R. v. Ibrahim Date:, 2018 BCPC 22

Citation: R. v. Ibrahim Date: 20180123 2018 BCPC 22 File No: 78957 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KHALID AHMAD IBRAHIM REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T. ALEXANDER Counsel for the Crown: O. Bick and L. Kilgore Counsel for the Defendant: D. Ferguson Place of Hearing: New Westminster , B.C. Dates of Hearing: October 23, 24, 25, 26, November 2, December 6 & 7, 2017 Date of Judgment: January 23, 2018

[ 1 ] The Public Prosecution Service of Canada (“the Crown”) seeks an order that the Defendant Khalid Ibrahim (the Defendant) enter into recognizance pursuant to

section 810.011 of the Criminal Code . It says that the Informant, Sergeant Douglas Craig of the RCMP (the Informant), has reasonable grounds to fear that the Defendant may commit a terrorism offence for the benefit of ISIS. [ 2 ] The Informant testified that he has reasonable grounds to fear that the Defendant may commit a terrorism offence based on his review of the documents contained within the exhibits filed in these proceedings. [ 3 ] Those documents are contained within three large binders and one DVD disc marked as Exhibits 1 to 4 herein.

They comprise 3,000 pages and include the following: • police PRIME reports; • Peace bond recognizance with conditions (New Westminster Provincial Court file No. 79065); • transcripts and video interviews of the Defendant’s former landlord and two former roommates; • Copy of New Westminster Provincial Court Information No.79848-1; • transcripts and video interviews of the Defendant; • photographs of the interior of the Defendant’s residence; • partial health records of the Defendant from 2015-2016; • Task Action Report regarding review of Defendant’s cell phone data; • Samsung cell phone images; • Analysis Report of Cell Phone; • review of SMS messages chart; • Technical examination report of 5 computers, 2 cameras, 2 USB’s and one cell phone; • Task action reports; • Police notes of Constable.

Ashley McMillan; • Will-Say statements of Constables Khoury and McMillan; and • Emails between bail supervisors, police and Surrey Forensics. [ 4 ] There is considerable duplication and overlap in the exhibit material. During his testimony the Informant went through each document. He testified that he also relied on briefings from the investigative team to inform his fear. [ 5 ] The Informant has never met or spoken to the Defendant. He had a brief encounter involving the Defendant outside the courtroom in October 2017, though they did not speak.

The Informant says that event also informed his fear. [ 6 ] The Defence argues that the Crown’s application should be dismissed as it is based entirely on untested hearsay evidence. It points to inconsistencies in the evidence which cannot be resolved on the face of the materials themselves and that the Informant has no personal knowledge beyond his own reading of the materials. In short, the evidence is unreliable. [ 7 ] The Defence further submits that the Informant did not evaluate the file materials from an objective perspective.

It argues that he looked for patterns to conform to a particular narrative rather than objectively evaluating the materials to inform any subjective fear. The Defence argues that on the evidence, the Informant’s fear is not reasonable. Background [ 8 ] All information in this

part is derived from the exhibits and submissions of counsel. [ 9 ] The Defendant is a Canadian citizen. He is 41 years old and resides in New Westminster with his mother and adult sister. He has two adult brothers. The family is originally from Northern Iraq. He came to Canada in 2005 with his mother and three siblings. The Defendant lived in Russia and Saudi Arabia before his arrival in Canada. [ 10 ] The Defendant became a Canadian citizen in 2010. He speaks Kurdish, Arabic and Russian. His English is very limited.

He required an interpreter throughout these proceedings. [ 11 ] The Defendant and his family are non-practicing Muslims. The Defendant does not attend any mosque or church and does not subscribe to any religious ideology. He has a deep interest in the news and events in the Middle East and closely followed international news for information about developments in that region. [ 12 ] The Defendant works periodically as a painter. He has had periods of unemployment due to depression and other undiagnosed mental health issues. He is currently on Social Assistance.

[ 13 ] The Defendant came to the attention of the police in 2011 as a result of a third party concern about his mental health. The Defendant had just broken up with his fiancée at the time. [ 14 ] The Defendant has struggled with depression for several years. He was apprehended pursuant to

section 28 of the Mental Health Act in June 2015 though he was not certified. He was again apprehended pursuant to the Mental Health Act in September 2015. At that time he was certified. He spent approximately five days in the hospital. [ 15 ] Since 2015, the Defendant has been the subject of an increasing number of complaints to the police.

Those complaints can be divided into the following categories: family arguments, financial disputes over rent, disruptive or odd behaviour in the community, and, beginning in 2014, non-specific musings about ISIS and wanting to harm Canadians. [ 16 ] The Defendant has no history of weapons and no history of violence. He has no military training. [ 17 ] There are 20 PRIME entries between 2014 to 2015. The police investigated each of those complaints.

They included the Defendant yelling Allah Akbar in public, threatening to stab Canadians, saying “one day I will be ISIS”, and saying ”I’m going to fuck all the mothers and daughters of Canada with my big dick of Islam.” [ 18 ] The police visited the Defendant at his apartment in late August 2015. They observed nothing of religious or political significance. They noted that the Defendant did not have the financial ability or mental capacity to be involved in any extremist activity. They identified mental health concerns as a significant component of these complaints.

No charges ensued. [ 19 ] The Defendant’s former landlord contacted the police in September 2015. She said the Defendant was behind in rent. He said he was concerned that people were after him and he wanted to shoot them. She believed he had mental health issues. He was disruptive and scaring the other tenants. [ 20 ] On October 19, 2015, the Defendant entered into a recognizance pursuant to

section 810.1 (

a) of the Criminal Code , prohibiting contact with and attendance at the residence of his former landlord for a period of one year. The recognizance contained a Rogers Order and a term to attend Fraser Outpatient Clinic as directed. [ 21 ] The Defendant had three contacts with the police from November 2015 to January 2016. He was found on the UBC Endowment Lands on November 22, 2015. He told the police that he had walked there from New Westminster. [ 22 ] On December 1, 2015 the Defendant’s brother had a panic attack and fell down. The police attended to find the Defendant waiting outside.

They took him to a shelter. [ 23 ] On January 19, 2016, the Defendant was observed outside the New Westminster police station. He was waving an umbrella and yelling at security cameras. He said he was there in response to an earlier call from the police. He wanted to find out who had called. None of these incidents resulted in any charges. [ 24 ] In June 2016, two of the Defendant’s former roommates contacted the police. They each alleged that the Defendant said he wanted to kill Canadian people by cutting off their heads and that he wanted to join ISIS.

They both noted recent changes in the Defendant’s behaviour. They had each known him for over 10 years. [ 25 ] One roommate alleged that the Defendant wanted a “piece”. That witness repeated that expression several times in his subsequent interview (in English) with the police. It was an expression that the Defendant did not appear to understand when it was translated to him during the course of these proceedings. [ 26 ] On June 17, 2017, there was a third party report of an incident at a jobsite. It was alleged that the Defendant had reacted when someone threw his hat.

The Defendant was alleged to have yelled something about “racist Canadians” and that he wanted to join ISIS. [ 27 ] The Defendant met with the police on June 17, 2016. During the course of that meeting, he confirmed his disdain for ISIS, that it hates everything and everyone. [ 28 ] On July 1, 2016, the police responded to a further report that the Defendant had said something about ISIS while waiting in a local shopping plaza for a ride to a jobsite. The Defendant told the police that he was angry about ISIS and about not having a wife and child. [ 29 ] The Defendant was arrested on July 19, 2016.

