-6, 9-11, 13, 16, 17-19, 24, 26, 2008, July 2, 10, 15, 2008, August 7 and 8, 2008
[Section 110 of the Youth Criminal Justice Act prohibits the publication of the name of N.Y. or any other information related to N.Y. that would identify N.Y. as a young person dealt with under this Act.
By court order dated April 1, 2008, the names Fahim Ahmad, Zakaria Amara, Asad Ansari, Shareef Abdelhaleem, Qayyum Abdul Jamal, Ali Mohammed Dirie, Yasin Abdi Mohamed, Jahmaal James, Amin Mohamed Durrani, Steven Vikash Chand, Ahmad Mustafa Ghany, Saad Khalid, Saad Gaya and Ibrahim Aboud, or any other evidence which would identify the aforementioned named persons during the trial of N.Y., shall not be published in any document, or broadcast or transmitted in any way, until such time as the trial in respect of the aforementioned named persons is ended.
For greater clarity, evidence which would identify the named persons includes, but is not limited to, names, pseudonyms, aliases, street names, or other names by which they may be known, initials actually corresponding to the initials of the named persons, addresses, telephone numbers, visual images and audio recordings.]
INDEX
I INTRODUCTION.. 1
II THE EVIDENCE.. 3
(a) Arrests of Mohamed and Dirie - August 13, 2005. 3
(b) Taj Banquet Hall - November 27, 2005 to December 17, 2005. 4
(c) Washago Camp - December 18-31, 2005. 6
(d) January 1, 2006 to February 2, 2006. 18
(e) Canadian Tire Shoplifting. 21
(f) Opasatika Trip - February 3-5, 2006. 21
(g) The Bomb Conspiracy - February 5 to May 2006. 23
(h) February 6, 2006 to March 2, 2006. 25
(i) Discussion of Fraudulent Schemes - March 3-5, 2006. 27
(j) March 6 to May 19, 2006. 29
(k) Rockwood Camp – May 20 – 22, 2006. 34
(l) Arrests and Statement of N.Y. to Police - June 3, 2006. 39
(m) Other Cross-Examination of Shaikh. 45
III THE LAW... 49
(a) Elements of the Offence. 49
(b) The Carter Test - Hearsay Evidence of Co-Conspirators. 54
IV ANALYSIS AND FINDINGS. 57
(a) Introduction. 57
(b) The Credibility of Shaikh. 58
(c) First Essential Element of the Offence - Existence of a Terrorist Group - Step One Carter Analysis 62
(d) Step Two Carter Analysis – Has the Crown Proven N.Y. Is Probably a Member of the Terrorist Group? 69
(e) Second Essential Element of the Offence - Did N.Y. Know of the Existence of the Terrorist Group? 77
(f) Third Essential Element of the Offence - Did N.Y. Participate in or Contribute Directly or Indirectly to Any Activity of the Terrorist Group?. 85
(g) Fourth Essential Element of the Offence - Did N.Y. by His Participation or Contribution Intend to Enhance the Ability of the Terrorist Group to Facilitate or Carry Out a Terrorist Activity?. 92
V CONCLUSION.. 94
REASONS FOR JUDGMENT
SPROAT J.
I INTRODUCTION
[1] N.Y. was arrested on June 3, 2006, along with 14 adults and three youths. N.Y. is charged with knowingly participating in or contributing to the activity of a terrorist group between March 1, 2005 and June 2, 2006, contrary to s. 83.18 of the Criminal Code. N.Y. did not turn 18 until January 12, 2006, and so was charged under the provisions of the Youth Criminal Justice Act.
[2] The principal Crown witness was Mubinoddin Shaikh (“Shaikh”), a confidential informant for the Canadian Security and Intelligence Service (“C.S.I.S.”) who subsequently became a paid agent for the Royal Canadian Mounted Police (“R.C.M.P.”). As I later explain, I generally accept Shaikh’s evidence. Most of the other Crown evidence was incontrovertible as to what in fact occurred. There were, however, competing interpretations and arguments regarding the significance of the evidence.
[3] For obvious reasons, this case has attracted considerable public attention. I, therefore, think it appropriate to include in these reasons a fairly comprehensive summary of the evidence. While recognizing the inevitability of some repetition, I then provide my analysis of the evidence and the reasoning in support of my conclusion.
[4] The adults charged with N.Y. included Fahim Ahmad (“Ahmad”), Zakaria Amara (“Amara”), Steven Chand (“Chand”), Amin Durrani (“Durrani”), Asad Ansari (“Ansari”), Mohammed Dirie (“Dirie”), Saad Khalid (“Khalid”), Qayyum Jamal (“Jamal”), Ahmad Ghany (“Ghany”), Jahmaal James (“James”), Yasin Mohamed (“Mohamed”) and Ibrahim Aboud (“Aboud”). Charges were subsequently withdrawn or stayed against Jamal, Ghany, Mohamed and Aboud. The other young persons charged were Z.M., S.M. and N.S, and their charges were subsequently withdrawn or stayed.
[5] Ahmad, Durrani, N.Y., S.M., Z.M., Chand and Dirie were from Scarborough or otherwise associated with Ahmad. Amara, Jamal, Ansari, Khalid and Aboud were from Mississauga. As an overview, Ahmad led the Scarborough group while Amara led the Mississauga group. Ahmad and Amara worked together for a time pursuing joint goals. Ahmad focused on plans to hold training camps and acquire weapons to attack government officials and targets. Amara focused on constructing and testing a remote detonator and plotting to construct bombs. In March 2006, the Amara group split from Ahmad because Amara was dissatisfied with Ahmad’s lack of progress toward their ends.
[6] In overview, the Crown evidence consisted principally of:
(a) agreed facts;
(b) tapes of intercepted communications (“intercepts”) by members of the alleged terrorist group;
(c) electronic data, including videos recovered from seized computers which depict activities of the alleged terrorist group; and
(d) Shaikh’s evidence as to the activities of members of the group.
[7] My references to Islamic principles, the meaning of certain terms and the spelling of certain words are, as they must be, based on the evidence given before me. I now turn to the evidence.
II THE EVIDENCE
(a) Arrests of Mohamed and Dirie - August 13, 2005
[8] These facts are all agreed. On August 13, 2005, Mohamed and Dirie entered Canada from the United States at Fort Erie. Dirie had two loaded handguns taped to his inner thigh. Mohamed had a loaded handgun and ammunition in his pocket. Both pleaded guilty to various weapons offences and were sentenced to two years imprisonment.
[9] Ahmad is Dirie’s brother-in-law. Ahmad paid for the rental vehicle that Mohamed and Dirie used. A handgun later found in Ahmad’s possession was purchased from the same Ohio dealer who had sold two of the three guns seized at the border.
(b) Taj Banquet Hall - November 27, 2005 to December 17, 2005
[10] As directed by C.S.I.S., Shaikh went to the Taj Banquet Hall on November 27, 2005 intending to develop an association with Ahmad, Amara, Durrani and others. Shaikh identified Amara, Ahmad, Durrani and a number of youths, including N.Y., Z.M. and S.M. Ahmad gave the appearance of being the leader of the group.
[11] A discussion ensued outside. Ahmad said that C.S.I.S. knew what he would do if they came to his door, and he made a shooting gesture. This provided Shaikh with the opportunity to demonstrate his knowledge of, and ability to acquire, weapons by producing his licence to possess and acquire firearms and ammunition.
[12] Amara asked Shaikh whether jihad was an individual or a communal obligation. Shaikh understood the purpose of the question was to ascertain, “are you just a cheerleader from the sidelines, or are you playing the game?” Shaikh responded that jihad was an individual obligation in order to indicate that he was “playing the game”. Shaikh testified that as used by Amara and Ahmad “jihad” referred to terrorist activities.
[13] Amara provided Shaikh with two publications, Fundamental Concepts of Jihad and The Community of Ibrahim. Shaikh hugged Amara and noted that there was something hard in his pocket. Shaikh made a humorous comment. Amara reached into his pocket and produced a pistol magazine with several bullets in it. He took out one round with a hollowed point and said, “These are cop killers”.
[14] Shortly after, Ahmad provided Shaikh with a publication, Blood, Wealth and Honour of the Disbelievers, which justifies killing, assaulting, defaming and stealing from non-believers. Shaikh testified that a recruiting technique of Ahmad was to pass out CDs depicting atrocities against Muslims and later follow up and ask the prospect what he thought about it.
[15] In cross-examination, Shaikh agreed that N.Y. and the other young persons were in the background and left no impression at this time. Shaikh had no recollection of the young persons hearing Amara’s questions concerning whether jihad was a collective or individual responsibility, nor did he believe they would have any appreciation of what Amara was getting at. Shaikh had no recollection of the young persons being present when Amara showed Shaikh the hollow point bullets.
[16] On November 29, 2005, 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 R.C.M.P., C.S.I.S., the Parliament buildings and power grids. Ahmad asked, “Can you train guys to do this stuff? Can you train guys to make them ready?” Shaikh replied that he could. Ahmad referred to having buried weapons in a park that were later stolen.
[17] On December 4, 2005, Amara told Shaikh he was taking a course in order to obtain a licence to purchase firearms. The following day, Amara picked up Shaikh and they went to a number of gun stores. At one store, Shaikh, at the request of Amara, purchased a rifle and 1,000 rounds of ammunition. Amara showed Shaikh a video clip in which he was wearing camouflage clothing and firing a gun at a location Shaikh later recognized as the Washago Camp site.
[18] By December 5, 2006, Shaikh was acting as an agent for the R.C.M.P. He reported to the R.C.M.P. on his activities every few days, and his handler recorded the report in a Source Debriefing Report.
[19] While the timing is unclear, Shaikh testified that Ahmad took credit for Mohamed and Dirie smuggling guns into Canada for the group.
(c) Washago Camp - December 18-31, 2005
[20] In a series of rulings, I have referred to this as the Washago Camp, whereas at trial, Shaikh referred to it as the Cooper’s Falls Camp. In these reasons, I will continue to refer to it as the Washago Camp.
[21] Shaikh testified that Ahmad told him that N.Y. and S.M. were tasked by Ahmad to acquire items for the camping trip. Shaikh explained that in this context, the word “acquire” was taken from Blood, Wealth and Honour of the Disbelievers and referred to stealing the property of disbelievers.
[22] Ahmad and Amara were the leaders. Shaikh and Chand, both of whom had some military experience, served as trainers. Shaikh testified that prior to the camp, in a general conversation regarding planning, Ahmad indicated they would have walkie-talkies which N.Y. had procured. In fact, however, no walkie-talkies were at the camp. Prior to the camp, the young persons were told a cover story that it was to be a religious retreat. Islam encourages physical fitness. Physical activities were, therefore, linked to the purported religious purpose.
[23] On December 18, 2005, Shaikh drove Ahmad, N.Y., Chand and Durrani to the Washago Camp arriving at 7:00 a.m. A second vehicle driven by Ghany, with Amara, arrived at approximately the same time. On December 23, Jamal, with Aboud, Ansari and Khalid, arrived at the camp. Ahmad handed out camouflage clothing to the attendees. Apart from Shaikh, the group was ill-prepared for winter camping.
[24] Shaikh testified that he played no part in the decision to hold a camp at Washago. Upon arrival at the campsite, he did identify a suitable spot to drape a tarp over a bent tree to create a shelter. Ahmad and Chand were involved in laying out an obstacle course. It snaked through the woods, at one point involved crawling under a fallen tree trunk and ended back at the camp with a jump off a two-metre ledge. There was a station at which the participant was supposed to get down on the ground, fire a paintball at a target attached to a tree and then move on to the next station. Ahmad decreed that everyone had to run the obstacle course at least three times. Ahmad initially said cell phones were not to be used, but this rule was not enforced.
[25] Shaikh described that during the camp, there were three formal “halaqahs” or gatherings. The first consisted of an audio presentation entitled Constants on the Path of Jihad on Ahmad’s computer. Ahmad said, “listen to this stuff, you need to know, you need to listen”. This presentation advised that fighting was a religious obligation and that it was not necessary to engage in religious study prior to fighting. The speaker counselled to resist the temptation to peacefully co-exist with disbelievers and indicated that there was an obligation to slay disbelievers wherever they were found. In cross-examination, Shaikh agreed that the tone was monotonous and some listeners fell asleep. Further, there was no discussion of the presentation and the message was not specific to Canada. Ahmad also played a CD depicting atrocities in Iraq, which Ahmad claimed to have filmed himself.
[26] Shaikh testified that he was not aware in advance that any firearm would be brought to the camp. At Ahmad’s request, Shaikh purchased 250 rounds of ammunition for a handgun in Ahmad’s possession. Ahmad also had additional rounds.
[27] Shaikh acknowledged that in a telephone report to his handler during the camp he denied that anyone had a weapon. In his first debriefing after the camp on December 31, Shaikh volunteered that there was a handgun at the camp. Shaikh indicated that he took custody of the handgun while at the camp given his role as instructor. He was concerned that Amara’s previous careless handling of the loaded handgun suggested a safety concern if Amara or Ahmad retained the gun.
[28] In April 2006, prior to any arrests, the R.C.M.P. conducted a covert search of Amara’s residence and recovered from his computer a video of the Washago Camp. The video included a segment in which Shaikh provided instruction regarding the handling of the handgun. The video also showed various individuals firing the handgun.
[29] Shaikh testified that during the paintball exercises Ahmad made combat-related references, including that the area was like a battlefield in Chechnya. Shaikh described N.Y. as being in good shape, very enthusiastic and obedient. Ahmad remarked that they were eating simple foods and living under conditions similar to the mujahideen in Chechnya. Shaikh was assigned a role as a sniper to shoot at participants trying to capture a flag during paintball exercises.
[30] Ahmad and Amara told Shaikh that they intended to videotape the camp for the purpose of showing leaders in Afghanistan and select Imams believed to be sympathetic to the cause. Shaikh testified that there was no effort to conceal the videotaping that was taking place at the camp.
[31] Ahmad had himself made up a black banner with white lettering, which was described as a statement of faith in Islam. Shaikh and Durrani posed at either side of the banner. Shaikh also described a portion of the videotape as choreographed, showing a number of men in “arrowhead” formation, one carrying the banner at the top of a ledge with the cameraman below. Shaikh testified that Ahmad stated openly that people were going to be shown the tape and that members of the group were going to be pioneers or leaders. Shaikh could not say exactly who was present when these statements were made.
