IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Hamdan, |
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2017 BCSC 1770 |
Date: 20170922
Docket: 27088
Registry: Vancouver
Regina
v.
Othman Ayed Hamdan
Restriction
on Publication: Pursuant to ss. 486.5(1) and 486.5(9) of the
Criminal Code there shall be no publication, broadcast or transmission
in any way of any information that could identify the undercover police
officer including any pseudonyms used by the undercover police officer
involved in the investigation of the Accused. This publication ban applies
until further order of the Court. These reasons for judgment comply with
this publication ban.
Before: The Honourable Mr. Justice Butler
Oral Reasons for Judgment
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Counsel for the Crown: |
Anita Chan |
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Counsel for the Accused: |
Bryan E. Fitzpatrick |
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Place and Date of Trial/Hearing: |
Vancouver, B.C. |
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Place and Date of Judgment: |
Vancouver, B.C. |
[1] Othman Ayed Hamdan is charged with four terrorism counts arising from posts he made on various Facebook pages and profiles between September 22, 2014 and July 9, 2015. During that time period, Mr. Hamdan was working in construction in Fort St. John, B.C. Much of his non-working time appears to have been spent online. He was the administrator of numerous Facebook pages and profiles. Mr. Hamdan’s Facebook posts described and commented on current events in the Middle East, predominantly focusing on the ongoing conflict between the military coalition led by the United States (the “Western Coalition”) and the Islamic State of Iraq and Syria (“ISIS”). He also described and commented on Canadian government policies and actions, as well as on terrorist attacks committed by Islamist terrorists in Canada and other Western countries. Some of the posts were highly critical of the Canadian government and the Western Coalition. Some of the posts were supportive of ISIS and the actions of so-called “lone wolf terrorists”; sole actors who commit terrorist acts independently and without direct orders.
[2] The four charges Mr. Hamdan faces are:
1) counselling the commission of the offence of murder contrary to ss. 464(a) and 235 of the Criminal Code (the “Code”) for the benefit of, at the direction of or in association with a terrorist group contrary to s. 83.2 of the Code;
2) counselling the commission of the offence of assault causing bodily harm contrary to ss. 464(a) and 267(b) of the Code for the benefit of, at the direction of or in association with a terrorist group contrary to s. 83.2 of the Code;
3) counselling the commission of the offence of mischief in relation to property contrary to ss. 464(a) and 430 of the Code for the benefit of, at the direction of or in association with a terrorist group contrary to s. 83.2 of the Code (I will refer to the first three counts collectively as the “Counselling Offences”); and
4) knowingly instructing, directly or indirectly, any person to carry out a terrorist activity, thereby committing an offence contrary to s. 83.22 of the Code.
[3] The RCMP operates the Integrated National Security Enforcement Teams (“INSET”) to combat terrorism and threats to national security. After the October 22, 2014 shooting on Parliament Hill in Ottawa, INSET established Project Savvy. Members of that team monitored open sources in an effort to identify potential threats to security that required further investigation. On October 27, 2014, Constable Connor Johnson used screenshot software to capture Timelines from a Facebook page titled “Al-Uqab. The Banner” and from a Facebook profile titled “Adam Khalifa”. He wrote a report to the Command Triangle recommending immediate follow-up of these two Facebook accounts. Civilian Monitor Sara Spearman, a criminal intelligence analyst working with INSET, was tasked with monitoring the accounts. Later, a special team, Project Scollop, was established to investigate the administrator of these Facebook accounts. From late 2014 until July 9, 2015, C.M. Spearman took screenshots of numerous Facebook pages and profiles that appeared to be administered by the same individual.
[4] From the screenshots taken by Cst. Johnson and C.M. Spearman, the Crown identified 85 individual posts on which it relies to prove the charges against Mr. Hamdan. These are described as the Key Posts. The Key Posts appear on approximately 14 different Facebook accounts, nine of which are pages (business/ organization accounts) and five of which are profiles (personal accounts). In the course of these reasons I quote from and discuss many, but not all, of the Key Posts. For completeness, I have attached as Schedule “A” to these reasons a copy of the Crown summary of all 85 Key Posts.
[5] At the commencement of the trial, Mr. Hamdan, through his counsel, made significant admissions of fact. Mr. Hamdan admitted that he was the administrator of all of the Facebook accounts on which the 85 Key Posts appear. Mr. Hamdan also admitted that he either posted or re-posted each of the Key Posts. He also admitted to being the author of many of the Key Posts and identified those posts that he did not author. For some of the Key Posts that he did not author, he admitted to adding commentary and he identified his comments.
[6] Following a voir dire in which I heard evidence about how the Key Posts were captured; expert evidence about Facebook; and expert evidence about the capture and preservation of electronic evidence, I ruled in R. v. Hamdan, 2017 BCSC 676 (the “S. 7 Ruling”) that the Timelines from the Facebook accounts and the Key Posts are admissible in evidence.
[7] In the S. 7 Ruling, I set out the steps taken by the RCMP to monitor and capture the Timelines and Key Posts. I also described the steps taken to preserve the electronic evidence, including applications to obtain Production Orders and efforts made under the Mutual Legal Assistance Treaty (“MLAT”) between Canada and the United States to obtain the Facebook records about the accounts in question. I will not repeat my findings in detail. However, some aspects of the evidence collection are significant to arguments advanced at trial. The RCMP did not have any procedures established for the collection of social media evidence. They took screenshots using two software programs (Snagit and Awesome Screenshot) rather than forensic grade software to capture or preserve the evidence. As a result, the source code and some of the metadata for the Timelines and Key Posts were not captured and the Facebook pages and profiles could not be reproduced as they were at the time the Key Posts were made. The following passages from the S. 7 Ruling describe some of the problems caused by the shortcomings in the method used by the RCMP to capture and preserve the electronic evidence:
[16] C.M. Spearman testified that all of the screenshots and their printed versions are true and accurate copies of the originals. However, she acknowledged that there are some qualifications to that comment. First, many of the captured Timelines have “banner artifacts” that cover up parts of the Timeline pages that would have been visible to a Facebook user. In some cases those artifacts hide text that would have been visible to a user. The artifacts are created by Snagit and Awesome Screenshot as they are not able to properly capture a scrolling page. The banner that should remain at the top of the Facebook page or profile appears superimposed over other parts of the image.
[17] C.M. Spearman also acknowledged that for many of the Timeline captures there are notations stating, “See More”, or “Continue Reading” etc. She knew it was possible to click on those notations to expand the post. Sometimes she expanded the post before capturing the page or profile but sometimes she did not. She agrees that where she did not do so, the captured Timeline does not contain all of the text that could have been seen by a person viewing the page or profile. Further, she agreed that she usually did not click on the “Comments” notations to see the posts made by friends or followers.
…
[30] Facebook provided extensive information in response to the [MLAT] request – literally thousands of pages. However, contrary to the expectations of [the RCMP], the MLAT information does not match the captures. It is not formatted as a Facebook page or profile and so it looks nothing like the Electronic Documents.
…
[32] Mr. Ripa [the defence expert] indicated that the screenshots made using Snagit and Awesome Screenshot did not collect sufficient data to allow him to properly analyze the Key Posts and Timelines. The software the RCMP used merely took images of the pages and profiles as they appeared on the screen. He noted that the RCMP could have captured the source code with the software they used by right clicking on the screen to cause the source code to appear. A screenshot could then have been made of that code. Without the source code, it was not possible to view videos or comments, to expand the posts or to navigate through the screen using the links in the original pages. Mr. Ripa concluded that he could not analyze the evidence or correlate it against the Facebook metadata because of the inadequate software.
[8] In addition to the problems identified in the S. 7 Ruling, the collection of screenshots was not done on a daily basis by C.M. Spearman. As a result, no screenshots were taken of some portions of the Timelines such that portions of the discussions between the administrator and friends or followers are not available. The effect of all of the shortcomings in the collection of the evidence is that some of the Key Posts are not complete and some of the context for the Key Posts is missing.
[9] I will discuss the Crown’s submissions in more detail later in these reasons. However, some understanding of the Crown’s theory of the case, and the defence’s response to that theory, is essential to identification and consideration of the relevant issues. Counts 1 to 3 require the Crown to prove beyond a reasonable doubt that Mr. Hamdan counselled the commission of indictable offences. The Counselling Offences require proof that Mr. Hamdan “actively induced” others to commit the identified indictable offences. The Key Posts contain few overt statements that could be interpreted as active inducement to commit the offences in question. The Crown admits that most of the Key Posts when considered individually would not provide adequate proof of active inducement. However, it says that the Court can consider all 85 Key Posts collectively to give context to the individual posts. In other words, the Crown says that active inducement can be inferred from consideration of all of the electronic evidence.
[10] The Counselling Offences also require the Crown to prove that the counselling was done for the benefit of, at the direction of or in association with a terrorist group. It is not controversial that the terrorist group is ISIS and that it was, at all relevant times, listed as a terrorist entity pursuant to s. 83.05 of the Code. The Crown presented no direct evidence of any directions given to Mr. Hamdan from ISIS or anyone on behalf of ISIS. The Crown presented no direct evidence of any association between Mr. Hamdan and ISIS. Similarly, there is no direct evidence of any benefit accruing to ISIS because of the Key Posts; indeed, the charges under s. 464(a) concern the counselling of offences that were not committed. Again, the Crown asks the Court to consider all 85 Key Posts together to infer that Mr. Hamdan was counselling the commission of indictable offences for the benefit of, at the direction of or in association with ISIS.
[11] The defence objects to the Crown’s theory of the case. It says that the Crown’s theory compounds the problems created by the improper capture of the electronic evidence. As a result, the defence says the Court is unable to draw the inferences sought by the Crown. The defence says there are two major defects in the Crown case. First, the incomplete collection and preservation of the Timelines and Key Posts makes it impossible for the Court to draw reliable inferences. Second, it says the Crown’s suggestion that the collection of all of the Key Posts can be used to draw inferences about individual posts must be incorrect for a number of reasons. First, the Key Posts were never meant to be read together; Mr. Hamdan was providing news and commentary on current events over a ten-month period. His posts were to be read in context with the comments and posts of his friends and followers. The defence says that the Crown’s approach ignores the context and thus misrepresents the meaning of the Key Posts and Mr. Hamdan’s intent. Further, the Key Posts were made on 14 different pages and profiles. The pages had a different intended audience from the profiles. The defence says it is illogical to draw reliable inferences from statements taken from 14 different Facebook accounts directed at different audiences over a lengthy time period.
[12] Finally, the defence says there is no reason to reject the evidence of Mr. Hamdan. He testified about his intent in writing the Key Posts and other posts in the Timelines. He denies being a Salafist jihadist, although he admits to being sympathetic to ISIS and supporting its efforts to protect the Sunni population in Iraq and Syria. He denies any intent to actively induce anyone to commit a criminal offence. Rather, he wanted to inform his readers and followers about the conflict in Syria and Northern Iraq and to educate them about the hypocrisy of the leaders of the Western Coalition and of those in power in the Middle East. The defence says that his evidence should be accepted, or, at the very least, that it creates a reasonable doubt.
[13] Mr. Hamdan gave extensive evidence about his personal background, including his childhood, his move to the United States, his interest in Christianity, his application for refugee status in Canada, and his Facebook activities. He was not cross-examined in any detail about his personal history. I accept this evidence as generally truthful. The defence argues, and I accept, that his personal history is relevant as it informs his political views and his activities on Facebook.
[14] Mr. Hamdan’s parents are Palestinian. They left Palestine because of the conflict with Israel and were accepted as immigrants to Jordan. Mr. Hamdan considers himself to be Palestinian and considers his grandparents’ hometown to be his home. He was born in Abu Dhabi and raised in the United Arab Emirates. He had Jordanian citizenship and spent summers mainly in Jordan, although after he turned eight he spent some time in Palestine with his maternal grandparents. His father was a sales manager for a large company and he described his upbringing as upper middle class.
[15] As a teenager, Mr. Hamdan felt at odds with the political and religious authorities in the Middle East and was attracted to the United States. He had minimal connection with Islam and came to believe that the governments in the Middle East and the Muslim clergy were hypocritical. He applied for a student visa to go to school in the United States and in 1999, at the age of 18, attended a college in Texas where he studied electrical engineering. After a year, at the suggestion of a friend, he decided to leave college and go to Louisville to work. He felt that he was targeted as an Arab in Kentucky and so did not stay long but moved to Michigan.
[16] In Michigan, Mr. Hamdan became actively interested in Christianity. He worked in a liquor store and eventually decided that he was drinking too much. He decided to go to Massachusetts through a contact he made online. He got a job as a car salesman and started attending school again. This was shortly before September 11, 2001, when terrorist attacks occurred at the World Trade Centre in New York and elsewhere in the United States. When the attacks happened, Mr. Hamdan was living with a student from Saudi Arabia who was taking flying lessons. He and the roommate were picked up on September 12, 2001 by the FBI. He was questioned for ten days. Mr. Hamdan believes the FBI was trying to recruit him to act as an informer. He was not interested in being recruited. When he was released, the FBI told him not to leave town without letting them know where he was going. Instead, he left the next day and headed west with no destination.
[17] Mr. Hamdan’s next stop was in Ohio where he worked for several months. He says that he was appalled as he watched what happened to American attitudes and policies after 9/11. He thought there was no justification for the United States to attack Afghanistan simply because 19 Saudis attacked the United States. He believed that after 9/11 all Muslims were profiled as terrorists. He eventually left Ohio when the FBI made inquiries about him at his workplace.
[18] Mr. Hamdan next moved to California where he worked for a relative. He attended church regularly and seriously considered converting to Christianity. He knew that if he did so and then returned to a Muslim country, he could be imprisoned or killed. He sought legal advice on applying for asylum in the United States based on religious conversion. He was advised that it was a poor time to do that in the United States and that his chances were better in Canada. He travelled north and entered Canada at the Peace Arch border crossing. He was interviewed by Border Services and sometime later, following a hearing, was accepted for refugee status. He has lived in British Columbia ever since.
[19] Mr. Hamdan lived in the Lower Mainland for a couple of years. He continued to attend church but eventually became disillusioned with Christianity; he believed that the church and its followers were also hypocritical. He began drifting around British Columbia. Up to the time of his arrest he held a wide variety of jobs mainly in the construction industry. He lived in Grand Forks, Osoyoos and Vernon and eventually moved up to Fort St. John in 2011. At that time he was reverting to Islam but did not attend mosque. He says that he regarded himself as a Muslim and a Palestinian. He continued to try to make sense of the contradictions in the Quran and the Bible. He acknowledges that he has always been very opinionated about his political and religious views.
[20] After arriving in Fort St. John in 2011, Mr. Hamdan found a job that required him to live out of town in a work camp. There was limited entertainment after work and so he spent a lot of time on his laptop communicating with family and keeping up with news in the Middle East. The Arab Spring had just begun and he followed the developments closely. He regarded the governments in most Middle Eastern countries as dictatorships that controlled the police, military and clergy and thus prevented social change. He found it fascinating that people were able to effect change through social media, as exemplified by the events in Tunisia and Egypt. Mr. Hamdan described the power of social media in the Arab Spring as “beautiful”. After the government in Egypt was toppled quickly, he watched closely as changes appeared to be happening in other countries. However, the dictatorships fought back and began to supress the social movements. He described the developments in Libya as “ugly”.
[21] At the time, Mr. Hamdan had a Facebook personal account, “Adam Khalifa”, which he used to communicate with friends and relatives in the Middle East. Khalifa is his family name and Adam is the anglicized version of “Othman”. His Facebook posts contained a lot of poetry but no political content. However, the developments of the Arab Spring caused him to change his use of Facebook. As governments in the Middle East began to supress social media and commentary, he began to write about political issues and current events. He believed that the people in the Middle East were facing atrocities and that it was important to discuss what was happening. He believed that by doing so he could expose lies and seek the truth. He used poetry and literature in his posts and provided commentary on mainstream media articles. He began to gather followers.
[22] Mr. Hamdan described how the civil war started in Syria in 2011 with the torture and murder of a 13-year-old boy arrested for writing graffiti about the Arab Spring. He described his outrage at the developments in Syria which were largely ignored by the Western media. He came to believe that the atrocities committed by the Assad regime were only being exposed and challenged by people on social media. Mr. Hamdan got involved online with what he described as a “community of activists” in Syria and began to post more frequently on his personal profile. He followed and commented on mainstream and activist reports about events in Syria and says that he attempted to spark discussion and debate through his posts. By 2013 his “Adam Khalifa” profile had thousands of followers, mainly in the Middle East.
[23] Mr. Hamdan also described his anger at the approach taken by Facebook to Islamic symbols and insignia. Facebook accounts that used Islamic insignia were often deleted. He decided to use the seal of the Prophet Mohammed and quotes from the Quran on his profile and this resulted in a number of suspensions of his account. He believed that the approach taken by Facebook was bigoted and that it discriminated against Muslims. He was of the view that Facebook was hypocritical; it was supposed to be a beacon of freedom but was biased against Islam.
[24] In late 2013, Mr. Hamdan decided to create a Facebook page: “Al Uqab. The Banner.” “Al Uqab” means “the Eagle” and is the nickname of the banner of the Prophet. Mr. Hamdan said that the pages he created, all of which used Islamic insignia, were frequently deleted by Facebook. Throughout this period Mr. Hamdan identified as a Muslim, but says that he did not practise the religion. Indeed, he still “smoked a lot of weed”. He described himself in the following way: a liberal would say that he was a Middle Eastern Muslim and an Islamist would say that he was a liberal.