He remained in custody until December 8, 2016. [ 30 ] The police interviewed the Defendant for over two hours following his arrest. He was not represented by counsel. There was no interpreter present or offered. [ 31 ] During that interview, the Defendant disclosed his struggles with depression. He said his statements about ISIS were due to his “sickness”. He said he did not want to join ISIS. He viewed them as “savage” and that he did not want to kill Canadians. [ 32 ] The Defendant provided the police his cell phone and password during that first interview.

He referred to the cell phone as his “personality”, where he recorded his most private thoughts. The Defendant does not have email or Facebook. The cell phone was sent for forensic examination. [ 33 ] The police discovered a number of troubling search entries and images on the cell phone. They obtained a warrant to search the Defendant’s computers and electronic devices. RCMP experts were able to extract images including many that had already been deleted. [ 34 ] There were in excess of 2,300 images extracted from the cell-phone.

Only a small portion of those images (approximately 100) have been reproduced in these proceedings.

[ 35 ] The police discovered graphic images, searches related to ISIS activities in Syria and elsewhere, and searches of the names of well-known perpetrators of terrorist offences throughout the world. They found images of adult pornography. [ 36 ] Some of the images reproduced are graphic pictures of beheadings and corpses, firearms, bombings and known terrorists.

The majority of the images, nature scenes, landscapes, and celebrities are, without further explanation, completely innocuous. [ 37 ] The police also discovered various iterations of a Google search enquiry that was incoherent, laced with profanity and sexist language. Those searches were not disseminated to third parties (except on one occasion in response to spam message). [ 38 ] All other communications on the cell phone were appropriate social or work related contacts.

The investigators found no evidence of communication or outreach to or with ISIS or any other terrorist organization. [ 39 ] The Defendant participated in three subsequent interviews with the police in the fall of 2016, again all conducted in English without an interpreter. [ 40 ] The Defendant said that his depression began in around 2015 when he began watching news reports of ISIS activities in the Middle East. He was concerned about how members of the community would perceive him in light of these events in the Middle East. [ 41 ] The Defendant’s interest in these matters became an obsession.

The constant exposure to graphic, violent images led to mental illness. He repeatedly denied that he was a member or sympathizer of ISIS and expressed his absolute disapproval for its activities. [ 42 ] The Defendant said that any ISIS related utterances he may have made were due to his “sickness”. He said that he sometimes made those utterances to make himself feel more powerful and intimidating, i.e. in the face of perceived racism and bullying by co- workers or members of the community. He emphatically denied any intent to harm anyone. [ 43 ] The Defendant spent 5½ months in custody.

He was ultimately charged with threatening Canadians pursuant to

section 264.1 of the Criminal Code . He was released on bail on that charge on December 7, 2016. Those charges remain outstanding. [ 44 ] The Defendant continues to live with his mother and sister in New Westminster. He has a curfew of 6:00 p.m. to 7:00 a.m. daily. He has been subject to electronic monitoring, random compliance checks at his residence and complete prohibition from the internet and possessing a computer, smartphone or similar electronic device since December 2016. [ 45 ] The Defendant has been compliant with his bail conditions though he is clearly unhappy with those restrictions.

He reports regularly to the bail supervisor. He is on medication for his mental health issues and depression. He sees a doctor regularly. [ 46 ] There have been four PRIME reports generated in 2017. Two pertain to battery issues with the Defendant’s electronic monitoring equipment; another referred to an outburst at the probation office in August 2017. The last entry was a report that the Defendant was acting suspiciously at the New Westminster Law Courts. None of these incidents resulted in further action or charges. [ 47 ] The Defendant has expressed concern to his bail supervisor that he is being followed.

He was once disruptive at the probation office: ripping up a newspaper or exhibiting strange behaviour when forced to wait in a room with other individuals. [ 48 ] In October 2017, the Defendant complained to the bail supervisor that “Travis”, another probation officer, had splashed him. That incident did not occur. On a recent court appearance in late fall, he pointed an umbrella at Crown Counsel and the police witness and then walked away. [ 49 ] The Defendant has complained to his bail supervisor about the restrictions on his liberty as a result of these proceedings.

He has made those same statements in open court. He says those restrictions are adversely affecting his mental state. He wants to move on to a normal life. [ 50 ] Though the Defendant has a history of erratic behaviours while in the community, he has no criminal record or history of violence. The Crown has not alleged any new charges. Statutory Framework [ 51 ]

Section 810.011 provides as follows: Fear of terrorism offence 810.011

(1) A person who fears on reasonable grounds that another person may commit a terrorism offence may, with the Attorney General’s consent, lay an information before a provincial court judge. Appearances

(2) The provincial court judge who receives an information under subsection (1) may cause the parties to appear before a provincial court judge. Adjudication

(3) If the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonable grounds for the fear, the judge may order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for a period of not more than 12 months. Duration extended

(4) However, if the provincial court judge is also satisfied that the defendant was convicted previously of a terrorism offence, the judge may order that the defendant enter into the recognizance for a period of not more than five years. Refusal to enter into recognizance

(5) The provincial court judge may commit the defendant to prison for a term of not more than 12 months if the defendant fails or refuses to enter into the recognizance. Conditions in recognizance

(6) The provincial court judge may add any reasonable conditions to the recognizance that the judge considers desirable to secure the good conduct of the defendant, including conditions that require the defendant (

a) to participate in a treatment program; (

b) to wear an electronic monitoring device, if the Attorney General makes that request; (

c) to return to and remain at their place of residence at specified times; (

d) to abstain from the consumption of drugs, except in accordance with a medical prescription, of alcohol or of any other intoxicating substance; (

e) to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under paragraph 810.3(2) (

a) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the defendant has breached a condition of the recognizance that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance; or (

f) to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified, in a notice in Form 51 served on the defendant, by a probation officer or a person designated under paragraph 810.3(2) (

b) to specify them, if a condition of the recognizance requires the defendant to abstain from the consumption of drugs, alcohol or any other intoxicating substance. Conditions — firearms

(7) The provincial court judge shall consider whether it is desirable, in the interests of the defendant’s safety or that of any other person, to prohibit the defendant from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance and specify the period during which it applies. Surrender, etc.