[32] On a daily basis, the camp attendees went to Tim Horton's dressed in fatigues for drinks, food and washroom breaks. Shaikh periodically called his handler on a pay phone during trips into town.
[33] During the camp, Amara explained to Shaikh that there were people overseas learning to make “chocolate”, a euphemism for explosives, who would be returning to instruct the group on how to make explosives. One person was “Green”, who both Amara and Ahmad had met. They described him as someone higher up in the echelon who had done planning and surveillance on targets.
[34] Shaikh testified that the second halaqah, in part captured on videotape, consisted of a speech by Ahmad made near the end of the camp. It was late afternoon and raining. Ahmad was under the tarp and the entire group was gathered.
[35] Ahmad’s speech was interspersed with a number of Arabic words. For the most part, they consisted of common expressions meaning “God is great” or “God willing”. At the request of the defence, the videotape was initially played without a transcript being provided. I had little difficulty following what was said. To an English speaker, the meaning is clear notwithstanding the Arabic words.
[36] Ahmad’s speech included the following:
Well we’re here to kick it off man. We’re here to get the rewards of everybody that’s gonna come after us * God willing * if we don’t a victory * God
willing * our kids will get it. If not them, they’re kids will get it, (drilling sound heard) 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 *. It’s coming. When it’s gonna come doesn’t matter man, this is our path we stick to it no matter what the trials are. We’re all gonna need help, we all gotta help each other through, through it, through the trials small or big but there are trials. *The devil * is with us every step of the way, when you go back as the brother said * the devil * is waiting at the lobby man.
[…]
But you know what your minds gotta be on this place. Your minds and your hearts have to be here. You go back, you’re living with society and you have to put on that face, you know what, we’re 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.
Amara: _____ and blondie.
(Amara heard laughing)
____ and blondie man, you guys better remember that.
[…]
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 it’s like enroll in school and be patient and this and that but at the end of day, but especially the young guys…I don’t how, how involved we’ll be able to get you guys again and again and how often but this is the hearts. This is where the hearts are okay…and some people ____ said…
…they’re hearts, it’s like their bodies were with us but their hearts were with * heaven * and the people of * heaven *. 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 *favors * 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 that’s given the Covenant for us to be a part of this, who are not here but * God willing * they are here with their hearts, alright. So you go back * God willing * remember, doesn’t matter what trials you face (sighing heard in background) it doesn’t matter what comes your way. Our mission’s greater, whether we get arrested, whether we killed, we get tortured, our mission’s greater than just individuals. It’s not about you or I or this Amir or that Amir, it’s not about that. It’s about the fact that this has to get done. Rome has to be defeated. And we have to be the one’s that do it, no holding back, whether it’s one man that survives, you have to do it. This is what the Covenant’s all about, you have to do it. And * God willing * we will do it. * God willing * we will get the victory.
And how long we get it, it’s not up to us. It’s, it’s all in the hands of Allah. We make * prayers * that we are the one’s that get the victory. That we are the one’s that raise those banners and we say you know what * House of Islam * right here.
What…who’s gonna say anything about it. We destroyed your armies, you got nothing. We broke your knees. Rome, Rome, you guys realize who you’re messing with. This is Rome. This is the one empire that’s never been defeated. It always sensed defeats in different battles here and there, lost this and that. But you know what for ____, this empire has never been defeated. It’s like a friggin’ monster man. You cut off one hand, another one 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 to 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. Saying * there is no God except God * and making *exclaiming God is Great *…* God is Great *
(In unison
* God is Great *.)
Making * exclaiming God is Great *. And it puts fright in their hearts man, it freaks them out. Imagine we’re walking the streets of downtown or even Washington or you’re 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 don’t get involved from the first step and you guys haven’t been to involved for whatever reason but for the one’s that have been, man we’ve seen the help of Allah. Small or big, we’ve seen the help of Allah.
[…]
And we’ve seen the help and it will come in bigger and from different forms. It’s 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. This is our life’s mission and Allah ___ has already purchased us, lives and our wealth in exchange for * heaven *. He’s already purchased it. We are fulfilling that, living it, alright.
[Words within asterisks are translated from Arabic. A solid line indicates an unintelligible word, phrase or sentence.]
[37] Shaikh testified that the attendees formed a semi-circle around Ahmad. Amara filmed from the back, so the attendees were between him and Ahmad. Shaikh testified that Ahmad’s presentation was forceful, and that he spoke loudly, which led Shaikh to believe that people could hear and were paying attention. Shaikh said he would be surprised if the young persons understood Ahmad’s allusion to the fall of Rome.
[38] In examination in-chief, Shaikh testified the video did not reflect Ahmad’s entire speech. Earlier in the speech, Ahmad said, “We’re not officially Al-Qaeda but we share their principles and methods”.
[39] Shaikh explained that the reference to “blondie” alluded to an earlier conversation concerning “shotgun blondie”. The colloquial use of the word “shotgun”, to make a claim on the front passenger seat in a vehicle, was used by Ahmad to refer to a first claim on “blondie”. Put simply, Ahmad was staking a first claim to sexually assault blonde disbelievers.
[40] In cross-examination, Shaikh also referred to the speech as part of a “bait and switch”. The bait being to attend a religious camp, and the switch being the speech, which Shaikh described as “the forceful production of all that stuff that was in the back, the real purpose behind it was just laid out”.
[41] The video also showed Shaikh providing instruction to men in camouflage clothing, faces masked, shooting the handgun from various stances. Shaikh testified most, if not all, were present for this session. Some expressed they did not want their faces visible in the video. While it was cold, masks were not typically worn, but were put on for the purpose of videotaping.
[42] The third halaqah was, at Ahmad’s request, presented by Shaikh a few hours after. Ahmad encouraged Shaikh to hype everyone up and make them zealous. Shaikh did not want to incite the group, so he presented what he described as a “behavioural event-style interview” in which he asked the participants, “What brought you here? What did you learn? What are you going to take back?, and what are you going to do with it?” Durrani responded he would help recruit people and Ansari said he would lend his computer expertise.
[43] In cross-examination, Shaikh acknowledged that he did refer to the oppression of Muslims in places like Chechnya, Afghanistan and Iraq. Shaikh also agreed that his speech in a sense moderated what Ahmad had said and shifted the focus to conflicts abroad.
[44] During the camp, Ahmad, Amara, Chand and Shaikh met to discuss and evaluate the attendees. N.Y. was the best of the young persons. Ahmad was impressed by N.Y.
[45] Shaikh said he repeatedly advised N.Y. to seek knowledge regarding Islam and encouraged him to return to his parents’ home. In contrast, Ahmad encouraged N.Y. to stay away from his parents and was resistant to anyone seeking knowledge. Ahmad gave the example of a convert who was sent off by the Prophet to fight before he learned how to pray. This example is also part of the Constants on the Path of Jihad lecture.
[46] At the end of the camp, a group, including N.Y., formed a line and combed the area to pick up shell casings and other debris. On December 30, 2005, N.Y. left the Washago Camp with Amara. Approximately one hour later, Shaikh left with Ahmad, Durrani, Chand and S.M.
[47] In cross-examination, Shaikh agreed that the attendees at the camp were not to be told the true purpose of the camp, and that the four leaders made a conscious and deliberate attempt to not let the “kids” know what the camp was about. At the camp, Ahmad told the young persons not to tell their parents about the more “nefarious” parts of what they had seen and heard at the camp.
[48] There was no combat theme expressed during the marches that Shaikh led at the camp. Shaikh explained that paintball was a popular recreational game and wearing camouflage clothing protected your regular clothes from paint splatters. During the paintball games, Ahmad talked about pretending to be resistance fighters in Chechnya, but there was no talk of attacking Canadian targets.
[49] Shaikh also agreed with the suggestion that while Ahmad and Amara were cleaning up at the end of the camp so no one would know they were there, the “kids” were told to clean up to protect the environment.
[50] Ahmad and Amara gave the instruction that faces be covered during the videotaping. Since firing an illegal handgun was criminal, Shaikh agreed it was not surprising that they wanted to hide the identity of the shooters. The “kids” were not told that the video was for recruitment and promotional purposes.
[51] In cross-examination, Shaikh referred to Ahmad’s statement, “We’re not officially Al-Qaeda but share their principles and methods”, but said he did not know who was present when this comment was made. Shaikh was not specifically directed to the fact that this was inconsistent with his evidence in-chief that the Al-Qaeda reference was part of Ahmad’s speech when all were present although not captured on the videotape.
[52] In re-examination, I permitted the Crown to put to Shaikh prior inconsistent statements which clearly stated that the Al-Qaeda reference was part of the presentation that was videotaped. I also granted Mr. Chernovsky’s request to ask additional questions on this point because he had not explored the inconsistency or given Shaikh an opportunity to comment on it in cross-examination. I believed it in the best interests of justice to permit this further questioning. In response to further questions by Mr. Chernovsky, Shaikh thought he may have superimposed his memory of the Al-Qaeda reference on to the videotaped speech. Shaikh stood by his evidence that this explicit reference to Al-Qaeda was made, and that he was shocked by it at the time.
[53] In cross-examination, Shaikh testified that Ahmad said to some of the young people, referring to the camp, “keep this quiet, don’t tell people, don’t be talking about it”.
[54] A December 30, 2005 intercept of a call from Dirie, at the time incarcerated for importing loaded handguns, included Dirie inquiring about the camp and being told by Ahmad his seat was prepared for when he got out. In coded language, Dirie inquired about the shooting of the black handgun at the camp.
[55] After returning from the Washago Camp the R.C.M.P. videotaped the interior of Amara’s vehicle. The following note was visible:
Dealing with new recruits
• Do not tell them anything – just give them jihadi da’wah
• Give false name
• Keep them on down low
(d) January 1, 2006 to February 2, 2006
[56] A January 4, 2006 intercept of a call to Ahmad from James in Pakistan included James discussing coming home. Ahmad told him, “You just stay put and you will be secured”. James said, “I’m dying over here”, but appeared prepared to accept Ahmad’s direction.
[57] Shaikh testified that in January, Ahmad was anxious to see the video of the camp activities. Ahmad advised him that Amara, who did the taping, had given it to Ansari for editing.
[58] In a January 21, 2006 intercept Dirie told Ahmad, in what I conclude was coded language, that he had met two men in prison who could supply guns. The tenor of the conversation is that Dirie is respectful to Ahmad and eager to re-unite with his group.
[59] A January 23, 2006 intercept of a call from Ahmad to Shaikh included reference to a surveillance camera Ahmad found in an exit sign in his apartment hallway. Shaikh testified that Ahmad told him that N.Y. had removed the surveillance camera from the sign. A further intercept that day captured Shaikh and Ahmad discussing the amount for which the camera might be sold. The subtext was that Shaikh was trying to persuade Ahmad he had a buyer for the camera so that he could obtain it and hand it over to the R.C.M.P. In a third intercept that day, Ahmad said he noticed a hole in an emergency sign and wondered what it was, leading him to discover the camera.
[60] In a further January 23, 2006 intercept, Ahmad and Amara discussed the camera in the exit sign, and Ahmad stated, “like some brother, he took down the whole thing”. Amara then asked if N.Y. (referred to as Abu Sabr) was “getting stuff too”. Ahmad responded that N.Y. had shoplifted six walkie-talkies that work up to 16 kilometres away and could be charged in a car. Ahmad described N.Y. as being addicted to shoplifting and having a “mission” to steal 16 walkie-talkies, batteries, DVDs and an MD player. Ahmad quoted N.Y. as justifying shoplifting on the basis that it took away tax from the government.
[61] Shaikh initially expressed uncertainty as to which member of the group was known as Abu Sabr. After being shown a December 2005 Source Debriefing Report, he testified Abu Sabr was N.Y. He explained his earlier uncertainty by saying N.Y. was originally known as Abu Sabr before being renamed Abidullah. After viewing a video of the Rockwood Camp, discussed below, Shaikh said N.Y. was addressed in the video by the name Abu Sabr. I accept that Abu Sabr was N.Y.
[62] On January 27, 2006, Ahmad gave Shaikh the surveillance camera. The following day, Ahmad agreed that Shaikh should sell the security camera to his contact. In fact, Shaikh provided the camera to the R.C.M.P.
[63] Shaikh testified that on January 31, 2006, Ahamd and Amara discussed holding another training camp and that at one time it had been planned for mid-February. N.Y. was to be invited.
[64] Intercepts on January 31 and February 2, 2006 included Amara telling Ahmad that he was under surveillance and that his phone was being tapped.
(e) Canadian Tire Shoplifting
[65] A statement of agreed facts set out that on February 2, 2006, N.Y. and S.M. were arrested for shoplifting at a Canadian Tire store. N.Y. concealed and left the store with camping utensils, an LED clip light, an axe and an 18-inch machete. S.M. was the lookout.
[66] An intercept on the evening of February 2, 2006 recorded S.M. calling Ahmad to discuss the arrests. S.M. said a lady was watching them from the start and that he told N.Y. they should just pay for the stuff. Ahmad agreed they should have paid. Ahmad also made a statement to the effect he had also told N.Y., “don’t do it” and, “it’s not even worth it”.
(f) Opasatika Trip - February 3-5, 2006
[67] Shaikh testified that on or about January 12, 2006, Amara discussed buying property at Opasatika in Northern Ontario. In subsequent discussions, Ahmad and/or Amara indicated the property could be used as a hideout for their group, for training or for U.S. terrorists planning an attack in Atlanta. On January 31, 2006, Shaikh and Ahmad met Amara at Lake Aquitaine in Mississauga. Amara and Ahmad discussed their desire to purchase a property in the name of someone with a non-Muslim sounding name.
[68] Shaikh drove Ahmad, Chand and Durrani to Opasatika, which is an approximately 11 hour drive north of Toronto near Kapuskasing. An audio probe in the vehicle captured the discussion. On the way to Opasatika Ahmad talked about N.Y. and S.M. having been arrested for shoplifting at Canadian Tire. Ahmad stated that “they were going and stealing stuff for me, for whatever I wanna do.” At Opasatika they discussed the fact that the house they came to see was spacious and backed on a forest, but was generally unsuitable for weapons training or as a safe house, given its location on a main road close to neighbours.
