R. v. N.Y.,

• Jurisdiction: Ontario
• Judge: Goudge, Feldman and Blair, JJ.A.
• Neutral Citation: 2012 ONCA 745
• Citation: (2012), 298 O.A.C. 297 (CA),2012 ONCA 745,113 OR (3d) 347,294 CCC (3d) 313,298 OAC 297,113 O.R. (3d) 347,(2012), 298 OAC 297 (CA),298 O.A.C. 297
• Date: 28 March 2012
• Court: Court of Appeal (Ontario)

R. v. N.Y. (2012), 298 O.A.C. 297 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. NO.011

Her Majesty the Queen (respondent) v. N.Y. (appellant)

(C50614; 2012 ONCA 745)

Indexed As: R. v. N.Y.

Ontario Court of Appeal

Goudge, Feldman and Blair, JJ.A.

November 5, 2012.

Summary:

N.Y. along with three other young persons and fourteen adults, were charged following a police investigation that uncovered a plot to commit public acts of terrorism. N.Y. was convicted of knowingly participating in or contributing to the activities of a terrorist group (Criminal Code, s. 83.18) and sentenced to 30 months' imprisonment. The trial judge found that N.Y. had participated in and aided the terrorist group by attending a terrorist training camp in rural Ontario, shoplifting camping supplies and walkie-talkies for the group, and removing a law enforcement surveillance camera found in the apartment complex of one of the leaders of the terrorist group (See [2008] O.T.C. Uned. L16). N.Y. appealed his conviction, arguing that the trial judge erred by: (1) misapprehending the evidence and making findings based on speculation and inferences not founded on the evidence; (2) admitting into evidence the accused's post-arrest statement despite having found that the police had breached his rights under ss. 10(a) and 10(b) of the Charter; (3) relying on hearsay evidence of comments made by Ahmad (one of the lead conspirators), and the interpretation of those comments, led through the witness, Shaikh (a CSIS confidential informant); and (4) failing to enter a stay of proceedings at the end of trial on abuse of process grounds, in particular, in failing to find that Shaikh was a state agent rather than a confidential informant, and in failing to give sufficient weight to what were alleged to be overbearing and illegal acts on Shaikh's part.

The Ontario Court of Appeal dismissed the appeal, declining to give effect to any of N.Y.'s submissions.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - The accused was convicted of knowingly participating in or contributing to terrorist group activities (Criminal Code, s. 83.18) - The accused thereafter sought to stay proceedings under s. 24(2) of the Charter because of an abuse of process - The accused claimed that a CSIS informant (Shaikh), who testified at trial, was actually a state agent whose under cover participation in the terrorist training camp attended by the accused constituted entrapment and was an affront to the community's sense of fair play and decency - The trial judge refused the stay, holding that Shaikh was not a state actor, and in any event, a stay was not justified on either of the accused's other two arguments - The accused appealed - The Ontario Court of Appeal dismissed the appeal - See paragraphs 109 to 156.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was convicted of knowingly participating in or contributing to terrorist group activities (Criminal Code, s. 83.18) - He appealed, arguing that the trial judge erred in failing to exclude a post-arrest statement (Charter, s. 24(2)), notwithstanding a breach of his right to be informed of the reasons for his detention (s. 10(a)) - The Ontario Court of Appeal noted that the trial judge did not have the benefit of the reformulated s. 24(2) test (R. v. Grant (SCC 2009)) - Rather he applied the traditional test (R. v. Collins (SCC 1987)) - However, the same result followed when the newly-formulated Grant criteria were applied to the facts before the trial judge - Admission of the statement would not bring the administration of justice into disrepute - The appeal was dismissed - See paragraphs 33 to 61.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 253

Abuse of process - What constitutes - [See Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - The Ontario Court of Appeal reviewed the conspirator's exception to the hearsay rule (i.e., that the out-of-court declarations of co-conspirators were presumptively admissible) - The court discussed whether the co-conspirator's exception was ever applicable where the declarant was available to testify - See paragraphs 62 to 79.

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - N.Y. and several individuals, including one of the lead conspirators, Ahmad, were charged after police uncovered a terrorist plot - N.Y. was convicted of knowingly participating in or contributing to terrorist group activities (Criminal Code, s. 83.18) - He appealed, arguing that the trial judge erred in relying on hearsay evidence of a Crown witness respecting comments made by Ahmad, especially where Ahmad was available to testify - The Ontario Court of Appeal held that that the trial judge was correct when he determined that the theoretical availability of Ahmad to testify at the instance of the Crown or the defence was not an insurmountable impediment to the application of the co-conspirators' exception in the circumstances of this case - See paragraphs 62 to 79.