(8) If the provincial court judge adds a condition described in subsection (7) to a recognizance, the judge shall specify in the recognizance how the things referred to in that subsection that are in the defendant’s possession shall be surrendered, disposed of, detained, stored or dealt with and how the authorizations, licences and registration certificates that are held by the defendant shall be surrendered. Condition — passport

(9) The provincial court judge shall consider whether it is desirable, to secure the good conduct of the defendant, to include in the recognizance a condition that the defendant deposit, in the specified manner, any passport or other travel document issued in their name that is in their possession or control. If the judge decides that it is desirable, the judge shall add the condition to the recognizance and specify the period during which it applies. Condition — specified geographic area

(10) The provincial court judge shall consider whether it is desirable, to secure the good conduct of the defendant, to include in the recognizance a condition that the defendant remain within a specified geographic area unless written permission to leave that area is obtained from the judge or any individual designated by the judge. If the judge decides that it is desirable, the judge shall add the condition to the recognizance and specify the period during which it applies. Reasons

(11) If the provincial court judge does not add a condition described in subsection (7), (9) or (10) to a recognizance, the judge shall include in the record a statement of the reasons for not adding it. Variance of conditions

(12) A provincial court judge may, on application of the informant, the Attorney General or the defendant, vary the conditions fixed in

the recognizance. Other provisions to apply (13) Subsections 810(4) and (5) apply, with any modifications that the circumstances require, to recognizances made under this section. Definition of Attorney General

(14) With respect to proceedings under this section, Attorney General means either the Attorney General of Canada or the AttorneyGeneral of the province in which those proceedings are taken and includes the lawful deputy of any of them. 2015, c. 20, s. 25. Refusal to enter into recognizance 810.02

(5) The provincial court judge may commit the defendant to prison for a term not exceeding 12 months if the defendant fails orrefuses to enter into the recognizance. Judge may vary recognizance 810.1

(4) A provincial court judge may, on application of the informant or the defendant, vary the conditions fixed in the recognizance. Other provisions to apply (5) Subsections 810(4) and (5) apply, with such modifications as the circumstances require, to recognizances made under this section. [52] Terrorism offence is defined in

section 2 of the Criminal Code: Terrorism offence means (

a) an offence under any of sections 83.02 to 83.04 or 83.18 to 83.23, (

b) an indictable offence under this or any other Act of Parliament committed for the benefit of, at the direction of or in association with aterrorist group, (

c) an indictable offence under this or any other Act of Parliament where the act or omission constituting the offence also constitutes aterrorist activity, or (

d) a conspiracy or an attempt to commit, or being an accessory after the fact in relation to, or any counselling in relation to, an offencereferred to in paragraph (a), (

b) or (c); (infraction de terrorisme) [53] The provisions of sections 83.02 to 83.04 and 83.18 to 83.23 referenced in

section 2 of the Criminal Code are lengthy. Forreasons of brevity, I will not include them within the body of this decision. They set out the range of offences and activities captured bythe terrorism provisions of the Criminal Code. Burden and Standard of Proof [54]

Section 810.011 of the Criminal Code provides that a peace bond may issue if an Informant has a reasonably held fear that aperson may commit a terrorism offence. This provision has not had extensive judicial consideration since its enactment in 2015. Counsel relies on authorities interpreting peace bond provisions generally as there is little jurisprudence on this section. The casesprovided offer helpful guidance. [55]

Section 810 does not create an offence and nor does it result in a conviction or sentence. See: R. v. Patrick 75 C.R. (3d) 278 (B.C.Co.Ct). Peace bonds are preventative, not punitive, see: Haydock v. Baker 44 C.R (5th) 43 (YTTC). [56] In R. v. Budreo (ON SC), 27 O.R. (3d) 347, the Court considered at length the provisions of

section 810.1of the Criminal Code which allowed for the imposition of a recognizance on persons likely to commit any of the enumerated sexualoffences on a child under the age of 14 years. The applicant in that case was a paedophile who challenged the constitutionality of thatprovision. Then J. as he then was, found the

section constitutional and held at page 14: 4. Standard of Proof While no offence is created under s. 810.1, a judge must still determine if the judge is "satisfied by the evidence adduced that theinformant has reasonable grounds for the fear" that one of the listed offences will be committed.

Most of the jurisprudence on the similar wording in s. 810 supports the view that proof on a balance of probabilities is the appropriatestandard… [57] And further at page 16 , the Court addressed the care that must be taken as judges exercise their preventative jurisdiction: It is clear then that the use of the word "fear" in a legislative context does not put the judicial process at the mercy of unsubstantiatedparanoia but requires an allegation to be objectively provable. Judges should take care before exercising their preventive jurisdiction.

Both ss. 810 and 810.1 speak of a reasonably grounded fear that the defendant "will" commit an offence. To my mind, as a matter oflegislative construction, this takes the appropriate threshold a notch above a simple demonstration that the defendant is more likely than

not to commit an offence. A reasonably grounded fear of a serious and imminent danger must be proved on a balance of probabilities. The court under s. 810.1 must therefore scrutinize carefully the evidence put before it: Banks, supra, at p. 705. This cautious approach exists also respecting the common law peace bond power: R. v. Justices of Londonderry (1891), 28 L.R. Ir. (C.L.)440 (Q.B.) at p. 462, per Holmes J.; at p. 446 per O'Brien C.J. As Sopinka J. noted in R. v.

Parks, (SCC), [1992] 2S.C.R. 871 at p. 911, 75 C.C.C. (3d) 287, with La Forest, L'Heureux-Dubé and Gonthier JJ. concurring on this point at p. 909: . . . this common law power cannot be exercised on the basis of mere speculation, but requires a proven factual foundation which raises aprobable ground to suspect of future misbehaviour. [58] The Ontario Court of Appeal upheld the trial decision in Budreo, that

section 810.1 was constitutional. In discussing the qualityof evidence upon which a judge can rely, it held at paragraphs 51-52: [51] I do not accept the appellant's argument. The word "fear" or "fears" should not be considered in isolation but together with themodifying words in s. 810.1(1) "on reasonable grounds". Fear alone connotes a state of belief or an apprehension that a future event,thought to be undesirable, may or will occur. But "on reasonable grounds" lends objectivity to the apprehension.

In other words, thephrase "fears on reasonable grounds" in s. 810.1(1) connotes a reasonably based sense of apprehension about a future event, or as Then J.put it, it "equates to a belief, objectively established, that the individual will commit an offence" (at p. 381). [52] Moreover, although an informant's fear triggers an application under s. 810.1, under s-s. (3) a recognizance order can only be madeif the presiding judge is satisfied by "evidence" that the fear is reasonably based.

Section 810.1(3) therefore requires the judge to cometo his or her own conclusion about the likelihood that the defendant will commit one of the offences listed in s-s (1). Although the"evidence" the judge relies on might include hearsay, a recognizance could only be ordered on evidence that is credible and trustworthy. [59] The Saskatchewan Court of Appeal in R. v.

Banks, (SK KB), [1995] 4 W.W.R 698, emphasized theimportance of the reasonable grounds requirement at pages 702-03: It is evident from ss. (1) and (3) that before an order can be made against the defendant, two elements must be established in evidence,(for clarity I will use the masculine gender): 1. The informant actually fears that the defendant will cause personal injury to him, his spouse, his child, or will damage hisproperty, and 2. Reasonable grounds exist for the informant's fears. The first condition is a subjective condition while the second is an objective one.

The Code uses the term "reasonable grounds" whilethe information uses the term "reasonable and probable grounds". In any event, the justice who conducts the trial must be satisfied,(presumably at least on a balance of probabilities if not beyond a reasonable doubt), that the subjective and objective elements have beenproven in evidence. Unless both elements have been proven the justice has no jurisdiction to make the order.

The reasonable grounds requirement is to protect individuals from unwarranted restrictions on their liberty through an order made solelyon the subjective (and possibly unreasonable) perceptions of an informant. Only in those instances in which the subjective perceptionsof an informant are supported by objective reasonable grounds can such an intervention order be made. R. v. Patrick (1990), (BC SC), 75 C.R. (3d) 222 at 228 (B.C. Co. Ct.). [60] The Court is permitted to consider reliable and trustworthy hearsay evidence: R. v. Hawkins 202 BCPC 590; R. v.