[69] On the return trip Durrani asked, “what happens at the Parliament” and Ahmad answered, “We go and kill everybody”. Shaikh testified that Ahmad called this plan to storm Parliament and take politicians hostage Operation Badr. If demands to withdraw Canadian troops from Afghanistan and to release Muslims from prisons were not met, hostages would be beheaded. In cross-examination, Shaikh described Ahmad as appearing serious while making statements about attacking Parliament and beheading hostages. Shaikh agreed that N.Y. never displayed a violent disposition or intention.
[70] Upon their return Ahmad and Shaikh reported to Amara. A February 5, 2006 intercept recorded that Amara suggested twice that if the neighbours were too close they could be killed. Shaikh testified that this stuck in his mind because of Amara’s casual tone. They discussed illegal means to obtain funds and Chand’s ability to help. Ahmad said he had made a $4,000 deposit on a shipment of guns, but was unable to pay the balance. Amara asked if the February training was scrapped.
(g) The Bomb Conspiracy - February 5 to May 2006
[71] The following facts concerning the bomb conspiracy were admitted.
[72] On February 5, 2006, Amara met Ahmad with Shaikh present. Amara told Ahmad that he had just built the “first radio frequency remote control detonator”. He said the problem was it only had a range of 30 feet, “which is not good”. Ahmad replied, “30 feet away? So you have to get blown up? Might as well sit in the car”. Amara assured Ahmad that “it’s a step forward”. Ahmad told Amara that if they could use it from 300 metres, “then we’ll do it”. Ahmad asked Amara if it “detonated for sure”, and Amara replied that it did. Ahmad said that when the bomb went off on Front Street, innocent people would be killed and that would be “too bad for them.”
[73] Unsatisfied with the limited remote control switch he had shown Ahmad, Amara planned to construct a more sophisticated detonator. He also began looking for ways to acquire the necessary chemicals required to build a bomb. In March 2006, Amara in fact ordered three Mobile GSM phone kits (“the MK160 switch”) from a company in Texas. The understanding was that these devices could be used to remotely trigger a bomb from a much broader range.
[74] Shortly after ordering the MK160 switches, Amara visited the Meadowvale Public Library in Mississauga in late March and early April 2006 and conducted internet searches on:
• “ammonium nitrate turf fertilizer”
• “turf fertilizer explosive”
• “ways of getting ammonium nitrate”
• “ammonium nitrate in agriculture”
• “search for fuel tablets”
• “Al-Qaeda tube bomb plot article link”
• “student farmers”
[75] On May 3, 2006, investigators, pursuant to a warrant, conducted a covert search of Amara’s residence. They observed an instruction manual and diagrams on how to mix chemicals, an MK-160 circuit board, a black box and a battery pack. Investigators also discovered a video which depicted Amara triggering the remote-controlled detonator with the use of a cell-phone in his residence using the materials which had been observed during the covert search.
[76] Both the style of detonator itself and the materials mentioned in the manual, some of which were the subject matter of Amara’s library research, are characteristic of the composition and the constituent parts of improvised explosive devices. In particular, ammonium nitrate mixed with fuel oil may be used to mix “ANFO”, an acronym derived from ammonium nitrate and fuel oil, an explosive that can be used in home made bombs.
(h) February 6, 2006 to March 2, 2006
[77] An intercept on February 6, 2006 captured Dirie calling Ahmad from Collins Bay Penitentiary. Ahmad inquired about Dirie’s “links for the wives”. It took Dirie a few minutes to recognize that Ahmad was alluding to their earlier discussion, and that “wives” was code for guns. Dirie said he had the number, referring to a link to obtain guns.
[78] On February 21, 2006, Ahmad spoke to Shaikh about stepping up the time frame for the assault on Parliament, from years to months. He also talked about attacking an armoury to get weapons. Shaikh tried to dissuade him by pointing out how fortified an armoury would be.
[79] In an intercept on February 27, 2006, Ahmad told Chand and Shaikh that his main mission was to get weapons and that he wanted to hold another training camp. Chand suggested that Islam did not permit a person who had accepted citizenship or other official status in Canada to commit crimes in Canada and that to get around this it was necessary to leave Canada and re-enter without official authorization. Ahmad responded that the Canadian government spied on its own citizens and this repudiated any implicit covenant not to commit crimes in Canada.
[80] Ahmad continued that the laws of Islam applied before any other laws and that national borders were drawn by non-believers. As such, if Muslims were attacked anywhere in the world the attackers would be subject to attack wherever they were found. Ahmad qualified this, saying while one should not kill a person for simply walking down the street, one would be permitted to kill someone for making an overt display of support for the attackers, such as by indicating support for Israel.
[81] Ahmad also said he felt like killing Mufti Waheedullah (“Waheedullah”), who Shaikh described as an Islamic scholar well known in the Muslim community. Shaikh said that Waheedullah was trying to upset Ahmad’s recruitment plans, and that he had visited Durrani’s wife and Ahmad’s father-in-law and told them Ahmad was a “deviant”. Shaikh described Ahmad as hating Waheedullah. Ahmad stated Waheedullah probably worked for C.S.I.S. Ahmad talked about putting some sort of listening device in Waheedullah’s office to see if he was working for C.S.I.S.
[82] In an intercept on March 2, 2006, N.Y. asked Ahmad if Nivea cream was “halal”, meaning permissible or in accord with Islamic principles.
(i) Discussion of Fraudulent Schemes - March 3-5, 2006
[83] In an intercept on March 3, 2006, Chand introduced his friend Talib to Ahmad and Shaikh. Talib described in considerable detail fraudulent schemes he utilized to defraud banks. The first involved obtaining a person’s financial profile information and using that to obtain identification documents. The profile would be purchased from a credit agency or bank employee who would print the profile in the ordinary course of employment, but make a copy for Talib. A “striker”, often addicted to cocaine, was then hired to use the false identification to get a loan of $10-25,000. Talib stated that only three or four of fifty strikers that he had used had been caught.
[84] Talib described another more sophisticated fraud, which he dubbed “creations”, in which he effectively invented a person by using the SIN number of someone who had died or left Canada. Talib said he would then obtain other identification and credit cards and use them over time to build a credit rating. He would then use a striker to apply for a mortgage or large loan.
[85] Ahmad told Talib that “whatever you want in jihad is basically the view of Al-Qaeda” and that “it’s a global fight. It’s not just a specific country and a specific battlefield”. Later he stated that “there’s an obligation to attack the near enemy”, and then noted that “soldiers that are training in their military bases here are gonna go to Afghanistan and fight there”. Shortly after that, Ahmad added, “these same soldiers are fighting you there, so why can’t you attack them here?” Ahmad stated that to age 10, he lived in Afghanistan. Ahmad told Talib, “…you wanna be on the sidelines or you wanna be on the frontlines. Sideliners get no rewards and they still die.” Ahmad also stated that “our thing” was on a much larger scale than the London subway bombing that killed 10 people.
[86] In a March 5, 2006 intercept, Chand told Ahmad that Talib had to be approached on a business basis, that Talib would not respond to emotional or religious appeals and that Talib would not give a dollar if he knew that civilians were going to be hurt. Chand suggested that they should all carry concealed weapons or at least have access to them. As recorded in the transcript of the intercept, Ahmad replied, “Well not everybody, actually for example, it doesn’t make sense for ___ to be carrying a weapon.” In cross-examination, Shaikh agreed that the indecipherable word in this passage was “Abidullah”, another name given to N.Y. Ahmad also said to Chand, “I know you might not be too down with the beheadings but it’s terror, it strikes in their hearts”.
(j) March 6 to May 19, 2006
[87] Shaikh testified that on March 10, 2006, he heard a snippet of a conversation between N.Y. and Ahmad in which one of them uttered the words “surveillance camera”. In cross-examination, Shaikh agreed he had no means of knowing to what they were referring.
[88] On the same day, Shaikh provided the R.C.M.P. with a CD from Ahmad, which included Osama Bin Laden extolling the “martyrs of the encounters”. Disbelievers, most notably President Bush, were shown followed by footage of the September 11 terrorist attacks. Osama Bin Laden urged individuals to come forward to kill the Jews and the Americans “for killing them is foremost of obligations and the greatest form of worship”. He added that there was no need to consult anyone for religious guidance before killing Americans.
[89] On March 11, 2006, Chand and Shaikh happened to meet Ahmad, Durrani, his younger brother and S.M., and they went to a restaurant. Later they were joined by Z.M., N.Y. and another youth. Everybody gathered around a table and Ahmad played a CD depicting decapitations and dismemberments, which he described as atrocities committed in Afghanistan by Christian soldiers. Shaikh believed the unidentified youth to be an Afghani to whom Ahmad was making a pitch. Ahmad provided a commentary. Shaikh testified this was Ahmad’s standard approach to attempting to recruit disaffected Muslim youth. Shaikh warned Ahmad he should be careful when displaying this material. Ahmad bragged that he handed out these CDs at the mosque. Shaikh agreed in cross-examination that while N.Y. watched and listened to Ahmad’s provocative narrative, he, like the others, did not show any reaction.
[90] On March 22, 2006, Ahmad and Chand discussed a house with a rat problem and considered whether it was permissible to kill rats and spiders.
[91] Shaikh testified that on March 24, 2006, he was with N.Y., and they were planning to meet Ahmad. N.Y. asked Shaikh if he knew Waheedullah. N.Y. told Shaikh to watch out for him, and that he knew too much. In cross-examination, Shaikh agreed that whatever precise words N.Y. used, it was one sentence that suggested Shaikh not associate with Waheedullah. Shaikh also agreed that many Muslims were concerned about C.S.I.S.
[92] Shaikh testified he told N.Y. to be careful about what he said in public. N.Y. acknowledged that he had been talking about the Washago Camp, but agreed to be more low-key in the future. In cross-examination, Shaikh agreed he told N.Y. to keep his mouth shut about the camp and be discreet.
[93] A March 24, 2006 intercept recorded N.Y. asking about how foreign fighters got to places like Iraq. N.Y. questioned whether a person could go to India, then to Pakistan and on from there. Shaikh pointed out that contacts were needed and in a mocking or sarcastic tone suggested that N.Y. could not just present himself in a foreign land declare his purpose.
[94] Shaikh testified that N.Y. expressed “desire and interest to go for jihad in Iraq”, although this was not stated explicitly in the intercept. In cross-examination, Shaikh said this was the only time he heard N.Y. say he planned to do something about the suffering of fellow Muslims.
[95] A March 28, 2006 intercept recorded Amara calling and asking Ahmad’s wife to tell him “that [Amara] and everybody in Mississauga, we just quit everything …” Shaikh testified that Amara believed that Ahmad’s phone was tapped, and that this was a ruse to deceive C.S.I.S. while Amara proceeded with his own plans.
[96] During March, Ahmad made a number of unsuccessful attempts to get a copy of the Washago Camp video from Amara or Ansari. By March 30, 2006, Shaikh had concluded that there was no such video. By then, the Ahmad-Amara relationship was quite strained. Amara stated he believed Ahmad was exaggerating and lying, and he wondered where the money had been spent.
[97] In an April 2, 2006 intercept, Z.M. referred to a CD about making bombs and chemical weapons. Ahmad stated that he already had the CD and so “I don’t give a damn about three guys dropping out.” Shaikh testified this referred to Amara, Ansari and Jamal.
[98] On April 5, 2006, N.Y. pleaded guilty to shoplifting bandages and condoms from a Zellers store on March 28, 2006.
[99] Shaikh testified that by April 14, 2006, Chand was no longer part of the group.
[100] In an April 25, 2006 intercept, Shaikh read to Ahmad from a Toronto Star article about the F.B.I. arresting two Georgia men on terrorist charges. The article referred to the men as having been in Toronto to meet with at least three Islamic extremists. Ahmad responded, saying he was “very, very, very tight” with one of the men arrested, and that the two men had stayed at his home for two weeks. Ahmad expressed concern, saying, “I know jail time is so close” and “my days are numbered.” As a result, Ahmad said he wanted to go “fully all out” with the “mission”.
[101] Shaikh questioned Ahmad about how much the Georgia men knew. Ahmad replied that they did not know specific plans. The conversation continued:
MS: Who knows about our plans here?
FA: Just from us.
MS: The guy’s who went up. Any of these other smaller guys know?
FA: The[sic] don’t know plans they just know we were gonna do something here.
MS: They don’t have specifics though? ____.
FA: These guys that went up don’t have specifics.
MS: Nope.
FA: You think I’d trust Abdul Qayyum enough to give him specifics, screw him.
[102] Ahmad then discussed building a crude bomb with fuel, broken glass, nails and ball bearings.
[103] Shaikh testified that over the course of his dealings with Ahmad, he gave him gifts and was respectful and deferential in order to gain his confidence. The relationship, however, started to deteriorate after the Opasatika trip. When their relationship was deteriorating, to try to gain Ahmad’s confidence, Shaikh for the first time took the initiative to suggest that he knew people who could rob a store. Ahmad wanted Shaikh to be more vocal in expressing what Shaikh characterized as criminal extremist rhetoric. When he did not, Ahmad became testy or distanced.
[104] While Shaikh was told Ahmad had planned a second camp, he was not told of the actual scheduling of the Rockwood Camp, nor was he invited to attend.
[105] Ahmad claimed that Green had done some surveillance, noting the time politicians arrived and left, and the types of weapons available to guards on, Parliament Hill. The intent was to confuse emergency services by detonating a car bomb or otherwise diverting attention from Parliament Hill. Shaikh described Ahmad as delivering an admonition as to what the group was going to do as opposed to a consultation as to what it should do.
(k) Rockwood Camp – May 20 – 22, 2006
[106] Sahl Syed, a 21-year-old University of Toronto student who lives in Scarborough, testified. He was a classmate of Z.M., and also knew N.Y. and Durrani from high school. He had a casual acquaintance with Ahmad for about two weeks prior to the Rockwood Camp.
[107] Z.M. originally invited Syed to participate in a “jamaat”, which involves sleeping over at the mosque. On the morning of Saturday, May 20, 2006, Syed was told that the plans had changed and they were going camping instead. Durrani obtained a rental van and drove nine to eleven men, including Syed and N.Y., to the camp.
