2019 QCCA 2043, 2019 QCCA 2043

Official English Translation of the Judgment of the Court Habib c. R. 2019 QCCA 2043 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006503-179 (500-73-004401-168, 500-73-004402-166) DATE: November 28, 2019 CORAM: THE HONOURABLE MARK SCHRAGER, J.A. ROBERT M. MAINVILLE, J.A. MICHEL BEAUPRÉ, J.A. ISMAËL HABIB APPELLANT — Accused v.

HER MAJESTY THE QUEEN RESPONDENT — Prosecutor JUDGMENT [ 1 ] The appellant appeals the judgments rendered May 9, 2017 and June 19, 2017 by Judge Serge Délisle of the Court of Québec, district of Montreal, that found him guilty on two counts, namely, having made a written and an oral statement that he knew was false or misleading for the purpose of procuring a passport for himself, contrary to s. 57(2) (

a) of the Criminal Code , and having attempted to leave Canada or attempted to go on board a conveyance with the intent to leave Canada for the purpose of participating in or contributing to the activities of a terrorist group, namely, the Islamic State, contrary to s. 83.181 of the Criminal Code . [ 2 ] For the reasons of Mainville, J.A., with which Schrager and Beaupré, JJ.A. concur, THE COURT : [ 3 ] DISMISSES the appeal. MARK SCHRAGER, J.A. ROBERT M. MAINVILLE, J.A. MICHEL BEAUPRÉ, J.A. Mtre Maxime Chevalier MARIE-HÉLÈNE GIROUX AVOCATE For the appellant Mtre Ninette Singoye Mtre François Blanchette PUBLIC PROSECUTION SERVICE OF CANADA For the respondent

Date of hearing: October 28, 2019 REASONS OF MAINVILLE, J.A. [ 4 ] The appellant appeals the verdicts rendered on May 9, 2017 and June 19, 2017 by which Judge Serge Délisle of the Court of Québec, district of Montreal, convicted him of the following offences: [ translation ] 1 . Between June 3, 2014 and June 28, 2014, in Montreal, district of Montreal, and in Laval, district of Laval, for the purpose of procuring a passport for himself, made a written and an oral statement that he knew was false or misleading, contrary to s. 57(2) of the Criminal Code , thereby committing the indictable offence provided for in s. 57(2) (

a) of the Criminal Code . 2 . Between June 8, 2014 and March 2, 2016, in Montreal, district of Montreal, in Laval, district of Laval, in Boucherville, district of Longueuil, in Gatineau, district of Hull, and elsewhere in Quebec and in Ontario, attempted to leave Canada or attempted to go on board a conveyance with the intent to leave Canada for the purpose of committing

an act or omission outside Canada that, if committed in Canada, would be an offence under s. 83.18(1) of the Criminal Code , contrary to s. 83.181 of the Criminal Code , thereby committing the indictable offence provided for therein. [ 5 ] On May 9, 2017, when both parties had declared their case closed at trial, counsel for the appellant acknowledged that the Crown had discharged its burden of proving the offence of making a false or misleading statement for the purpose of procuring a passport. [1] As a result of this observation, on the very same day, May 9, 2017, the judge found the appellant guilty on that count. [2] As regards the second offence, that of having attempted to leave Canada for the purpose of participating in or contributing to the activities of a terrorist group, it was only on June 19, 2017, after deliberating subsequent to the submissions of counsel, that the judge found the appellant guilty on that count. [3] [ 6 ] The following are the relevant provisions of the Criminal Code (“ Cr.C . ”) for purposes of these charges: 57

(2) Every one who, while in or out of Canada, for the purpose of procuring a passport for himself or any other person or for the purpose of procuring any material alteration or addition to any such passport, makes a written or an oral statement that he knows is false or misleading 57

(2) Quiconque au Canada ou à l’étranger, afin d’obtenir un passeport pour lui-même ou pour une autre personne ou afin d’obtenir une modification ou une addition importante à un tel passeport, fait une déclaration écrite ou orale qu’il sait être fausse ou trompeuse est coupable : (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; […]

a) soit d’un acte criminel et passible d’un emprisonnement maximal de deux ans; (…) 83.18