D.A.D. 2007BCPC 16; and past conduct of the Defendant may be considered: R. v. Patrick (supra). Imminence of potential harm is also a factor thatthe Court must consider in its analysis, see: R. v. Firth 2004 BCPC 449 , 2004 BCPC 0449, R. v. Lanferman 2006 BCSC 980;R. v. Bonsan 2006 BCSC 161. [61] The only authority cited by counsel addressing

section 810.011 is a Provincial Court of Manitoba decision R. v. Driver 2016MBPC 3. In that case, the applicant sought a declaration that

section 810.011 was constitutionally invalid due to the change in languagefrom probability based reasoning to possibility based reasoning. Those changes result from the 2015 amendments to sections 83.3 and810.011 of the Criminal Code brought about by the Anti-Terrorism Act. S.C. 2015 c. 20. The decision contains a thorough analysis ofthe legislative changes but finds that the standard of proof has not changed, at par. 29: [29] In respect of

section 810.011, Parliament has elected to retain the standard of proof on a balance of probabilities which accords withother forms of peace bonds. As discussed, the fact to be proven is reflective of the necessity for the state to stem rapidly emerging andevolving hostile actions that impact the security of the nation. Parliament has struck a balance that requires an informant to demonstrateon reasonable grounds that the subject may commit a terrorism offence. The requirement for reasonable grounds is not speculative butrequires a “proven factual foundation which raises a probable ground to suspect future behaviour” (see Budreo paragraph 27), as isrequired for a recognizance pursuant to

section 810.1. Furthermore, the requirement for a “reasonable possibility” to be proven pursuantto

section 810.011 is semantically equivalent to the “real possibility” of danger of harm to Canadian security accepted by the SupremeCourt of Canada in Suresh, supra. [62] A

summary of the guiding principles governing an analogous application under

section 810 of the Criminal Code is set out inthe final paragraphs of Soungie, 2003 ABPC 121 , [2003] A.J. No. 899: [46] Let me set out in point form the principles applicable to s. 810 applications:

(1) Section 810 is preventive in nature protecting the applicant in appropriate circumstances from future harm to the applicant, theapplicant’s spouse, the applicant’s common law partner, the applicant’s children, or future damage to the applicant’s property. The Courtis allowed to intervene to prevent a breach of the peace prior to an actual offence being committed.

(2) Section 810 restrains the liberty of the defendant to live his or her life free from restraint of that liberty.

(3) The Judge must balance the two competing interests in determining whether to place the defendant on a recognizance. That is, the Judge must balance the right of the defendant to privacy or to be left alone against the right of the applicant to a protective intervention in appropriate circumstances. Certainly, the Judge must be cautious in exercising discretion to affect the liberty of the subject, but this caution must be tempered with a view to the protection provided to the applicant where grounds have demonstrated the need for the recognizance.

(4) The applicant must actually fear that the defendant will cause personal injury to the applicant, the applicant’s spouse, the applicant’s common law partner, the applicant’s children, or will cause damage to the applicant’s property.

(5) The Judge must find that the applicant’s fears are reasonable, i.e., that an objective person armed with the same knowledge as the applicant would agree that the applicant’s fear are reasonable. The reasonable fear must be triggered by some action of the defendant.

(6) Evidence of the defendant’s previous misconduct is admissible to determine the basis for the belief’s held by the applicant. This evidence can be used by the Judge in determining whether the applicant’s fears are reasonable.

(7) The Judge is not asked to predict future behaviour; rather, the Judge must be satisfied from the evidence the likelihood of future harm or damage. The quality and strength of the evidence must be sufficient to satisfy this likelihood.

(8) The onus of persuasion is upon the applicant. The applicant must satisfy the Judge on the balance of probabilities of the grounds for the issuance of a recognizance. [ 63 ] These procedures and principles are applicable to the case at bar. Crown Position [ 64 ] The Crown argues that in an application under this provision of the Criminal Code , the law provides that there are “permissive evidentiary rules and a relatively low persuasive burden”. The Crown describes this as an “objectively established belief of a mere possibility”.

The Crown maintains that the totality of the evidence forms a strong objective foundation for the Informant’s fear and that his fear is reasonable. [ 65 ] The Informant testified that he fears the Defendant may commit a terrorism offence based on the number of incidents of the Defendant causing fear or creating conflict with different people in a number of contexts including: family/home, roommates and landlords, workplaces, public venues, during compliance checks with the police and at the probation office, all documented in the exhibits. [ 66 ] He testified that his fear is based on the Defendant’s past and present behaviour.

He relies on PRIME records and historical data dating back to 2005. He testified that he believes that the materials presented are comprehensive and that PRIME reports are reliable because they are prepared by police officers who are trained in note-taking.

He testified that even though there were some variations in the evidence, that all the information available to him pointed in the same direction, that: • the Defendant is angry; • the Defendant suffers from depression and other mental health issues for which there have been several medical interventions; • the Defendant has acknowledged that he has a “sickness”; • the images (and timing) on the Defendant’s cell-phone remain unexplained; • the images extracted are violent; • the Defendant’s viewing of this material was obsessive; • the juxtaposition of violent photos with images of Vancouver, guns, bombings suggest a possibility that the Defendant intended to act in a similar manner; • the language of the search entry on the respondent’s cell-phone was profane, nonsensical and misogynistic; • the Defendant had made repeated utterances in the community about ISIS, one day being part of ISIS; • former roommates suggested that the Defendant wanted to acquire a gun; and • the Defendant has poor coping mechanisms and over-reacts to benign situations. [ 67 ] The Informant’s fear is based in part on his experience as a member of the behavioural sciences unit in the E Division of the RCMP.

He testified that he oversees the high risk offender management unit. He also works as a criminal and geographic profiler and threat specialist. The Crown did not seek to qualify him as an expert in that or any other field. [ 68 ] Though beyond the scope of these proceedings, the Informant testified about terms that could be imposed in order to mitigate his fear.

His suggestions reflect the current bail terms, including electronic monitoring and monitoring of any electronic communications should the Defendant be permitted to access a smartphone or computer. [ 69 ] The Informant testified that even if conditions were imposed to manage the Defendant’s behaviour in the community, it is still

his belief that the Defendant remains a risk to commit a terrorism offence. [70] The Crown maintains that the comprehensive exhibit materials constitute credible and reliable evidence to support the order itseeks. It submits that the burden of proof on the balance of probabilities, that the Defendant “may” commit a terrorism offence isrelatively low and that it has been met. Defendant’s Position [71] The Defence submits that the Crown’s evidence is not credible or reliable and that it has not met the required burden of proof.

It maintains that the Crown has offered untested hearsay evidence presented through an informant who has no personal knowledge ofthe contents of the Crown exhibits. [72] It further submits that the Defendant’s racialized identity as a Muslim Iraqi immigrant adds another layer in assessing thereasonableness of the Informant’s fear. [73] The Defence notes that the Crown has called no expert evidence; it has tendered no psychiatric reports, no risk assessments, andno recent medical reports.

It has not called any of the police officers who interacted with the Defendant, probation officers, medicalprofessionals or any other individuals who provided statements about the Defendant. [74] The Defence says that the Crown failed to call evidence from pivotal witnesses, specifically; two former roommates whoallegedly overheard the Defendant make threats against Canadians and request assistance in procuring a gun.

