R. v. Ansari (A.), 2015 ONCA 575

• Judge: Strathy, C.J.O., Watt and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 19, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 575;(2015), 337 O.A.C. 207 (CA)

R. v. Ansari (A.) (2015), 337 O.A.C. 207 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AU.016

Her Majesty the Queen (respondent) v. Asad Ansari (appellant)

(C52883; 2015 ONCA 575)

Indexed As: R. v. Ansari (A.)

Ontario Court of Appeal

Strathy, C.J.O., Watt and Epstein, JJ.A.

August 19, 2015.

Summary:

A jury found the accused guilty of participating in the activities of a terrorist group (Criminal Code, s. 83.18(1)). The accused appealed, arguing that (1) there were errors in the admission of various items of evidence at his trial, including intercepted private communications and letters found in his bedroom during a search conducted after his arrest; and (2) the trial judge erred in his instructions about the actus reus or conduct element of the offence.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 1373

Security of the person - Police surveillance - Interception of private communications - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 1445

Security of the person - Right to privacy - Surreptitious voice recording, data interception, etc. - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police obtained authorizations to intercept the private communications of a suspected terrorist group - The authorizations required that the interceptions be "live monitored" - The police intercepted two communications between Ansari and the leader of the group - In both cases, the "put away" feature was used, which allowed the monitor to discontinue listening to the call but to continue recording it - Ansari was charged with participating in the activities of a terrorist group - He argued that the interception of the private communications was conducted in an unreasonable manner (Charter, s. 8) because they were not made in accordance with the "live monitored" term of the authorization - The trial judge interpreted "live monitored" as meaning "listened to without interruption" and agreed that there had been a breach of s. 8 - However, the breach did not warrant exclusion of the communications as evidence under s. 24(2) - The Ontario Court of Appeal dismissed Ansari's appeal on this issue - The trial judge's decision to admit the evidence was entitled to considerable deference - The infringement was not a calculated violation of s. 8 - The purpose of live monitoring was to ensure that only communications between parties named in the authorization and those conversing with named parties were intercepted - That purpose was achieved here - The violation had no negative impact on Ansari's privacy interest - See paragraphs 73 to 82.

Criminal Law - Topic 1183

Offences against public order - Terrorism offences - "Terrorist activity" defined - [See Criminal Law - Topic 4399.6 ].

Criminal Law - Topic 4399.6

Procedure - Charge or directions - Jury or judge alone - Directions re elements of offence - Ansari was charged with participating in the activities of a terrorist group on the basis of (1) his attendance at a training camp, and (2) his provision of computer assistance to the leader of the group and another prominent member - A jury found Ansari guilty - He appealed, arguing that the trial judge erred by failing to instruct the jury that the conduct element of participating in or contributing to the activities of a terrorist group required proof of conduct that created a risk of harm beyond de minimis - The Ontario Court of Appeal dismissed the appeal - The conduct element did not require proof that what Ansari did actually enhanced the ability of the group to carry out or facilitate a terrorist activity, only that the conduct created a risk of harm beyond de minimis - What the absent instruction would have excluded was conduct that a reasonable person would not view as "capable" of materially enhancing the abilities of the group to facilitate or carry out a terrorist activity - Ansari's actions did not fit this description - Rather, his conduct was expressly included in the Criminal Code's definition of "participating in or contributing to an activity of a terrorist group" (ss. 83.18(3)(a) and (b)) - Ansari's defence, which was focussed principally on the elements of knowledge of the character of the group and the purpose underlying his camp attendance and computer assistance, was not directed to the actus reus of the offence - See paragraphs 185 to 189.

Criminal Law - Topic 5202

Evidence and witnesses - General - Admissibility - Whether relevant and material - Ansari was charged with participating in the activities of a terrorist group - Police searched Ansari's bedroom following his arrest - On his night table, they found drafts of letters written to his father, mother and sister - Ansari claimed that the letters were draft suicide notes and that his reference to leaving for an "unknown location to fight for the sake of Allah" was a red herring because he believed it was impermissible in Islamic culture to commit suicide - The trial judge held that the letters were admissible - The Ontario Court of Appeal dismissed Ansari's appeal on this issue - The letters were relevant and prima facie admissible - Possession of the letters was evidence of Ansari's state of mind (the intention to fight for Allah) which in turn tended to establish his motive for joining and his knowledge of the nature of the organization and the activities he participated in and contributed to - The trial judge applied the proper principles in determining that the probative value of the letters exceeded their prejudicial effect - Although the probative value of the evidence might not have been overwhelming, it did not have to be dispositive of the factual issues to which it related - The letters did not engender any palpable moral or reasoning prejudice - The trial judge provided jurors with a well-balanced limiting instruction that enjoined impermissible reasoning in their use of the evidence - See paragraphs 114 to 123.

Criminal Law - Topic 5204.3

Evidence and witnesses - General - Admissibility - Evidence of disposition or propensity of accused - Ansari and others were charged with participating in the activities of a terrorist group - Several documents and videos, described as "religious and ideological evidence", were found in their possession - The trial judge initially excluded several documents related to bomb-making stored on a hard drive in Ansari's bedroom - However, the trial judge later reconsidered this ruling at the request of the Crown and held that Ansari could be cross-examined on the documents because they were (1) relevant circumstantially to prove the falsity of parts of Ansari's testimony; and (2) relevant in rebuttal of the evidence of good character Ansari had given, in which he portrayed himself as someone who did not hold extremist views, thus rendering it unlikely that he would knowingly participate in or contribute to the activities of a terrorist group - The Ontario Court of Appeal dismissed Ansari's appeal on this issue - Ansari's possession and knowledge of the documents was relevant to cast doubt on the truthfulness of his claim that he was a moderate Muslim who eschewed jihadist activity - The evidence did not disclose extrinsic disreputable conduct apt to engender an impermissible chain of reasoning leading to proof of guilt, and the trial judge provided careful limiting instructions to guard against forbidden use - Ansari, in giving evidence-in-chief on his behalf, put his character in issue either impliedly or directly - His explanation of innocent purpose was inextricably bound with the use of character as circumstantial evidence of innocent conduct - See paragraphs 153 to 160.