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - N.Y. and several individuals, including one of the lead conspirators, Ahmad, were charged after police uncovered a terrorist plot - N.Y. was convicted of knowingly participating in or contributing to terrorist group activities (Criminal Code, s. 83.18) - He appealed, arguing that the trial judge erred in relying on hearsay evidence of a Crown witness respecting comments made by Ahmad, especially where Ahmad was available to testify - The Ontario Court of Appeal held that the trial judge was correct to consider, and apply, the co-conspirators' exception to the hearsay rule in the circumstances of this case, and to conclude, based on a thorough examination of the record, that this was not one of those "rare cases" where the evidence should be excluded, nonetheless, because the required indicia of necessity and reliability were lacking in the particular circumstances - There was no basis for interfering in his findings and conclusions in this regard - See paragraphs 62 to 108.

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - N.Y. and several individuals, including one of the lead conspirators, Ahmad, were charged after police uncovered a terrorist plot - N.Y. was convicted of knowingly participating in or contributing to terrorist group activities (Criminal Code, s. 83.18) - He appealed, arguing that the trial judge erred in admitting evidence under the co-conspirator's exception to the hearsay rule when he imported that rule into the terrorist context without proof that a conspiracy or common criminal design existed - The Ontario Court of Appeal rejected N.Y.'s argument - The notion of joint criminal enterprise was inherent in the definition of "terrorist group" in s. 83.01 of the Criminal Code - The trial judge found that the evidence that there existed a terrorist group headed by Ahmad and another person was overwhelming - See paragraphs 80 and 81.

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - N.Y. was convicted of knowingly participating in or contributing to terrorist group activities (Criminal Code, s. 83.18) - He appealed, arguing the trial judge erred in admitting evidence under the co-conspirator's exception to the hearsay rule because he was unaware of the details of the grand scheme and there was insufficient evidence to establish that he agreed to join and participate in such a conspiracy - The Ontario Court of Appeal rejected this ground of appeal - The court stated that a conspiracy was complete upon proof of an agreement to carry out an unlawful act - It was not necessary for the accused to be aware of all of the details of the scheme, or of everyone who was involved or their respective roles - It was sufficient that he be aware of the general nature of the common design and agreed to adhere to it - See paragraphs 82 to 89.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - The accused was convicted of knowingly participating in or contributing to terrorist group activities (Criminal Code, s. 83.18) - He appealed, arguing that the trial judge rejected viable alternative explanations of innocence because he misapprehended the evidence and made inconsistent findings or unwarranted inferences - The Ontario Court of Appeal stated that there was a fine line between an argument based upon misapprehension of the evidence, inconsistent findings and unwarranted inferences, on the one hand, and an argument which was, in substance, an attempt to persuade an appellate court to re-try the case and substitute its own take on the evidence - The accused's argument fell into the latter category - Here, there was ample evidence to support the judge's findings and inferences he drew from those findings - He did not make any significant findings that were inconsistent with the evidence - The appeal was dismissed - See paragraphs 28 to 32.

Criminal Law - Topic 5320.2

Evidence and witnesses - Inferences - From circumstantial evidence - The accused was convicted of knowingly participating in or contributing to terrorist group activities (Criminal Code, s. 83.18) - He appealed, arguing that the trial judge erred in holding that the only reasonable inference to be drawn from the circumstantial evidence was that the accused intended by his acts to enhance the ability of the group to carry out its terrorist activities - He claimed that the trial judge failed to comply with the principle that where the Crown relied upon circumstantial evidence to prove intent, the inferences drawn had to be the only reasonable inferences capable of being drawn from the facts (R. v. Rhee (SCC 2001)) - The Ontario Court of Appeal was not persuaded that the trial judge ran afoul of the Rhee principle and dismissed the appeal - See paragraphs 28 and 31.

Evidence - Topic 217

Inferences and weight of evidence - Inferences - Inference of fact - General - [See Criminal Law - Topic 4866 and Criminal Law - Topic 5320.2 ].

Evidence - Topic 300

Circumstantial evidence - General - [See Criminal Law - Topic 5320.2 ].