Those witnesses provideddetailed statements (in English) to the police. [75] The Defence points to internal inconsistencies within those statements, particularly with respect to the Defendant wanting a gun(denied by the Defendant). This allegation is missing from the second statement of one of the witnesses, which was given in Arabic,apparently a more familiar language to the witness than English. [76] The Defence raised the issue of credibility regarding those two witnesses.

He highlighted allegations within the Crown’s ownevidence that at least one of those individuals may have long-standing criminal or gang associations, and that one is a known liar withinhis community. Absent testimony from those individuals, the Defence submits that it is difficult to assess the weight of that evidence. [77] The Defence concedes that on an application under

section 810.011 of the Code, it is open to the Crown to present a case basedentirely on hearsay evidence. It submits, however, that the Court must take into account the Crown’s explanation for not making thebest evidence available. See: R. v. Zeolkowski, (SCC), [1989] 1 S.C.R. 1378 at paragraph 18. [78] The Defence submits that the Crown has not presented the best evidence and has not offered any explanation other than thepotential impact on the length of these proceedings should it have called oral evidence.

It argues that absent the scrutiny of crossexamination, the Court will be unable to meaningfully assess the weight and reliability of evidence that is integral to this case. [79] The Defence maintains that the PRIME reports relied on by the Informant to inform his fear do not offer a complete picture ofthe events described therein. The Defence argues that those reports are incomplete because they do not always include the surroundingcontext and circumstances.

The Informant conceded that the latter may be true. [80] The Defence points to the report regarding a compliance check at the Defendant’s home on February 9, 2017. The incident wasrecorded and there is a transcript of that event. [81] The Defence identified a number of inconsistencies between the police incident summaries and the transcript of the event.

The“tone” of the interaction was not captured in the police summaries, nor was the Defendant’s concern for how the police interacted withhis elderly mother and their cultural insensitivity in the manner they entered the home. [82] The Defence notes that most interactions with the Defendant were not recorded. There is a suggestion that perhaps the Courtshould give pause as to what other information may be inaccurate or excluded in PRIME reports. [83] Further, the reports of the work place incidents of June 17, 2016 fail to capture the workplace bullying of the Defendant by co-workers.

The narrative offered by the Crown again lacks context and leave the impression of a random overreaction by the Defendant. [84] The Defence offers these are but a few examples of how the PRIME documents are flawed, lack context and thus should begiven little weight in assessing the objective basis for the Informant’s fear. [85] The Defence further argues that even the statements made by the Defendant to the police are not reliable as he was neveroffered an interpreter in the face of lengthy and skilful questioning by investigators. It is clear that the Defendant struggles tocommunicate in English.

There are points in each interview where the Defendant’s answers are not responsive to the questions or wherethe interviewers appear to misconstrue his answers. [86] The Defence concedes that some of the images and searched on the Defendant’s cell phone are odd, sometimes disturbing. They were downloaded from conventional news and internet sites and were not disseminated to third parties. [87] The Defence points to the transcript and video of interviews where the Defendant explained in broken English that he wasunwell when these images were downloaded.

He had deleted many of them before they were extracted by the RCMP. The majority ofimages were never tendered in evidence. [88] The recurring Google searches though profane and incoherent, were private entries the Defendant wrote to himself and deleted.These were the Defendant’s personal notes and private thoughts. They were not transmitted to third parties. [89] The Defence submits that the Defendant’s online activity in the privacy of his own home was not contrary to any law. He was

not inappropriately reaching out to anyone and the material recovered from his cell phone and computer does not reflect any nefarious activity, and does not support a reasonable grounds to believe that he may commit a terrorism offence. [ 90 ] The Defence further argues that the Informant is not neutral. It submits that his perspective is tainted by his exclusive focus on the risk of terrorism through his work with the RCMP over the last three years. The Informant conceded in cross examination that he has a heightened sense of awareness of risk factors.

He looks for patterns. [ 91 ] The Defence submits that it is much easier to find those patterns when the evidence and supporting materials are not complicated by thorough examination and scrutiny.

It submits that the Crown case has been tailored to conform to a particular narrative, rejecting or according little weight to other explanations such as mental illness, social isolation unemployment and poverty. [ 92 ] The Defence argues that the lens through which the Informant has assessed the Defendant is coloured by his position rather than an objective evaluation and his fear in the circumstances is not reasonable. [ 93 ] The Defence points to the lifelong stigma to the Defendant should this application succeed. It submits that the application should fail as the evidentiary burden has not been met.

Discussion [ 94 ] Matters of suspected terrorism are of great concern to Canadians and for valid reason. Parliament has chosen to enact legislation giving law enforcement agencies the tools to combat such threats. The provisions of

section 810.011 are a part of that “toolbox”. [ 95 ] The Code provides that the Court may impose a

section 810.011 peace bond if there is a possibility that a terrorism offence may be committed, as opposed to a probability that one will be committed. The Crown bears the burden of proof on the balance of probabilities. Hearsay and past conduct are admissible ( see R. v. Patrick , ( supra ), and R. v. D.A.D . ( supra )). [ 96 ] An order under this provision should not be made lightly. The consequence of such an order is a significant curtailment of individual liberty and may result in a lifelong stigma of being branded a suspected terrorist and the ongoing restrictions that may entail. [ 97 ] The evidence consists of 3000 pages of documents and Informant’s

interpretation of the Defendant’s alleged actions and comments noted in those documents. The Court must consider whether that hearsay evidence is credible and reliable and whether it supports a fear on reasonable grounds that the Defendant may commit a terrorism offence. [ 98 ] It is not necessary for the Court to share the Informant’s view, only that his fear is reasonable on the totality of the evidence: See: R. v. Patrick (supra) Does the evidence support a fear on reasonable grounds? [ 99 ] In R. v. J.S.H ., [2017] B.C.J. N0. 144, the Court considered the sometimes competing considerations in imposing a recognizance pursuant to

section 810.2 (fear of serious personal injury offence) of the Code. The Court found at paragraph 4: [4] Orders of this nature call for a balance of competing but equally important considerations. Many individuals who have a violent past continue to pose a serious risk to the safety of others, and society is entitled to be protected from such individuals even after they have served their sentences for previous crimes.

On the other hand, persons convicted of crimes who have paid their debt to society and who are not likely to pose an ongoing risk to others are entitled to move on with their lives and put their past behind them. Applications of this nature are very difficult because they call for a type of crystal ball gazing; an exercise in which the line between what is reasonable and what is speculative can sometimes become very blurry. [ 100 ] The Informant guided the Court through the entirety of the exhibits.