[25] Mr. Hamdan admits that he identifies with the Sunnis in Iraq and Syria and was outraged at the atrocities committed against them by the Shia governments in those countries. However, he says he also identifies with the Shia in Bahrain who were oppressed by the Sunni monarchy following the Arab Spring. He sees a similarity between the Sunnis who are fighting Assad in Syria and the Palestinians who are fighting for their homeland against Israel. He made it clear throughout his evidence that he regards himself as a supporter of the oppressed and downtrodden.
[26] As Mr. Hamdan watched the developments in the Middle East, he turned back to his faith. He became active in online debates about Islam and read scholarly works. He says that he went through a very philosophical journey. He notes that one of the highest forms of jihad or struggle according to the Prophet is to speak truth in the face of a tyrannical ruler. Throughout 2014 and 2015 he continued to use his Facebook accounts to post on events in the Middle East and elsewhere. He believes that by doing so he was speaking truth to oppressive authorities; in other words, he believes that he was carrying out a legitimate form of jihad.
[27] In the latter part of 2014, Mr. Hamdan says that his use of Facebook pages changed. He started to put more content into the pages and considered the pages to be news reports. When an account is established for a Facebook page, the administrator must indicate the nature of his or her business or organization. Mr. Hamdan’s pages described his organization as: “Media/ News/ Publishing”. The sources he used to report the news included ISIS media, mainstream media and direct sources in the Middle East, including social media reports. Mr. Hamdan is of the view that the mainstream media were trying to control the discussion about the conflict in Syria and Iraq to accord with government or think tank perspectives and that social media sources were attempting to report the truth. Many of the posts in Mr. Hamdan’s pages were in English as he viewed his main audience to be people in Western countries.
[28] While the posts on Mr. Hamdan’s Facebook pages were written mainly in English, the posts on his Facebook profiles were primarily in Arabic. This is because his intended audience was his family and friends, including online friends, most of whom spoke Arabic.
[29] Mr. Hamdan concluded his lengthy personal history by indicating that he is neither a Salafist nor a Salafist jihadist. Salafists are those who strictly follow the teachings of the first three generations of Islam. Followers of ISIS or Al-Qaeda are Salafist jihadists and believe in the concept of violent jihad to establish an Islamic caliphate. A caliphate is an Islamic republic under Sharia law led by a single leader, a caliph. Salafist jihadists believe that it is legitimate to kill non-believers even if they are non-combatants.
[30] Mr. Hamdan is charged under s. 464 of the Code, with counselling three indictable offences that were not committed, “for the benefit of, at the direction of or in association with a terrorist group” contrary to s. 83.2 of the Code. The relevant sections read:
464 Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel other persons to commit offences, namely,
(a) every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable…
83.2 Every one who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of or in association with a terrorist group is guilty of an indictable offence and liable to imprisonment for life.
[31] Section 83.2 does not alter the requirements of s. 464, rather it creates an additional offence based on the underlying indictable offence. In R. v. Nuttall, 2015 BCSC 961, Madam Justice Bruce observed as follows at para. 10:
… [T]he new s. 83.2 terrorism offence takes every existing indictable offence in the Criminal Code and then adds on a further essential element; namely, that the existing Criminal Code offence was committed for the benefit of, at the direction of, or in association with a terrorist group. Accordingly, Parliament has enacted what must be regarded in law as a greater offence that builds upon or starts with an existing lesser included offence.
[32] Accordingly, in this case, if Mr. Hamdan is to be convicted of Counts 1 to 3, the Crown must prove the elements of the underlying s. 464 Counselling Offences, plus the additional elements of s. 83.2. As the Counselling Offences are lesser included offences for Counts 1 to 3, if the Crown has proved the elements of the Counselling Offences beyond a reasonable doubt but has not proved that the counselling was done for the benefit of, at the direction of or in association with a terrorist group, Mr. Hamdan could be found guilty of the lesser included offences of counselling murder, assault or mischief to property.
[33] The Supreme Court of Canada considered the proper approach to counselling offences in two decisions issued in 2005. In Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, the Court considered whether a deportation order was valid. In doing so it outlined the elements of the offence of counselling murder under s. 464 in order to determine if those elements were made out based on the findings of the Immigration and Refugee Board. After referring to the provisions of s. 464, the Court explained the elements of a counselling offence at paras. 63 and 64:
63 “Counsel[ling]” is defined in s. 22(3) of the Criminal Code, which says that its meaning includes “procur[ing]”, “solicit[ing]”, or “incit[ing]”. To incite means to urge, stir up or stimulate: R. v. Ford (2000), 145 C.C.C. (3d) 336 (Ont. C.A.), at para. 28.
64 The offence of counselling requires that the statements, viewed objectively, actively promote, advocate, or encourage the commission of the offence described in them: R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 56. The criminal act will be made out where the statements (1) are likely to incite, and (2) are made with a view to inciting, the commission of the offence: R. v. Dionne (1987), 38 C.C.C. (3d) 171 (N.B.C.A.), at p. 180. An intention to bring about the criminal result, that the counsellor intend the commission of the offence counselled, will obviously satisfy the requisite mental element for the offence of counselling.
[34] In R. v. Hamilton, 2005 SCC 47, the accused was acquitted at trial of four counselling offences for crimes not committed. The Court allowed the Crown appeal of the charge of counselling fraud and ordered a new trial. The accused had sent teaser emails to 300 people marketing software that would enable the purchasers to generate “valid” credit card numbers. In allowing the appeal, Mr. Justice Fish, writing for the majority, summarized the elements of s. 464 at para. 29:
29 In short, the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. And the mens rea consists in nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct.
[35] In Hamilton, the Crown argued for a less demanding standard of proof for counselling offences because of the perceived risk that the encouragement of unlawful activity can be done so easily on the Internet. Mr. Justice Fish rejected that argument, stating at paras. 30 and 31:
30 I would resist any temptation to depart in this case from that relatively demanding standard. The Internet provides fertile ground for sowing the seeds of unlawful conduct on a borderless scale. And, at the hearing of the appeal, Crown counsel expressed with eloquence and conviction the urgent need for an appropriate prophylactic response.
31 In my view, however, this task must be left to Parliament. Even if they were minded to do so, courts cannot contain the inherent dangers of cyberspace crime by expanding or transforming offences, such as counselling, that were conceived to meet a different and unrelated need. Any attempt to do so may well do more harm than good, inadvertently catching morally innocent conduct and unduly limiting harmless access to information.
[36] In R. v. Déry, 2006 SCC 53, the accused were convicted of attempting to conspire to commit theft. In allowing the appeal, Mr. Justice Fish, writing for the Court, compared the purported offence of attempting to conspire with counselling and reiterated the strict requirements for the actus reus of the counselling offence at paras. 30 and 31:
30 To conflate counselling and attempt to conspire is to rely on semantics where principle fails. While it may well be true that to counsel another to conspire is, in the ordinary sense of the word, to “attempt” (or try) to form a conspiracy, not all efforts to conspire amount, in law, to counselling. Yet we are urged by the Crown in this case to recognize attempted conspiracy as an offence different from, and wider than, the established offence of counselling.
31 In R. v. Hamilton, [2005] 2 S.C.R. 432, 2005 SCC 47, this Court held that “the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence” (para. 29 (emphasis in original)): see also R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 57, per McLachlin C.J. This relatively high threshold for the actus reus of incitement is an essential safeguard. As Charron J. (dissenting, but not on this point) observed at para. 72, “[i]t is th[e] concern of potential overbreadth that informed this Court’s adoption in Sharpe of a more restricted meaning of counselling.” [Emphasis added.]
[37] In summary, in order for the Crown to satisfy the actus reus for Counts 1 to 3, it must prove beyond a reasonable doubt that Mr. Hamdan’s posts deliberately encouraged or actively induced the commission of the offences of murder, assault causing bodily harm and mischief in relation to property. Mr. Hamdan’s statements in the Key Posts must be viewed objectively when considering if they actively induce the commission of the offences. This is a high threshold that cannot be relaxed merely because the communications took place on Facebook accounts and may have reached a wide audience. Further, the threshold cannot be relaxed because the Counselling Offences are said to be committed for the benefit of, at the direction of, or in association with a terrorist group.
[38] In order to satisfy the mens rea for Counts 1 to 3, the Crown must prove that Mr. Hamdan intended to induce others to commit the criminal offences or that he knowingly counselled the commission of the offences while aware of the unjustified risk that the offences were in fact likely to be committed as a result of his communications.
[39] As expressed in Mugesera, the Crown must show that the communications were likely to incite, and were made with a view to inciting the commission of the underlying offences.
[40] Before leaving this subject, I should note that Parliament has recently addressed the “inherent dangers of cyberspace” identified by the Court in Hamilton specifically with regard to terrorist activity. Section 83.221, which was introduced through the Anti-Terrorism Act, S.C. 2015, c. 20, received royal assent on June 18, 2015. It creates the new offence of advocating or promoting terrorism and provides:
83.221 (1) Every person who, by communicating statements, knowingly advocates or promotes the commission of terrorism offences in general — other than an offence under this section — while knowing that any of those offences will be committed or being reckless as to whether any of those offences may be committed, as a result of such communication, is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years.
[41] Mr. Hamdan was not and could not be charged under this section because it only came into force a few days prior to his arrest. Accordingly, I need not consider the scope of this offence. However, it appears that Parliament has created an offence with a somewhat lower threshold for the proof of actus reus and perhaps for the mens rea, as well. The creation of the new offence is an added reason for concluding that there is no pressing need to expand the scope of the counselling offences in the circumstances presented by this case.
[42] I also note that an expansion of the scope of counselling offences to criminalize political speech would raise s. 2(b) Charter issues. The interests protected by s. 2(b) – freedom of thought, belief, opinion and expression – dovetail with the limitations on other terrorist offences in Part II.1 of the Code. Section 83.01(1)(b) defines terrorist activity very broadly for that part of the Code. However, s. 83.01(1.1) provides the following clarification:
(1.1) For greater certainty, the expression of a political, religious or ideological thought, belief or opinion does not come within paragraph (b) of the definition terrorist activity in subsection (1) unless it constitutes an act or omission that satisfies the criteria of that paragraph.
[43] In R. v. Khawaja, 2010 ONCA 862 at para. 76, aff’d 2012 SCC 69, the Ontario Court of Appeal underscored the need not to criminalize protected Charter interests when applying Part II.1:
[76] … The phrase “terrorist activity” does not prohibit or criminalize any political, religious, ideological thought, belief or opinion. The phrase defines certain conduct. The definition includes the requirement that the defined conduct be performed for a political, religious or ideological reason. The distinction between the expression of a belief by means other than those caught by the definition of “terrorist activity” and the expression of a belief using “terrorist activity” is made explicit in s. 83.01(1.1)…
[44] It is clear from these authorities that caution must be exercised when applying the provisions of s. 464 and Part II.1 of the Code to the circumstances of this case. The scope of the counselling offence should not be interpreted in a manner that inappropriately criminalizes the expression of political or religious beliefs and opinions.
[45] As a preliminary point, the Crown says the Key Posts that were not authored by Mr. Hamdan are admissible against him as if he was the original author. He has admitted that he controlled the content of his Facebook accounts. By re-posting the statements of others, Mr. Hamdan was clearly aware of the content and thus adopted those statements as his own. The Crown says that all 85 Key Posts are thus admissible and entitled to equal weight.
[46] The Crown submits that when considering proof of the actus reus and mens rea of the Counselling Offences, it is important to look at the Key Posts in context with the pronouncements made by ISIS spokesmen and with an understanding of how ISIS uses propaganda. The Crown relies on the evidence of Constable Tarek Mokdad who was qualified as an expert in Islamist-inspired terrorism, and in particular, in Sunni extremist groups including Al-Qaeda and ISIS. Cst. Mokdad gave detailed evidence about the pronouncements of Muhammad al-Adnani, the leading spokesperson for ISIS until his death in 2016. Cst. Mokdad also gave evidence about how ISIS uses social media to spread its message in order to recruit fighters and lone wolf terrorists. The Crown says his evidence establishes that the Key Posts are consistent with other ISIS propaganda. The Crown submits that Cst. Mokdad’s evidence allows the Court to infer Mr. Hamdan’s intent in publishing the Key Posts.
[47] For the Counselling Offences the Crown has identified Key Posts of particular relevance to the individual counts. The Crown emphasizes that when considering the actus reus, the Key Posts must be examined objectively. It says when this is done and the individual Key Posts are considered alongside the other Key Posts, the Court must conclude that the Key Posts actively encourage readers to commit the offences of murder, assault causing bodily harm and mischief to property on behalf of ISIS. The encouragement is done in three ways: by glorifying and justifying lone wolf attacks; by referencing rewards for lone wolf attacks; and by providing step-by-step instructions on how to carry out such attacks.
[48] The glorification of lone wolf attacks is evident from the posts that “salute” lone wolves or ask that Allah accept them as martyrs. In addition, Mr. Hamdan’s posts celebrate ISIS battlefield successes and mock the failures of the Western Coalition. The Key Posts referencing rewards for lone wolf attacks relate to an ISIS reward offered after the capture of a downed Jordanian pilot.
[49] The Crown places particular reliance on Key Post 50 for its assertion that the post provides instruction on how to commit murder and other criminal terrorist acts. It is a lengthy document re-posted by Mr. Hamdan on March 12, 2015 and then again on March 21, 2015. Key Post 50 was written by Hashim Abdul Latif, an Egyptian follower of Mr. Hamdan’s posts. It describes the state of jihad in Egypt and sets out, in considerable detail, the weapons and methods that could be used by lone wolf terrorists as a form of jihad against the apostasy of the Egyptian government and state. The Crown says Key Post 50 provides step-by-step instructions on how to commit the counselled indictable offences and, when read with all the Key Posts, that it actively induces readers to kill or harm others in the name of jihad.
[50] The Crown says it is significant that the Key Posts were made following al-Adnani’s speech titled, “Indeed, Your Lord is Ever Watchful”, that was published by Al-Furqan, the ISIS media foundation on September 21, 2014. The speech came shortly after Western nations announced the formation of the coalition. In the speech, al-Adnani called on Muslims to attack non-believers in their home countries and specifically mentioned Canada. The Crown also refers to al-Adnani’s speech titled, “Say, Die in your Rage”, published on January 26, 2015 which called on believers to commit more lone wolf terrorist attacks in Canada and other Western countries. The Crown argues that the Key Posts were made in furtherance of ISIS goals and propaganda as set out in those speeches.
[51] The Crown also says that Cst. Mokdad’s opinion as to Mr. Hamdan’s purpose in publishing the Key Posts should be accepted. He opined that if individual Key Posts are read in context with all of the Key Posts, it is clear that they are not commentary on events or media coverage (as suggested by Mr. Hamdan), but are a call to lone wolves loyal to ISIS to attack people and infrastructure in Canada.
[52] The Crown says that Mr. Hamdan’s purpose or intent in publishing the Key Posts can be inferred from examination of all of the Key Posts in context with the Timelines from the Facebook pages and profiles. The Crown says that Mr. Hamdan’s evidence about his intent does not stand up to scrutiny and should be rejected. Contrary to his testimony, his posts are rarely critical of ISIS. The Crown admits that portions of the Key Posts could be seen as providing information to readers about events in the Middle East, encouraging debate, highlighting hypocrisy of the Western media or speaking truth to power as asserted by Mr. Hamdan. However, when examined in their totality, the Court should conclude that the intent is to counsel others to commit murder, assault and mischief to property for ISIS.
[53] The Crown rejects the defence’s suggestion that the inadequate and incomplete capture of the Facebook pages and profiles is fatal to the Crown’s case. This is because the Facebook posts admitted in evidence are numerous and lengthy. They are not mere fragments of conversations. Even though the Key Posts and Timelines were not fully captured and preserved, the Court is able to discern the meaning and intent of the Key Posts from the substantial record that is available.
[54] The Crown takes the position, as set out in its written submissions, that Count 4 “captures the same conduct as set out in Counts 1 to 3” and is an alternative to those counts. In other words, if the Court is satisfied that the elements of any of Counts 1 to 3 are made out, then the Court could also convict on Count 4. In response to an inquiry from the Court, the Crown also agrees that in the event it fails to prove guilt on any of Counts 1 to 3, then Mr. Hamdan could not be found guilty of Count 4.
[55] The defence says the Crown has not established beyond a reasonable doubt that Mr. Hamdan is guilty of any of the four charges. Rather, the Key Posts are a construct or fiction created by the Crown in an attempt to build a case against Mr. Hamdan. The Key Posts are an artificial construct, in part because of the improper evidence collection, but mainly because they were never intended to be read together as the Crown contends. The defence says that the Key Posts must be considered in context. The proper context includes the full Timelines and commentary (which are not available); Mr. Hamdan’s evidence; and consideration of the religious interpretation of the posts. For the religious interpretation of the posts, the defence relies on the evidence of Mohammad Navaid Aziz, who was qualified as an expert in Arabic and the history of Islam, including schools of belief and contemporary Islamic extremism.
[56] The defence says there are two substantial flaws in the Crown’s presentation of the case. First, Mr. Hamdan’s posts were not meant to be considered without reference to the surrounding posts and comments. Second, individual posts were not meant to be interpreted by reference to 85 other posts, some of which were made weeks or months before or after. Rather, the posts were small parts of ongoing discussions and debates between Mr. Hamdan and his family, friends and followers.
[57] The defence argues that the Crown has failed to prove that any of the Key Posts actively induce the commission of criminal offences as set out in the relevant authorities. Accordingly, the Crown cannot prove the actus reus for the Counselling Offences. The defence says that when they are viewed objectively, none of the Key Posts induce or advocate the commission of the offences; Mr. Hamdan does not say that anyone should commit murder, assault or mischief to property. There is a difference between planting the seed for commission of a crime and communicating in a way that causes a seed to sprout. At most, Mr. Hamdan’s posts merely raise a possibility of influencing a recipient to think about committing a terrorist act. This is very different from active inducement.