[108] On the way to Rockwood, Ahmad discussed politics and said that the situation of Muslims around the world was dire, that the war in Iraq was unjust and that Muslims in privileged parts of the world had an obligation to “appease” this situation. Ahmad introduced Syed as someone with military training, having served in the reserves.
[109] Upon arrival, Ahmad handed out military fatigues to everyone. There were recreational activities like hiking and boating, as well as marching. Everyone marched at night for two to three hours in silence. Durrani as the leader, and Ahmad at the end of the line of men, marched holding 18 inch knives. Syed understood that Ahmad wanted them to imitate a covert operation. Ahmad demonstrated tucks and rolls and taunted individuals who were not capable of performing them. Ahmad also discussed politics around the fire.
[110] On Sunday, four men left and two more men arrived with Durrani. Sunday afternoon was recreational, with some men using the inflatable boats. Syed and Ahmad went hiking. They sat around a fire talking for three to four hours about general topics. Ahmad and Durrani spelled out their grievances with the United States and their belief in the obligation of Muslims to help out Muslims abroad. They referred to specific attacks by the United States against Iraqi civilians and said that the wrath of God would go upon people who committed injustice.
[111] Syed identified a video of the Rockwood Camp that was seized from Ahmad’s home after his arrest. Syed knew that Z.M. was taping activities at the camp. At one point, the video depicted images of a group of people sitting cross-legged, with their faces masked. In front of them was a document they appeared to be reading. The large knives were laid out at the top and bottom of the document and a walkie-talkie was positioned nearby. Syed explained:
The video was created as a mock to imitate videos that you normally see abroad on CNN and CBC. It was supposed to look like a resistance group’s video that they release on the internet, and basically Fahim was trying to imitate such a scenario. And I --- I think that they were supposed to put nasheeds as a background. Nasheed means like music.
[112] Ahmad spoke to Syed about videos that he might show him and expressed surprise that Syed did not know the speaker featured in one video. Ahmad then said, “You must know Osama Bin Laden at least?”
[113] On the video, N.Y. was addressed as Abu Sabr. The video depicted Durrani putting Ahmad on his shoulders and attempting to cross a creek. Durrani, standing in front of the creek, said, “Just so that you guys know, most 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, that’s most likely going to be…lot of our missions going to be with water.” Syed and N.Y. were seen in the area just before Durrani said this. Following this statement, they crossed the creek.
[114] Syed learned that Ahmad had been arrested when S.M. came to his house and asked him to conceal a set of tapes. As a result, Syed approached an R.C.M.P. officer and about a week later was formally interviewed by the R.C.M.P. Syed’s lawyer was present at the interview.
[115] At the conclusion of the examination in-chief, the Crown was permitted to show Syed a transcript of his statement with a view to refreshing his memory. After reading his prior statement, Syed said that on the drive to the camp, Ahmad was being “really assertive about politics” and saying that he felt personally responsible and that he needed to do something about the problems in the world.
[116] The Crown was also permitted to cross-examine Syed as to certain inconsistencies between his evidence and a transcript of his original statement to the police in June 2006. Syed also agreed that the following excerpt of his June 12, 2006 statement to the police was correct:
…well yeah well they were saying that…well Fahim was saying that, you know I’d like to go to Somalia. Amin was saying uh that yeah he’d like to do the same thing. Uh yeah Zakir, yeah Zakir he’s the one, he said that he’d like to go to Kashmir and uh fight over there against the Indians. Um, uh [N.Y.] was saying the same thing. Um he was saying that he would like to go to Sri Lanka because he’s from Sri Lanka...
[117] Syed also agreed that the following was factually correct:
Fahim, uh Zakir was also talking. Uh Zakir’s a very quiet guy but yeah he was talking. Um [N.Y.] was talking too. Uh they were basically saying that they need to prepare for jihad and they need to go out and uh, uh what do you call, alleviate the ____ the pressures, um that Muslims are facing.
[118] After agreeing that this was factually correct, Syed went on to say that he did not hear N.Y. saying he wanted to prepare for jihad – that it was Ahmad who said he wanted to prepare for jihad. Syed testified that in this context, jihad did not necessarily mean “to fight”. It could also mean to “lawfully resist”.
[119] Syed adopted his original statement that on the drive to the camp, he was told “that they were dismayed with the position of Muslims in the world and they felt they needed to change something about that because Muslims are being murdered all throughout the world because of America” and “that it’s important to change that and they said they required my help because I’m in the military.” Ahmad said that Syed was going to help them with some military training. Syed also agreed that he did not refuse anything or disagree because he was outnumbered.
[120] In cross-examination by Mr. Chernovsky, Syed testified that he had been in the military reserves for about a year at the time of the Rockwood Camp. He was only a casual acquaintance of Z.M. and Durrani. N.Y. was also a casual acquaintance who never expressed any radical or violent views to him.
[121] Syed agreed that the mood of the camp was casual and that 95 per cent of the activities did not resemble military training. Further, Syed said that in the car, Ahmad did not use the word “training”, but simply said that Syed was in shape and he was going to get them in shape and teach them some tricks. Syed did not recall any combat rhetoric while marching or participating in other activities. Syed also agreed that Ahmad had spoken highly of Canada in the sense of it being a good place to live and the people being privileged with a responsibility to help others.
[122] Syed also agreed that in the discussion of going overseas to various countries, there were no specific plans in terms of when they would go or how they were going to do this. Ahmad made a statement that “[h]e would like to die in the path of God”. This meant fighting for Muslims to the point of death. There was no discussion of any Canadian military or civilian targets. Syed, referring to what he described as the mock mujahideen council, said, “the point of it was to look cool and tough.” No one explained why the videotaping was taking place.
[123] After returning from the camp, Syed spoke to a teacher who advised him he should go to C.S.I.S. Syed was pondering this advice when he learned of the arrests on June 3, 2006.
(l) Arrests and Statement of N.Y. to Police - June 3, 2006
[124] Sergeant Tost of the R.C.M.P. questioned N.Y. on June 3, 2006. Initial questions concerned his conversion to Islam and the influence of Ahmad:
JT: Somewhere along the line, someone corrupted your faith. Do you know what I mean by that? Your faith was pure if you want to become a Muslim. If you want to study Islam that’s pure. Someone’s corrupted that faith and has begun to try to draw you into something for the wrong reason. For a terrorist cause we believe. And I want you to explain how that happened. And why that happened because we need to hear it from you. I don’t think it should have happened and I think you’ve been set up by a person who’s very manipulative, who uses people, who talks a lot and does very little and gets other people to do his dirty work for him.
NY: Yeah. I wanna say something that, that the thing that I’m _____ I want to start off by saying that I chose Islam. Nobody forced me or anything like that.
(lines 638-648)
[ … ]
JT: We’re not saying he did all this. But we’re saying he started a great deal of it. And we also are saying ____…
NY: He could have, he could have, I’m not, I’m not, he could have started something but the thing about brain…you saying about manipulating and brainwashing I don’t think so.
JT: And I didn’t say brainwashing.
NY: Okay, manipulating meaning that in sense that like…
JT: _____.
NY: …forcing people in it.
JT: Well, well no I don’t think he forced anybody either but I think he’s a very…would you agree with me that he’s got, he’s got a good personality and he can get people to take up his cause. What I’m saying is that…
NY: Fahim really…
JT: …___.
NY: …but the people who follow him aren’t dumb either.
JT: No I agree with you.
NY: ___ I’m saying…one or two people were to follow him okay…but you know, like look at that ___ thirteen or fourteen people listening to him that’s not dumb.
(lines 669-696)
[ … ]
NY: From my thing, I think these guys were like, like religious people…
JT: Mmm-hmm.
NY: …who just want to practice you know their faith. And I don’t think they, I don’t think they were um, uh like you know planning to do something towards Canada or anything, you know what I’m saying.
JT: Okay let’s, lets, lets…
NY: But if you want to look at it…if you want to look at it because Fahim has a wife and two children…
(Unidentifiable sound heard)
JT: Mmm-hmm.
NY: …who are ___ very young. And if you want to look at um Suhaib, he’s a student, you know. He’s a student and he study and he has, he’s planning to become something right.
JT: Mmm-hmm.
NY: And Zakir is the same thing. These guys are very intelligent people. Why would he think that these guys would go and ruin their life by you know trying to um, to act, try to attack some uh you know, trying to attack here.
(lines 843-866)
[ … ]
JT: …what attracted you to Islam?
NY: No because I looked at, like….before I was like Christian and Hindu right.
JT: Mmm-hmm.
NY: So I had like, I had, I, I looked up both side of it right. But, but, you know when I, when I, when you know God guided me towards the right path it was unresistable you know. You can’t resist…truth.
JT: Mmm-hmm.
NY: It was like clear water.
JT: Mmm-hmm.
NY: You know what I’m saying. You…how can you reject truth? So I accepted it. That’s how simple it was ___ you know. Those brothers who, who are not even ___ this you know they you know they talked about me…about Islam…they gave me you know this, this, this and it made sense and it uhh…so I just continued.
(lines 910-928)
[125] Sergeant Tost then turned to the question of the use of violence:
JT: How do you mean?
NY: No, I’m just saying if you were to look in, in Islam, the history of Islam.
JT: Mmm-hmm.
NY: How the people who understand Islam directly from God you know what I’m saying…they’re the best people who understand Islam.
JT: Mmm-hmm.
NY: If you were to see their action, they weren’t all you know…they, they weren’t all you know uh what’s it called…(yawning)…uh, uh spread the message through uh, __ talking.
JT: Ah huh.
NY: You know. Sometimes they also delivered the sword.
(lines 1108-1124)
[126] N.Y. observed that Islamic scholars differed as to whether violence was permissible and that he believed it would be nice if things could be worked out peacefully. The questioning continued:
JT: Look are we…do you agree with me are we together in the fact both ___ I don’t believe that people should be able to use…I, I don’t like the idea of using violence to get what you want. Do you…are we both in agreement there? I just don’t think that, that’s something that…
NY: No. Actually…
JT: …any God…
NY: …I don’t know about that. But sometime you have, sometime you have to do violence to bring peace.
(lines 1190-1200)
[127] N.Y. went on to say that America would have been gone a long time ago if it tried to do everything by peace talks and that America was a country where people were living peacefully. N.Y. admitted shooting the black handgun at the Washago Camp.
[128] Sergeant Tost questioned N.Y. regarding the theft of walkie-talkie radios. Sergeant Tost initially asked about walkie-talkies at the December camp, and N.Y. said there were none. Sergeant Tost then asked about them more generally and there was the following exchange:
JT: Okay, what one…but you got ‘em later on. What did you find…what did you need ‘em for…or what did you get ‘em for? If you didn’t have them for this one then that’s fine, no big deal. But wha…what…first of all how many walkie talkie’s were there ever. You know how many, how many did the group ever get?
NY: What do you mean group?
JT: Well, Fahim and his friends whatever you wanna call ‘em. How many walkie talkie’s did you ever have at any one time?
NY: Like at this?
JT: Anytime.
(lines 1586-1598)
[129] N.Y. stated he stole one or two radios from Wal-Mart, on his own initiative, for the fun of it, because walkie-talkies are “wicked”. He used the radios to talk to S.M., and he noted he did not have a cell phone.
[130] Sergeant Tost questioned N.Y. concerning the theft from Canadian Tire. Sergeant Tost asked why N.Y. took the items, and he stated for fun, just like the walkie-talkies. Sergeant Tost noted that the police report relating to the Canadian Tire shoplifting on February 2, 2006 indicated that N.Y. told the police the items were for a camping trip and that he could not go to court in March because of his camping trip. N.Y. acknowledged making those statements but claimed he lied about a camping trip in order to delay the court proceeding to let his parents cool down. N.Y. said he did not think Ahmad was planning another camp. N.Y. also lied and said the last time he had gone on a camping trip with Ahmad was December 2005, when in fact he had been at the Rockwood Camp a few weeks previously.
[131] N.Y. stated that Ahmad did not work and read a lot of books by scholars of the past, so N.Y. said, “So I just go and learn from him”.
[132] Sergeant Tost then questioned N.Y. concerning his relationship with Ahmad. N.Y. stated that he had last seen Ahmad at his house three or four days before:
NY: How I un…how I see it, I been…I know Fahim you know…I, I know, I been like chilling with this guy for like a long time.
JT: I’m sorry?
NY: Like, like chilling meaning in the sense that I been like staying with him…
JT: Oh sure, sure.
NY: …I have a frien…a friendship with him for like a probably like six, seven month okay…
JT: Yeah.
NY: I know this man…when we went to the camping thing…(mumbling) before we even went to that camping thing our intention was that this was like a, this was like a ritual which was in our faith to do…
JT: Mmm-hmm.
NY: …you know. Just prepare, preparation.
(lines 2022-2049)
[133] Sergeant Tost then questioned N.Y. as to the camp activities:
JT: No. (Laughs) Alright. And ah you're sayin' paintball. Did you guys ever do any kinda drills where you jumped down and then fired the paintball shots see if you could hit a target something? That was one of the activities that we were told mighta gone on.
NY: Nope.
JT: You don't remember anything like that?
NY: I'm pretty sure we did not do that.
(lines 2360-2368)
[134] Sergeant Tost returned to the subject of walkie-talkies, and N.Y. repeated he stole them for fun, because they were “wicked” and because he did not have a cell phone. N.Y. initially said he stole two radios and gave one to S.M. Sergeant Tost then asked N.Y. to be straight with him if he had stolen other radios. N.Y. then said he had also stolen three sets (two radios per set) of a different, smaller radio and sold them to some friends for approximately $10 per set.
(m) Other Cross-Examination of Shaikh
[135] At the time of the Washago Camp, Shaikh was 30-years-old. He had taken courses at the University of Toronto, University of Waterloo and York University, although he did not graduate with a degree. He had worked as a mediator in family law disputes. His father is prominent in the Muslim community, and at one time, was a chaplain for the Toronto Police Service. Shaikh lived in Syria, where he undertook formal study of Islam at a university level. One reason for going to Syria was to learn Arabic, and Shaikh developed an intermediate competency in the language.
[136] From ages 13-19, Shaikh was in the army cadets, which involved attending two days a week, one weekend a month and during the summer months for military training, including firearms training.