He acknowledged that these documents were produced by third parties and that he had no personal knowledge of the contents. [ 101 ] He testified about his personal observations of the Defendant during the course of these proceedings. He gave evidence about his experience as a threats assessment specialist. He has offered his

interpretation of one of the Defendant’s actions, i.e. yelling Allah Akbar when he has no religious affiliation and the significance of references and photos of shoes. [ 102 ] I note that the Informant was not qualified as an expert witness to offer opinion evidence or that his opinion would fit the R. v. Mohan, [1984] 2 S.C.R. 9 criteria of admissibility or expertise. I accord no weight to his personal

interpretations. [ 103 ] I turn now to a review of the documents contained within the exhibits: 1) PRIME Reports (Exhibit 1 Tabs 1-27; 29, 36; Exhibit 3 Tabs 59; 77, 83, 86, 89, 90, 93) [ 104 ] The Informant testified that PRIME documents are part of a police database. It captures information generated through calls to the police. The documents are generated by the police officer(

s) who respond to calls for service. They may include a

summary of the call or complaint, witness or suspect details: i.e. birthdate, drivers licence, address and nationality. [ 105 ] The Informant testified that the PRIME database documents may also include transcripts of statements, photos and scanned messages. He believed these reports to be reliable because police officers who are trained in recording events input the information. [ 106 ] The question of the reliability of PRIME reports was recently addressed in Kirilenko v. Bowie 2017, BCSC 2047 .

Though not a criminal case, it provides commentary as to the inherent reliability of PRIME entries at paragraph 22: [22] With further regard to the inherent reliability, or lack thereof, of the PRIME database entries relied on by the defence, I find the issue extremely problematic in that I have no evidence before me of what standards govern the entry of information into PRIME. I

cannot assume that the database entries are reliable; in fact, what judicial commentary I have been able to find as to their reliabilitywould point in the other direction. I refer to the following comments from the decision of Mrozinski P.C.J. in R. v. Cowley, 2013 BCPC308 , 2013 BCPC 0308, at para 31: The PRIME entries are but one aspect of the ITO application. Clearly on their own they could not support a search warrant. They arenot entirely reliable but nor can it be said they are entirely unreliable.

So long as they are not treated as gospel, and there is no evidencethat was the case here, the PRIME files can provide some context or background. I have no doubt that the authority issuing the warrantsknew of the frailties of the PRIME database. I cannot say that Constable Roberts unreasonably relied on them, nor is there any evidencethat he misrepresented what was stated in the files. Given comment of that nature, I do not see how I can assume or take judicial notice of there being any inherent reliability in PRIMEdatabase entries. [107] The Crown relies on PRIME reports dating back to 2009.

The Informant conceded that not all the reports tendered were reliableor relevant. The 2009 report was presented to show a long-standing relationship between the Defendant and one of his formerroommates who made a statement to the police in 2016 about the Defendant. [108] That entry suggested that this individual had criminal gang associations. There was nothing to implicate the Defendant, otherthan his presence at the same nightclub. [109] The Informant said that he did not rely on this entry to inform his fear.

It offers no context, other than to hint at potentialunsavoury associations within the Defendant’s circle. [110] The Defence has already identified concerns with the accuracy of the PRIME reports in this case and some of those inherentweaknesses have been conceded by the Informant. [111] It is clear that the transcript of the February 9, 2017 compliance check reveals a different interaction than the police “calmlyexplaining” to the Defendant why they were there as set out in the officers’ summaries. The transcript reveals a much less friendlyinteraction.

It also ignores the family’s complaint of cultural insensitivity for the police entering into the apartment with their shoes on. [112] Similarly, the PRIME report of June 17, 2016 does not set out the antecedents to the workplace incident, and that the Defendantclaimed to have been bullied by his co-workers. Including these details would have provided some context and explanation.

It wouldhave offered assistance in evaluating the Defendant’s actions. [113] There are other examples where police officers do not include sufficient detail, i.e. alleging that the Defendant made “veiledthreats” (August 28, 2015, Ex. 1 Tab 23) with no indication of exactly what was said to cause the police to reach that conclusion. Thereare more examples contained within the exhibits. I mention only these for reasons of brevity. [114] The evidence reveals that PRIME reports may contain double and triple hearsay.

It is sometimes impossible to verify who saidwhat to whom and when the entries were made relative to the timing of the event being documented. [115] PRIME reports can also create a misleading narrative. Exhibit 1 Tab 14 relates to an allegation that on June 17, 2014 theDefendant drew a gun following a dispute with another male. That male was never located. [116] The police found the Defendant a short time later in the New Westminster public library. They searched him. There was nogun.

The Defendant had a hammer in a leather carrying case which had been erroneously described by a third party witness as the buttend of a gun. [117] The PRIME report contained at Tab 15 of the same exhibit deals with an incident on October 26, 2014. The Defendant wasreported as being disruptive in the community by attacking a mailbox, throwing pylons on the sidewalk and yelling ISIS relatedprofanities.

The initial synopsis reads: “When asked if he had any weapons on him he stated that he had ‘something’”. [118] There is a fine distinction between that account an in a more detailed police narrative prepared by a different officer that sameday: “When asked if he had anything in his pocket that would concern the police, he said he did have something and described it as a tool forpainting.” [119] There is a subtle difference in tone and content.

There is a further entry in that same PRIME report which appears to overstatethe Defendant’s contacts with the police: “Ibrahim has a PRIME history for weapons possession, assault, breach of peace and was a passenger in a gang intel file as recently asJuly, 2014”. [120] I find that the PRIME reports document that contacts with the police occurred on the dates recorded within those documents.

Though police officers may be trained note-takers, that does not imbue those reports with reliability simply because a police officermade the entries. [121] I find that many of the PRIME reports filed in these proceedings contain information of elements that the recording policeofficer perceived as important, but they are not necessarily a reliable account of the entire events described therein. [122] Simply put, PRIME reports can be inaccurate in many material respects. I find that they are admissible but I do not accord themsignificant weight due to their known and inherent frailties.

2) Health Records (Exhibit 2, Tab 45) [ 123 ] The medical evidence presented is dated and incomplete. It consists of medical notes from Royal Columbian Hospital from 2014-2016. The notes confirm that the Defendant suffers from depression and possibly cannabis induced psychosis. There is no current medical/psychiatric information regarding the Defendant. [ 124 ] It is obvious from the evidence that the Defendant has complex social and mental health challenges. I am not satisfied that the limited medical evidence presented offers a true picture of the Defendant.

I find the medical evidence presented is incomplete and not reliable. 3) Witness Statements 1. Family Members (Exhibit 2, Tabs 40, 42, 43, 44) [ 125 ] The Defendant’s, mother, sister and two brothers gave separate statements to the police. Those statements are consistent insofar as they describe the family’s antecedents. [ 126 ] The Defendant’s mother said that the Defendant is not a terrorist. She said he is not religious but that he suffers from depression and anger issues. She noted changes in his behaviour after the relationship with his fiancée ended.

The statement was taken in Arabic, which enhances its reliability. [ 127 ] The Defendant’s brother Balnd said that the Defendant is not religious, that he does not know about ISIS and that he has no friends fighting in the Middle East. He had not observed any recent changes in his brother. [ 128 ] The Defendant’s sister Eman gave a detailed statement about the family background. She said they are Kurdish. They are non- practicing Muslims.

She said the Defendant has no military training or service and that he is not religious. [ 129 ] The sister believes that the Defendant is depressed because he does not have a family of his own. She said for the last two years he has suffered from severe depression and sadness within himself. She believes mental issues need to be treated or he may do something to himself. [ 130 ] The Defendant’s brother Hadjar also provided a statement. He said he does not have much contact with the Defendant. He said that the Defendant has many problems and financial difficulties.

He said they do not get along and that he had not seen the Defendant in six months. He knew of no reason why his brother would make threats against Canadians. [ 131 ] The family statements set out that the Defendant has no particular religious ideology and that he has long-standing struggles with depression and mental health issues for which he needs treatment. They expressed no concern about him being a threat to others. 2.