[58] The defence also says the missing content from the Timelines and Key Posts is fatal to the Crown’s case. The failure of the RCMP to properly capture the full content of Mr. Hamdan’s pages and profiles means that the Court cannot be satisfied beyond a reasonable doubt that the Crown has proved either the actus reus or mens rea of the Counselling Offences. This is because the context of the Key Posts is critical to any inferences that can be drawn.
[59] Finally, the defence says that Mr. Hamdan’s evidence about his intent in making or re-posting the Key Posts should be accepted. Even without the benefit of the full context, Mr. Hamdan was able to explain what he intended by his posts. He did not intend to promote violence or the commission of terrorist acts; he is not a Salafist jihadist. Rather, he was trying to expose the injustice of the Shia governments and the Western Coalition actions in Syria and Iraq as well as the hypocrisy of the Western media. He wanted to encourage debate about these issues. He admits that he supported many of the actions of ISIS because it was the main group acting on behalf of Sunni Muslims who were engaged in a life and death struggle. However, he also says his posts were critical of ISIS actions and should not be considered out of context.
[60] The defence says that even if the Court does not accept Mr. Hamdan’s testimony, at the very least his evidence raises a reasonable doubt on the issue of intent. The defence says that Mr. Hamdan’s credibility is not to be approached as an “either/or proposition”. It must be approached as instructed in R. v. W.(D.), [1991] 1 S.C.R. 742.
[61] The defence accepts the Crown position on Count 4. It agrees that if the Crown has not proved Counts 1 to 3, it cannot succeed on Count 4. This is because the essential elements required to prove that Mr. Hamdan knowingly instructed persons to carry out terrorist activities are at least as onerous as those required to prove the Counselling Offences.
[62] In light of the evidence before the Court and the parties’ submissions, it is convenient to focus on the elements of the Counselling Offences. Given the conclusions I have reached, I propose to consider the following issues:
1. Has the Crown proved the actus reus for Count 3, counselling the indictable offence of mischief to property?
2. Has the Crown proved the actus reus for Counts 1 and 2, counselling the indictable offences of murder and assault causing bodily harm?
3. Has the Crown proved the mens rea for Counts 1 and 2?
[63] For the reasons that follow, I conclude that the Crown has failed to prove the actus reus for Count 3, but that it has proved the actus reus for Counts 1 and 2. I have reached the latter conclusion by consideration of Key Post 40 and the surrounding context. However, I also conclude the Crown has failed to prove that Mr. Hamdan possessed the requisite mens rea for Counts 1 and 2. While the Crown concedes that I need not consider Count 4 if Mr. Hamdan was found not guilty of the Counselling Offences, I have also set out my reasons for concluding that Mr. Hamdan is not guilty of Count 4.
[64] The Key Posts the Crown has identified as having particular relevance to Count 3 are Key Posts 1 to 3 inclusive. They were posted between September 22 and 24, 2014 on Mr. Hamdan’s “Adam Khalifa” profile and all were written in Arabic. In its written submission the Crown summarized these posts as follows:
Post 1 – Mr. Hamdan wrote this post. It is about a dam in Revelstoke, and Mr. Hamdan mentions there are between 20 to 30 police officers in the village and the nearest military base is 200 km away. He states “security protection is weak”.
Post 2 – Mr. Hamdan wrote this post. It is addressed to “Muslims of Canada. For a low cost… less than $200 and with it you will receive a licence to purchase explosives and to carry a weapon”.
Post 3 – Mr. Hamdan wrote this post. The post is about the Nipigon River bridge in Ontario, and how fixing it will take years while “security for it …is zero”. The post states it is the only bridge connecting eastern with western Canada and transportation of goods “constitutes a weak point for the economy”.
[65] The Crown says these posts counsel mischief to property because they were made shortly after al-Adnani’s speech, “Indeed, Your Lord is Ever Watchful”, which called for ISIS supporters to attack non-believers in their home countries, including Canada.
[66] The Crown says I should disregard Mr. Hamdan’s unconvincing explanations for these Key Posts. In his warned statement he said that Key Post 1 was meant as tourism information. At trial he said it was part of an ongoing discussion with a friend who was commenting on the difficulties of travelling through Tunisia and other Middle Eastern countries where large infrastructure facilities are highly guarded. Mr. Hamdan said the posts or comments from the friend were not captured in the screenshot. He said that Key Post 2 was part of a discussion with followers about how easy it was to get licences for firearms that can be used to protect oneself when prospecting for minerals and how different Canada is from Middle Eastern countries. He said that Key Post 3 was made because he was surprised to learn that there was a single bridge connecting the east and west of Canada. The post was prompted by a discussion with his roommate who told him about this bridge and that it would be under construction for a long time. He made the post just because he found the information interesting and surprising.
[67] The difficulty with the Crown’s position on Count 3, and its reliance on these three Key Posts as the focus of this charge, is that there is nothing in these posts or the associated Timelines from which I could conclude that Mr. Hamdan was directly or indirectly trying to procure, solicit or incite the commission of the offence of mischief to property. There is nothing that could be considered active inducement to commit the offence.
[68] The Crown position on Count 3 is similar to the Crown position taken in R. v. Sonne, 2012 ONSC 2126. The circumstances in Sonne are somewhat analogous to the circumstances here. The accused came to the attention of the police when he was seen taking photographs of a security fence that was being erected in advance of the G20 Summit in Toronto. The police uncovered a Twitter and Flickr account operated by Mr. Sonne that contained numerous photographs of security preparations for the G20 Summit. They subsequently searched his house and found chemicals that could be used to make explosive substances. He was charged with a number of offences including counselling the offence of mischief contrary to s. 464.
[69] The evidence in support of the counselling offence included numerous photos that Mr. Sonne took of what he perceived to be a design flaw in the G20 fence. He tweeted that tree steps or large bolts could be used to allow someone to climb up or pull down the fence. He took photos of security cameras set up for the G20 Summit suggesting that he had a “record of most of the surveillance cameras just in case the Gestapo forget to take them down” (Sonne at para. 158). He was a member of groups that were protesting the summit and he described himself as an anarchist.
[70] In acquitting Mr. Sonne of the counselling offence, Madam Justice Spies made the following comments at paras. 341-343:
[341] Dealing first of all with the tweets that are before the Court and the photographs posted to Flickr along with the comments associated with those photographs, I conclude that Mr. Sonne described how the offence of mischief could be committed. The tweets very clearly pointed out that there was a design flaw in the G20 security fence, in that the holes in the fence were small enough that tree steps or bolts could be attached to the fence and used to scale the fence or get a grip on the fence to pull it down. However, there is no tweet or comment that in my view actively induced or advocated that persons commit the offence by using tree steps or bolts to pull down or scale the fence. There is, for example, no statement that suggests that taking advantage of the design flaw in this way should be done. As Charron J. stated in Hamilton (she dissented on the mens rea element not the actus reus element) at para. 74:
...the scope of targeted activity is not extended to the mere possibility of planting a seed in the recipient's mind; it is limited to those communications that are likely to cause that seed to sprout, creating a resolve to commit the crime. It is only then that the potential risk justifies the criminal prohibition. However, it is well established that it is not necessary that the person counselled be in fact persuaded. [Emphasis added.]
[342] Elsewhere, at para. 76, Charron J. added that “it is not sufficient that the communication simply raise the possibility of affecting its recipient; it must actively seek to persuade that person to commit the crime.” [Emphasis of Madam Justice Spies.]
[343] In this case, the tweets that are before the Court described how you would go about committing the offence of mischief in connection with the G20 security fence but I find that Mr. Sonne did no more than perhaps plant a seed. There is nothing in the tweets before the Court or the pictures that were posted that actively sought to persuade anyone to scale or pull down the G20 fence.
[71] Here, Mr. Hamdan’s posts do not even go so far as to describe how to go about committing the offence of mischief at the dam referred to in Key Post 1 or the bridge in Key Post 3. At most, those posts identify a potential target for terrorist activity. However, given the paucity of information in the posts, it cannot even be said that they “plant a seed” for someone to commit the offence. Key Post 2 adds nothing to the other posts, as it merely says that it is legal and inexpensive to purchase a licence to acquire a firearm or explosives in Canada.
[72] The Crown advances two principal arguments to get around the frailty of the evidence in support of the actus reus. First, it says that inducement to commit the offence can be inferred because these posts were made shortly after al-Adnani’s speech. However, that argument does not stand up to scrutiny. While the al-Adnani speech is an active inducement for others to commit terrorist acts, the high threshold established in Hamilton for proof of actus reus cannot be met by a mere temporal connection between the kind of comments made in the Key Posts and the pronouncements of a Salafist jihadist ideologue. There is nothing in the Key Posts or in the posts and comments in the Timelines, either by Mr. Hamdan or by others, that refers to the al-Adnani speech.
[73] The Crown’s argument raises the very danger identified in Hamilton; it is inviting the Court to “contain the inherent dangers of cyberspace crime”, in particular in relation to terrorist activity, by expanding or transforming the offence of counselling. It is inviting the Court to infer counselling to commit the offence because Mr. Hamdan’s other posts show that he supports some of the activities of ISIS and is highly critical of the Western Coalition. The Crown invites the Court to find that Mr. Hamdan’s posts must be responsive to al-Adnani’s speech and are a further attempt to induce the commission of terrorist acts. This would be an unjustified extension of the counselling offence.
[74] The second argument advanced by the Crown is that counselling to commit the offence of mischief to property can be inferred by reading Key Posts 1 to 3 in combination with the other Key Posts. I do not accept that argument. In order to prove the actus reus element of the offence, the Crown must prove beyond a reasonable doubt that the accused deliberately encouraged or actively induced the commission of the charged criminal offence. I cannot conclude that reference to the Key Posts collectively gets around the inadequacy of the content of Key Posts 1 to 3 and satisfies the Crown’s onus.
[75] First, as I have already indicated, there is nothing in the particular Key Posts that can be regarded as an inducement to commit the offence of mischief in relation to the dam or bridge identified by Mr. Hamdan or to other property. There is nothing in the other Key Posts that directly or indirectly encourages an attack on the bridge or dam or other property. There is nothing that describes how someone might go about mounting such an attack. There are numerous posts that offer praise or accolades to terrorists who committed attacks. Many of Mr. Hamdan’s posts explain his view that Canada and other Western countries should not be surprised at the terrorist attacks on their soil given their activities in Syria and Iraq and their support of Shia governments and terrorist organizations. However, to infer active inducement from the political views expressed in these posts would effectively criminalize Mr. Hamdan’s thoughts or beliefs. As noted by the Court of Appeal in Khawaja at para. 76, “[t]he phrase “terrorist activity” does not prohibit or criminalize any political, religious, ideological thought, belief or opinion.”
[76] Second, to the extent that other Key Posts contain statements that could be said to more directly induce terrorist activity, it is still difficult to use those statements to conclude beyond a reasonable doubt that Mr. Hamdan deliberately encouraged or actively induced others to commit mischief to property. As the defence argues, the Key Posts were not meant to be read together. The 85 Key Posts are small segments from a series of social media dialogues taking place over 10 months on 14 different Facebook accounts. As I will explain later, I accept Mr. Hamdan’s assertion that he made the posts to comment on media reports or world events, or in response to comments and posts from other people. This means that the Key Posts were not part of a single message to a defined audience.
[77] I accept that it will be possible in some circumstances to infer or find active inducement from a series of posts or comments on social media. But here, the collection of posts and comments is very large and covers many topics. The screenshots admitted in evidence contain hundreds or thousands of posts. Furthermore, the evidence does not capture all of the individual posts or all of the Timelines for the Facebook accounts operated by Mr. Hamdan.
[78] In these circumstances, it is not logical or reasonable to selectively choose from such a large body of comments over many months and assert that they should be read together to infer active inducement. The posts that the Crown says should be considered together with Key Posts 1 to 3 to establish the actus reus of this count were not written at the same time, are on different Facebook accounts and concern different subjects.
[79] Before concluding my consideration of this issue, I should note that the Crown places some reliance on Key Post 50 in relation to all counts because it contains graphic details about how lone wolves can commit murder or assault. The author suggests preferred weapons for lone wolves: knives, guns with silencers, poison, and vehicles that can be used to run over apostates. He comments on the current state of jihad in Egypt and invites “brothers of Islam in Egypt seeking jihad” to listen to his description of how lone wolves can act. The post is highly offensive and, as I will explain below, I conclude that on its face the post appears to be an active inducement to others to commit the offences of murder and assault. Nevertheless, the Crown cannot rely on it in relation to Count 3. The post is not directed to terrorist acts that could damage property; it is focused on how to kill non-believers and apostates. Accordingly, it does not actively promote, advocate, or encourage the commission of the offence of mischief to property. So, even if the Key Posts could be read collectively to infer active inducement to commit a criminal offence, Key Post 50 does not assist the Crown in proving the actus reus of Count 3.
[80] In summary, I conclude that the Crown has failed to prove that Mr. Hamdan deliberately encouraged or actively induced the offence of mischief to property. Having reached this conclusion, I need not consider Mr. Hamdan’s intent in making the posts and do not need to determine if the Crown has proved the mens rea element for Count 3. Further, I need not consider whether the Crown has proved that the counselling was done for the benefit of, at the direction of or in association with a terrorist group.
[81] The Crown identifies numerous Key Posts as having particular relevance to Counts 1 and 2. Some of the posts are lengthy. Rather than setting out the Key Posts in full, I will summarize the main posts relied upon by the Crown. Where I have indicated that a post was re-posted by Mr. Hamdan, he was not the author of that post. The Key Posts said to have particular relevance to Counts 1 and 2 are:
· Post 9 – This was re-posted by Mr. Hamdan on “Al-Uqab. The Banner” on October 22, 2014 in reference to the vehicle attacks committed by Martin Rouleau in Quebec: “A Muslim brother is martyred by the Canadian police after he killed Canadian Soldier in retaliation to Canada’s crimes in Iraq.” The post was written in both English and Arabic. There are numerous hashtags including #ISIS and #Canada.
· Post 10 – This was re-posted by Mr. Hamdan on “Al-Uqab. The Banner” on October 22, 2014 in reference to the shooting of a Canadian soldier by Michael Zehaf-Bibeau at the Cenotaph in Ottawa: “The Muslim brother martyred today have attacked parliament with a rifle shooting politician inside.” Below this comment, which is written in English, additional text in Arabic suggests that the attack occurred because the attacker was denied the ability to immigrate to Syria to fight.
· Post 11 – Mr. Hamdan wrote this post and cartoon in English. He posted it on “Al-Uqab. The Banner” on October 22, 2014. The post asks if people understand what happened in Ottawa. The cartoon suggests that if the USA is arresting Muslims who want to travel to Syria to join ISIS, then jihadists will say “...let’s stay here and bring the fight to their towns!”
· Post 15 – Mr. Hamdan wrote this post in English on October 24, 2014 on “Al-Uqab. The Banner.” It shows three long lines of cartoon figures with black arm patches intended to represent the ISIS banner and reads: “The Power of Suggestion!!!!!!! Wolves Wolves Wolves .. Lone Wolves Everywhere!”
· Post 17 – Mr. Hamdan wrote this post in English on October 26, 2014 on “Al-Uqab. The Banner”. It refers to the battle for the city of Kobani: “IS is winning more ground…and the lone wolves are hitting you in the heart of your lands”. The post ends with a smiley face emoticon.
· Post 18 – On October 26, 2014, Mr. Hamdan re-posted on “Al-Uqab. The Banner” two photos of Martin Rouleau and the statement, written in English, “…the Real Hero for hitting the Evil Canadian forces on their own soil in retaliation for the Canadians supporting the Shiite gangs in Iraq”. Text in Arabic below identifies Martin Rouleau as, “Your Muslim brother who ran over two Canadian soldiers...”.
· Post 19 – On January 25, 2015, Mr. Hamdan re-posted on “Al-Uqab. The Banner” a drawing of a Canadian flag dripping with blood and the statement, written in English, “In response to #Harper’s policy of “no restrictions” on the #Canadian criminal forces in Iraq… Islamic State issues activation order to Lone wolves in #Canada with “no restrictions” on targets… If you are looking for someone to blame … it is your “Elected” prime minister…”.
· Post 24 – On January 31, 2015, Mr. Hamdan re-posted on “The Defeat of the Alliance”, a post that states, in English, “…the beheadings did not start till you started the war on us…it’s all on your hand…which country of the #Alliance is next!! #ISIS”.
· Post 31 – Mr. Hamdan wrote a number of posts on the wall of the Facebook pages, “Gold Dinars 100” and “The Defeat of the Alliance”, referring to the reward ISIS offered for killing Jordanian pilots. The reward was issued after ISIS shot down a Jordanian plane and captured and killed the pilot. This post was in Arabic on the “Adam Khalifa” Timeline and was published on February 5, 2015. It read in part: “There is 100 Gold Dinars waiting for you. Are you rejecting the alliance with the crusaders??! Are you Broke?!! Do you reside in Jordan?!!”
· Post 37 - This post was written by Mr. Hamdan in Arabic on his “Adam Khalifa” profile on February 20, 2015. Mr. Hamdan says his presence on Facebook is “to support the Mujahedeen … and to terrorize the enemy … and to encourage jihad until Allah writes martyrdom for me. O God grant us a car with buttons or weaponry sufficient for an infiltration operation in the midst of the enemy”.
· Post 40 – This was re-posted by Mr. Hamdan on “The Defeat of the Alliance” Timeline on February 25, 2015. It states, in English, “…our advice to supporters in the #US…carry your actions there…swiftly lone wolves activate all across #USA”.