(1) Every one who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. 83 .18

(1) Est coupable d’un acte criminel passible d’un emprisonnement maximal de dix ans quiconque, sciemment, participe à une activité d’un groupe terroriste, ou y contribue, directement ou non, dans le but d’accroître la capacité de tout groupe terroriste de se livrer à une activité terroriste ou de la faciliter. 83.181 Everyone who leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada, for the purpose of committing an act or omission outside Canada that, if committed in Canada, would be an offence under subsection 83.18(1) is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years. 83.181 Est coupable d’un acte criminel passible d’un emprisonnement maximal de dix ans quiconque quitte ou tente de quitter le Canada — ou monte ou tente de monter dans un moyen de transport dans l’intention de quitter le Canada — dans le but de commettre un acte à l’étranger qui, s’il était commis au Canada, constituerait l’infraction visée au paragraphe 83.18(1) . [ 7 ] Although the appellant appeals the conviction dated May 9, 2017 pertaining to the false or misleading statement for the purpose of procuring a passport, he has not raised any specific ground of appeal in this regard.

All of the grounds he has raised pertain to the conviction dated June 19, 2017 relating to the attempt to leave Canada for the purpose of participating in or contributing to a terrorist organization. THE CONTEXT [ 8 ] The appellant was born in Canada in 1987 to a father of Afghan origin and a French-Canadian mother. The appellant, who struggled with a serious drug addiction, began to take an interest in Islam during his adolescence, after an acute crisis following his

consumption of drugs. He became deeply religious and highly involved in Islam. [ 9 ] In 2011, the appellant met his wife. The couple had a traditional Islamic engagement and wedding. Their relationship led to the birth of two children. He met Wassim Boughadou when the latter became his brother-in-law by marrying his wife’s sister a few months later. [ 10 ] In November 2012, Boughadou informed the appellant that both of them had become subjects of interest to the Canadian police forces, who suspected them of being involved in terrorist activities.

Shortly thereafter, in December 2012, the appellant attempted to leave the country with his family through Vancouver, but he was not permitted to board the plane. He remained in Vancouver for a few months. During that time, he tried to cross the U.S. border from Surrey, British Columbia, but he was intercepted and questioned by U.S. border guards who turned him back to Canada. [ 11 ] The appellant came back to Montreal in April 2013. His friend Boughadou had left Canada for Turkey with his family and urged the appellant to join him.

During that same period, RCMP officers questioned the appellant about Boughadou. [ 12 ] On July 1, 2013, following Boughadou’s advice, the appellant went to Halifax to take a plane to Algeria. His wife and children remained in Montreal. Shortly after he arrived in Algeria, his wife informed him that he had received a letter from Passport Canada asking him to surrender his passport before July 13, 2013. Boughadou then advised him to leave Algeria where, according to Boughadou, the appellant’s passport might be seized, and to join him in Turkey.

The appellant went to Turkey on July 12, 2013. [ 13 ] He then quickly made his way to Syria with Boughadou. He was in Syria for three months, staying with various armed groups. He acquired an AK-47 and has admitted that, while in Syria, he tortured a prisoner by whipping him. He claimed, in his testimony, that he had not participated in combat, but had merely frequented three organized armed groups.

However, in discussions with a foreign woman over the Internet, under a pseudonym, he claimed he had participated in armed exploits in Syria. [ 14 ] The appellant claims that he decided to return to Turkey after three months because the events involving the prisoner were troubling him. His wife then came to join him in Turkey. He was subsequently arrested, imprisoned and deported to Canada. Upon arriving in Canada, he was informed that he was the subject of an investigation for terrorism-related offences. [ 15 ] In April 2014, the appellant’s wife spent time in Algeria with their children.

According to the appellant, he wanted to find a way to join them, which proved to be difficult given that his passport had been confiscated. [ 16 ] On June 9, 2014, the appellant went to a pharmacy. He bought lotion to tan his skin and asked the pharmacy to take passport photos. He went to the Passport Canada office in Laval to make an urgent passport application under a false name, that of his twin brother. The employee noted that his skin had been artificially tanned and reported the application to investigators. The application was refused.