[137] As a teenager, Shaikh took a number of drugs, including cocaine. He considered himself to be street smart and a devout Muslim. At the age of 19, Shaikh attended a four-month program in India and Pakistan, which resulted in him committing to Islamic principles and, therefore, no longer being involved with drugs or other activities incompatible with his faith.
[138] Shaikh testified that jihad has two meanings. The greater jihad involved inner contemplation and struggle and seeking a true and sincere faith. The lesser jihad related to solidarity with other Muslims who were under attack and the belief that a person has an obligation to help and defend them. Lesser jihad did not allow the killing of innocent civilians or destroying the property of non-combatants. Mujahideen was synonymous with lesser jihad.
[139] Shaikh testified there was a sense in the Muslim community, and outside that community, that the Soviet occupation of Afghanistan was wrong and immoral and that those who opposed the Soviets were freedom fighters. There was also a sense that it was hypocritical to call those who resisted the United States invasion of Iraq terrorists and not freedom fighters. Shaikh testified that he himself had wanted to fight in Chechnya and Afghanistan because of his perception that Islam was under attack in those countries.
[140] Shaikh agreed that in January-May 2006, if he saw N.Y., it was mainly peripheral to other contacts, and that conversations were generally routine. He also agreed that Ahmad preferred to discuss matters in Shaikh’s van because it was private and he had fears the mosque was wired.
[141] Shaikh agreed that Ahmad never, in his presence, discussed rape and torture by soldiers from the west with the “kids”. To Shaikh’s knowledge, Ahmad never gave the “kids” the explicit explanation that if someone (for example, the United States) attacked Muslims, it was permissible to attack them wherever they were found. Shaikh agreed that N.Y. and Z.M. were like “sheep”.
[142] Shaikh was not aware of Ahmad ever telling N.Y. or other young persons of the plans to attack in Canada. In contrast, at the Taj Banquet Hall, Ahmad told Shaikh about wanting to bomb power grids, C.S.I.S., the Canadian Broadcasting Corporation, the R.C.M.P. and the Pickering nuclear plant.
[143] Shaikh agreed that Ahmad could be described as grandiose, delusional, nuts and a world class exaggerator. He also said Ahmad played the role of a jihadi commander. Shaikh also agreed that Amara and his group split because Amara did not regard Ahmad as serious, capable or security-conscious. Shaikh also agreed that Ahmad was complex and contradictory. He was a devout Muslim, trustworthy, charismatic, charming, energetic and, despite his age, a father figure to persons only slightly younger.
[144] Ahmad told Shaikh that he planned to groom N.Y. to be a suicide bomber. Shaikh never heard Ahmad share this with N.Y. N.Y. never expressed any intention to be a suicide bomber nor did he have any disregard for human life.
[145] Shaikh testified that Ahmad described N.Y., Z.M. and S.M. as a procurement unit, justified in stealing from non-believers. Shaikh agreed with the suggestion that it was idiotic that Ahmad countenanced petty shoplifting and wearing fatigues into town, since it could have compromised the Washago Camp.
[146] Shaikh described N.Y. as quiet, pleasant, considerate, friendly and very respectful. N.Y. told him that his recent conversion to Islam had caused serious discord in his family and that he was not attending school. N.Y. had an extremely limited understanding of geopolitical events. N.Y., as a recent convert, was very eager to be accepted in his new religion and to be a good Muslim and to learn about the religion. Ahmad was the main person N.Y. looked to for guidance and instruction. Ahmad was his mentor. Shaikh never heard the concepts of greater and lesser jihad discussed with N.Y. N.Y. was fit, motivated and someone who would do whatever anyone else was doing or what he was told.
[147] Shaikh agreed that he did not hear Ahmad say, “hey Abidullah [N.Y.] we’re going to do this training for this purpose”. Shaikh went on to say, “it’s not lost on people who are there what the purpose was. I’ve seen them around each other all the time. They know what he is about.”
III THE LAW
(a) Elements of the Offence
[148] In R. v. Khawaja 2006 CanLII 63685 (ON S.C.), (2006), 214 C.C.C. (3d) 399 (Ont. S.C.J.), Justice Rutherford provided a concise and helpful summary of the historical context leading to the Anti-Terrorism Act as follows:
10. The provisions of Part II.1 the validity of some of which are under attack in this application are set out for convenience in a "Schedule A" following this ruling. These provisions of the Criminal Code were enacted as part of what was Bill C-36, An Act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities, in order to combat terrorism 2001, c. 41 ("the Anti-terrorism Act"), and came into force on December 24, 2001. Their enactment followed consideration in both chambers in Parliament, including by the House of Commons Standing Committee on Justice and Human Rights before which 109 witnesses testified, and by a Special Senate Committee struck to examine the Bill before which 65 witnesses testified.
11. Although the particular legislation appears to have been a response to Resolution 1373 of the United Nations Security Council on September 28, 2001 calling on member states to take steps to prevent and suppress terrorist acts in the wake of the terrorist attacks in New York, Washington D.C. and Pennsylvania earlier that month, it is clear that the legislation has a much broader history and context than just that. Resolution 1373 is set out in Schedule B following this ruling. One can see from its preambulatory recitals that the events of September 11 were part of an unfolding and escalating international problem. Nor was Bill C-36 a sudden epiphany in Canada of the need for anti-terrorist measures. Over several decades previous to 2001, Canada had become a signatory to no less than 12 international conventions dealing with what in essence is one form or another of terrorist action, a number of which are implemented in part by means of offense provisions domesticated through section 7 of the Criminal Code and referred to in the definition of "terrorist activity" in Part II.1. As well, the January 1999 Report of the Special Senate Committee on Security and Intelligence ["the Kelly Report"] traced the development of recent terrorist activity in the world and warned that Canada remained a "venue of opportunity" for terrorist groups and could not presume to be immune from terrorism.
12. Canada has had some of its own experience with acts of terrorism, including the Air India and Narita Airport bombings in which the preparatory acts appear to have been undertaken in Canada, and thus there is a developing context, both domestically and internationally, in which any consideration and evaluation of the legislation in question must be undertaken.
[149] In simplified terms, the s. 83.01(1)(b) definition of “terrorist activity” involves an act committed in or outside of Canada, for a political, religious or ideological purpose, with the intention of intimidating the public or a government, that intentionally causes death, serious bodily harm or various types of destruction. There is then an exception (the “armed conflict exception”), which provides that “terrorist activity”:
... does not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law.
[150] The s. 83.01 definition of “terrorist group” includes “an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity”.
[151] N.Y. is charged with committing an offence contrary to:
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.
[152] Section 83.18(2) provides that:
(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.
[153] Section 83.18(3) provides that participating in or contributing to an activity of a terrorist group includes receiving training and providing or offering to provide a skill or an expertise for the benefit of or at the direction of a terrorist group.
[154] Counsel agreed with the reasoning of Justice Rutherford in Khawaja that s. 83.18 requires that the Crown prove beyond a reasonable doubt that:
(a) a terrorist group existed;
(b) the accused knew of the existence of the terrorist group;
(c) the accused participated in or contributed to, directly or
indirectly, any activity of the terrorist group; and
(d) the participation or contribution was intended by the
accused to enhance the ability of any terrorist group
to facilitate or carry out a terrorist activity.
[155] In Khawaja, Justice Rutherford considered a Charter challenge to, among other provisions, s. 83.01(1)(a), which includes as an essential element of the definition of “terrorist activity” that the act be committed for a political, religious or ideological purpose, objective or cause (the “motivational element”). Justice Rutherford upheld the provisions with the exception of the motivational element, which he concluded was contrary to the Charter and of no force and effect.
[156] N.Y. did not challenge the motivational element of the offence. Both the Crown and defence took the position that the Crown was obliged to prove the motivational element beyond a reasonable doubt. Not having had the benefit of any argument on the motivational element, I think the prudent course is to proceed on the basis of the arguments presented that the Crown must also prove the motivational element.
[157] The rationale for the anti-terrorism legislation was explained to the Special Senate Committee on the subject matter of Bill C-36. Richard Moseley, then Assistant Deputy Minister, Criminal Law Policy Section, Department of Justice Canada, stated:
In the particular context of terrorism, we know that we are increasingly gaining more understanding of the cellular nature of these organizations. [ … ] The difficulty is that the people who are part of the network may have no knowledge of the specific plan that the network or the leaders wish to have carried out. However, they do know that they are contributing, that what they are doing, however small the part may be, is for the purpose of facilitating the larger plan. To get all of the tentacles of the network, you have to have an offence that captures people who are not privy to the larger scheme but are part of the conspiracy.
[158] In a similar vein Donald Piragoff, Acting Senior General Counsel, Criminal Law Policy Section, stated:
The senator pointed out that a terrorist activity may be facilitated whether or not the facilitator knows that a particular terrorist activity is facilitated or whether the terrorist activity was actually carried out. That is meant to resolve a problem in the current Criminal Code in the existing offences of aiding and abetting where you have to actually know of the specific offence that you are aiding and abetting. This particular provision is trying to capture the situation where a person knows that he or she is assisting a terrorist group by providing false documents but does not know that on September 11 the World Trade Center will be bombed and that these documents are being providing[sic] for the purpose of getting people into the United States illegally, for example. That is the notion of facilitating. You know you are helping them. You do not know exactly what particular crime is going to be committed but you know something bad will be done. That is why the definition says that you do not have to know the particular terrorist activity that will occur.
(b) The Carter Test - Hearsay Evidence of Co-Conspirators
[159] In R. v. Mapara 2005 SCC 23 (CanLII), (2005), 195 C.C.C. (3d) 225 (S.C.C.), Chief Justice McLachlin stated at para. 8:
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).
[160] For practical purposes, R. v. Carter 1982 CanLII 35 (S.C.C.), (1982), 67 C.C.C. (2d) 568 (S.C.C.) is the starting point in establishing the modern formulation of the exception. The three-step Carter test, as re-stated in R. v. Barrow 1987 CanLII 11 (S.C.C.), (1987), 38 C.C.C. (3d) 193 (S.C.C.), is as follows at 228-229:
1. The trier of fact must first be satisfied beyond reasonable doubt that the alleged conspiracy in fact existed.
2. If the alleged conspiracy is found to exist then the trier of fact must review all the evidence that is directly admissible against the accused and decide on a balance of probabilities whether or not he is a member of the conspiracy.
3. If the trier of fact concludes on a balance of probabilities that the accused is a member of the conspiracy then he or they must go on and decide whether the Crown has established such membership beyond reasonable doubt. In this last step, only the trier of fact can apply the hearsay exception and consider evidence of acts and declarations of co-conspirators done in furtherance of the object of the conspiracy as evidence against the accused on the issue of his guilt.
[161] While Carter and Mapara are conspiracy cases, the rule extends beyond conspiracies to other situations of common criminal intention. In Watt’s Manual of Criminal Evidence (2008), Justice Watt described this hearsay exception as “declarations in furtherance of a common unlawful design”. The authors of McWilliams’ Canadian Criminal Evidence refer to the “co-conspirator or common criminal enterprise rule”.
[162] In R. v. Falahatchian 1995 CanLII 941 (ON C.A.), (1995), 99 C.C.C. (3d) 420 (Ont. C.A.), Falahatchian and Moazam were charged with conspiracy to traffic in heroin, in addition to the substantive offences of trafficking in heroin and possession for the purpose. The Court rejected the argument that hearsay exception statements were not admissible on the substantive charges, stating at 438:
The role of hearsay in conspiracy charges has been outlined above, but it still plays a role in the substantive charges where there is evidence of common design or intention. It is settled law that, its name notwithstanding, the co-conspirator’s exception to the hearsay rule is not limited to cases of conspiracy. On the evidence before the trial court, all of the offences were inextricably interrelated and all were offences of common intention. Accordingly, the co-conspirator’s exception applied with equal force to each count: see Koufis v. The King, supra, and discussion as to issue (1) in Falahatchian’s appeal. We would not give effect to this ground of appeal.
[163] In R. v. Gagnon 2000 CanLII 16863 (ON C.A.), (2000), 147 C.C.C. (3d) 193 (Ont. C.A.), the Court held that at the second step of the Carter analysis, it was necessary to consider the acts and declarations of the accused in the context of the acts of the alleged co-conspirators. Justice Weiler referred to the facts in R. v. Filiault and Kane in which Kane handed a package of drugs to Filiault, who handed it to Power, the alleged co-conspirator, who delivered it to an undercover officer. Justice Weiler continued at 222-223:
In allowing the Crown’s appeal, the court held that the exchange of packages between Filiault and Kane could be considered against the background of the evidence of Power’s subsequent actions in giving the package to the undercover officer. Otherwise, the evidence of the exchange would be meaningless. Martin J.A. stated in Filiault and Kane, supra, at p. 326:
R. v. Baron and Wertman, supra, merely emphasizes a basic principle that a person can only become a participant in a conspiracy as a result of his own acts or declarations, that is, by his own conduct or utterances… The decision in that case does not say that a defendant’s conduct or utterances must be viewed in isolation, divorced from the context in which they occurred or that they cannot be interpreted against the picture provided by the acts of the alleged co-conspirators. [Emphasis added.]
In order to give meaning to the accused’s own acts and utterances it is permissible to consider them against the context of the acts of others which may be hearsay.
[164] In R. v. Adam, [2007] B.C.J. No. 151 (S.C.), Justice Romilly, addressing the second step in the Carter analysis, wrote at para. 117:
In an article written by David Frankel Q.C. for an Education Seminar for the Court of Queen’s Bench of Alberta on November 5, 1999, he dealt with the issue of “probable membership” at p. 14:
Although the question of “probable membership” is determined on the basis of the evidence directly admissible against an accused, this assessment is not made in isolation, but against the background of the other evidence. As previously discussed, it is unclear as to whether this “context” is limited to the “acts” of other alleged conspirators (parties), or may also include their “declarations” [citations omitted].
[165] At the third step of the Carter analysis, statements made in furtherance of the objects of the conspiracy may be considered. In R. v. Lynch, Malone and King (1978), 40 C.C.C. (2d) 7 at 24 (Ont. C.A.), Justice Martin stated:
The “in furtherance” requirement implies that the declaration of one conspirator is admissible against a co-conspirator only if it is made for the purpose of advancing the objectives of the conspiracy, or constitutes a step in furtherance of the common design, as distinct from a mere statement about the conspiracy made by a conspirator during the course of the conspiracy.