Roommate Statements (Exhibit 2 Tabs 41 and 49) [ 132 ] The statements of the Defendant’s two roommates outline specific threats that the Defendant is alleged to have made against Canadians. [ 133 ] M.A.F. was interviewed by the police on June 21, 2016. The interview was conducted in English with no interpreter present. He claimed to have heard through his other roommate, I.H.G., that the Defendant wanted to kill Canadian people by cutting off their heads. He did not indicate when he intended to act. The witness also said that the Defendant spoke favourably of ISIS and that he wanted to join.

M.A.F. reported these comments to the police. [ 134 ] I.H.G. was interviewed on July 5, 2016. That interview was difficult to follow, both on the DVD recording and the transcript itself. The interview was conducted in English without an interpreter. There are broken and incomplete sentences and obvious difficulties with spoken English. [ 135 ] The witness confirmed that he suspected that the Defendant may have mental problems. He said that the Defendant had made anti-Canadian remarks at a jobsite and espoused support for ISIS. He claimed that the Defendant told him that he needed to get a “piece”.

He claimed to be afraid of the Defendant who had said he wanted to “chop people’s heads”. He also claimed to be afraid of their other roommate, M.A.F. [ 136 ] The witness gave a second interview in Arabic some months later, apparently a language in which he has greater facility than English. The translation is much easier to follow than the prior interview. The tone is more measured.

The witness said the Defendant told him that he had watched ISIS beheading videos and that it made him sick. [ 137 ] He further claimed that the Defendant liked weapons and that he had twice asked him to go to a shooting range - the last time being 6-7 years ago. He said he would become frightened when the respondent yelled: “Allah Akbar”. [ 138 ] I.H.G. also said that the other roommate, M.A.F., was a known liar within their community.

There was no mention of the Defendant asking to procure a gun as alleged in the first interview. [ 139 ] Both these individuals have a long-standing relationship with the Defendant. They have levelled serious allegations against him. These witnesses offer important evidence that goes to the heart of these proceedings. They did not testify though the Informant relies on these statements as part of the basis for his fear. [ 140 ] There are subtle differences in those statements and between the first and second statements of IHG.

There are also credibility and reliability issues that this Court is unable to resolve based on the transcripts and DVD’s of those statements. [ 141 ] Absent further scrutiny through oral testimony and cross examination, it is unclear what weight should be accorded to these

statements. The Informant conceded that he did not consider potential background credibility issues, nor did he follow up oninconsistencies. Though these statements are admissible, I accord them little weight. 4) Interviews with the Defendant (Exhibit 1 Tab 38; Exhibit 2 Tabs 46, 47 48) [142] The Defendant submitted to four interviews with the police between his arrest in July 2016 and his release on bail in theseproceedings on December 8, 2016. Each was conducted in English. There are video recordings and transcripts.

The Defendant wasnever offered the assistance of an interpreter though his limited facility in English is apparent. [143] The Informant opined that he was satisfied that any misunderstandings that may have occurred were corrected by the end of eachinterview. With respect, the transcript reflects otherwise. [144] At the beginning of his July 20, 2016 interview, the Defendant misapprehended the most basic small talk. In response to aquestion about his soccer abilities in the past, the following exchange occurred at line 65: MR: OK. Hmm. Were you good? KI: Sorry? MR: Were you good? KI: Yeah, now I’m good.

MR: No, in soccer, were you good at soccer? [145] Throughout each interview, the skilled police interviewers used complex vocabulary. They refer to wanting to “orchestrate” thereturn of the Defendant’s cell phone (Interview July 20, 2016 page 78) and advising him that they needed his cell phone because it wasthe “whole encompassing reason” as to why the Defendant was there. At times, they appear to misinterpret the Defendant’s answers(July 20, 2016, page 64): MR: Who are you contacting on your phone then, when you do, or are you watching the news? KI: Uh, just a few, a few friends about the work.

MR: Just a few friends about the war? KI: Yeah. [146] The Defendant struggled to explain his “sickness”, his disdain for ISIS and the effects of watching violent videos of events inthe Middle East, particularly the war in Syria. He spoke at length in broken English about his views on ISIS to the interviewers and saidhis sickness began in 2014 and that he sought medical attention on his own at that time. [147] The interviewers sought to establish direct ties between the Defendant and ISIS throughout the interviews.

They usedpresumptive questions about when the Defendant was first “drawn in to ISIS” and when he decided to leave ISIS. [148] When the Defendant insisted that a “selfie” that depicted him in black clothing had nothing to do with ISIS, they weredismissive of his explanation. The photo was taken inside the Defendant’s residence. He denied trying to emulate “Jihadi John”. Hesaid he was wearing black athletic clothes and was trying to look strong. He likened his appearance to Israeli Special Forces.

He sharedhis high regard for Israel as a safe country. [149] The Defendant offered his insight into the appeal of ISIS to those looking for a place to belong. He said he thought that waywhen he was sick. At times he appeared to speak in the hypothetical. He insisted throughout his communications with the investigatorsthat his relationship with ISIS was confined to following news in the Middle East. He was insistent that he would never harm anyone. [150] The Defendant rejected ISIS beliefs in each interview with police investigators.

He viewed them as evil and not representativeof the true Islamic faith. [151] There is no evidence that the Defendant made any contact or outreach to ISIS or that he was a sympathizer. That being said, hisreported statements in the behaviour in the community were concerning and warranted further investigation. [152] In pursuing any criminal investigation, it is difficult to conceive that in a multicultural country like Canada, in a post R. v.

Tran (SCC), [1994] 2 S.C.R.951 (S.C.C.) era, that the police would not make every effort to ensure that a non-Englishspeaker has access to an interpreter, particularly when facing the potential of serious criminal charges. I have little confidence that theDefendant was able to fully comprehend the nuance let alone the vocabulary used by the police interviewers. [153] When considered objectively, it is impossible to determine if the Defendant grasped the implications and subtleties of theinterviewers’ questions.

It cannot be concluded on an objective basis that he truly understood and was able to communicate what heintended to say. [154] The interviews disclose a troubled middle aged man suffering from depression and other possible mental illness, who also facesa number of social challenges. 5) Images and Google Searches on Cell Phone (Exhibit 2, Tabs 50-54) [155] Some of the images captured on the Defendant’s cell phone are disturbing, particularly with respect to the timeline and

juxtaposition some of those images downloaded in July 2016. [ 156 ] That being said, of over 2,300 images captured - only a fraction were produced in evidence. The only images that have been produced appear to be those that are consistent with the Crown theory. [ 157 ] The Defendant’s explanation to police interviewers was that he takes photos and creates collages on his cell phone. Those images were for his private viewing. He referred to his cell phone as his “personality”. He did not share it with others.

This was confirmed in the statements of his two former roommates who said the Defendant was very secretive regarding his cell phone. [ 158 ] The Google searches consisted of long, incoherent phrases referencing “mothers and daughters of Canada” followed by profanity and sexually charged language. As word groupings, these searches make no sense. It is unclear if they were a literal translation of swearing in another language or something else. [ 159 ] The language and references are troubling, but again, they were private, internal searches on the Defendant’s cell phone.