The first count pertains to this passport application made under a false name. [ 17 ] On July 23, 2014, the appellant was followed by an RCMP officer while he was searching the Internet at an Internet café. The officer noted that he consulted the page of the Long War Journal and read the

article entitled “ Islamic State training camp in northern Iraq ”. [ 18 ] In October 2014, the RCMP obtained a warrant to intercept the appellant’s communications. Officers entered his apartment surreptitiously and copied data from his computer.

This evidence revealed that the computer had been used to carry out various searches, including: - On June 13, 2014, a Google search on [ translation ] “how to leave Canada illegally”; - On June 16, 2014, searches on maritime smuggling; - In June 2014, searches on spotting scopes; - In July and August 2014, Google searches on current events involving the Islamic State; - On July 9, 2014, searches on crossing the border between Turkey and Syria; - On July 13, 2014, searches on identity theft and forged passports. [ 19 ] In November 2014, the appellant’s wife came back to Canada.

She stayed for only a short time, leaving for Algeria on January 13, 2015. She then went to Turkey in April 2015 to join her sister and Boughadou. It is unclear where she stayed subsequently; the appellant claims she was “abducted” and was either in Turkey or Syria. [ 20 ] On January 27, 2015, the Registrar of civil status refused the appellant’s application for a name change. [ 21 ] The appellant was followed by the police, and a garbage bag he threw out near his home was seized at the end of January 2015.

In it, RCMP officers found his twin brother’s birth certificate, survival gear and a letter from the Registrar of civil status dated January

27, 2015 refusing the appellant’s requested name change. [ 22 ] On February 9, 2015, the appellant purchased an e-Visa for Turkey online . [ 23 ] On June 1, 2015, the Border Services Agency intercepted a package from Turkey containing a Syrian passport under a false name intended for the appellant. [ 24 ] An undercover operation targeting the appellant, using the “Mr. Big” technique, was then put into place.

It was agreed that the appellant would be introduced to an individual at the helm of an organization that was in a position to provide him with forged passports and to transport him abroad. [ 25 ] Between September 2015 and February 2016, the undercover agents implemented 22 scenarios involving the appellant. Over the course of the scenarios, the appellant came to understand that the organization could enable him to leave the country illegally and provide him with good quality forged passports. He communicated with the head of the fictitious organization, a person by the name of “Plouffe”, on a few occasions.

He explained to Plouffe a variety of fraudulent practices through which he was able to earn a living. He also carried out a few tasks to help the fictitious organization headed by Plouffe. [ 26 ] On December 3, 2015, during their first meeting, the appellant stated that he had previously paid $5,000 for a forged passport. [ 27 ] On January 14, 2016, the appellant and Plouffe had a long discussion.

The meeting was not recorded, but based on the testimony of the undercover officer pretending to be Plouffe, the appellant stated that he wanted to go to Syria to join up with the Islamic State group. [ 28 ] On January 19, 2016, as part of the scenario, the appellant saw three high quality forged passports.

He mentioned to an undercover officer that he had previously paid $1,800 for a passport that had been seized. [ 29 ] On February 9, 2016, the appellant told Plouffe that he had paid $5,000 for a poor quality European passport, that he had asked that the passport be replaced, but that he had not heard anything about his request. [ 30 ] On February 17, 2016, the appellant handed one of the undercover agents passport photographs of himself. [ 31 ] On February 25, 2016, the appellant and Plouffe had a final meeting. The meeting lasted several hours and was recorded.

The appellant talked about his experience in Syria, his views on Islam and the various jihadist movements. He also provided the names of contacts he had in Syria. The men discussed the manner in which he could leave Canada and the price of such a trip. In the judgment finding him guilty, the judge summarized the content of the appellant’s statements on that occasion: [4] [ translation ] [6] In essence, during the meeting on February 25, 2016, Ismaël Habib stated the following: • He wanted to leave due to religious convictions.

Although he and his children were safe here, he nevertheless wanted to leave, because, according to his religion, he had to live in a Muslim country that applies Sharia law. The IS was fighting to establish an Islamic State in Iraq and Syria ; • His ultimate goal was to go to Syria; • As far as he was concerned, if he did not die on the path towards God, he would have lived for nothing. They (Muslims), love death like non-Muslims love life; • His ultimate goal was to die for God and have the 72 virgins.

To go to the front and fight; • He wanted to go there to fight and form part of the IS group; • He was willing to do the most he could to help the IS, in any manner, financially, physically or to die, whatever they needed. He stated that he was willing to die for them, for the principle. That he would be with them as long as they followed what God said; • He was willing to do everything for IS, except attacks here.