[166] In R. v. Yanover reflex, (1985), 20 C.C.C. (3d) 300 at 330 (Ont. C.A.), Justice Martin explained that “a report by one conspirator to another conspirator concerning an important part of the conspiracy while the conspiracy was on foot” was admissible as an act in furtherance of the conspiracy and not merely narrative.
[167] In Adam, supra, at para. 118, Justice Romilly again cited the article of Mr. Frankel which discussed that a statement “in furtherance” need not be a statement made to actually carry out the crime. Mr. Frankel wrote:
Other declarations which have been held to fall within the “in furtherance” category include:
(a) Statements made for the purpose of recruiting someone to join a criminal organization: R. v. Dass (1979), 47 C.C.C. (2d) 194 at 202;
(b) [S]tatements made to enhance the credibility of a criminal organization (e.g., its ability to provide substantial quantities of drugs, or money [citations omitted];
(c) Warning others that the plan has gone awry (e.g., a drug courier has been arrested) [citation omitted]; and
(d) [R]eporting on recent events to another alleged member of the common design [citations omitted].
IV ANALYSIS AND FINDINGS
(a) Introduction
[168] As previously discussed, the three-step Carter test governs the use that may be made of hearsay statements made by members of a conspiracy or common criminal enterprise. The steps in the Carter analysis overlap to some extent with the essential elements the Crown is obliged to prove beyond a reasonable doubt.
[169] The defence cited a number of leading authorities as to what constitutes a reasonable doubt, and in particular that reasonable doubt can arise from the evidence or the lack of evidence. I accept these submissions and have instructed myself on reasonable doubt in accordance with Watt’s Manual of Criminal Jury Instructions.
[170] I first consider the credibility of Shaikh. I then consider the application of Carter and my findings in relation to the essential elements of the offence.
(b) The Credibility of Shaikh
[171] The defence did not seriously challenge Shaikh’s credibility. Shaikh exhibited a great number of the hallmarks of a truthful witness. He testified that his involvement came about as a result of a religious conviction that terrorism was contrary to Islamic principles and a corollary sense of civic obligation.
[172] Shaikh put himself at risk initially without a promise of payment. From the first meeting, he knew Amara had a handgun and described his hollow point bullets as “cop killers”. Ahmad and Amara regularly expressed the intention of killing anyone who opposed or might betray them.
[173] Shaikh initially expected to be paid $70,000 as a police agent. This increased to $300,000 when the nature and extent of the time commitment far exceeded the original expectations. The defence did not explore the payment discussions, structure or timing in any detail, or make any suggestion in cross-examination that the payments or promise of payments influenced Shaikh’s evidence.
[174] Shaikh’s evidence ranged over many individuals and events over a six-month period. There were only a few occasions when counsel pointed out relatively minor inconsistencies in his evidence given at trial and two preliminary inquiries and the facts as recorded in the Source Debriefing Reports.
[175] There was certainly no indication that Shaikh had any animus toward N.Y. or was shading his evidence with a view to implicate N.Y. Cross-examination consisted in large part of Shaikh agreeing with various suggestions by the defence that favoured N.Y. A witness with a Crown bias could easily have contested or quibbled. Shaikh simply agreed. Indeed, the only explicit suggestion that Shaikh was not doing his level best to relate what actually happened was by the Crown, who suggested that Shaikh was shading some evidence out of a sense of friendship or sympathy towards N.Y.
[176] Shaikh acknowledged that:
(a) he used cocaine and other drugs as a teenager;
(b) he purchased ammunition for, handled and shot the handgun at the Washago Camp; and
(c) he initially told his handler there was no gun at the camp but soon after volunteered that there was a gun.
[177] While the use of cocaine is a serious crime, this was at least 11 years ago and standing alone would not put Shaikh into the category of an unsavoury witness.
[178] The defence did not challenge Shaikh’s evidence that he had no forewarning the gun would be at the camp. All concerned knew that Shaikh had a permit which allowed him to buy ammunition. To refuse in the circumstances to purchase ammunition would have been inexplicable to Ahmad and Amara and might well have been a strong indicator to them that Shaikh was a police agent. Finally, Ahmad had his own ammunition, so regardless of Shaikh, the gun was going to be used. Shaikh had a well-founded concern that Ahmad and Amara had limited familiarity with handguns. Shaikh testified that he wanted to take control of the gun to ensure the safety of all concerned. I find it difficult to conceive that this reflects adversely on his credibility.
[179] While the initial false report that there was no gun at the camp raises some concern, Shaikh’s evidence was that it was out of his initial concern not to unnecessarily implicate all those at the camp.
[180] Further, much of Shaikh’s evidence is corroborated by admitted facts or otherwise incontrovertible evidence. For example, while Shaikh testified that Ahmad and Amara expressed vile and murderous intentions to him, much the same sentiments are expressed in the intercepts, video and admitted facts concerning the bomb plot.
[181] It is also necessary to consider the reliability of Shaikh’s evidence, as even a credible witness endeavouring to tell the truth may be in error for any number of reasons, including a lack of intelligence or faulty memory.
[182] Shaikh is educated and intelligent. In terms of reliability as to precisely what was said and when, Shaikh had the ability to refresh his memory from the Source Debriefing Reports, which were more or less contemporaneous with the events.
[183] In summary, I found Shaikh to be a truthful and generally reliable witness.
(c) First Essential Element of the Offence - Existence of a Terrorist Group - Step One Carter Analysis
[184] The first essential element that the Crown must prove beyond a reasonable doubt is that a terrorist group existed. This is also the first step of the Carter analysis, which governs the use of hearsay statements made by members of the group.
[185] The Crown’s case is based largely on admitted or otherwise incontrovertible facts. The evidence that a terrorist group headed by Ahmad and Amara existed is overwhelming, and I will only refer to the high points.
[186] Ahmad advocated the beliefs expressed in:
(a) The Constants on the Path to Jihad, which posits a religious obligation to slay the disbelievers wherever they are found;
(b) Blood, Wealth and Honour of the Disbelievers, which justifies killing, assaulting, defaming and stealing from non-believers; and
(c) a CD featuring Osama Bin Laden, which suggests a religious obligation to kill Jews and Americans.
[187] The vehicle used by Dirie and Mohamed to attempt to smuggle loaded handguns into Canada in August 2005 was charged to Ahmad’s credit card. Ahmad asked Shaikh to help train men to bomb public buildings and power grids. Ahmad and Amara organized the Washago Camp. Ahmad brought the handgun to the camp, where it was used in target practice by masked men who were videotaped. At the camp, Ahmad made the statement, “We’re not officially Al-Qaeda but we share their principles and methods”.
[188] Ahmad gave a videotaped speech which was edited to add a caption describing Ahmad as “Abu Sinaan” (meaning the point of a spear) and a banner depicting a rider on a horse carrying a rifle. A fair summary of Ahmad’s exhortation is as follows:
We are here to kick it off.
If we don’t get a victory our children will.
This is the promise of Allah.
This is our path and we stick to it no matter what the trials are.
In society we have to put on a peace loving face.
But our mission is here. We all got our missions to fulfill.
I don’t know how involved we’ll be able to get the young guys.
While our bodies will be in society, working, sucking up to bosses, trying to get money, our hearts are with this group right here and everyone else that has given the Covenant for us to be part of this.
Whether we get arrested, killed or tortured our mission is greater than just individuals.
This has to be done. Rome has to be defeated. We have to be the ones that do it. No holding back, whether its one man that survives you have to do it.
Rome has never been defeated.
In North America they have a fortress guarded by patriot missiles. We have entered their lands and have already started striking at them because this training is striking at them. It puts fright in their hearts and freaks them out. Imagine putting fear in their hearts and walking down the streets of Washington.
This is our life’s mission. Allah has already purchased us, our lives and our wealth.
[189] In early February 2006, Ahmad, Durrani, Chand and Shaikh travelled to Opasatika to scout out a safe house that could be used for training purposes or as a hideout. Ahmad and Durrani discussed plans to attack Parliament and behead politicians.
[190] On February 5, 2006, Amara reported to Ahmad that he had built a radio frequency remote control detonator and was working on constructing a more sophisticated detonator. Ahmad said that when the bomb went off on Front Street, it would be “too bad” for the innocent victims.
[191] In a February 27, 2006 intercept, Ahmad, refuting arguments by Chand that there were religious principles that stood against committing crimes in Canada, argued that Islam permitted attacking the enemies wherever they were found. Ahmad offered the example of the right to kill a person walking down the street if he or she overtly displayed support for Israel.
[192] On March 3, 2006, Talib provided Ahmad and Chand with a primer on methods to defraud financial institutions. Ahmad tried to recruit Talib to the cause, stating, “whatever you want in jihad is basically the view of Al-Qaeda” and that “it’s a global fight. It’s not just a specific country and a specific battlefield.” Ahmad said that “there’s an obligation to attack the near enemy” and then noted that “soldiers that are training in their military bases here are gonna go to Afghanistan and fight there.” Shortly after that, Ahmad added, “these same soldiers are fighting you there, so why can’t you attack them here?” Ahmad also stated that “our thing” was on a much larger scale than the London subway bombing that killed 10 people.
[193] In March 2006, Amara ordered phone kits for use in creating a longer range detonator. In March-April 2006, Amara researched “turf fertilizer explosive”. The R.C.M.P. recovered a video of Amara triggering a remote-controlled detonator with the use of a cell phone.
[194] Ahmad organized a further camp at Rockwood. Durrani talked openly about missions in the United States. Ahmad referred to the notorious terrorist Osama Bin Laden in the context of discussing videos to show Syed. The attendees were filmed sitting cross-legged in camouflage clothing, faces masked around a document flanked by large knives and a walkie-talkie.
[195] As a matter of common sense, engaging in activities such as paintballing, physical exercise and rafting is by no means inconsistent with the existence of a terrorist group. Without reliance on the resource as substantive evidence, I note that the Report of the Official Account of the Bombings in London indicated that apparently benign activities may be used to identify and indoctrinate recruits and promote bonding among members of the group. In this regard:
Camping, canoeing, white-water rafting, paintballing and other outward bound type activities are of particular interest because they appear common factors for the 7 July bombers and other cells disrupted previously and since. (Report of the Official Account of the Bombings in London on 7th July 2005 (London: The Stationary Office, May 11, 2006), at paras. 29-30)
[196] Mr. Chernovsky submitted that this was not really a terrorist group because Ahmad’s conduct amounted to “musings and fantasies” that had no possibility of implementation. It occurred to me hearing this submission that it might well have been said prior to September 11, 2001 that a plan to kill thousands and destroy landmark buildings in lower Manhattan and Washington had no possibility of implementation. While I am not comparing Ahmad and Amara to the architects of the September 11 attacks, I do reject the argument that planning and working toward ultimate goals that appear unattainable, or even objectively unrealistic, precludes or even militates against a finding that this was a terrorist group.
[197] Further, it suited the defence argument to characterize Ahmad as having a clearly unattainable goal to “cripple Canada”. An alternative and more realistic characterization is that Ahmad sought, to the extent of his capabilities, to launch an attack on government representatives and property. Framed this way, the objective was not unrealistic. The defence did not challenge that Amara headed a terrorist group, but took the position that it evolved but was separate from Ahmad and N.Y.
[198] The related suggestion was made that because certain actions of the group were ill-advised, amateurish or sloppy, this meant that the group was not really dangerous. The fact that the group’s realistic capability with a few handguns might have been to kill a relatively small number of political leaders, police or members of the public, as opposed to take over Parliament Hill, does not to my mind detract significantly from the reliability of the evidence in terms of proving the existence of a terrorist group. Put differently, the charge is participation in terrorist activities, not participation in terrorist activities on an epic scale.
[199] I also reject the argument that Ahmad was a hapless fanatic who posed no risk. Ahmad commanded the continuing devotion of Dirie, notwithstanding that he was in jail for smuggling guns into Canada. Dirie was identifying sources to obtain more guns. James deferred to Ahmad’s instructions. At least for a time, Amara, who it is admitted progressed to bomb-making, worked closely with Ahmad. Ahmad organized the Washago Camp and delivered what the defence conceded could be construed as a “call to arms”. Chand introduced Talib, who described in detail fraudulent means to obtain necessary funds. Ahmad had 10 men at the Rockwood Camp, and the activities there were sufficiently odious that Syed sought advice whether he should report to C.S.I.S.
[200] Finally, Ahmad throughout was very explicit in discussing the political, religious and ideological objectives of the group. Their actions were motivated by an interpretation of Islam which required an attack upon the near enemy, including the Canadian military and Parliament. The purpose was to intimidate the public and politicians in order to secure a change in government policy and the release of Muslim prisoners. The motivational element of the definition of “terrorist activity” is obviously satisfied.
[201] I am also satisfied that Ahmad and Amara headed what was a “group” or “entity” within the meaning of s. 83.01 of the Criminal Code. Dirie was anxious to rejoin the group, and Ahmad told him his seat was prepared when he got out. Ahmad’s exhortation at the Washago Camp referred to “this group right here” and was premised on this being the group “to kick it off” no matter the risk. Ahmad referred to the group striking back by conducting training together. The leaders met on an ongoing basis to discuss plans and made joint efforts with a view to accomplishing their ends such as by scouting out a safe house, obtaining information about fraudulent schemes to raise funds and building bomb detonators. In April 2006, Ahmad said he did not care about “three guys dropping out”, meaning from the group.
[202] I am satisfied beyond a reasonable doubt that a terrorist group existed, consisting of at least Ahmad, Amara, Chand, Durrani and Dirie. For present purposes, it is not necessary to go beyond these individuals. This is not to suggest that others were not members of the group. That Amara and his associates left the group in late March 2006 does not detract from this conclusion.
(d) Step Two Carter Analysis – Has the Crown Proven N.Y. Is Probably a Member of the Terrorist Group?
[203] Having been satisfied beyond a reasonable doubt that a terrorist group existed, I must, at the second step of the Carter analysis, consider evidence directly admissible against N.Y. and decide on a balance of probabilities whether he was knowingly a member of the terrorist group. I consider the evidence directly admissible against N.Y. in the context of other evidence which the defence suggests points to the conclusion N.Y. was not a member of the group.