Cases Noticed:

R. v. Amara (Z.) (2010), 275 O.A.C. 155; 2010 ONCA 858, refd to. [para. 24, footnote 1].

R. v. Gaya (S.) (2010), 272 O.A.C. 242; 2010 ONCA 860, refd to. [para. 24, footnote 1].

R. v. Khalid (S.) (2010), 272 O.A.C. 228; 2010 ONCA 861, refd to. [para. 24, footnote 1].

R. v. Abdelhaleem, [2010] O.J. No. 5693 (Sup. Ct.), refd to. [para. 24, footnote 1].

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; 158 C.C.C.(3d) 129; 204 D.L.R.(4th) 618; [2002] 1 W.W.R. 409; 96 B.C.L.R.(3d) 224; 46 C.R.(5th) 233; 51 W.C.B.(2d) 152; 2001 SCC 71, refd to. [para. 28].

R. v. To (W.H.) (1992), 16 B.C.A.C. 223; 28 W.A.C. 223; 1992 CanLII 913, refd to. [para. 31].

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. 43].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 43].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289; 33 C.R.(4th) 1, refd to. [para. 44].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 56].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, refd to. [para. 63].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 190 D.L.R.(4th) 591; 2000 SCC 40, refd to. [para. 63].

R. v. Mapara (S.) et al., [2005] 1 S.C.R. 358; 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1; 2005 SCC 23, refd to. [para. 64].

R. v. Chang (A.) and Kullman (G.) (2003), 170 O.A.C. 37; 173 C.C.C.(3d) 397 (C.A.), refd to. [para. 65].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142; 31 C.R.(3d) 97, refd to. [para. 67, footnote 2].

R. v. Simpson (C.), (2007), 231 O.A.C. 19; 2007 ONCA 793, refd to. [para. 70].

R. v. Barnes, [2007] O.J. No. 468 (Sup. Ct.), refd to. [para. 78].

R. v. Pilarinos (D.) et al., [2002] B.C.T.C. 855; 2 C.R.(6th) 273; 2002 BCSC 855, refd to. [para. 78].

R. v. Lam (T.K.) et al. (2005), 389 A.R. 324; 2005 ABQB 121, refd to. [para. 78].

R. v. Koufis, [1941] S.C.R. 481, refd to. [para. 88].

R. v. Wilder, [2003] B.C.J. No. 2884 (S.C.), refd to. [para. 88].

R. v. O'Brien, [1954] S.C.R. 666, refd to. [para. 89].

R. v. Paradis, [1934] S.C.R. 165, refd to. [para. 89].

R. v. Cotroni; R. v. Papalia, [1979] 2 S.C.R. 256; 26 N.R. 133, refd to. [para. 89].

R. v. Root (J.) (2008), 244 O.A.C. 41; 241 C.C.C.(3d) 125 (C.A.), refd to. [para. 89].

R. v. Khawaja (M.M.), [2006] O.T.C. 1004; 214 C.C.C.(3d) 399 (Sup. Ct.), refd to. [para. 89].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 92].

United States v. Inadi (1986), 106 S. Ct. 1121 (U.S.S.C.), refd to. [para. 92].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338, refd to. [para. 101].

R. v. Mack, [1988] 2 S.C.R. 903; 90 N.R. 173, refd to. [para. 127].

R. v. Khawaja (M.M.) (2010), 271 O.A.C. 238; 2010 ONCA 862, refd to. [para. 139].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 142].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 143].

R. v. Jageshur (R.) (2002), 165 O.A.C. 230; 169 C.C.C.(3d) 225 (C.A.), refd to. [para. 144].

R. v. Zarinchang (D.) (2010), 261 O.A.C. 153; 254 C.C.C.(3d) 133; 2010 ONCA 286, refd to. [para. 145].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(a), sect. 10(b), sect. 24(2) [para. 34].

Criminal Code, R.S.C. 1985, c. C-46, sect. 83.18 [para. 27].

Authors and Works Noticed:

Hill, S. Casey, Tanovich, David M., and Strezos, Louis P., McWilliams' Canadian Criminal Evidence - see McWilliams, Peter K., Canadian Criminal Evidence.

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed.) (2011 Looseleaf Update), pp. 7-138, 7-141 [para. 88].

Watt, David J., Manual of Criminal Evidence (2012), pp. 370, 371 [para. 88].

Counsel:

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

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

This appeal was heard on March 28, 2012, before Goudge, Feldman and Blair, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Blair, J.A., on November 5, 2012.