His priority was to defend Syria and Iraq, win territory and establish Sharia law; • He wanted to go to Raqqa, the capital of the IS. (Footnotes omitted) [ 32 ] It is also important to note that in November 2015, the appellant met a Gatineau woman on a dating site. She became his second wife. She testified at length during the trial. She stated that, when they met, the appellant told her he was divorced. While they were living together, she discovered that he had lied, that he was married and that he often communicated with his first wife, even promising that he would join her.

When she confronted the appellant, he told her that he wanted to join his first wife on the border between Turkey and Syria. She also stated that the appellant had an obviously forged passport in his possession and had discussed his plan to leave Canada by boat. The relationship ended when the appellant threatened to place a bomb under her car if she reported him. She then contacted the Gatineau police. THE TRIAL JUDGMENTS The judgment dated March 6, 2017 on the admissibility of the appellant’s statements

[ 33 ] In a judgment dated March 6, 2017 ( 2017 QCCQ 1581 ), the trial judge admitted into evidence the statements made by the appellant to the police officers within the scope of the “Mr. Big” operation, which he described as follows: [ translation ] [10] In the case at bar, the RCMP’s objective was to obtain a statement from Ismaël Habib, in a confidential environment and through a structured meeting, of his intention to leave Canada for the purpose of joining a terrorist organization. [11] To achieve this objective, the RCMP put into place what it refers to as the “major crimes technique”.

The RCMP took advantage of the accused’s desire to leave Canada and created a criminal organization involved in forged passports and smuggling. Following meetings with the investigation team and based on information provided by a civilian informant, a covering officer developed 22 scenarios involving undercover agents who played different roles and interacted with the accused.

The scenarios were fine-tuned and tailored pursuant to the meetings with the accused and in order to achieve the objective. [12] Over the course of the scenarios, through which the accused was gradually involved, he was able to assess the organization’s ability to enable him to leave Canada in the near future. [13] To make him believe that the organization was serious, he was made to witness an exchange with a contact at the Passport Office and the delivery of a forged passport to a fictitious client of the organization.

He subsequently witnessed, in an apartment rented by the organization, final preparations by the fictitious client to enable his clandestine entry into the port of Montreal so he could leave the country by boat.

Later during this scenario, Ismaël Habib acted as lookout near the entrance to the port and witnessed the client’s entry into the port. [14] While maintaining the accused’s interest by reminding him of the organization’s ability to smuggle him out of the country, the organization’s boss followed up on the accused offer and asked him if he could help out by escorting another client who wanted to enter Syria.

By providing this assistance, the accused could get a reduction of the amount the organization would charge him to get him out of the country. [15] Before any of this could happen, however, the boss insisted on the accused revealing everything about his previous trip to Syria, so he could check if he was telling the truth. The boss justified this requirement by saying that he needed to make sure, before doing business with him, that he could trust him and that the contacts he said he had really existed.

The boss also asked him what his real intentions were once he was in Syria. [16] Twice over the course of the investigation, Ismaël Habib expressed his desire to leave Canada in order to go to Syria to join the IS. The investigation culminated on February 25, 2016, when the accused met with the organization’s boss in private, in commercial premises that the RCMP had rented and used as an office for the fictitious organization and that were packed with hidden cameras and microphones. [ 34 ] From the outset, the judge acknowledged that the police operation differed from the “Mr. Big” operations discussed in R. v.

Hart , [5] because it sought to confirm the appellant’s intention to leave Canada in order to join a terrorist group rather than to shed light on an unsolved crime. [6] Notwithstanding this distinction, the judge concluded that the police technique used was a “Mr.