· Post 42 – This is one of numerous posts that Mr. Hamdan wrote complaining of Facebook’s deletion of accounts that mention ISIS favourably and use ISIS symbols. This infuriated Mr. Hamdan. On February 26, 2015, he wrote in English on “The Defeat of the Alliance” Timeline: “Face Book has deleted over 100K accounts of #ISIL supporters in the last 2 days .. most of whom have not violated a single rule on FB .. most came back but over 2000 did not .. they went to the next stage J which like we told you before they either turn into lone wolves and attack you on your soil .. or immigrate to the land of the majestic #Caliphate”. He went on to thank Facebook for being the main recruiter for #ISIS.
· Post 43 – Mr. Hamdan re-posted this on the “Adam Khalifa” page on March 4, 2015. It is about a shooting at the NSA building in Baltimore on March 4, 2015. Parts of the post are written in Arabic and parts in English. An English section of the post states “lone wolves…we salute you #Islamic State is the solution”.
· Post 50 – This is the most important of the Key Posts. The post was captured twice from “The Defeat of the Alliance” Timeline: first on March 12, 2015 and then on March 21, 2015. The full post was not captured on March 12, 2015 as C.M. Spearman did not expand the “Continue Reading” tab at the bottom of the post. On March 21, 2015, she did expand it and captured the entire post (the “Lone Wolf Post”). Mr. Hamdan says he placed this post on the Facebook page on both occasions at the request of the author. He said the author revised it slightly between the two posts.
The Lone Wolf Post is written in Arabic and contains 19 paragraphs. At the top of the post are the following words:
“#Important for #dissemination in hope that someone would benefit from it”
The paragraphs are numbered and have the following headings:
Para. 1 – Lone wolves the pure and hidden soldiers of God. What is the current state of Jihad in Egypt?
Para. 2 – Lone_wolves. What is the current stage of Jihad in Egypt?
Para. 3 – Lone_wolves. What is the current stage of Jihad in Egypt?
Para. 4 – Lone_wolves. What is the method to defeat the enemies of Allah?
Para. 5 – Lone_wolves. The Operational Methods of Wolves?
Para. 6 – Lone_wolves. How do wolves inflict pain?
Para. 7 – Lone_wolves
Para. 8 – Lone_wolves having no equipment no money and no friends what can I do and I want to inflict pain on the enemies of Allah?
Para. 9 – Lone_wolves #companionship
Para. 10 – Lone_wolves #weapons
Para. 11 – Lone_wolves #killing
Para. 12 – Lone_wolves #the conclusion
Para. 13 – #White weapon (knife)
Para. 14 – #Silencers
Para. 15 – #Poison
Para. 16 – #running over
Para. 17 – Methods of transportation for the wolves
Para. 18 – Dress [clothing] of the wolves
Para. 19 – Secret of the wolf
The Crown argues, and I agree, that the post was intended by its author to persuade jihadists in Egypt to become lone wolves to fight against the apostates and non-believers; the forces who were opposing the Muslim Brotherhood. The key passage is at paragraph 4 where the author issues an invitation to Muslim brothers who are prepared to commit jihad and have accepted the consequence of doing so: in other words, their own death:
What is the method to defeat the enemies of Allah? …Know oh brother of Islam in Egypt who is seeking Jihad that you are attaining a matter of great virtue just like the virtue of the predecessors and even though you know the repercussion of what you are doing, you chose to be a servant to Allah and not a servant to the dictator so congratulations on your deal with Allah. So to you my brother who divorced this world and arrived seeking death not afraid or cowardly to you my brother whose eyes tear from the disbelief in Allah and spilling of blood to you my brother in Islam I direct my words so give me some of your attention.
The author then goes on to describe in great detail what a lone wolf who is prepared to commit jihad can do. He says at paragraph 5 that “wolves are one of the first stages of jihadist work and operates without connection/ link towards a common goal… the one goal of establishing the law of God on earth…” He emphasizes that a lone wolf must be discreet so that others will not recognize him. According to the author, a lone wolf may, “during the day [be] an accountant in a company and at night a slaughterer stalking the dogs of apostasy and disbelief.”
In paragraph 6, the author says that lone wolves are men who possess a strength that “comes from their belief that nothing will happen to them unless Allah had predestined it. Their might/strength comes from them having divorced their world… with no going back fearing no one but their creator seeking and searching for death…” He says at paragraph 12 that the “work of the lone wolf is a great work that leads for empowerment on the ground and victory to Muslims…”
The author then goes on to describe in detail how a lone wolf can kill non-believers and apostates and recommends weapons: knives, guns with silencers, poison and vehicles for running over people. He then describes methods of transportation to escape after killing an apostate. He also gives advice on the clothing for a lone wolf to wear to avoid detection. Finally, he reminds lone wolves to keep their actions a secret from all.
· Post 59 – The body of this post was re-posted by Mr. Hamdan on May 3, 2015 on “The Alliance Defeat” Timeline. The post, written in Arabic and translated into English, references a shooting incident at a competition held in Texas on May 3, 2015 where cartoonists were asked to draw the “Prophet Muhammad”. At the end of the post Mr. Hamdan added, “Lone wolves…we salute you”.
· Post 62 – This was posted on “Alliance Defeat” on May 7, 2015. It is another of Mr. Hamdan’s complaints against what he perceives to be the unjust actions of Facebook and the CIA in suppressing freedom of speech. He states, in English, “if any of this page admins carry’s out an attack…Paris or Texas style…it is due to the fact that the #CIA keeps oppressing our freedom of speech and orders their tool #facebook to delete our page…we were as patient of people as you can find…the CIA pushed us to the limit.. so essentially…the blood is on your hands”.
· Post 66 – On May 20, 2015 on “The Alliance Defeat”, Mr. Hamdan complains about the arrest of 10 Muslim youth who were arrested in Montreal when they tried to leave Canada to fight in Syria. His complaint ends with the statement, “and you wonder why you have lone wolves attacks on your soil!!!!!”
· Post 75 – On June 21, 2015, Mr. Hamdan re-posted this post on “The IED” Timeline about an attack on an Israeli soldier in Jerusalem. The attacker was killed. Mr. Hamdan added the following: “May Allah accept him and have mercy for him, lone wolves… we salute you”. This post was written in both Arabic and English.
· Post 78 – Mr. Hamdan wrote this post in Arabic on June 26, 2015 on “The IED” Timeline: “My Muslim brother. Be a terrorist… Scaring the enemies of God. Be strict… In holding on to your religion, clear of any blemish. Be extremist… stay very far away from idolatry and apostasy. And be merciful…”
[82] The Crown attacks the credibility of Mr. Hamdan and challenges his explanations about the relevant Key Posts. Mr. Hamdan’s explanations focus on two things: what the posts mean and what his intent was in making them. What the posts mean is relevant to consideration of the actus reus element of the charges. His intent in making or re-posting the posts is, of course, relevant to consideration of the mens rea element of the Counselling Offences. However, it is not of particular concern when considering whether the statements posted by Mr. Hamdan can be said to actively induce or encourage others to commit the offences in question. His posts and comments in the Key Posts must be examined objectively to determine if they do so.
[83] As it did with respect to Count 3, the defence says there are three main reasons why the Crown cannot prove that Mr. Hamdan actively induced others to commit the offences of murder or assault causing bodily harm. First, the defence says that if the Key Posts are examined in context – that is if the meaning of the posts is considered in reference to recent events, posts and comments, Mr. Hamdan’s explanations about meaning and a proper understanding of the definition of words and terms – then a reasonable person viewing them objectively would not take them as an inducement or invitation to commit the offences. Second, the defence says that the missing context for some of the Key Posts must lead to a finding that the Crown has failed to prove the actus reus beyond a reasonable doubt. This is because the missing context might have revealed an innocent meaning for the Key Posts. Third, the defence says the Key Posts should not be interpreted with reference to other Key Posts made months apart on different accounts. The defence says that the relevant context for any of the posts comes from other comments and posts made around the same time.
[84] I have concluded that almost all of the Key Posts when viewed contextually and objectively do not actively induce readers to commit the indictable offences of murder and assault. However, I conclude that Key Posts 40 and 50, when considered in light of the context of other posts or comments made around the same time, would be seen by a reasonable reader to incite or induce the commission of those offences. Nevertheless, I have determined that the Crown has proved active inducement beyond a reasonable doubt only with regard to Key Post 40. I am unable to reach the same conclusion about Key Post 50 because of missing context and Mr. Hamdan’s evidence about the missing posts.
[85] Before commenting on the specific Key Posts relied on by the Crown, I will provide my views about three general issues that are relevant to the conclusions I have arrived at, both with regard to actus reus and mens rea: the import of the evidence of Cst. Mokdad; the import of the evidence of Mr. Aziz; and the extent to which re-posts can be relied upon to establish the essential elements for Counts 1 and 2.
[86] Cst. Mokdad’s expertise was developed in a somewhat unusual way. He has no formal education in his area of expertise, although he does have a Bachelor of Arts in religion with a focus on the three monotheistic religions. His expertise is based on more than 15 years of personal study of Sunni Muslim extremism. He sources, downloads, reads and views propaganda published by Salafist jihadist extremist groups. He says there are more than 1,800 factions currently operating in the Middle East. On a daily basis, Cst. Mokdad downloads and archives the material he sources in his personal library. He maintains a server in his home to store all of the material and says his archive is vast. He performs this task for his own interest, but the expertise he has gained by doing so is used on a daily basis in the work he does with INSET. He says the activities of the extremist groups are ideological, therefore it is important for him to follow the ideologues who lead or influence the groups. He does so and thus is always aware of important developments in Sunni Salafist jihadist groups.
[87] Cst. Mokdad is Muslim and is knowledgeable about the Quran but admits that he is not a theologian. Rather, he studies extremism, terrorism and radicalization, all of which are relevant to Salafist jihadist movements. He consults three main types of sources in his work: jihadist propaganda, Islamic sources (the Quran and the Hadiths – reports describing the words, actions and habits of the Prophet), and academic literature about extremist movements.
[88] Cst. Mokdad prepared a document titled “Relevant Dates” that was marked as an exhibit for identification at trial. The document sets out terrorist activities, world events and pronouncements by ISIS that the Crown says are relevant to an understanding of the Key Posts. I have attached a copy of that document as Schedule “B” to these reasons.
[89] Cst. Mokdad described how the ISIS propaganda machine works to publish its views and recruit followers. He says that jihadist decision-makers meet behind encrypted platforms, which are only available to members of the group. I note that there is no suggestion that Mr. Hamdan had access to any such encrypted platform. The decision-makers authorize the preparation of videos and the posting of “news” used to drive recruitment and to further their cause. Once the pronouncements, news or video presentations are prepared, they are released by ISIS media organizations such as Al Furqan and are available to the open internet. ISIS relies on supporters of their organization who are actively involved on social media to re-post materials through mainstream channels such as YouTube or Facebook.
[90] Cst. Mokdad possesses a tremendous knowledge of the history, methods and ideology of Sunni extremist groups over the last 15 to 20 years. The information he provided to the Court was valuable. The evidence about the history of the extremist groups, and the views and pronouncements of some of the ideologues assisted the Court to understand the posts and commentary on the Timelines in Mr. Hamdan’s Facebook accounts.
[91] However, I also conclude that I must approach parts of Cst. Mokdad’s evidence with some caution. It is clear that he is entirely preoccupied with Salafist jihadist extremism. He spends much of his time reading and viewing the propaganda of ISIS and other such groups and is familiar with the media arms of extremist organizations. However, I formed the view that his familiarity with and continuous focus on ISIS and Al-Qaeda propaganda gave him a somewhat narrow perspective when considering the Key Posts in question. The fact that Mr. Hamdan made reference to videos and other ISIS media pronouncements, combined with Mr. Hamdan’s obvious support for some of ISIS’ activities, led Cst. Mokdad to conclude that Mr. Hamdan was fulfilling a role as part of the ISIS propaganda machine. He could not conceive that someone might want to refer to ISIS propaganda to question the policy of Western governments and the viewpoint of mainstream media and to promote online discussion.
[92] When I discuss the mens rea element of the Counselling Offences, I will explain in more detail why I reject Cst. Mokdad’s conclusion that Mr. Hamdan was intending to promote the commission of criminal offences. For present purposes, I will refer to some examples of Cst. Mokdad’s narrow focus. He did not see any difference between Mr. Hamdan’s Facebook accounts and those operated by individuals actively trying to recruit for ISIS. However, I conclude there is a difference between what Mr. Hamdan did and what active ISIS recruiters do.
[93] First, Mr. Hamdan infrequently re-posted ISIS publications and videos. He acknowledged those instances when he did so. He also frequently re-posted mainstream media reports and videos. Mr. Hamdan described how people who are active supporters of ISIS regularly re-post the ISIS material, often to the exclusion of mainstream reports. Mr. Hamdan also posted media containing Western music and showing women wearing non-Islamic clothing. These posts are not acceptable to ISIS. In these respects, Mr. Hamdan’s Facebook pages and profiles were not typical of ISIS supporters.
[94] Second, Mr. Hamdan’s posts did not directly urge readers to go to Syria and join ISIS. Mr. Aziz commented on this in cross-examination. When questioned about specific posts, he was asked if they were typical of recruitment posts published by ISIS. He responded that in part they were; some of the content was similar to typical recruitment posts. However, he noted that there was an important missing element: Mr. Hamdan’s posts did not urge readers to join ISIS. This is a significant difference in relation to the Counselling Offences and Cst. Mokdad failed to acknowledge it or attribute any significance to it.
[95] Third, Cst. Mokdad accepted references to “jihad” in Mr. Hamdan’s posts as a reference only to violent jihad. He acknowledged that there are other forms of jihad but did not believe that any comment in a post about the events in the Middle East that used the term could be referring to anything but violent jihad. In contrast, Mr. Aziz gave evidence at length about the different forms of jihad or struggle recognized by mainstream Muslims. The Prophet spoke of 12 different forms of jihad. The first is to struggle against literacy and lack of education. The second form of jihad is to speak truth to a tyrannical ruler. This is regarded by mainstream Muslims as the highest form of jihad. The struggle to support parents and family is also considered a high form of jihad. Of the 12 forms of jihad, only two involve physical struggle: defensive and offensive jihad. The Prophet engaged in both in his lifetime: defensive, to preserve the religion; and offensive, to expand it. Salafist jihadists are only concerned with violent jihad. They believe they are involved in a defensive struggle to preserve Islam and create a caliphate, a Muslim state. They also believe they should prosecute an offensive jihad to expand the religion and the caliphate.
[96] Cst. Mokdad’s refusal to consider the broader interpretation of religious concepts such as jihad and caliphate reflects his rather narrow perspective. It may be explained in part by the fact that this narrow perspective has been widely promoted in the Western media. Mr. Aziz indicated that most Muslims now feel that they cannot use the term “jihad” because of the negative connotation that Salafist jihadists have given it. However, the meaning of jihad in mainstream Muslim theology and thus in the Arabic language includes many forms of struggle that do not involve violence.
[97] A fourth example of Cst. Mokdad’s narrow focus was his refusal to consider Mr. Hamdan’s frequent use of emoticons when interpreting the content of the posts. He stated that he could not interpret the meaning of the emoticons and that he never attempted to do so. Mr. Hamdan and others who posted on the account used them frequently. The emoticons appear to have been used to indicate sarcasm, satire, humour, etc. I certainly agree with Cst. Mokdad that it is challenging to determine exactly what Mr. Hamdan’s emoticons were intended to express in each post. However, I find that his failure to consider them at all is misguided. It is apparent that Mr. Hamdan and others communicating on his Facebook account used emoticons to add meaning to what they said. Cst. Mokdad’s approach to the challenge posed by the use of emoticons is an example of his blinkered approach to the content of the posts.
[98] In summary, I found the opinions offered by Cst. Mokdad about particular Key Posts to be of less value to the Court than his factual evidence about events and pronouncements. His narrow focus inclined him to the view that any reference to or re-publication of ISIS material must be made by someone intending to promote the goals of that organization. It also caused him to interpret language and comments in a way that was consistent with his views about Sunni Islamist extremists without considering alternatives.
[99] Mr. Aziz is the Director of Religious and Social education at the AlMaghrib Institute in Calgary. The Institute operates throughout North America and teaches Islamic studies in English. Mr. Aziz was born and raised in Montreal, but obtained a Bachelor’s degree in Arabic as well as a degree in Sharia law in Saudi Arabia. He now acts as a Sheikh and Imam. He is also the Muslim Chaplin for the Calgary Police and acts as the community liaison for the Calgary Police with the Muslim community. He carries out a similar role with the Southern Alberta Institute of Technology. He is actively involved in counter-radicalization with Muslim youth. He has spoken at conferences around the world on Islam and the radicalization of Muslim youth.
[100] Mr. Aziz provided evidence on the translation and interpretation of Arabic and the meaning of terms used in the posts. The correct approach to interpretation of language is to consider three tiers: 1) the religious meaning of a word; 2) the meaning from societal norms and customs; and 3) the linguistic interpretation. He applied that approach in considering the meaning of language used in Mr. Hamdan’s posts. His approach to translation was much more nuanced than that of Cst. Mokdad. In many instances he observed that terms such as Islamic State, jihad, mujahedeen or caliphate were intended to convey a meaning which is inconsistent with the Salafist jihadist understanding of those terms.
[101] Mr. Aziz was an excellent witness. His approach to translation and understanding of the meaning of posts was principled and based on years of study of the Arabic language and Islam. His evidence was given in a manner that was entirely impartial. The information he provided about Islam, the different Sunni schools of thought, and the religious views of Islamist extremists was of great assistance to the Court. He acknowledged many instances where contentious terms in the posts should be interpreted as a Salafist jihadist would understand the language. He also identified posts where the meaning is ambiguous or consistent with mainstream Muslim views, rather than with the Salafist jihadist meaning. He identified posts that used language from the Quran or Hadiths and provided background and context for the interpretation of those posts. I accept the evidence of Mr. Aziz regarding translation of the Arabic language and prefer his approach to, and conclusions about, the interpretation of Mr. Hamdan’s posts over Cst. Mokdad’s approach and opinions.