[204] The evidence the Crown relies upon as directly admissible against N.Y. is that he:
(a) attended the Washago Camp and was exposed to the activities there and, in particular, the speech by Ahmad in December 2007;
(b) shoplifted walkie-talkies from Wal-Mart;
(c) shoplifted camping supplies from Canadian Tire on February 2, 2006;
(d) attended the Rockwood Camp in May 2006;
(e) closely associated with Ahmad during the period of November 27, 2005 – June 3, 2006;
(f) stated to Sergeant Tost that he regarded Ahmad as a friend who was knowledgeable and who he learned from; and
(g) lied to Sergeant Tost that he had not attended any camp with Ahmad since December 2005, when in fact, he had been at the Rockwood Camp two weeks before.
[205] In considering this evidence against N.Y., at this stage of the analysis and subsequently, I am cognizant of and make full allowance for evidence that:
(a) N.Y.’s age, level of education and lack of street smarts or maturity made him easy to deceive or manipulate;
(b) N.Y. did not understand Arabic and had only a rudimentary understanding of Islam;
(c) N.Y. had only a rudimentary understanding of world politics and international conflicts;
(d) N.Y. did not understand symbolic references or allusions requiring more than rudimentary knowledge of Islam or world politics such as the suggested significance of a black banner with white lettering or the description of Rome in the Qu’aran;
(e) as a recent convert, N.Y. tended to associate with, and take instruction from, persons for religious purposes, so that frequent association with Ahmad was of less significance than it would be otherwise;
(f) a significant number of Muslims in Canada have antipathy towards, or at least suspicion of, C.S.I.S. such that anti-C.S.I.S. rhetoric is not necessarily terrorist rhetoric; and
(g) a significant number of Muslims in Canada believe that Muslims in Iraq and Afghanistan are being oppressed such that expression of that belief is not necessarily terrorist rhetoric.
[206] Ahmad had a loaded handgun at the Washago Camp. This must have alerted N.Y. that Ahmad had some form of criminal intent. Ahmad’s exhortation that the group was brought together “to kick it off”; that their mission might result in them being arrested, tortured or killed; that they had started striking back at North America by engaging in training; and that striking against the United States was their mission are all clear expressions of criminal, terrorist intent. Ahmad’s reminder about “blondie” would be meaningless unless the audience understood that, as Shaikh explained, this referred to sexually assaulting disbelievers.
[207] The defence referred to evidence from Shaikh that a cover story was developed for the parents that the camp was a religious retreat involving physical activity conducive to being a physically strong and sound Muslim. This cover story makes sense in terms of being able to attract young persons to the camp. Shaikh also testified that Ahmad repeatedly told the core group of Amara, Chand and Shaikh during the camp that the attendees were not to be told the true purpose of the camp. It also makes sense not to announce the true purpose early in the camp before there was some opportunity to gauge the likely response.
[208] This evidence must, however, be considered in light of the further evidence from Shaikh that at the camp, Ahmad told some of the youths, “keep this quiet, don’t tell people, don’t be talking about the camp”. In re-examination, Shaikh stated Ahmad was referring to the more “nefarious” parts of the camp.
[209] It would make no sense for Ahmad to tell some but not all of the young persons to be quiet, and I infer they were all told the same thing. The defence suggested this caution might have been solely related to the handgun. I do not agree. If the only concern was that no one divulge that a handgun was present, it would have been simple to say so. Ahmad’s concern was clearly more general, and this was an obvious and additional red flag to N.Y.
[210] Shaikh also testified that at the end of the camp, the attendees were told to clean up debris, which included bullet casings, to protect the environment and wildlife. According to the defence, this indicated that the ruse that this was a religious, outward-bound excursion was maintained to the end of the Washago Camp. I do not agree. Recall that Chand expressed concern over whether it was halal to kill rats. The defence’s written submission stated that it “is congruent with the principles of Islam, to avoid injury to animals…” Concern may well have been expressed for the wildlife, but it is inconceivable to me that by the end of the camp there was any doubt about its purpose.
[211] While the attendees may have been kept on the “down low” going into the camp, Ahmad’s exhortation extended the jihadi “da’wah”, meaning invitation. As Shaikh put it, this was a classic “bait and switch”.
[212] The defence relied upon evidence by Shaikh that Ahmad compartmentalized information he provided to members and potential members to suggest that Ahmad might not have shared his intentions with N.Y. While this merits consideration, I give it little weight, considering the totality of the evidence. Ahmad was by all accounts not disciplined or meticulous. He made highly inculpatory statements to Shaikh at their first meeting. What little compartmentalization Ahmad engaged in was not principled or consistent. Despite warnings, he made many explicit, ill-advised comments over the telephone. He made a no cell phone policy for the Washago Camp and then saw it honoured in the breach.
[213] While the defence cited the fact that only a few intercepted calls involved N.Y., this is not of any great significance. N.Y. did not have a cell phone and may not have wanted to use his parents’ phone to call Ahmad. More importantly, on his own admission to Sergeant Tost, he acknowledged “chilling” with Ahmad over the course of their six- or seven-month friendship. N.Y., by his own admission, looked to Ahmad for advice and guidance. In cross-examination, Shaikh agreed that N.Y. appeared to be vulnerable and looked to Ahmad for guidance, instruction, comradeship and mentorship.
[214] The defence submitted that N.Y.’s shoplifting did not indicate membership in the group and that he simply had an unfortunate character flaw, being a propensity to shoplift for his own purposes. I disagree. Stealing is contrary to the precepts of Islam. Stealing from non-believers was, however, permissible according to Ahmad. N.Y. was highly motivated to follow what he understood to be the precepts of Islam as interpreted by Ahmad. Witness his concern as to whether Nivea cream was halal.
[215] The defence also cited N.Y.’s theft of items such as condoms as indicative that for N.Y., shoplifting was a personal propensity unrelated to Ahmad or membership in a terrorist group. This ignores that N.Y., given his religious beliefs, would not have shoplifted without Ahmad’s assurance it was halal to do so. Further, under Ahmad’s tutelage, N.Y. believed that any and all shoplifting served to cause some damage to the government.
[216] N.Y. initially told Sergeant Tost he shoplifted one or two walkie-talkies for his personal use. He later admitted having stolen three additional sets which he claimed he simply sold to friends. It makes little sense that N.Y. would steal multiple walkie-talkies for personal use or to make a few dollars. It makes much more sense that he would steal for a purpose associated with Ahmad.
[217] I conclude that N.Y.’s shoplifting was justified and motivated by Ahmad and tends to indicate his membersip in the terrorist group.
[218] The defence referred to the considerable evidence concerning foreign conflicts in places such as Chechnya, Kashmir and Afghanistan and N.Y.’s expression of interest in going to fight in Iraq. The defence submitted that an intention to go overseas was inconsistent with N.Y. having knowledge that this was a terrorist group planning to attack in North America. The defence also argued more generally that Ahmad’s talk about conflicts abroad and support for foreign causes may have obscured the meaning of Ahmad’s words and his intent.
[219] I do not accept these arguments. N.Y. could readily contribute to Ahmad’s efforts in Canada, while expressing an intention to follow in what he understood to be Ahmad’s footsteps and travel overseas. There is no suggestion that N.Y. was privy to a plan for an attack on a specific date, yet expressed a conflicting plan to travel abroad at the same time. Whatever discussion there may have been about foreign conflicts did not, in my opinion, obscure the express references by Ahmad to terrorist activity in North America.
[220] The defence referred to Ahmad’s statement that it would not make sense for N.Y. to be carrying a weapon. This reflects the reality that N.Y. was not at the top of the group and there was no reason for him to be exposed to the risks of carrying a weapon. While I consider this factor, I regard it as of little weight.
[221] I am satisfied that by the conclusion of the Washago Camp, N.Y. understood the terrorist intentions of Ahmad, the nature of the group and, as implicit in the exhortation, that Ahmad regarded him as a member of the group. Armed with and notwithstanding this knowledge, N.Y. continued his close association with Ahmad. A further camp was planned for mid-February, but was deferred to May. N.Y. attended the Rockwood Camp and was part of a group sitting cross-legged, faces masked, reading a document flanked by large knives.
[222] In reaching my conclusion, I do not rely on N.Y.’s lie to Sergeant Tost about the Rockwood Camp. The other Crown evidence is sufficient. I need not consider whether this lie amounts to a fabrication within the meaning of R. v. O’Connor 2002 CanLII 3540 (ON C.A.), (2002), 170 C.C.C. (3d) 365 (Ont. C.A.).
[223] The evidence directly admissible against N.Y satisfies me on a balance of probabilities that N.Y. was knowingly a member of the terrorist group.
[224] I have already determined that the Crown has proven beyond a reasonable doubt that a terrorist group existed. I now turn to the remaining three essential elements of the offence charged.
(e) Second Essential Element of the Offence - Did N.Y. Know of the Existence of the Terrorist Group?
[225] The Crown must prove beyond a reasonable doubt that N.Y. knew that the Ahmad-Amara group was a terrorist group. The Crown is not required to prove that N.Y. had knowledge of a specific terrorist activity contemplated by the group.
[226] All of the evidence that led me to conclude, on a balance of probabilities, that N.Y. was knowingly a member of the terrorist group is obviously relevant to the question of whether the Crown has proven beyond a reasonable doubt that he knew of the existence of the terrorist group. I will not repeat my analysis of that evidence.
[227] It is open to me as the trier of fact to come to common sense conclusions based upon the evidence that is accepted. I am not allowed, however, to speculate about what evidence there might have been.
[228] In cross-examination, Shaikh’s descriptions of Ahmad included charismatic, charming, energetic and fatherly to persons only slightly younger. Ahmad was extremely open concerning his beliefs and, in general terms, with his objectives. Ahmad told the Washago Camp attendees how important it was to listen to The Constants on the Path to Jihad, which advocates slaying disbelievers.
[229] Shaikh was surprised by Ahmad’s openness in stating at the Washago Camp that his group shared the principles and methods of Al-Qaeda. This indicates to me that the Al-Qaeda statement was made in the presence of persons other than the core group of Amara, Chand and Durrani. They were already familiar with Ahmad’s beliefs, so that this statement in their presence alone would not surprise Shaikh. Attendance was compulsory at Ahmad’s exhortation. Ahmad provided the Osama Bin Laden and other CDs to Shaikh and routinely handed out CDs which depicted atrocities. At his first meeting with Talib, Ahmad associated the group with the beliefs of Al-Qaeda.
[230] The chief importance of Syed’s evidence is that he provided a description of the activities at the Rockwood Camp. While 95 per cent of the activities may have been recreational, it is significant that Syed, with no prior exposure to Ahmad and his beliefs, was sufficiently concerned that he sought advice as to what he had seen and heard at the camp.
[231] On the way to Rockwood, Ahmad stated that they needed to change that Muslims were being murdered because of America. Ahmad cited Osama Bin Laden in speaking to Syed. At the Rockwood Camp, Durrani stated, in effect, that a lot of their missions would be in the United States. N.Y. and Syed were in the vicinity when this statement was made.
[232] Syed was clearly a reluctant witness who had considerable sympathy for N.Y. He was represented by a lawyer and obviously was well-prepared when he gave his original statement to the police regarding events that were fresh in his mind. Despite this, he resiled from and qualified parts of his original statement. For example, while he told the police that Ahmad, Z.M. and N.Y. were talking and “they” were saying they needed to prepare for jihad, at trial, he testified that only Ahmad said that. Syed also offered that jihad could mean to “lawfully resist”. While I rely only on the evidence by Syed at trial, in considering its weight, I factor in that Syed had obvious sympathy for N.Y. and this did colour his evidence.
[233] As previously discussed, the fact that the group had political, religious and ideological motivations was obvious.
[234] Evidence as to motive is circumstantial evidence to be considered with all of the other evidence in the case. N.Y. was the eager acolyte who regarded Ahmad as a friend and knowledgeable mentor. N.Y. by his own admission was highly motivated to adhere to the principles of Islam. Unfortunately, Ahmad was his mentor and perverted those principles.
[235] N.Y. impressed and was trusted by Ahmad. N.Y. was only a few years younger. Ahmad had no reason to exclude N.Y. from the general knowledge that he planned a terrorist strike in Canada. In fact, this was the plain meaning of Ahmad’s exhortation at the Washago Camp. That Ahmad was this explicit with all attendees at the Washago Camp belies the submission that this basic intent was in any way compartmentalized and concealed.
[236] As previously discussed, I do not regard N.Y.’s expression of interest in going to fight in Iraq and the general discussion about foreign conflicts to be of much significance.
[237] During the argument of the constitutional challenge (see Ruling Three, dated April 24, 2008), the parties agreed that if there was an air of reality to the applicability of the armed conflict exception, the Crown must prove beyond a reasonable doubt that the exception is not applicable. In essence, the armed conflict exception provides a defence to persons who act with the intent to travel and fight abroad as a lawful combatant in accordance with international law principles.
[238] In argument, the defence referred to there being an “air of reality” to a “defence” of intending to fight overseas. Defence counsel, however, later clarified and stated expressly that they were not arguing that there was any air of reality to the armed conflict exception. The defence argument was simply that N.Y. would not have expressed interest in going abroad if he was knowingly a member of a terrorist group in Canada, or that references to foreign conflicts obscured Ahmad’s meaning.
[239] While the defence disavowed any reliance upon there being an air of reality to the armed conflict exception, I will discuss it very briefly. International law prescribes certain pre-requisites for lawful combat, which include wearing distinctive clothing, being part of an organized command structure, carrying weapons openly and abiding by customary international law principles. The position of the Crown, with which I agree, is that there is no evidence before me of a conflict abroad in which N.Y. might have intended to participate as a lawful combatant. As such, there can be no air of reality to the applicability of the armed conflict exception.
[240] N.Y. did not testify, but in his statement to the police, he made statements to the effect that the Washago Camp and other activities in association with Ahmad were innocent, and if there was any terrorist intention, it was lost on him.
[241] I consider this evidence in accordance with R. v. W.(D.) 1991 CanLII 93 (S.C.C.), (1991), 63 C.C.C. (3d) 397 (S.C.C.). I did not believe this statement by N.Y., nor did it, on the totality of the evidence, leave me with any reasonable doubt as to his guilt. N.Y. blatantly lied in his statement to the police regarding his attendance at the Rockwood Camp and was evasive on other points, such as identifying Ahmad’s voice and admitting the number of walkie-talkies he stole. Further, the claim that he was unaware of the true nature and purpose of the group is contradicted by other compelling evidence which I have reviewed.