Big” type of operation and that, consequently, the appellant’s statements collected by using this technique had to be considered in light of the principles established in Hart . [7] In fact, counsel for the appellant and for the Crown agreed at trial and on appeal that these were the principles to be followed by the judge when adjudicating on the admissibility of the statements. [ 35 ] Consequently, the appellant’s statements were to be presumed inadmissible unless the Crown established, on a balance of probabilities, that the probative value (reliability) of the statements outweighed their prejudicial effect. [8] [ 36 ] After a careful examination of the evidence, the judge concluded that the accused’s statements had been made freely and without any threat or coercion. [9] He also concluded that these statements were reliable, given the details provided, which increased their intrinsic reliability, [10] and given the circumstantial evidence, which largely confirmed the statements, particularly the testimony of his second wife, the evidence of his contacts with a member of the Islamic State, Abu Bara, and his numerous Internet searches on jihadists and the situation in Syria. [11] [ 37 ] The judge ultimately concluded that the probative value of the statements outweighed their prejudicial effect, particularly because of their high degree of reliability: [12] [ translation ] [79] Counsel for the accused argues that the prejudicial effect is significant, because it is the boss’s insistence and the accused’s desire to live up to his expectations that led him to make the statements. [80] The Court cannot accept this argument.

First, because the statement dated January 14, 2016 was not solicited in any way. Second, the boss justified his insistence by his need to have details and to ensure that his business would run smoothly. This concern for details reassured the accused. Third, the fictitious organization was not the only option the accused explored for leaving the country. [81] The circumstances in which the statements were made show that the boss treated the accused with respect and civility during the operation.

The tone used during meetings was cordial, the boss was polite, offering the accused drinks and food, and the accused was free to leave at any time. The Court finds no evidence leading to the conclusion that the scenarios had a coercive effect on the accused. There is no indication that he said or did anything he did not want to say or do. On the contrary, he seemed excited by the opportunity to leave the country with the help of the fictitious organization and he discussed the boss’s offer asking him for help so another client of the organization could leave Canada.

There is nothing that leads to the conclusion that the boss extracted these statements from him. [82] Lastly, the content of the statement made on February 25, 2016 is consistent, detailed and corroborated by numerous elements

that establish its reliability. [83 ] Consequently, the probative value of the statements outweighs their prejudicial effects. (Footnotes omitted) The judgment dated June 19, 2017 on the verdict [ 38 ] The guilty verdict was rendered on June 19, 2017. The only issue in dispute was the credibility of the appellant, who testified in his own defence, claiming that his purpose was not to go to Syria to join a terrorist group, but rather to find his first wife who had allegedly been “abducted”. The appellant claimed that he had distorted the truth in the statements he made within the scope of the “Mr.

Big” operation in order to live up to the expectations of the fictitious head of the organization in order to obtain a passport to return to Syria to be with his wife. [ 39 ] The judge rejected these claims and concluded that the appellant’s testimony had no credibility whatsoever and that the evidence presented by the Crown was amply sufficient to find him guilty beyond a reasonable doubt. [ 40 ] First, the judge concluded that the appellant’s statements gathered within the scope of the police operation were highly reliable and that the entire context within which the operation had taken place negated all claims to the contrary by the appellant to the effect that he had lied about the purpose of his return to Syria. [13] [ 41 ] Second, with respect to the credibility and probative value of his testimony at trial, which testimony contradicted the statements he had made in the course of the “Mr.

Big” operation, the judge noted a series of events which raised doubts regarding his testimony, in particular: [14] - The appellant lied to his second wife about the fact that he was not divorced from his first wife; - He obtained a forged passport from the United Kingdom; - He obtained another forged passport from Syria; - He filed a fraudulent application for a Canadian passport in his brother’s name, using his own photograph; - He used the pseudonyms Alexandre Fortin and Steve Lemieux on several occasions and in several circumstances.

In fact, he had a driver’s licence bearing his photograph, but in the name of Alexandre Fortin; - Knowing that it was illegal, he cashed family allowance cheques from the government, although his children were living outside the country; - He registered with a number of educational institutions and obtained loans and bursaries. He boasted to an undercover officer that, with Quebec loans and bursaries, it was possible to earn up to $9,000 a year without having to pay anything.

He stated that he had received $70,000 from the government over the past several years; - He mentioned to an undercover officer that he had a second electronic tablet in order to carry out [ translation ] “fraudulent operations”; - He suggested applications to an undercover officer to scramble the airwaves in order to prevent the police from intercepting his communications; - He asked the boss of the fictitious organization to dispose of his second wife’s car so he could collect the insurance. [ 42 ] The judge also noted several contradictions and implausibilities in the appellant’s testimony which undermined his credibility, especially regarding the purported “abduction” of his first wife and his allegedly benign activities during his three-month stay in Syria with armed groups.