[102] I must make one final comment about the testimony of Cst. Mokdad and Mr. Aziz. Their evidence dealt with issues that are complicated and controversial. At times, their examinations felt more like a university seminar than testimony in a trial. Needless to say, the courtroom is a difficult place to explore nuances of meaning in social media posts made in Arabic about religion, extremism and government policy. While the proceeding took on the tenor of a university seminar, it was very much at an introductory level. The one conclusion I can safely draw is that the depth and complexity of the political and religious issues touched on by Mr. Hamdan’s posts make it difficult to discern the clear meaning of many of the posts. Recognizing that difficulty, while the expert’s evidence has provided useful context, I have not lost focus of the fact that the issue is not to determine the meaning of the Key Posts, but whether they would actively induce a reader to commit the offences at issue.
[103] The Crown asserts that Mr. Hamdan’s re-posts were adopted by him with full knowledge of the content, such that the meaning or intent that can be ascribed to a re-post must be attributed to Mr. Hamdan. The Crown’s approach is overly simplistic. It goes without saying that the meaning of a post must be interpreted by reference to the relevant context. When something is re-posted, that context may include comments or posts that reject or question the content of the item that is re-posted. To use a simple example, if Ms. X re-posts a statement from someone else that reads, “We should kill Mr. Y”, it would be important to examine the comments made by Ms. X and the context of the re-posting in order to assess objectively whether she was urging others to kill Mr. Y or passing on the comment to express her disagreement with or incredulity about the suggested course of action.
[104] As this example shows, the context and any surrounding comments relating to Mr. Hamdan’s re-posting must be examined for two purposes. First, to determine the meaning to be ascribed to the re-post. Second, to examine Mr. Hamdan’s intent in re-posting the statement. This means that the context may be relevant to both the actus reus and the mens rea.
[105] Key Posts 9 to 18 can be examined together, as they were posted on the same Facebook account between October 22 and October 26, 2014. As the Crown notes, this was shortly after the publication of al-Adnani’s speech calling on supporters in Western countries to commit attacks against non-believers. Mr. Hamdan was certainly aware of that speech. These posts also came shortly after the terrorist acts in Canada committed by Martin Rouleau and Michael Zehaf-Bibeau.
[106] I agree with the Crown’s submission that an objective reader would view the statements that the “Muslim Brothers” were “martyred” in re-posts 9 and 10 as expressing support for the actions of Mr. Rouleau and Mr. Zehaf-Bibeau. I arrive at this conclusion, even though I accept Mr. Aziz’s evidence that a proper interpretation of the Arabic language would acknowledge that the writer is not expressing any affinity with or closeness to Messrs. Rouleau or Zehaf-Bibeau. I also agree that Mr. Hamdan may have viewed the concept of martyrdom in a more traditional religious sense as referring to the fact that those men died in uncomfortable circumstances. However, I need not be concerned with Mr. Hamdan’s view of those comments when determining if these posts could be considered an active inducement to commit the offences in question. Nevertheless, I conclude that these posts when considered objectively in context do not actively induce the commission of murder or assault causing bodily harm.
[107] Looking at those re-posts in the context of the other posts and comments, including Key Posts 11, 14 and 18, allows a reader to understand the series of posts. Mr. Hamdan is expressing the view that violent jihadists are committing terrorist attacks on Canadian and American soil because they are not allowed “to travel to Syria to join ISIS” (Key Post 11) or because of “#Harper[‘s] arrogant policy” and Canada’s “stupid politics” (Key Post 14). He is re-posting the opinion held by violent jihadists that lone wolf actors like Martin Rouleau are real heroes “for hitting the Evil Canadian forces on their own soil in retaliation for the Canadians supporting the Shiite gangs in Syria” (Key Post 18). An objective reader would conclude that Mr. Hamdan agrees that the actions of Mr. Rouleau are at least understandable and perhaps commendable. However, I cannot conclude beyond a reasonable doubt that the central theme of the posts is a call to readers to commit indictable offences. Rather, Mr. Hamdan is offering an explanation for the terrorist attacks that have taken place in Canada and elsewhere. He expresses the opinion that lone wolf terrorist attacks are occurring in Canada because of arrogant or wrongheaded government policies. He is also saying that there will likely be more such attacks because of those policies. Undoubtedly, he is taking al-Adnani’s speech into account.
[108] These posts are difficult for the average Canadian to read or understand. This is because Mr. Hamdan expresses support for the actions of lone wolf terrorists and the reasons he gives for “saluting” those actions defy logic. The suggestion that it is rational or acceptable for someone to kill unsuspecting non-combatants in a civilian setting is repugnant. However, the posts do not contain statements that could be considered active inducement or encouragement for a reader to go and commit similar acts. There is a significant difference between a message that says, “the lone wolf attacks in Canada are happening because of wrongheaded government policies” and one that incites or induces a reader to “seek martyrdom by committing lone wolf terrorist acts similar to those of Mr. Rouleau or Mr. Zehaf-Bibeau”. Mr. Hamdan did the former, not the latter. The former is an expression of a political point of view; the latter is the act of counselling an offence.
[109] On January 25, 2015 Mr. Hamdan re-posted another post containing the image of blood dripping from the Canadian flag. This was around the time of al-Adnani’s speech, “Say, Die in your Rage”. Mr. Hamdan again says that Canada’s policies are to blame for the call for lone wolf terrorist attacks. My comments about Key Posts 9 to 18 apply to this post.
[110] Key Post 24 is a re-post stating, “… the beheadings did not start till you started the war on us… it’s all on your hand… which country of the #Alliance is next!!” This statement continues a theme that Mr. Hamdan returns to frequently in his posts and re-posts. He is of the view that ISIS is legitimately fighting Shia governments and organizations such as the PKK that are targeting Sunnis in Syria and Iraq. He believes that Western Coalition attacks on Sunnis and ISIS are wrongful. This re-post blames the Western Coalition for the ISIS beheadings and suggests that they are occurring only because of those attacks by the Western Coalition. The re-post includes hashtags such as “#ISIS” and “#ISIL”, which were added by Mr. Hamdan to indicate that ISIS is the subject of the post.
[111] Reading Key Post 24 in the context of the surrounding posts, there is no doubt that the message is an expression of support for the actions taken by ISIS. Like the earlier posts, it offers an explanation for actions that most Canadians would regard as highly offensive and inexplicable. The post suggests the beheadings are justified because of the actions of the Western Coalition. While the opinion conveyed by this re-post is difficult for most readers to understand or accept, the expression of this opinion, in this context, does not amount to deliberate encouragement or active inducement for the commission of the offence of murder.
[112] When deciding whether such communications are active inducements to commit an offence, it is important to keep in mind the caution expressed by Mr. Justice Fish in Hamilton at para. 31: “… courts cannot contain the inherent dangers of cyberspace crime by expanding or transforming offences, such as counselling, that were conceived to meet a different and unrelated need.” Similarly, the courts cannot use an expansion of the counselling offence to contain the expression of support for terrorist organizations on the Internet.
[113] The concern about unduly expanding the offence of counselling can be demonstrated by reference to other examples of statements that could be made on social media that might condone the killing of others by actions that are controversial:
· A post expressing the view that capital punishment by beheading, as used in Saudi Arabia, is reasonable and justifiable; and
· A post expressing the view that the shooting of a drug trafficker by a rival gang is to be applauded.
[114] The first post would be the expression of an opinion as to the legitimacy of a system of justice and the second would be the expression of an opinion view that a drug trafficker justifiably reaps what he sows. Neither post would be regarded as counselling the offence of murder. However, both are the expression of an opinion that has some similarity to the opinion expressed in Key Post 24. In my view, it would expand the offence of counselling to conclude that Mr. Hamdan’s posts or re-posts amounted to the active inducement of murder or assault, merely because his stated views support murders committed by terrorists.
[115] Key Post 31 is one of a series of posts (including Key Posts 26 to 31), commenting on the reward offered by ISIS following the capture of a Jordanian pilot of a downed jet. After attempting to negotiate an exchange of prisoners, ISIS killed the pilot by burning him alive. The brutal murder was filmed and the video was released by ISIS media. The capture and murder of the pilot were the subject of extensive coverage by the mainstream media. ISIS issued an announcement indicating that it would pay 100 gold dinars (approximately USD $16,000) to anyone that killed a Jordanian pilot. In doing so, it published the names, ranks and residential addresses of all of the Jordanian pilots. ISIS also expanded the offer to apply to the murder of any pilot from one of the Western Coalition countries.
[116] The series of posts are consistent with Mr. Hamdan’s practice of writing posts about current events. Some of these Key Posts are on his Facebook profile, “Adam Khalifa”, and some are on his Facebook pages. Key Post 31 is on his profile. The post is in Arabic and ends with “See More”. C.M. Spearman did not expand the post and so the rest of it was not captured. Mr. Hamdan described in general terms what was missing from the post. He said that the portions of Key Post 31 that were captured are the start of a parody of an “infomercial”. He says he was criticizing ISIS for trying to tempt Jordanian youth, many of whom are unemployed and poor, with an offer of riches that would be useless to them. Even if they could find and attempt to kill a Jordanian pilot, they would end up dead or in jail. He said the post was critical of what ISIS was doing.
[117] The information about the Jordanian pilot and the reward offered by ISIS in the other Key Posts is mostly factual information. Key Post 27 is a re-post by Mr. Hamdan (presumably from an ISIS source), asserting that ISIS has the names and addresses of Jordanian pilots and will pay the reward. Key Post 29 attaches the heading of the list of Jordanian pilots that was published by ISIS. However, it does not show any names, addresses or information about the pilots. Mr. Hamdan testified that he did not publish that information from the lists as he had no intent to give information to people that they could use to kill or harm a pilot in Jordan.
[118] Collectively, I cannot conclude that these posts actively induce or encourage the commission of the offence of murder. They repeat information about the incident involving the capture of the Jordanian pilot and the reward. While Key Post 31 says “there is 100 Gold Dinars waiting for you”, the post is obviously not captured in full. The meaning of the post is not clear from the part that is captured. I cannot conclude beyond a reasonable doubt that the statements in the post actively induced the commission of the offence of murder. Mr. Hamdan described in some detail what the missing part of the post said. Even if I do not accept his evidence that the post was critical of the ISIS offer of money for pilots, and that he was not encouraging others to try to claim the reward, I cannot reject this exculpatory explanation. In other words, I cannot conclude beyond a reasonable doubt that Key Post 31 and the associated posts satisfy the actus reus for Counts 1 and 2. The fact that some of the post is missing is fatal to the Crown’s reliance on that evidence.
[119] Key Post 37 is particularly troubling. Mr. Hamdan says he is writing on Facebook to support the mujahedeen, to terrorize the enemy and to encourage jihad. Mr. Hamdan gave extensive evidence that his jihad or struggle is speaking truth to power by way of Facebook. He says that this is not a violent form of jihad and that his comments in this post are not intended to indicate or promote violence. However, he admits that his reference to Allah writing martyrdom for him and to being granted a car with buttons (in other words, with an improvised explosive device) does refer to violent struggle. He says that he was only indicating that if he was present in Syria and fighting against the Shia government and Western Coalition he would be prepared to be a martyr.
[120] While this post is upsetting and, like many of Mr. Hamdan’s viewpoints, difficult to understand or accept, on its own it does not actively promote, advocate or encourage the commission of the offence of murder or assault. What Mr. Hamdan says in the post is that he is prepared to commit violent jihad as part of his struggle and to martyr himself in doing so. There is a significant difference between saying, “I am prepared to kill the enemy” and telling others to “go out and kill the enemy”. The former is a statement of one’s personal views and intent. While it may indirectly encourage the commission of an offence, it is not direct encouragement or active inducement. The offence of counselling is limited to direct encouragement.
[121] Key Post 40 was re-posted by Mr. Hamdan on the “Defeat of the Alliance” page. The Timeline has a collection of posts, some of which were posted by Mr. Hamdan and some by other people. Key Post 40 is short and so it was captured in full. It states, “…our advice to supporters in the #US…carry your actions there…swiftly lone wolves activate all across the #USA.” There were no comments or shares shown for that post in the captured screenshot. Mr. Hamdan indicated that he took this post from an ISIS media feed and that he put it on his page to highlight their point of view and mentality. Of course, his intent in posting it is irrelevant to consideration of the actus reus.
[122] At this time, ISIS was increasing the size of the territory it controlled. It is evident from the surrounding posts on the Timeline that ISIS supporters were celebrating those advances. The surrounding posts by Mr. Hamdan include two of his complaints against Facebook for deleting his pages and pages of other ISIS supporters: Key Post 39 dated February 23, 2015 and Key Post 42 dated February 26, 2015. In those posts he also repeats his assertion that Facebook’s “wrongful” deletion of accounts makes it a main recruiter for ISIS.
[123] I have no hesitation in concluding that a reasonable person reading Key Post 40 objectively, would conclude that it is an active inducement to others to commit terrorist actions “all across USA”. There is nothing in the surrounding posts that suggests another meaning to that statement. There is no comment from Mr. Hamdan distancing himself from the re-post or criticizing the content of it. On an objective basis, anyone reading it would understand it as a call to commit lone wolf terrorist acts which would include murder or serious assaults. While it is not necessary to arrive at that conclusion, I note that this was posted within a few days of Key Post 37 (although on a different account), which clearly referred to violent terrorist acts including exploding a car with an IED. Mr. Hamdan recognized the import of Key Post 40 when he said to Cst. Roy during his warned statement, “[t]hat’s probably the only incriminating post you could have on me. … And it’s – it’s not even my words but that’s that’s the only one that I see that’s really bad. … Because it says lone wolves activate.”
[124] In deciding that the content of Key Post 40, considered contextually, satisfies the actus reus for the counselling offences of murder and assault causing bodily harm, I have not considered whether the lack of specifics as to target, method, timing or location of the incited terrorist acts could be a reason to conclude otherwise. In part, this is because neither counsel addressed this issue, although invited to do so. In part, this is because of the decision I have arrived at on the mens rea component of these charges. I have also considered the decision in Mugesera where the Court found that counselling murder was made out in the unusual circumstances of that case, even though the incitement to kill was general in the sense that it was targeted at the Tutsi population in Rwanda. Nevertheless, I must note that the Crown was unable to show not only the intended recipients, possible targets, methods or location of the counselled terrorist attacks but also could not show that “the offence was not committed”.
[125] Key Post 42 (like Key Post 39 which the Crown has not included in its list of particularly relevant posts), is one of Mr. Hamdan’s complaints about the deletion of his Facebook accounts and those of ISIS supporters. It expresses his opinion that the accounts have not violated Facebook rules and that supporters who have their accounts deleted will immigrate to the “majestic Caliphate” or turn into lone wolves. The opinion expressed in these posts is very similar to the opinions expressed in Key Posts 11, 14 and 18 as discussed above. In the earlier posts, Mr. Hamdan was blaming government policy for further radicalization of ISIS sympathizers and in this post he blames Facebook.
[126] The comments I made with regard to the earlier posts apply here. Key Post 42 and the posts expressing a similar opinion are troubling and illogical. Mr. Hamdan is clearly offering support for ISIS and justifying violent terrorist activity simply because Facebook accounts were shut down. The suggestion that violent terrorist acts are a rational result of Facebook policies is repugnant and indefensible. However, like the earlier posts, Key Post 42 does not contain statements that amount to active or direct inducement of murder or assault. Mr. Hamdan offers an explanation and justification for radicalization. While the opinion offered is illogical and made in support of a terrorist organization, it does not meet the test for counselling as set out in Hamilton.
[127] Key Post 43 is another of Mr. Hamdan’s posts “saluting” or indicating support for the actions of ISIS and lone wolf terrorists. As noted in relation to Key Post 24, such statements are offensive and difficult to comprehend. However, if they do not offer direct encouragement or active inducement to others to commit similar offences, the statements cannot meet the test for the actus reus of a counselling offence.
[128] I have set out in detail some of the language used in Key Post 50, the Lone Wolf Post. There is no question that Mr. Latif, the author of the post, was urging radical Islamists in Egypt (“brothers of Islam in Egypt seeking jihad”) to become lone wolf terrorists. The post provides advice about how that can be accomplished: the weapons to use, targets to attack and means of escape. Unlike Key Posts 1 and 3 and the statements of the accused in Sonne, this post tells people how to commit offences (murder and assault) and actively encourages them to commit those offences.
[129] There is no doubt that if the author, Mr. Latif, was charged with counselling the offence of murder, a court would conclude that the actus reus was made out by that post. The question before this Court is whether Mr. Hamdan also actively induced the commission of murder and assault causing bodily harm when he re-posted it. The answer to that question does not involve consideration of Mr. Hamdan’s intent in re-posting it. His intent in doing so is relevant to mens rea. However, the surrounding context to Key Post 50 is relevant to the actus reus. I must determine objectively what meaning would be ascribed by a reader to Key Post 50: was Mr. Hamdan passing on Mr. Latif’s statements about the need for lone wolf activists to commit murderous attacks or was he criticizing or opposing Mr. Latif’s inducement to commit murderous attacks. This must be determined by examining the posts and comments on the Timeline made around the same time.