They were not disseminated to third parties. There is one exception noted earlier - a response to a spam text. The Defendant said he had deleted many of these images and searches. The forensic examiners were able to recover them nonetheless. [ 160 ] The Informant suggests that these images and searches may reflect the Defendant’s intent to engage in acts of terrorism.

As troubling as some of the images and searches may be, given that only a very small proportion of the cell phone images have been offered in evidence, there may be other possibilities that fall outside that theory. [ 161 ] While such evidence is not a requirement, I note that there is no expert psychological or psychiatric evidence presented to show that private downloaded photo images and profane Google searches are indicators of a predisposition to engage in criminal or antisocial acts. [ 162 ] These images and searches are troubling and the surrounding circumstances indicate that they warranted investigation.

They must be considered together with all the other evidence. 6) Subsequent conduct while on bail (Exhibit 3 Tabs 59-101) [ 163 ] The Defendant has been supervised in the community since his release from custody on December 2016. There are a series of emails from various bail supervisors. None testified in these proceedings. The emails show that the Defendant has been generally compliant with community supervision. [ 164 ] The emails reflect that there remain mental health concerns and possibly delusions.

This was revealed by the Defendant reporting that he had been “splashed” by a probation officer named Travis. [ 165 ] The Defendant has engaged in other odd behaviours at the probation office that are unexplained, i.e. ripping up a newspaper and making sexual gestures in a room full of waiting probationers. These incidents have been rare.

They have not resulted in any further action. [ 166 ] The bail supervisors’ emails also reflect that the Defendant is frustrated by the protracted nature of these proceedings and the restrictions imposed on him. [ 167 ] I find the emails from the bail supervisors are credible. [ 168 ] PRIME reports for this period (other than February 9, 2017 - addressed earlier) reflect two concerns about the battery on the Defendant’s electronic monitoring device, one compliance check following an outburst at the probation office and one report for an unscheduled attendance at the Courthouse.

There was no further action taken on any of these matters. 7) The Observations of the Informant [ 169 ] The Informant testified about his personal observations of the Defendant on October 25, 2017. He testified that the Defendant advanced toward him and two Crown lawyers as they conferred in an alcove outside the courtroom. He said the Defendant pointed his umbrella at them three times in a threatening manner, aggressively brushed the bottom of his pants and footwear. [ 170 ] He saw the Defendant pick up a payphone receiver; hold it to his ear without putting coins in. He then left.

He testified that the Defendant’s actions on that day caused him fear for his safety. I have difficulty accepting this assertion. [ 171 ] At times, the Defendant has been agitated during the course of these proceedings. There have been occasional outbursts in the courtroom. I note the reference to the word “escort” in a PRIME entry relayed by the Informant. The Defendant appeared to not understand the term and when it was translated with reference to one of his family members, he became very upset. [ 172 ] The Defendant was usually calmer when given the opportunity to collect himself.

I find that his reactions are not unlike other individuals facing the stress of serious allegations in an unfamiliar court environment. I find his agitation is more a reflection of his frustration overlaid with undiagnosed mental illness. Conclusion [ 173 ] In R. v J.S.H . (supra), the Court addressed the challenging role of the court in an analogous proceeding pursuant to

section 810.2 of the Code. The standard of proof was different but the considerations are similar. It found at Par. 23-24: [23] The problem with applications of this nature is that they invite an overly cautious approach to their consideration. Nobody wants to be blamed if something goes badly wrong. Caution is rarely a bad thing, and certainly not within this context. There are however two problems with a one-size-fits-all approach to this problem. Firstly, it presumes that the presence of a court order will fix all problems.

This is not always the case, and at times the order may be so onerous as to add to the stress within the subject’s home, increasing the risk for things to go off the rails. Secondly, it is unfair and discouraging to those persons who are genuinely trying to move forward in their lives.

For persons in this category, prolonging the time that someone is in “the system” can often impede the process of breaking the cycle. [24] If this was a case where the evidence suggested that the Defendant was not making any sincere efforts to become a law abiding citizen, or that there was ongoing drug use, domestic violence in the home, or if there was good reason to believe that the Defendant was being manipulative, I would not hesitate to grant the order the Crown has requested.

In this case however, the Defendant has been the subject of a very restrictive bail order for over fourteen months, perhaps as long, or longer, than an 810.2 order might have been if he had consented to enter into the order at his first appearance. [ 174 ] The Crown relies on three binders of exhibits and the testimony of the Informant in support of an order under

section 810.011 of the Code . The Informant has no personal knowledge or background information on the contents of the exhibits. [ 175 ] He has relied entirely on information collected by third parties to inform his fear. He has taken no steps to verify credibility concerns regarding any of the individuals who offered witness statements and nor has he explored any inconsistencies in the documentation presented. [ 176 ] I find that the Informant overreached in his

interpretations of the meaning and significance of the actions of the Defendant, i.e. that saying Allah Akbar when one is not religious is consistent with terrorist ideation, or that the Defendant’s photographs of footwear are consistent with disrespect in Islamic culture.

There is no expert evidence on these matters and the Informant is not qualified to advance such an opinion. [ 177 ] The Crown has not tendered any expert evidence on ISIS, on terrorism recruitment practices, on basic tenants of the Islamic faith and practices; it has tendered no psychiatric reports, no recent medical reports, no risk assessments and no viva voce evidence from anyone who has interacted directly with the Defendant. [ 178 ] The Defendant has made ISIS utterances since 2014. The PRIME reports show that the police have historically attributed these utterances to mental illness.

His public behaviours include disruptions by yelling and acting out. He is sometimes agitated but not violent. [ 179 ] The Crown has presented a highly focused narrative that appears minimize or ignore evidence that is inconsistent with its theory. It has not objectively evaluated the exhibit materials. [ 180 ] The Defendant’s utterances and behaviour in the community are disturbing and warranted investigation. It is clear that the Defendant is at times a social nuisance. His actions in the community from yelling and other minor disruptive actions have engaged significant police resources.

He also suffers from mental illness and depression. [ 181 ] There is no suggestion on the evidence presented that there is any imminent possibility that the Defendant may commit a terrorism offence, for the benefit of ISIS or otherwise.

Such a conclusion is not reasonable on the totality of the evidence. [ 182 ] I find that there is a lack of credible and reliable evidence to support the Informant’s fear on both a subjective or objective basis. [ 183 ] I find that on the totality of the evidence, the Crown has not met the burden of proof on the balance of probabilities that there is an objective basis for the Informant’s fear that the Defendant may commit a terrorism offence. [ 184 ] I note that even if reasonable grounds are established, the language of

section 810.011 provides that the imposition of a recognizance under this

section is discretionary. [ 185 ] If I am wrong in my finding that the Crown has not established on the balance of probabilities reasonable grounds to fear that the Defendant may commit a terrorism offence, on the evidence presented, I would exercise my discretion and still not impose the order sought. [ 186 ] The Defendant has spent 5½ months in custody and has been subject to strict bail terms for almost 14 months, likely longer than the term that would been imposed if he had initially consented to this application. [ 187 ] It is apparent that the Defendant continues to struggle with mental health issues, as do many other individuals in this community.

The criminal law is a blunt instrument. There are other options which may be more effective to address mental health, poverty, cultural and social issues. [ 188 ] The Crown’s application is dismissed. The Honourable Judge T. Alexander Provincial Court of British Columbia