Criminal Law - Topic 5273.1

Evidence and witnesses - Interception of private communications - Minimization (incl. live monitoring) - [See Civil Rights - Topic 8368 ].

Criminal Law - Topic 5277

Evidence and witnesses - Interception of private communications - Admissibility - General - [See Civil Rights - Topic 8368 ].

Criminal Law - Topic 5370

Evidence and witnesses - Documents and reports - Documents in possession of accused - [See Criminal Law - Topic 5202 ].

Criminal Law - Topic 5436

Evidence and witnesses - Cross-examination of accused - Character of accused - [See Criminal Law - Topic 5204.3 ].

Criminal Law - Topic 5449

Evidence and witnesses - Testimony respecting the accused - Character of accused - General - [See Criminal Law - Topic 5204.3 ].

Words and Phrases

Live monitored - The Ontario Court of Appeal discussed the use of this term in the context of a judicial authorization obtained by the police to intercept private communications - See paragraphs 38 to 82.

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 54].

R. v. Harrison (B.), [2009] 2 S.C.R. 353; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 68].

R. v. Beaulieu (G.), [2010] 1 S.C.R. 248; 398 N.R. 345; 2010 SCC 7, refd to. [para. 72].

R. v. Côté (A.), [2011] 3 S.C.R. 215; 421 N.R. 112; 2011 SCC 46, refd to. [para. 72].

R. v. Luciano (M.) (2011), 273 O.A.C. 273; 267 C.C.C.(3d) 16; 2011 ONCA 89, refd to. [para. 102].

R. v. Cloutier, [1979] 2 S.C.R. 709; 28 N.R. 1, refd to. [para. 103].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 107].

R. v. L.B.; R. v. M.A.G. (1997), 102 O.A.C. 104; 116 C.C.C.(3d) 481 (C.A.), refd to. [para. 110].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 112].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 112].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 112].

R. v. Samuels (R.) (2013), 310 O.A.C. 175; 2013 ONCA 551, refd to. [para. 112].

R. v. Vukelich (M.) (1996), 78 B.C.A.C. 113; 128 W.A.C. 113; 108 C.C.C.(3d) 193 (C.A.), refd to. [para. 113].

R. v. Turlon (1989), 32 O.A.C. 396; 49 C.C.C.(3d) 186 (C.A.), refd to. [para. 116].

R. v. Black (C.M.) (2014), 355 B.C.A.C. 277; 607 W.A.C. 277; 309 C.C.C.(3d) 484; 2014 BCCA 192, refd to. [para. 116].

R. v. Davison (1974), 20 C.C.C.(2d) 424 (Ont. C.A.), leave to appealed refused [1974] S.C.R. viii; 4 N.R. 448, refd to. [para. 147].

R. v. Farrant, [1983] 1 S.C.R. 124; 46 N.R. 337; 21 Sask.R. 271, refd to. [para. 149].

R. v. Morris, [1983] 2 S.C.R. 190; 48 N.R. 341, refd to. [para. 149].

R. v. N.A.P. (2002), 167 O.A.C. 176; 171 C.C.C.(3d) 70 (C.A.), dist. [para. 149].

R. v. Canadian Dredge & Dock Co. et al. (1981), 56 C.C.C.(2d) 193 (Ont. C.A.), leave to appeal refused (1981) 56 C.C.C.(2d) 576 (S.C.C.), refd to. [para. 149].

R. v. McNamara et al. (No. 1) - see R. v. Canadian Dredge & Dock Co. et al.

R. v. L.K.W. (1999), 126 O.A.C. 39; 138 C.C.C.(3d) 449 (C.A.), leave to appeal refused (2000), 264 N.R. 393; 145 O.A.C. 398 (S.C.C.), refd to. [para. 151].

R. v. Khawaja (M.M.), [2012] 3 S.C.R. 555; 437 N.R. 42; 301 O.A.C. 200; 2012 SCC 69, refd to. [para. 161].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 181].

R. v. Rhee (D.G.), [2001] 3 S.C.R. 364; 275 N.R. 281; 157 B.C.A.C. 30; 256 W.A.C. 30; 2001 SCC 71, refd to. [para. 182].

R. v. Avetysan (A.) (2000), 262 N.R. 96; 195 Nfld. & P.E.I.R. 338; 586 A.P.R. 338; 2000 SCC 56, refd to. [para. 183].

Authors and Works Noticed:

Phipson on Evidence (18th Ed. 2013), pp. 1326, 1327 [para. 116].

Counsel:

John Norris and Breese Davies, for the appellant;

Croft Michaelson and Amber Pashuk, for the respondent.

This appeal was heard on December 15 and 16, 2014, before Strathy, C.J.O., Watt and Epstein, JJ.A., of the Ontario Court of Appeal. Watt, J.A., delivered the following judgment for the court on August 19, 2015.