[130] Key Post 50 was first captured on March 12, 2015 on the “Defeat of the Alliance” page. Mr. Hamdan gave extensive evidence about the post. He said that Mr. Latif was an Egyptian “pundit” with whom he carried on discussions not only on this page but on Mr. Hamdan’s private profiles and on Mr. Latif’s pages or profiles. Further, he says that the screenshots have captured only fragments of the discussions. He notes, for example, that the screenshot of the March 12 capture of the Key Post shows that there were two comments and three re-posts. The comments and re-posts were not expanded by C.M. Spearman and so it is not possible to know what, if any, further comments and discussion were included. The inadequate collection software and techniques used by the RCMP have prevented full examination of the discussion surrounding that post.
[131] Further, the March 12 capture of Key Post 50 contains only the first paragraph of that post. The “Continue Reading” link or tab was not expanded by C.M. Spearman. Mr. Hamdan indicated that he also posted the final paragraph of the first version of Key Post 50 at capture page 9 of the same Timeline. It also contained a “Continue Reading” tab that was not expanded.
[132] The second capture of Key Post 50 was made on March 21, 2015. C.M. Spearman expanded and captured the whole post at that time. However, she did not capture anything else from the Timeline. In fact, the RCMP did not make any other captures of the account from approximately March 20 to March 26, 2015. So, while there is a lengthy Timeline for the “Defeat of the Alliance” page in evidence from approximately March 10 to 19, 2015, there are approximately six days of Timeline missing around the time of the March 21 capture.
[133] As I have indicated, Mr. Hamdan gave detailed evidence about the discussions that he was having online during this time. He said that most people in the Middle East were not familiar with the term lone wolf to describe the actions of a sole actor terrorist. He said he was asked to provide a definition of a lone wolf. He did so by posting Mr. Latif’s lengthy post. Mr. Hamdan said he thought it was a good “academic” description of a lone wolf. He also said he did not intend to promote lone wolf actions in Egypt or elsewhere. Mr. Hamdan said that there was quite a bit of discussion about the post and this caused him to re-post the concluding paragraph. The discussion continued, Mr. Latif revised his lone wolf post and someone asked Mr. Hamdan to post it again. He did so on March 21.
[134] The defence argues that the failure of the RCMP to properly and fully capture the discussions surrounding the March 21 post is extremely unfair to Mr. Hamdan. The Timeline should have been captured in a form that would allow all of the comments and posts to be expanded. Mr. Hamdan says that a full capture of the posts and comments would show that he indicated to the readers that he posted Mr. Latif’s Lone Wolf Post on his page for “definition purposes”; in other words, to describe what a lone wolf is and does. He says the missing posts contain a discussion with Mr. Latif in which he expresses his disagreement with Mr. Latif about the political status of Egypt and whether lone wolf attacks were called for. He says that he did not agree with Mr. Latif’s view of the state of struggle in Egypt. Mr. Latif believed it was time for jihadists to commit lone wolf attacks, while Mr. Hamdan was of the view that there was still time and an opportunity to educate the public to pursue political struggle rather than violent struggle. In other words, he says the Lone Wolf Post and the discussions about it that followed were focused on the events in Egypt. He says his view was clearly stated in the discussion that can be found in the missing portions of the Timeline.
[135] The Crown says I should reject Mr. Hamdan’s evidence, both as to his intent in re-posting Mr. Latif’s Lone Wolf Post and his explanations about the discussions relating to the post. However, if I accept that Mr. Hamdan included a comment indicating that he was re-posting Mr. Latif’s description only to provide a “definition” of the term, lone wolf, and that the surrounding discussions would show that he disagreed with Mr. Latif about whether supporters of the Muslim Brotherhood should commit lone wolf attacks, then this could alter the meaning of the re-post. Depending on those comments, a reasonable reader examining them in conjunction with Mr. Latif’s comments and viewing them objectively may not take the post as an inducement to commit murder or assault causing bodily harm.
[136] The Crown is required to prove the actus reus of Counts 1 and 2 beyond a reasonable doubt. Accordingly, I must approach Mr. Hamdan’s credibility on these issues as explained in R. v. W.(D.). If I accept his evidence, then I must conclude that the Crown has failed to prove that the Lone Wolf Post, as understood from the surrounding comments and posts, deliberately encouraged the commission of offences. If I am left with a reasonable doubt on that issue, I must still conclude that the actus reus is not proved.
[137] There are accordingly two hurdles for the Crown. First, the fact that parts of the discussions between Mr. Hamdan and others about the Lone Wolf Post are missing makes it difficult to determine the meaning of his posts beyond a reasonable doubt. Second, Mr. Hamdan has given viva voce evidence that the missing parts of the Timeline contain comments that would cause a reader to conclude that Mr. Hamdan was criticizing Mr. Latif’s post, not endorsing it. The inadequate capture of the Facebook materials means that I do not know what was said by Mr. Hamdan and others in the missing posts and comments. Further, Mr. Hamdan’s description of the comments that accompanied Key Post 50 could be exculpatory, as the comments would change the nature of the message conveyed by the post.
[138] In Sonne, the charge of counselling mischief was based on the accused’s tweets which had not been captured in full. While the accused did not testify, Madam Justice Spies found that his comments in the captured tweets could be misinterpreted because parts of the twitter discussion were not in evidence. The court referred to two decisions which highlighted the importance of context when considering the meaning to be ascribed to spoken words: R. v. Ferris (1994), 149 A.R. 1 (C.A.), aff'd [1994] 3 S.C.R. 756; and R. v. Hunter (2001), 54 O.R. (3d) 695 (C.A.). At para. 345 in Sonne, Madam Justice Spies quoted with approval the following observations of Goudge J.A., in Hunter:
In my view, Sopinka J.’s reasoning is anchored in the important role that context can play in giving meaning to spoken words. Where an overheard utterance is known to have a verbal context, but that context is itself unknown, it may be impossible to know the meaning of the overheard words or to otherwise conclude that those words represent a complete thought regardless of context. Even if the overheard words can be said to have any relevance, where their meaning is speculative and their probative value therefore tenuous yet their prejudicial effect substantial, the overheard words should be excluded.
[139] The court in Sonne reasoned that discussions on social media are similar to spoken words such that the full context or content of a dialogue may be needed to determine if the accused was actively inducing the commission of a criminal offence. The court concluded at para. 350 that the lack of a complete record of the twitter discussion was sufficient reason, on its own, to dismiss the charge:
For these reasons I conclude that even if the tweets before the Court could result in the Crown establishing the actus reus of the offence, the fact the Court does not necessarily have the entire dialogue would require an acquittal on count 5 [the counselling mischief offence] in any event.
[140] The Crown argues that there is enough context from the Timelines that were captured to allow the Court to conclude that Mr. Hamdan actively induced the commission of the two offences by re-posting the Lone Wolf Post. I do not agree. The Timeline surrounding the March 12 post is difficult for the Court to understand. Some of it appears to relate to discussions about events in Egypt and elsewhere in the Middle East. None of it appears to discuss Key Post 50, although as noted by Mr. Hamdan, the March 12 comments and re-posts were not captured. Without Mr. Hamdan’s evidence, there is nothing to suggest that Key Post 50 was placed on “The Defeat of the Alliance” Timeline for any reason other than to share Mr. Latif’s statements. Nevertheless, there is missing context such that the meaning to be ascribed to it is somewhat speculative.
[141] In the circumstances present here, I do not need to determine whether the missing context alone is a basis on which to conclude that the Crown has failed to prove the actus reus beyond a reasonable doubt. Rather, I arrive at that conclusion based on the missing context and my assessment of Mr. Hamdan’s evidence.
[142] I will comment on Mr. Hamdan’s credibility more fully when I discuss the mens rea element of these offences. In general, he spoke openly and frankly about his life and his changing views. He is evidently passionate about his beliefs and, when testifying, was anxious to express his opinions and to attempt to persuade others about the validity of his views. He did this in examination-in-chief and under cross-examination. He appeared at all times to be attempting to provide responsive answers that he believed to be correct. He did not try to evade or avoid answering difficult questions. In spite of the content of his opinions, he was persuasive and generally credible.
[143] I cannot conclude, however, that I fully accept his evidence about the Lone Wolf Post. While I accept his statement that the concept of a lone wolf was not well known in the Middle East, I do not accept that he regarded Mr. Latif’s post as an “academic” discussion of a lone wolf. It is anything but. It may be thorough and complete in the eyes of a Salafist jihadist, but that does not make it academic. However, I arrive at a different conclusion about his evidence on the nature of his debate with Mr. Latif. I accept his assertion that he had a disagreement with Mr. Latif about the appropriate form of political struggle in Egypt. More significantly, I cannot discount the possibility that his posts or comments may have made that disagreement evident to readers. In other words, the missing context may be critical to understanding the meaning of the March 21 re-post of the Lone Wolf Post, as objectively ascertained by a reader. Given these conclusions, I must find that the Crown has failed to prove that Mr. Hamdan deliberately encouraged or actively induced the commission of the offences of murder or assault causing bodily harm.
[144] Key Posts 59 and 75 are similar to Key Posts 9, 10, 14, 18 and 24. Mr. Hamdan is “saluting” lone wolves for an attack in Texas and expressing support for a Palestinian who attacked an Israeli soldier. While the expressed opinions are offensive and indefensible, they are not an active inducement to commit criminal offences. The Crown’s argument about these posts and other similar Key Posts suggests that active inducement can be found by considering all of the Key Posts together. I have already explained why this is illogical given the large number of posts made over a long period of time. I have also explained that it would unduly expand the counselling offence to allow this kind of accumulation of offensive communications to meet the actus reus test. In my view, the fact that an individual continuously expresses support for terrorist actions does not turn indirect encouragement into active inducement of the commission of specific criminal offences.
[145] I have also noted that by enacting s. 83.221(1), Parliament may have created an offence with a lower actus reus threshold. Courts considering that offence may conclude that someone, like Mr. Hamdan, who repeatedly posts statements on social media in support of terrorist activities, has committed acts which satisfy the actus reus of the new offence. I must leave that issue for consideration at another time.
[146] Key Post 62 is an isolated capture that does not include other comments or posts around May 7, 2015, the date it was posted. Mr. Hamdan offers his opinion that the repeated deletion of his pages by Facebook – “50 times so far” – is justification for a Paris or Texas style attack. It is similar to Key Posts 39 and 42 and the message is the same: if an attack occurs “the blood is on your hands” for the suppression of freedom of speech. I reach the same conclusion about this Key Post as I did for the earlier posts: at most it offers indirect encouragement to use violence. It does not urge or induce the commission of the charged offences.
[147] This is another of Mr. Hamdan’s posts in which he offers the opinion that the actions of the Canadian government are helping to radicalize youth and cause ISIS sympathizers to commit lone wolf attacks. For reasons I have set out earlier, I am of the view that the posts containing these views cannot be seen to actively induce the commission of murder or assault causing bodily harm.
[148] Key Post 78 is written in Arabic by Mr. Hamdan. It is an interpretation of a verse from the 40th chapter of the Quran. It is written in modern day Arabic. Mr. Aziz gave evidence about the original verse and his interpretation of this version. The passage in the Quran is about interactions between Muslims and non-believers who are attacking Muslims. The Arabic word used in the original is now synonymous with the word “terrorist”. However, the original meaning was that Muslims are to strike terror into the hearts of others on the battlefield. Mr. Aziz’s translation of the key portion of the quote is: “Do not be a coward on the battlefield but rather be someone that strikes fear into god’s enemies.”
[149] Mr. Aziz explained that Salafist jihadists interpret the passage in the Quran differently from mainstream Muslims. The former would use the passage as support for their violent jihadist views, including the proposition that it is legitimate to attack non-combatant non-believers. Mainstream Muslims would take the reference to being a terrorist and striking fear into the heart of the enemy as being limited to a real battlefield. Mr. Aziz was of the opinion that Key Post 78, as written by Mr. Hamdan, is ambiguous. He is not able to say if it is expressing the mainstream view or the Salafist jihadist view.
[150] I accept Mr. Aziz’s interpretation of Key Post 78. In doing so, it is important to note that the post is in Arabic. It would be improvident for me to take the translation and apply my own interpretation to an English translation of a passage in the Quran. Accordingly, I accept that Key Post 78 is ambiguous. It may merely ask Muslims to hold their views strictly and be merciful while striking fear into the enemies’ hearts on a battlefield. It may be asking readers to be violent jihadists. Having heard Mr. Hamdan, I conclude that he welcomed that ambiguity. In other words, his message was intentionally ambiguous. Of course, his intent is not relevant to consideration of the actus reus. However, a proper interpretation of the meaning of the passage is relevant and I accept Mr. Aziz’s interpretation. I cannot conclude beyond a reasonable doubt that Key Post 78 actively induces readers to commit criminal acts.
[151] In summary, I conclude that the Crown has proved that Mr. Hamdan actively induced the offences of murder and assault causing bodily harm by re-posting Key Post 40. However, the Crown has failed to prove that Mr. Hamdan actively induced those criminal offences by posting or re-posting any of the other Key Posts. Having reached this conclusion, I now turn to the mens rea element for Counts 1 and 2.
[152] It is useful to restate the mens rea requirement for the counselling offences in Counts 1 and 2. As set out in Hamilton, at para. 29, where the actus reus of deliberate encouragement or active inducement is proved, the mens rea requirement is satisfied by proof of the following:
… the mens rea consists in nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct.
[153] This is a high standard. For Count 1 this means the Crown must establish that Mr. Hamdan deliberately encouraged or actively induced others to commit murder and that he intended to do so or knowingly did so while aware of the unjustified risk that the offence of murder was likely to be committed because of his Facebook posts. The same level of intent must be established for assault causing bodily harm to satisfy the mens rea component for the Count 2 counselling offence.
[154] For many offences, intent is proved by inference from the acts of an accused. Juries are instructed to draw the common sense inference that a person intends the natural and probable consequences of his actions. However, the intent for counselling is more difficult to infer, in part because the counselled offence was never committed and in part because the offence of counselling itself is indirect. Quite simply, there is not a natural and probable consequence that arises from the making of most statements. It is thus not possible to make use of the usual common sense inference, although common sense must guide the assessment of all of the evidence. Here, the assessment of Mr. Hamdan’s intent is facilitated by the fact that he testified at trial. Accordingly, while I can attempt to discern intent from the language used in relevant posts, I must also consider the evidence Mr. Hamdan gave about his intent in writing and re-posting the Key Posts. Obviously, this requires an assessment of his credibility and an application of the principles set out in R. v. W.(D.).
[155] These principles are not controversial. If Mr. Hamdan’s evidence suggests that he did not intend to induce the commission of the offences of murder and assault, I must assess his evidence to decide whether I accept it. If I believe Mr. Hamdan’s evidence about his intent in publishing the relevant Key Posts, I must acquit him of the counselling charges. If I do not believe him but am left with a reasonable doubt as to whether to accept it, I must still acquit him of the counselling charges. Finally, if I do not accept his evidence but consider that all of the evidence nevertheless raises a reasonable doubt as to whether he possessed the requisite intent, I must still acquit Mr. Hamdan.
[156] In Sonne, the court applied R. v. W.(D.) when assessing the accused’s credibility even though he did not testify. The court relied on R. v. B.D., 2011 ONCA 51, in deciding to apply those principles to consideration of Mr. Sonne’s credibility based on his evidence given in the warned statement to the police. The court also had to consider how to treat the inculpatory and exculpatory parts of that statement. The court accepted the approach to consideration of such evidence as explained in R. v. Rojas, 2008 SCC 56, and concluded at para. 169:
… I conclude in light of this authority that the exculpatory portions of Mr. Sonne’s out of court statements do not have the same weight as the inculpatory portions but that his exculpatory statements need only raise a reasonable doubt, in which case he is entitled to the benefit of any such doubt.
Obviously, the principle that exculpatory statements need not be believed, but rather need only raise a reasonable doubt for the accused to obtain an acquittal applies to my consideration of Mr. Hamdan’s evidence, both in the warned statement and at trial.
[157] In order to apply these principles, I will first examine Mr. Hamdan’s evidence about his intent in establishing and maintaining the Facebook pages and profiles. In doing so, I accept his evidence about his general intentions. I will then consider Mr. Hamdan’s stated intent about Key Post 40. While I do not accept that evidence, I conclude that it raises a reasonable doubt regarding his intent in publishing Key Post 40. Accordingly, I conclude that the Crown has failed to prove that Mr. Hamdan possessed the requisite mens rea for a conviction for the counselling offences in Counts 1 and 2.
[158] Mr. Hamdan gave extensive evidence about his political, religious and philosophical beliefs and his reasons for creating the Facebook pages and profiles. That evidence is relevant to consideration of his intent in posting the Key Posts. The relevance of this kind of evidence was considered in R. v. Jeffers, 2012 ONCA 1. At trial, Mr. Jeffers was convicted of counselling murder as a result of statements contained in three posters he glued to signs, hydro poles and parking metres in his neighbourhood. One of the posters contained the handwritten words, “Murder Councillor Thompson”. The Court of Appeal overturned the conviction and found that the accused had neither the actus reus nor the mens rea for counselling murder. The court concluded that, “[n]o reasonable person viewing the words on the poster could think that they were encouraging someone to murder Councillor Thompson.” (para. 30). At para. 31, the court explained the error committed by the trial judge:
The trial judge’s analysis did not take account of the context of the alleged offence, including the collective message of the posters, the appearance of the words, the lack of motive, the steps Mr. Jeffers took to ensure that he could be identified, and Mr. Jeffers’ personal background.
[159] The court considered each of those enumerated factors that contributed to the context. The court rejected the trial judge’s view that motive was irrelevant. It noted that “evidence motive is always relevant to the issue of intention” and that people “do not usually act without a motive” (para. 35). The court found that Mr. Jeffers’ conduct was relevant circumstantial evidence supporting his lack of intent. He was easily identified and he cooperated with the police. The court also considered his personal background to be highly relevant to the question of his intent.