These contradictions and implausibilities led the judge to conclude that the appellant’s story was [ translation ] “incredible and ludicrous” and [ translation ] “totally unbelievable”. [15] It is appropriate to reproduce long excerpts of the judge’s reasons regarding certain crucial aspects of the appellant’s testimony which show his lack of credibility when testifying: [16] [ translation ] [29] First, the accused claims — and this is the principal element of his defence — that he wanted to go to Syria to join his wife and children.

He stated that his wife was in danger, that she had been imprisoned, that she had no solution and that she was begging him to come help her. He said that he panicked. [30] It is for this reason, he explained, that he was willing to say whatever the boss of the fictitious organization wanted to hear. He was in a hurry and felt he had to live up to the boss’s expectations in order to be able to leave the country through his organization.

He was [ translation ] “highly affected by his wife’s circumstances” and clung to the character he had to present (to the boss) to convince him. [31] The Court concludes at the outset that the state of mind the accused suggests he had is inconsistent with that of a person who looks for a new wife on the Internet, spends time with her, marries her and lives with her.

This is nevertheless what he did, between November 2015 and February 2016, with […]. [32] Turning back to his wife’s imprisonment in Syria, Ismaël Habib gave emotional testimony to the effect that it was on January 22, 2016, when Abu Bara contacted him, that he thought his family was with the IS. Abu Bara is an acquaintance, a contact of the accused. [33] Yet, on February 25, 2016, he told the boss of the fictitious organization that he had entrusted his wife and children to a Syrian in Turkey and that the latter had brought them into the IS. At another time, he stated that he knew his wife had been in Syria for

[ translation ] “over four months”. [34] He also mentioned to the boss of the organization that, at the beginning, his wife and children had been in a house with other women, being cared for, housed and fed by the IS. But she wanted her independence and a house. The accused had added: [ translation ] “So, they told her: Well, figure out the money on your own then. [...] You want your house, OK, well we’ll give it to you. But you’re on your own.

So, I had to send her money for, uh...”. [35] He added that an IS member had called him on his cell phone to get his authorization for his wife to go out, study, work or do whatever she wanted, because this required the husband’s authorization. [36] He told […] that his wife was in Syria with his children and that their intention was to live as a family in Syria.

He also told […] that he wanted to fight with IS to help capture territory there. [37] Although he testified that his wife in Syria only called him once a month, the evidence shows that the accused spoke with her on a regular basis and that they exchanged text messages. [38] The passages to which the accused pointed in order to show his wife’s distress refer instead to the fact that she needed money because [ translation ] “it’s not easy for a woman alone” there.

They reflected concern on the part of the accused much more than a state of distress linked to an imprisonment or a dangerous situation. [39] The evidence indicates that the pressure he felt was due to the fact that he could not get to Syria and join the IS, in accordance with his religious convictions, rather than the fact that his wife was in danger.

For example, […] heard conversations between the accused and his wife in which his wife urged him to hurry to join them and stated that if he couldn’t do that, that he should carry out jihad in Canada. [40] This marked discrepancy between his wife’s situation and the reality disclosed by the evidence completely undermines the accused’s credibility.

But there is more. [41] First, his description of the events, from the beginning of his problems following a visit from Wassim Boughadou until his return to Turkey in 2013, is implausible. [42] He explained that Wassim Boughadou, a friend and future brother-in-law, came to tell him that they were the subject of an RCMP investigation. Boughadou scared him. According to the accused, without even truly verifying the situation or consulting anyone, he decided to give up his studies and go to Vancouver from where he tried to go to London, but was turned back at the airport, without reason according to him.

He then decided to go to the United States to see if he could get in, but he claims that he was held for six hours by seven armed police officers who ultimately let him go back to Canada because they were [ translation ] “tired” and were working overtime. [43] That is not all. He was still in touch with Wassim Boughadou, who pressured him and told him he had to leave Canada. In July 2013, Ismaël Habib went to Algeria, but as soon as he got there, he learned that Canada wanted him to return his passport.