[242] The conclusion I reach, based upon the evidence cited and reasonable inferences, is that over the six or more months of their friendship, N.Y. was fully exposed to Ahmad’s beliefs and the CDs and publications to which he referred. N.Y. knew what Ahmad was all about and what the group was about. N.Y. was aware of the political, religious and ideological motivations of the group and its terrorist intentions.
[243] In accordance with R. v. Rhee (2001), 158 C.C.C. (3d) at para. 35 (S.C.C.), I am satisfied that the conclusion that N.Y. knew of the existence of the terrorist group is the only reasonable inference to be drawn from the facts as I find them.
[244] The Crown has satisfied me beyond a reasonable doubt that N.Y. knew of the existence of the terrorist group.
[245] While not necessary to my conclusion on this essential element of the offence, additional support is found in Ahmad’s statement to Shaikh on April 25, 2006. They were discussing the fact that the F.B.I. had arrested men on terrorist charges in Georgia. Ahmad said he had a close relationship with the men and so believed the police were closing in on him as well.
[246] Shaikh inquired if the Mississauga group knew anything and then if the “smaller guys”, who Shaikh testified included N.Y., knew about the plans. Ahmad stated:
They don’t know plans, they just know we were gonna do something here.
[247] I am satisfied that this statement was in furtherance of the objects of the terrorist group. Shaikh was regarded as an expert on training and security. Statements by Ahmad to Shaikh concerning who might be in a position to implicate members of the group was clearly in furtherance of the security of the group. As such, statements by Ahmad to Shaikh regarding recent developments and threats to the group furthered its aims.
[248] Ahmad’s April 25, 2006 statement to Shaikh that N.Y. and the other young persons “don’t know plans, they just know we were gonna do something here” was made in the context of Ahmad expressing concern about being arrested. Ahmad reviewed with Shaikh, whom he regarded as having security expertise, how he might be linked to the men arrested in Atlanta or implicated by Amara or other members of the group. Ahmad was concerned with self-preservation and was assessing his options, which included fleeing Canada. Ahmad had every reason to be truthful in telling Shaikh that the smaller guys knew “we were gonna do something here”.
[249] The defence argued that the “smaller guys” Ahmad was referring to were the less involved adults. The defence pointed to Ahmad’s follow-up comment, “You think I’d trust Abdul Qayyum enough to give him specifics”. (Abdul Qayyum Jamal was much older than most attendees at the Washago Camp and physically incapable of completing the obstacle course.)
[250] In context, the “smaller guys” were “the guys who went up”, which I take to be to the Washago Camp. Ahmad had no reason to distinguish among the participants based upon their age. The “smaller guys” were the attendees at the Washago Camp who, like N.Y., were not at the top level of the group. Shaikh at the time had a close association with Ahmad, and they generally spoke on familiar terms each understood. Shaikh clearly understood that the reference included N.Y. This understanding was elicited, but not pursued, in cross-examination as follows:
Q. … Who were you referring to when you said ‘any of those smaller guys’ --- sorry, ‘any of these other smaller guys know’?
A. I’m referring to those who are not in the leadership, or those that I knew to be in the know. Basically talking about the youth, right.
Q. Pardon me?
A. I’m talking about the youth ---
Q. I see.
A. ---the smaller guys, meaning smaller on our scale. I mean I think it’s pretty --- pretty clear.
(June 17, 2008, p. 61)
[251] I am satisfied that the “smaller guys” Ahmad referred to included N.Y. The clear implication of Ahmad’s statement is that while “smaller guys” like Jamal and N.Y. did not know specifics, they did know that the group planned terrorist acts in Canada.
(f) Third Essential Element of the Offence - Did N.Y. Participate in or Contribute Directly or Indirectly to Any Activity of the Terrorist Group?
[252] The terrorist purpose of the Washago Camp may not have been clear until Ahmad’s exhortation near the end of the camp. At that time, N.Y. had no ability to leave the camp and disassociate himself. I do not, therefore, regard his participation in the balance of the camp as a knowing participation in or contribution to the activities of the group.
[253] Following the Washago Camp, however, N.Y. maintained his close association with Ahmad and shoplifted various items suitable for the further camp Ahmad had planned. At the second step of the Carter analysis, I discussed evidence which strongly supports the conclusion that N.Y. was shoplifting walkie-talkies and camping gear at the direction of Ahmad. There is not a hint in the evidence that N.Y. had any use for camping gear other than to attend camps organized by Ahmad.
[254] I am entitled to consider the acts and declarations of members of the terrorist group, in furtherance of the objects of the group, as evidence against N.Y.
[255] The statements by Ahmad which tend to implicate N.Y. are as follows:
(a) on January 23, 2006, Ahmad told Shaikh that N.Y. removed a surveillance camera from the exit sign in the hallway outside Ahmad’s apartment;
(b) in an intercept on January 23, 2006, Amara asked Ahmad if N.Y. was “getting stuff too”, and Ahmad responded that N.Y. had stolen 16 walkie-talkies, batteries, DVDs and an MD player. Ahmad quoted N.Y. asking if the stealing was halal and stated that N.Y. himself justified stealing on the basis it deprived the government of tax revenue; and
(c) in an intercept on February 4, 2006, Ahmad, referring to the arrest of N.Y. and S.M. at Canadian Tire on February 2, 2006, stated, “They were going and stealing stuff for me.”
[256] I am satisfied that Ahmad told Shaikh on January 23, 2006 that N.Y. removed the surveillance camera. That Ahmad said “some brother” took the camera down in an intercept that day is not inconsistent with Shaikh’s evidence. The other statements relied upon by the Crown were recorded, so there is no doubt they were made.
[257] 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 Ahmad’s 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.
[258] The position of the defence is that Ahmad was grandiose, delusional and incredible, such that any statements he made concerning N.Y. should simply be disregarded. The argument is that I should infer that Ahmad was lying about all matters that are not the subject of independent proof. Examples include Ahmad’s statements that he had visited Iraq, that he had contacts there, that he had a cache of weapons and that had been stolen, that he made a $4,000 down payment on weapons and that he had contacts in Pakistan and a close association with the alleged terrorists arrested by the F.B.I. in Georgia.
[259] I do accept that Ahmad was generally untrustworthy with no compunction about lying if it suited his purposes. I have no doubt he lied for strategic reasons with a view to advancing the aims of the group. Exaggerating membership in the group and suggesting that a cash infusion and access to weapons were imminent would serve to boost morale and, at least temporarily, placate doubts and dissidents. I also accept that Ahmad may have lied on occasion for the purpose of self-aggrandizement. I do not agree, however, that the proper inference is that Ahmad lied about everything.
[260] I readily accept that Ahmad is of extremely unsavoury character. As such, I regard his statements with the greatest care and caution in accordance with R. v. Vetrovec 1982 CanLII 20 (S.C.C.), (1982), 67 C.C.C. (2d) 1 (S.C.C.).
[261] I also take into account, as discussed in Mapara, supra, that the conditions of the Carter test for admissibility provide circumstantial guarantees of trustworthiness.
[262] The defence pointed to intercepts of Ahmad which it is submitted reflect that he disapproved of and did not want N.Y. shoplifting. It is suggested these statements are inconsistent with N.Y. shoplifting to serve Ahmad’s purposes. I disagree.
[263] In a February 2, 2006 intercept, Ahmad told S.M. that he told N.Y., “don’t do it” and, “it’s not even worth it”. This was, however, in the context of S.M.’s statement that at Canadian Tire, he told N.Y. he was being watched, yet N.Y. went ahead and shoplifted the items anyway. Ahmad’s admonition was simply to not shoplift when being watched.
[264] Similarly, in an intercept on February 5, 2006, Ahmad did say, “What is wrong with Abidullah? And, who’s, who’s(sic) idea was this?”, but this was in the context of N.Y. getting caught and S.M. foolishly admitting he was the lookout. Significantly, Ahmad also stated he had a big, green box full of stuff already and for that reason, did not need N.Y. to steal more.
[265] While Amara referred to N.Y. as a “crack head” and “crazy”, these references were accompanied by laughter and, in context, expressed approval of N.Y.’s audacity and shoplifting ability.
[266] It is also significant that in one of the passages relied on by the defence, Ahmad discussed walkie-talkies and stated he told N.Y. they needed “probably another two”. Ahmad said that N.Y. shoplifted them the next day and stated he wanted to get many more. This was Ahmad expressly approving of and directing N.Y. to shoplift. Ahmad also quoted N.Y. as saying, “I can’t believe I didn’t cause damage today”. I take this to be a further reference to N.Y.’s belief that shoplifting harmed the disbelievers and government.
[267] Ahmad’s statement that he told N.Y. not to steal something was in the context of them being together at a store, N.Y. wanting to steal everything he saw and Ahmad telling him not to steal a particular item. Ahmad also pointed out that N.Y. inquired if shoplifting was halal, and that he described N.Y.’s shoplifting as “so slick”.
[268] While there is no evidence of walkie-talkies at the Washago Camp, Shaikh testified that prior to the camp, Ahmad told him they would have walkie-talkies which N.Y. had procured. What Shaikh identified as a walkie-talkie was visible in the Rockwood video, depicting masked men reading a document flanked by large knives.
[269] The statements made by Ahmad regarding the surveillance camera and N.Y.’s shoplifting at his direction were relatively routine and mundane statements to his, at least then, trusted associates, Amara and Shaikh. These were not occasions on which one would expect Ahmad to lie or exaggerate.
[270] Further, these statements by Ahmad are confirmed to some extent within the meaning of R. v. Kehler 2004 SCC 11 (CanLII), (2004), 181 C.C.C. (3d) 1 (S.C.C.). The evidence is clear Ahmad did provide a surveillance camera to Shaikh, and N.Y. admitted to shoplifting camping supplies and walkie-talkies.
[271] In reaching my conclusion, I attach no significance to Shaikh hearing N.Y. or Ahmad refer to “surveillance cameras” on March 10, 2006. Without further detail, it is not possible to know what they were discussing.
[272] I do not attach significance to Ahmad’s statement to Shaikh that he tasked N.Y. and Z.M. to break into Waheedullah’s office and plant some sort of listening device. There is nothing to confirm this, and given acknowledged concerns about Ahmad’s trustworthiness, I do not accept that this occurred.
[273] I also agree that statements by Ahmad that, jokingly or otherwise, suggested that N.Y. was capable of extreme violence or being groomed as a suicide bomber cannot be considered as evidence against N.Y.
[274] The Rockwood Camp took place in a public camping area on a busy weekend. On the surface, most of the activities were recreational and relatively benign compared to the Washago Camp. Nevertheless, Syed was sufficiently concerned by what he witnessed to seek advice about what he should do in terms of reporting to the authorities. I am satisfied that by the time N.Y. went to the Rockwood Camp, he had a full appreciation of the terrorist nature of the group. As such, the significance of the marching and videotaping of what appeared to be masked fighters was not lost on N.Y. Even Syed understood that there was an intent to edit the video by adding background music, such that joking comments during filming would not be part of the final product.
[275] For the reasons previously discussed, I do not believe N.Y.’s statement to the police that any terrorist intentions were lost on him, nor does that statement raise any reasonable doubt in my mind.
[276] I am satisfied beyond a reasonable doubt, on the whole of the evidence, that N.Y. knowingly participated in and contributed to the activities of the terrorist group by removing the surveillance camera, shoplifting and attending the Rockwood Camp for training. These actions constitute receiving training and providing a skill within the meaning of ss. 83.18(3) and (b) of the Criminal Code.
(g) Fourth Essential Element of the Offence - Did N.Y. by His Participation or Contribution Intend to Enhance the Ability of the Terrorist Group to Facilitate or Carry Out a Terrorist Activity?
[277] As previously discussed, I am satisfied beyond a reasonable doubt that N.Y. understood Ahmad’s terrorist intentions and that he was associating himself with a terrorist group. I am also satisfied beyond a reasonable doubt that he contributed to the group by shoplifting and participated in the activities of the group by attending the Rockwood Camp.
[278] N.Y. clearly understood that the camps were training for a terrorist purpose. He also understood that contributing materials to be used at the camp enhanced the ability of the group to conduct the training. His intent can be inferred from his actions.
[279] It is difficult to conceive that anyone, armed with that knowledge of a terrorist intent, would participate in or contribute to the terrorist group unless they shared the essential aims and ideals of the group and intended to enhance its ability. As provided in s. 83.01(2) of the Criminal Code, a terrorist activity is facilitated regardless of whether any particular terrorrist activity was foreseen or planned at the time or whether any terrorist activity was actually carried out.
[280] For the reasons previously discussed, I do not believe N.Y.’s statement to Sergeant Tost that any terrorist intentions were lost on him, nor does that statement, on the totality of the evidence, raise any reasonable doubt in my mind.
[281] In accordance with Rhee, supra, I am satisfied that the conclusion that N.Y. intended to enhance the ability of the terrorist group to facilitate or carry out a terrorist activity is the only reasonable inference to be drawn from the facts as I find them. As I have found, N.Y. knew what Ahmad was all about and was strongly motivated to act as directed by Ahmad and assist in any possible way.
[282] Having regard to my earlier analysis and findings, I am satisfied beyond a reasonable doubt that N.Y. by his participation and contribution intended to enhance the ability of the terrorist group to facilitate or carry out a terrorist activity.
V CONCLUSION
[283] I, therefore, find N.Y. guilty as charged.
[284] The defence has filed an application seeking an order that proceedings be stayed and that no conviction be registered on abuse of process grounds. This application will be heard commencing December 15, 2008.
___________________________
SPROAT J.
Released: September 25, 2008
COURT FILE NO.: YC-07-1587
DATE: 20080925
ONTARIO
SUPERIOR COURT OF JUSTICE
(sitting as a Youth Justice Court)
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
N.Y.
__________________________________
REASONS FOR JUDGMENT
SPROAT J.
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About Me
- Mubin Shaikh
- Toronto, Ontario, Canada
- Former undercover national security agent in the Toronto 18 case and the subsequent 4 year public prosecution as well as other security intelligence tasks I cannot comment on by law.
Order out of chaos
From darkness, Light!