[160] While the circumstances here are much different from those in Jeffers, I am of the view that Mr. Hamdan’s background, his conduct online and with the police, and his stated reasons for establishing and administering his Facebook accounts are relevant to the question of intent.
[161] I have already set out Mr. Hamdan’s background in some detail. His testimony contained many statements about his personal identity, his beliefs and the principles that guide his life and online activity. His assertions were not seriously challenged in cross-examination. He testified for seven days. I also heard and watched the video of the very lengthy warned statement. Mr. Hamdan’s evidence about these matters was detailed and consistent. I see no reason to reject his evidence.
[162] Mr. Hamdan identifies himself as a Palestinian whose family had to leave their homeland. This perception strongly influences his views. He explained why he chose Handala, a cartoon character, as his portrait on his profiles. Handala is the image of a Palestinian child created by a Palestinian artist who was assassinated. The artist often criticized authority through his cartoons. Mr. Hamdan says that Handala “represents” him; he is a refugee who speaks truth to power. Further, Handala is considered to be a liberal figure and accordingly is “hated” by Salafist jihadists.
[163] Mr. Hamdan indicated that Key Posts 5 and 6 (both of which were not fully captured) provide some explanation of his intent. Both posts are made on his “Adam Khalifa” profile and include the Handala figure in the banner. Mr. Hamdan says that he made the decision to spend his time on the Internet supporting the “Mujahedeen”, by which he means by supporting those who are weak. He says that Handala represents the weak and that his struggle is to support causes for people, like Palestinians, who are displaced refugees.
[164] Mr. Hamdan indicated that many of his views would be considered by conservative Muslims and Salafist jihadists to be liberal. He identified numerous passages in the Timelines (none of which are Key Posts) where he argued with or criticized the views or actions of conservative Muslims or violent jihadists. For example, his post at capture page 8 of the Timeline that contains Key Posts 1 to 7 is critical of al-Maqdisi, who is considered a father figure of the Salafist jihadist movement. He says that such criticism is unacceptable to ISIS.
[165] I accept Mr. Hamdan’s characterization of his political views and perspective. It is a very complicated and at times inconsistent perspective. He holds liberal ideas that are contrary to ISIS dogma. He believes in freedom of expression, and appears to believe in freedom of religion and to support Shia Muslims who are repressed by Sunni dictatorships. At the same time, he supports ISIS in Iraq and Syria and salutes terrorists who attack non-combatants in Canada and the United States.
[166] Mr. Hamdan’s political views are highly relevant to the question of intent. If, as I accept, he holds views that would be unacceptable to ISIS members or ideologues, it lends support to his contention that his intent in administering the Facebook pages and profiles was to highlight injustice, speak truth to power and generate discussion rather than to further the goals of ISIS or encourage criminal terrorist activity.
[167] Mr. Hamdan’s assertions about his political views are also consistent with his background. He left the Middle East because he was attracted to the United States, in part because of his view that politicians in the region and the established leaders of Islam were hypocritical. He was attracted to democracy and eventually to the Christian faith. However, after time he became critical of both. He has an established history of criticizing and questioning those in power and authority. In his Facebook pages and profiles, he found what he regards as the perfect medium to express his views to his friends and readers, and to question the political and religious establishments. He is a contrarian; he has always questioned conventional views and continued to do so through his Facebook accounts.
[168] When asked about Key Post 78, Mr. Hamdan gave an explanation for the post and described his beliefs. He said he posted the passages from the Quran as a code of conduct for Muslims; they should maintain their personal political struggles and keep their faith. As he indicated frequently, he understands his struggle to be speaking truth to power. When asked to describe his current belief system, he indicated that he is still a Sunni Muslim and is still searching. He does not adhere to any ideology; he is not a Salafist jihadist or a secular Muslim. He is not even a practising Muslim and notes that he was not fasting for Ramadan when he was arrested. He does not fit into any category.
[169] Mr. Hamdan’s general intent in administering the Facebook accounts and his lack of a particular ideology are relevant to my assessment of whether Mr. Hamdan intended to commission other people to commit murder or assault. It is analogous to Mr. Jeffers’ lack of a motive. Mr. Hamdan’s stated intentions for his Facebook pages and profiles and his lack of a committed ideology mean it is unlikely that it would be his intention to actively induce others to commit those criminal offences. Mr. Hamdan demonstrated different and sometimes conflicting perspectives in his posts. His online activities were not focused on promoting the doctrine of ISIS at the expense of all else. For this reason, he likely did not intend to induce his readers to commit a lone wolf terrorist attack in order to further that one ideology.
[170] I also conclude that Mr. Hamdan’s online conduct and his dealings with the police have some relevance to consideration of his intent. Like Mr. Jeffers, Mr. Hamdan has never hidden his identity. He used his own name in registering his Facebook accounts and the same IP address throughout. He was easy to track down. When the police first approached him in the fall of 2014, he was ready and willing to discuss his Facebook activity. When he was arrested, he also cooperated with the police and gave a lengthy interview. I commented on the nature of that interview in my reasons on the voluntariness voir dire, indexed as R. v. Hamdan, 2017 BCSC 61, at para. 58:
The biggest difficulty with the defence position is that Mr. Hamdan was, from his first contact with the police to the end of the Statement, a ready and willing conversationalist. He wanted to discuss his online activities and political views with the police. He was anxious to educate the police about the inaccurate reporting by the Western media of the conflict in Syria. He was keen to point out the errors of the Canadian and Western governments as well as the positive attributes of ISIS. He was happy to discuss the Facebook posts. An examination of all of his interactions with the police leads to this conclusion. Quite simply, Mr. Hamdan voluntarily decided to engage the police in discussions about the Facebook posts. He was not coerced or induced to do that.
[171] Unlike Mr. Jeffers, Mr. Hamdan is well educated and not unsophisticated. Accordingly, it is possible that his statements to the police were not truthful and were intended to protect his innocence. However, that is not my impression. He made no attempt to avoid detection as the administrator of the Facebook accounts. The explanations he gave to the police were very similar to those given in court; he tried to explain his Facebook posts and his reasons for making them.
[172] In the circumstances here, Mr. Hamdan’s conduct is a less important piece of circumstantial evidence than it was in Jeffers. Nevertheless, I find that his conduct throughout is some evidence of his lack of criminal intent. It is circumstantial evidence tending to show that he did not believe that he was counselling others to commit murder or assault causing bodily harm.
[173] The main thrust of the Crown’s argument for rejecting Mr. Hamdan’s evidence about his intent was that the substance of the Key Posts offered support for ISIS and his online activity is consistent with the ISIS methodology. Accordingly, the Crown says I should infer that Mr. Hamdan’s real intent was to incite murder and assault causing bodily harm. While there is some support for both of those propositions in the evidence, I have explained why I cannot accept either as accurate. Mr. Hamdan did on occasion re-post ISIS media releases and offered support for ISIS. But he also criticized it and included many other sources as material for discussion. While the re-posting of ISIS propaganda is consistent with its methodology, Mr. Hamdan has offered an alternate explanation that I accept. Further, as noted by Mr. Aziz, his posts, while similar to ISIS messages only go halfway; they do not actively recruit supporters or purport to tell people what to do. These differences support Mr. Hamdan’s evidence about his intent.
[174] In summary, I accept Mr. Hamdan’s evidence about his background, political views and his general intent in administering the Facebook accounts. He was trying to highlight what he perceived to be hypocrisy and injustice, support some of the actions of ISIS in its defence of Sunni Muslims in Iraq and Syria and promote discussion about these issues. I also accept that he does not regard himself as a Salafist jihadist and does not accept their ideology.
[175] Even though I have decided to accept Mr. Hamdan’s evidence about his general intent in creating and maintaining the Facebook pages and profiles, I must still determine whether the Crown has proved mens rea with regard to his posting of Key Post 40. That can be done in one of two ways. First, the Crown can establish that Mr. Hamdan intended to promote or encourage others to commit murder or assault causing bodily harm by placing Key Post 40 on “The Defeat of the Alliance” page. Alternatively, it can prove mens rea by establishing that he had a conscious awareness of the unjustified risk that murder or assault causing bodily harm was likely to be committed because he posted Key Post 40.
[176] In his warned statement, Mr. Hamdan was confronted with Key Post 40 and agreed that the statement was “really bad”. Portions of the police interview include the following:
OH: That’s probably the only incriminating post you could have on me.
AR: Okay. And why why would you suggest that’s incriminating.
OH: Because it’s just says carry your actions swiftly but that’s it. -
AR: So.
OH: - It doesn’t define the actions it doesn’t even.
AR: Right there you’re just saying carry your actions there, and s-sw-swiftly lone wolves activate all-
…
OH: And it’s-it’s not even my words but that’s that’s the only one that I see that’s really bad.
AR: Okay. Okay. And why why do you feel that it’s really bad?
OH: Because it says lone wolves activate.
AR: Right. So gi- lone wolves get to, get goin’ get do your thing… kinda thing I see.
…
OH: But. You gotta understand that we’re not, like wh-when I say lone wolves I don’t picture somebody goin’ to kill kids and some, I’m picturing somebody takin’ a stand against the criminal-
AR: Right.
OH: -Or-organizations that are sponsoring rape gangs and.
AR: I understand.
OH: And that’s that’s wrong.
AR: You’re when you when you tellin’ a lone wolf to activate you’re not, go, you’re not saying go out and kill a kid. You’re sayin’ deal with the people who deserve to be dealt with not these innocent kids and that sort of thing.
OH: We I’m totally against killing innocent people.
[177] At trial Mr. Hamdan gave much more detailed evidence about his intent in re-posting Key Post 40. He referred to other posts that he put on the Timeline around the same time. At the time Mr. Hamdan re-posted Key Post 40, he was very animated by developments taking place in territory controlled by Kurdish groups. He believed that the Kurds, Shia regimes and the Western Coalition were committing atrocities against Sunni Muslims. No one in the media was talking about Sunni Muslims while they were being bombed by the Shia, Kurds and the Western Coalition. ISIS was gaining some ground and it was gaining recruits from the West.
[178] These developments occurred at the same time that Mr. Hamdan’s Facebook accounts were deleted. There are a series of four or five posts (including Key Posts 39 and 42) in the space of a few days in which Mr. Hamdan complains about the actions of Facebook and the CIA in “muzzling” freedom of expression. He says that he re-posted Key Post 40 from an ISIS feed because he wanted to contrast the message ISIS was sending to potential recruits and the message which he thought that Facebook and the CIA were sending to ISIS sympathizers. By shutting down accounts, Mr. Hamdan believed that Facebook was impairing the ability of young Sunni Muslims to communicate their views about Islam and the developing events involving ISIS and was thus sending the message that the views of Muslims were not legitimate. In his mind the two issues were connected: young Muslims were having their free expression muzzled and at the same time they were getting a message to go and join ISIS. Mr. Hamdan says that the Crown’s reliance on Key Post 40 is only possible if it is read in isolation and out of context. However, he admits that “in hindsight” he should have “structured” the expression of his views better to explain his message, which was a criticism of the Facebook restriction of freedom of expression for Muslim youth.
[179] The Crown says that Mr. Hamdan’s acknowledgment in the interview with Cst. Roy that Key Post 40 is incriminating is significant and is a strong indication of Mr. Hamdan’s real intent. It relies on the proposition that inculpatory portions of statements carry more weight than exculpatory statements.
[180] I accept that inculpatory statements can carry significant weight, but that applies more readily to statements of fact made by an accused about past events. Here, the statement is about the meaning of a single post amongst hundreds or thousands made over a ten-month period. His statement is really nothing more than an acknowledgment that the post, read alone, sounds like an incitement to ISIS followers. There is no doubt about that.
[181] Balanced against Mr. Hamdan’s admission that the post sounds “really bad” is his statement to Cst. Roy in the same portion of the interview that he is totally against killing innocent people. In my opinion, this exculpatory statement should be given some weight.
[182] I must also consider Mr. Hamdan’s evidence at trial about the post. It is not surprising that he offered a much more detailed explanation about Key Post 40 than he did in the interview. He was confronted with the Key Post in the police interview without having the opportunity to look at the Timeline and likely had no opportunity to recall the discussions he was having at the time. He has now had time to reflect on his discussions on the Timeline and his reasons for making the post at the time. I acknowledge that his evidence at trial may well have been motivated by a desire to present an innocent explanation. However, his explanation provides a reasonable doubt: if he was re-posting the ISIS statement for the reason he asserts and was not trying to incite others to commit murder or other terrorist acts, then he did not have the requisite criminal intent for counselling.
[183] Mr. Hamdan’s evidence about his general intent in administering the Facebook accounts is also relevant to considering his intent with regard to Key Post 40. My conclusion about his purpose in creating and maintaining the Facebook accounts generally weighs significantly in my assessment of his intent in making this post. Having heard Mr. Hamdan’s evidence at length and evaluated his credibility generally, I am unable to conclude beyond a reasonable doubt that he placed Key Post 40 on the Facebook page intending to incite others to commit murders and assaults or that he did so consciously aware of the unjustified risk that murders or assaults causing bodily harm were likely to be committed because of his post. I conclude that it is possible that he re-posted the ISIS feed for the purpose he indicated: he is trying to highlight what he regards as an injustice and point out that Facebook is censoring Muslim accounts while ISIS is recruiting angry and frustrated young Muslims. In other words, it is possible that he did not intend to induce or incite others to kill or assault innocent people.
[184] In summary, under the second branch of R. v. W.(D.), I find that the Crown has not proved mens rea. In other words, while I do not accept Mr. Hamdan’s explanation as to the intent of Key Post 40, it raises a reasonable doubt about his intent.
[185] The final element the Crown must prove for the Counselling Offences is that Mr. Hamdan counselled the commission of the indictable offences for the benefit of, at the direction of or in association with a terrorist group. Having concluded that the Crown has failed to prove any of the included counselling offences because of its failure to prove mens rea, I need not consider this element of Counts 1 to 3.
[186] Nevertheless, I will note that the charge of counselling an offence for the benefit of a terrorist organization contrary to s. 83.2 of the Code raises difficult and unsettled questions about the required intent for this additional element. While no court has directly considered the mens rea requirement for s. 83.2, it is a difficult issue on which I received no argument from counsel. On a plain reading, the section does not contain any specific mens rea component beyond that of the underlying offence. However, the decision in R. v. Khawaja, 2012 SCC 69, which considered the constitutionality of s. 83.18, another terrorism provision in Part II.1 of the Code, and academic commentary suggest that the offence should contain a high mens rea threshold.
[187] In Khawaja, the Court found that the legislative purpose of Part II.1 of the Criminal Code itself implies a high mens rea threshold:
[44] The Terrorism section of the Criminal Code, like any statutory provision, must be interpreted with regard to its legislative purpose. That purpose is “to provide means by which terrorism may be prosecuted and prevented” (Application under s. 83.28 of the Criminal Code (Re), at para. 39) — not to punish individuals for innocent, socially useful or casual acts which, absent any intent, indirectly contribute to a terrorist activity.
[45] This purpose commands a high mens rea threshold. To be convicted, an individual must not only participate in or contribute to a terrorist activity “knowingly”, his or her actions must also be undertaken “for the purpose” of enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity.
[188] Section 83.18 creates the offence of knowingly participating in or contributing to any activity of a terrorist group for the purpose of enhancing the ability of the group to carry out terrorist activities. While the language is different, it may be that the legislative purpose of the terrorism provisions requires a similar reading of the provisions of s. 83.2.
[189] In arriving at the conclusion on the mens rea component in Khawaja, McLachlin C.J.C. referenced K. Roach, “Terrorism Offences and the Charter: A Comment on R. v. Khawaja” (2007), 11 Can. Crim. L.R. 271. At pp. 287-88, the author commented directly on the mens rea requirement in s. 83.2:
Unfortunately section 83.2 contains no explicit fault requirement leaving it to the judge to determine whether the accused must know he was committing the offence for a terrorist group and/or have intended to act for the benefit of the group or in association with the group or at its direction. Justice Rutherford's ruling suggests that a fault level of knowledge that one is acting in association with or at the direction of a terrorist group should be read into this offence in order to comply with the Charter. Knowledge that one is dealing with a terrorist group should not, however, be enough. There is a case that the higher fault element of an intent to benefit, follow the direction or act in association with a terrorist group should also be proven even though the offence does not make specific reference to intent. Given the stigma and penalty of this particular terrorism offence and the ambiguity that may arise about whether one is benefiting or associating with a terrorist group, a requirement of subjective intent better captures those who should be branded and punished as terrorists. It would also be consistent with the conspiracy cases that Justice Rutherford cites in support of his ruling. That said, Justice Rutherford's ruling, as well as the Supreme Court's jurisprudence on fault under section 7, supports the less onerous knowledge requirement. In any event, it will be necessary for judges to read at least knowledge that one is dealing with a terrorist group and that one is benefiting a terrorist group or acting at its direction or in association with it into section 83.2 despite its failure to include any explicit fault requirements.
[190] As I have indicated, I need not consider this issue and highlight it only for future consideration.
[191] Section 83.22(1) of the Code provides:
Every person who knowingly instructs, directly or indirectly, any person to carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for life.
[192] As I have indicated, the Crown conceded in argument that if it failed to prove guilt on any of Counts 1 to 3, the Court would also have to acquit Mr. Hamdan on Count 4. In light of that concession, I have not considered in detail whether the Crown has proved the elements of that section. However, I am of the view that the Crown concession was correct. The actus reus of the offence requires the Crown to prove that Mr. Hamdan knowingly instructed a person to carry out a terrorist activity. In my view, the threshold the Crown must meet to prove that element is similar to, and at least, as onerous as the requirement to prove that Mr. Hamdan “deliberately encouraged” or “actively induced” the commission of the three indictable offences.
[193] The mens rea component requires proof of intent similar to that required for the included counselling charges. In that regard, I note that the mens rea component for a charge under s. 83.22 directly engages Part II.1 of the Code so that the comments of the Court in Khawaja will apply: the mens rea threshold is high.
[194] Accordingly, I conclude that the Crown has failed to prove the essential elements of Count 4 beyond a reasonable doubt.
[195] Mr. Hamdan, could you please rise: I find you not guilty of Counts 1, 2, 3 and 4.
“Butler J.”
SCHEDULE “A”
|
Post No. |
Date of Post |
Facebook page |
Summary of Post |
|
1 |
Sept. 22, 2014 |
Adam Khalifa |
Dam near Revelstoke, security is weak |
|
2 |
Sept. 23, 2014 |
Adam Khalifa |
Canadian Muslims - Less than $200 can get licence for explosives and weapon |
|
3 |
Sept. 24, 2014 |
Adam Khalifa |
Nipigon River bridge; security is zero |
|
4 |
Oct. 13, 2014 |
Adam Khalifa |
Thanks to those who have interacted with the page; blinding the enemy; graduate to university |
|
5 |
Oct. 14, 2014 |
Adam Khalifa |
We support jihad and mujahadeen |
|
6 |
Oct. 14, 2014 |
Adam Khalifa |
I spend all my time on net support jihadist |
|
7 |
Oct. 21, 2014 |
Adam Khalifa |
We the supporters of Islamic State have to fight the wrong/deviant thoughts of some “who claims to support the State”… |
|
8 |
Oct. 22, 2014 |
Al Uqab. The Banner |
IS does not need to recruit; your arrogant policies are making non Muslims want to join ISIL |
|
9 |
Oct. 22, 2014 |
Al Uqab. The Banner |
Muslim brother is martyred after killing Canadian soldier |
|
10 |
Oct. 22, 2014 |
Al Uqab. The Banner |
Muslim brother; attacked Parliament today with rifle |
|
11 |
Oct. 22, 2014 |
Al Uqab. The Banner |
You don’t understand what happened in Ottawa – free lesson…stay here and bring the fight to their towns |
|
12 |
Oct. 22, 2014 |
Al Uqab. The Banner |
The brother opened fire on a Canadian soldier in front of Parliament |
|
13 |
Oct. 22, 2014 |
Al Uqab. The Banner |
Second attack in as many days – you can thank Harper and his support of sectarian militias in Iraq |
|
14 |
Oct. 22, 2014 |
Al Uqab. The Banner |
Result of Harper arrogant policy; backing of Iraqi sectarian militia |
|
15 |
Oct. 24, 2014 |
Al Uqab. The Banner |
The power of suggestion; lone wolves everywhere |
|
16 |
Oct. 24, 2014 |
Al Uqab. The Banner |
A free…short lesson about hypocrisy of your gov; lists names of 3 officers killed in June 2014 |
|
17 |
Oct. 26, 2014 |
Al Uqab. The Banner |
The battle for Kubani…lone wolves are hitting you in the heart of your lands |
|
18 |
Oct. 26, 2014 |
Al Uqab. The Banner |
Martin Rouleau…the real hero (with photos of Rouleau) |
|
19 |
Jan. 25, 2015 |
Al Uqab. The Banner |
In response to Harper’s policy….Islamic State issues activation order to lone wolves in Canada…(image of Cdn flag with blood under it) |
|
20 |
Jan. 26, 2015 |
Al Uqab. The Banner |
Islamic state spokesman renews calls for attacks…praises all recent lone wolves attacks |
|
21 |
Jan. 27, 2015 |
Al Uqab. The Banner |
We don’t deny the holocaust…just going to make you wish for it |
|
22 |
Jan. 28, 2015 |
Al Uqab. The Banner |
Tic toc tic toc…I think Jordan does not understand…any delay will cause the death of your criminal pilot |
|
23 |
Jan. 31, 2015 |
The Defeat of the Alliance |
We do not negotiate…we tell you what you have to do for us..you obey..end of story ISIS |
|
24 |
Jan. 31, 2015 |
The Defeat of the Alliance |
Bring your troops in…got balls…the beheadings did not start till you started the war on us… |
|
25 |
Feb. 3, 2015 |
The Defeat of the Alliance |
3 french soldiers stabbed in France |
|
26 |
Feb. 3, 2015 |
The Defeat of the Alliance |
Reward for everyone that kills an alliance pilot |
|
27 |
Feb. 3, 2015 |
The Defeat of the Alliance |
We have names/addresses of every Jordanian alliance pilot and we will pay the reward |
|
28 |
Feb. 4, 2015 |
The Defeat of the Alliance |
According to BBC…reports of UAE withdrawing from the Alliance after video of Jordanian pilot being executed..our way clearly working |
|
29 |
Feb. 4, 2015 |
Gold Dinars 100 |
Header of document containing names of the Jordanian pilots wanted for death by Islamic State |
|
30 |
Feb. 4, 2015 |
Gold Dinars 100 |
Reward being offered outside of Jordan…in all alliance countries |
|
31 |
Feb. 5, 2015 |
Adam Khalifa |
Reward of 100 dinars waiting for you; you are refusing alliance with crusaders? |
|
32 |
Feb. 5, 2015 |
Adam Khalifa |
I know why my last account was removed…lift the ban cause you need some mercy when we control your office. |
|
33 |
Feb. 5, 2015 |
Al Uqab. The Banner |
We are prepared to fight you… you will come under 80 banners, behind every banner 12000. |
|
34 |
Feb. 11, 2015 |
Gold Dinars 100 |
Publish the page brothers and support it – includes a link to Defeat of the Alliance page |
|
35 |
Feb. 16, 2015 |
Al Uqab. The Banner |
Do you know what happens to 99% of the guys that get their accounts deleted…freedom of expression muzzled by CIA tool facebook… |
|
36 |
Feb. 20, 2015 |
Adam Khalifa |
Background on how/why the Al Uqab.The banner page was started; Adam Khalifa says he is not a media person person for the Islamic state, but wants to support the spread of the banner |
|
37 |
Feb. 20, 2015 |
Adam Khalifa |
I am here for the support of the mujuhadeen…terrorizing of the enemy..until God grants me the martyrdom..with a car with buttons… |
|
38 |
Feb. 21, 2015 |
Adam Khalifa |
I wish to be a soldier for any of the two Abu Bakers – Al Baghadadi or Shekow |
|
39 |
Feb. 23, 2015 |
The Defeat of the Alliance |
Stupid facebook keeps deleting page…ISIL keeps expanding |
|
40 |
Feb. 25, 2015 |
The Defeat of the Alliance |
Our advice to supporters in the US, Carry your actions there…lone wolves activate |
|
41 |
Feb. 26, 2015 |
The Defeat of the Alliance |
Anyone can travel to Libya at any time..getting through to the Islamic State controlled areas may be a little tricky |
|
42 |
Feb. 26, 2015 |
The Defeat of the Alliance |
Facebook has deleted over 100K accounts of ISIL supporters the last two days…they turn into lone wolves…ISIS would like to thank FB for its recruiting efforts |
|
43 |
March 4, 2015 |
Adam Khalifa |
Gun shots fired at NSA building…lone wolves we salute you. |
|
44 |
March 6, 2015 |
The Defeat of the Alliance |
We threaten America and the entire West and we promise to conquer Rome |
|
45 |
March 6, 2015 |
Adam Khalifa |
My dear I am a little busy at work can you help me reply to comments on defeat of alliance…from muslims seeking knowledge |
|
46 |
March 7, 2015 |
The Defeat of the Alliance |
The amazing and terrible release of ISIS..kill them where you find them…posts gives link to a video. |
|
47 |
March 10, 2015 |
The Defeat of the Alliance |
Message from page to the Islamic State to provide clear instructions to those who want to join, even if to say the doors are closed..in order for us to have a clear message for the hundreds inquiring daily |
|
48 |
March 11, 2015 |
The Defeat of the Alliance |
Dear muslim brother and sister…the Islamic state is the solution to all our problems..we muslims will support it and establish the caliphate state |
|
49 |
March 13, 2015 |
Adam al-Hanzala |
Can one of you make for us publication on the matter of the Christians’ killing in Libya |
|
50 |
March 21, 2015 |
The Defeat of the Alliance |
Lone Wolf Post. |
|
51 |
March 22, 2015 |
Adam Hanzala |
Supporters of Islamic state..you are writing the lines of the first electronic media battle..you are achieving victory similar to your victories on the ground |
|
52 |
March 28, 2015 |
Adam Hanzala |
We are here to stay…kill the sheep…burn the cadavers…despite the deleted account…we will work toward the elimination of the morons |
|
53 |
March 29, 2015 |
The Defeat of the Alliance |
Islamic state..I am one of them |
|
54 |
April 1, 2015 |
Adam Hanzala |
Investigators visited me third time to know if I support terrorism; I told them your government finances terrorist networks PKK |
|
55 |
April 1, 2015 |
Adam Hanzala |
They send me a message saying they will send me an audio copy of the investigation!! |
|
56 |
April 23, 2015 |
The Alliance Defeat |
Whatever photo we post Facebook removes; we will reach your office one day!! |
|
57 |
May 2, 2015 |
The Alliance Defeat |
We’ve told you before you can delete as many messages…the safety of your employees has already been determined by your actions!! |
|
58 |
May 3, 2015 |
The Alliance Defeat |
Don’t cry when the same targets are bombed on your soil… |
|
59 |
May 3, 2015 |
The Alliance Defeat |
Three shot outside an American Islam phobic competition…lone wolves we salute you. |
|
60 |
May 4, 2015 |
The Alliance Defeat |
The martyr yesterday in Texas was a recent convert with no shooting experience. |
|
61 |
May 4, 2015 |
The Alliance Defeat |
The martyr in Texas yesterday he pledge alliance to Islamic state |
|
62 |
May 7, 2015 |
The Alliance Defeat |
…if any of this page admins carry out an attack..Paris or Texas style…it is because we have been shut down 50x…blood is on your hands |
|
63 |
May 11, 2015 |
Banner Ascension |
America terrified as number of Islamic state supporters in tens of thousands |
|
64 |
May 14, 2015 |
The News Reel |
Three Zionist critically injured in lone wolf attack in northern hebron car attack. |
|
65 |
May 18, 2015 |
The News Reel |
If it wasn’t a dream of yours then you are a fake supporter…a fully loaded vehicle/a vehicle with a button parked in front of the Arab summit |
|
66 |
May 20, 2015 |
The Alliance Defeat |
The new North Korea under dictatorship of Harper arrests 10 muslims youth for trying to leave the country, and you wonder why you have lone wolves attacks on your soil!! |
|
67 |
May 21, 2015 |
The Alliance Defeat |
Photo of twin German brothers holding a Quran who converted to Islam; one of the brothers conducted a suicide mission in Baghdad; post referred to them as caliphate martyrdom warriors |
|
68 |
May 27, 2015 |
Alliance Defeat |
Link to a video “Kill Them wherever you find them”. |
|
69 |
May 27, 2015 |
Alliance Defeat |
Pamphlet of great importance; contains security instructions for those interested in jihad. |
|
70 |
May 28, 2015 |
Alliance Defeat |
Facebook deletes pages that tell you the truth about majestic caliphate |
|
71 |
June 4, 2015 |
The NewsReel |
How many muslims I see rising up for the sake of the prophet god pray for him and blessed be in Texas and Boston with a knife. |
|
72 |
June 4, 2015 |
The NewsReel |
Usamah Rahim – may allah accept your soul; it is enough you have terrified Boston again |
|
73 |
June 5, 2015 |
The NewsReel |
In the UK two british whores attack a muslim woman for wearing a hijab…that is why we laughed when a Brit is beheaded |
|
74 |
June 12, 2015 |
The Network |
You who can immigrate immigrate |
|
75 |
June 21, 2015 |
The IED |
Lone wolf..a muslim Palestinian stabs a Zionist mercenary soldier; later on the lone wolf was martyred; lone wolves..we salute you. |
|
76 |
June 24, 2015 |
The IED |
To those wailing for the brutality of executions by Islamic state, be quiet and wait. Method of executing you may be more brutal, I will still be happy |
|
77 |
June 24, 2015 |
The IED |
We are glad that Jabar Tsarnarev showed no remorse |
|
78 |
June 26, 2015 |
The IED |
My Muslim brother…be a terrorist…be strict..be extreme |
|
79 |
June 28, 2015 |
The IED |
Rewriting history..one pressure cooker at a time |
|
80 |
June 29, 2015 |
The IED |
I see the country place by the infidel… |
|
81 |
June 30, 2015 |
The IED |
So they don’t say we discriminate…shows cartoon with six figures in different colour shirts with jihadi john carrying a knife |
|
82 |
July 4, 2015 |
The Alliance Defeat |
Lack of interaction with our page leads to quick removal… |
|
83 |
July 7, 2015 |
Alberto Vaca Derbonuvich |
Shared a post from the Alliance Defeat..I am quitting the factions..when I migrate I will go surely to ISIS… |
|
84 |
July 8, 2015 |
Alberto Vaca Derbonuvich |
This is why we hate you America…we are absolutely right in killing you…go ahead and remove our facebook page; links to a video of a US soldiers describing their crimes against Muslims. |
|
85 |
July 9, 2015 |
Alberto Vaca Derbonuvich |
Instead of when to run, we are going to start a movement when to blow up… |
SCHEDULE “B”
Cst. Mokdad: Relevant Dates
|
Date: |
Event: |
ISIS Claims it’s |
|
April 15, 2013 |
Attack in Boston, Mass., where 2 brothers, Jahar Tsarnaev and Tamerlane Tsarnaev, utilized a pressure cooker bomb at the Boston Marathon |
|
|
June 4, 2014 |
Shooting in Moncton, New Brunswick that resulted in the death of 3 RCMP officers |
No direct association to ISIS
|
|
June 29, 2014 |
Islamic State Caliphate Declared |
Al Furqcan - “This is the Promise of God” |
|
September 4 and 5, 2014 |
At the NATO summit, John Kerry invited Ministers of the United Kingdom, France, Germany, Canada, Australia, Turkey, Denmark and Italy, for a separate meeting in which he pressed them to support the fight against ISIL militarily and inancially. Those nine countries agreed to do so by supporting anti-ISIL forces in Iraq and Syria with supplies and air support, according to a statement that day from Kerry and U.S. Secretary of Defense Hagel. |
|
|
September 21, 2014 |
Muhammad Al-Adnani Speech |
Al Furqan — “Indeed, Your Lord is Ever Watchful” |
|
September 22, 2014 |
ISIS and its alias’ become listed Terrorist groups |
|
|
October 20, 2014 |
Martin Rouleau (Ahmed Rouleau) conducted the ramming attack on 2 Canadian soldiers in Saint- Jean-sur Richelieu, Quebec |
Dabiq magazine Issue 5 (Published 2014-11-21) |
|
October 22, 2014 |
Michael Zehaf-Bibeau killed a Canadian soldier at the Cenotaph, stormed Parliament and opened fire in Ottawa, Ontario |
Dabiq magazine Issue 5 (Published 2014-11-21) |
|
December 24, 2015 |
Jordanian pilot, Ma’ath Al Kasasbeh, downed and captured by ISIS near Raqaa, Syria |
|
|
January 20, 2015 |
ISIS provides ultimatum to Japan that if they do not depart the Coalition they will kill the two captured Japanese journalists, Kenji Goto and Haruna Yukawa |
ISIS releases video on 2015-01-20 via Al Furqcan Media - “A Message to your Government and people of Japan ” |
|
January 24, 2015 |
ISIS issues ultimatum to Jordan to release an ISIS captive in exchange for the captured Jordanian pilot |
|
|
January 26, 2015 |
Muhammad Al-Adnani Speech |
Al Furqan - "Say, Die in Your Rage" |
|
January 30, 2015 |
ISIS executes one of the captured Japanese journalists |
|
|
February 3, 2015 |
The captured Jordanian pilot is burned to death by ISIS |
ISIS releases video on 2015-02-03 via Al Furqan Media - Shifa' Al Sudoor |
|
February 3, 2015 |
Knife attack by Moussa Coulibaly on 3 French Soldiers outside the offices of a Jewish Radio Station in Nice, France |
No direct association to ISIS |
|
February 4, 2015 |
UAE exits the Alliance |
|
|
Mid-February |
ISIS executes 21 Coptic Christians on a beach in Tripoli, Libya |
Video published online by Al-Hayat Media - “A Message Signed with Blood to the Nation of the Cross” 2015-02-15 |
|
March 4, 2015 |
Shooting incident that took place outside the NSA Building in Baltimore- Washington, D.C. |
No direct association to ISIS |
|
May 3, 2015 |
Attack in Garland, Texas where 2 attackers shot by police outside a Muhammad exhibit |
|
|
Mid-May 2015 |
President Obama invites leaders of the Gulf Cooperation Council for a summit at Camp David |
|
|
May 19, 2015 |
RCMP stop 10 young individuals at an airport in Montreal, Quebec, who were seeking to depart the country to join Jihadist overseas |
|
|
May 2015 |
Migration to Islamic State controlled lands by 2 German twin brothers. The brothers migrated to join the ranks of ISIS. One of the brothers, Abu Mussab Al Almani, conducted a suicide operation against the 4th regiment of the Iraqi army in north Baghdad, Iraq |
Dabiq magazine Issue 9 (Published 2015-06-04) |
|
June 3, 2015 |
Usaamah Rahim was shot dead by police in Boston, Mass., after foiling his planned attack to behead Pamela Geller, a blogger |
|
|
June 21, 2015 |
Stabbing in Jerusalem by a young Palestinian man who used a knife to stab a police officer |
|
|
June 26, 2015 |
U.S. Supreme Court releases its decision to uphold same-sex marriage. |
|