Wassim Boughadou then convinced him to join him in Turkey where, according to Wassim Boughadou, there was no risk the accused would have any problems, because he himself had been there for eight months without any complications. Barely two or three weeks after the accused’s arrival in Turkey, however, the two men gradually began to approach Syria. From Ganzientep, they went to Rayhanli, a city under the control of the Free Syrian Army near the Syrian border. From there, a contact brought them to Atma, in Syria. Boughadou reassured him, telling him that war had not broken out everywhere.

The accused claims he had no choice but to follow Wassim Boughadou to Syria, although he did have some [ translation ] “curiosity” about what was going on there. [44] During his stay in Syria, he spent time with three groups: the Free Syrian Army, Ahrar Ash-Sham and the Chechens. He explained that there were at least 70 groups, including Al Quaida and the IS. He claims that he did not hear even one gunshot, that he did not fight, that it was like a summer camp.

He stated, however, that all the groups were there to overturn Bachar Al-Assad’s government and that as soon as they arrived in Syria, Boughadou and he had acquired an AK-47 for their safety. There are also photographs showing him in combat gear, with Boughadou wearing a bulletproof vest and the accused sporting a long knife at his waist. [45] Because the story is incredible and ludicrous, it is difficult to give it any credit. It becomes totally unbelievable when considered in light of the accused’s affirmation, in his statement dated February 25, 2016, that he was in Syria in 2013 to carry out a jihad.

Moreover, this element discloses another inconsistency, because he stated, in his testimony, that he had not gone to Syria in 2013 for that purpose. [46] Yet, he explained in his statement that all the groups had as their objective to overturn Bachar Al-Assad’s government and spoke of jihad, of establishing Sharia law and of having an Islamic state. In the same statement, he further added that his goal in 2013 was to carry out a jihad for the purpose of establishing Sharia law, to fight to put an Islamic government in place.

The Court is of the view that this explains the [ translation ] “curiosity” mentioned in paragraph [43]. [47] The fact that the accused stayed there three months and spent time with the three groups mentioned earlier seems true. He explained in his testimony, however, that, at the end of his stay, when he was with the Chechen group, his passivity was brought up and it was suggested that he go fight. According to him, the group was starting to doubt his interest in fighting.

He claims that it is for this reason, and because he was under pressure and felt he had to do something to assuage their doubts, that he whipped a prisoner... from the Free Syrian Army. He explained that, following this event, he left Syria. [48] How could he have whipped a prisoner from the first group he had joined at the start of his stay (the Free Syrian Army) just before leaving Syria when, at the end of his stay, he was with the Chechens, as he stated in his statement dated February 25, 2016 and in his testimony?

This is a significant contradiction that, once again, destroys the accused’s credibility. [49] This element also reveals another contradiction, because he stated, in his statement, that he had left Syria to go find his wife and

children in Turkey for the purpose of returning to Syria to carry out a jihad. [50] Lastly, the questions asked with respect to the evidence obtained from the electronic devices in the accused’s possession also revealed contradictions. For example, when the prosecution questioned the accused about an Internet search described as being “turkey syria crossing border” that appeared on a computer in his possession, he stated that the computer belonged to Wassim Boughadou and that he had not performed that search.

The evidence, however, demonstrates that he was in Canada in July 2014 and in possession of the computer at the time the Internet search was performed. When confronted with this inconsistency, the accused attempted to give an explanation that was not convincing or credible. (Footnotes omitted) [ 43 ] Lastly, the judge analyzed the Crown’s evidence and determined that he could conclude from that evidence, beyond any reasonable doubt, that the appellant had the intention to leave Canada for the purpose of knowingly participating in or contributing to a terrorist group.

The judge noted that the appellant declared on two occasions that he wanted to leave Canada in order to go to Syria for the purpose of joining the Islamic State [17] , a terrorist group included in the list established for the purpose of applying

Part II.1 of the Criminal Code which deals with terrorism. [18] He also noted that the accused had previously gone to Syria in order to be involved with various armed groups and had since been trying to leave Canada by any means in order to return there.

The judge concluded his reasons by referring to the appellant’s statement that his purpose was to help the Islamic State by all means, which left no doubt regarding his intentions: [19] [ translation ] [85] As mentioned above, the accused told the boss of the fictitious organization that he was willing to [ translation ] “do the most I can to help the Islamic State, in any manner, financially, physically or to die for____ whatever they need”. He stated that he was willing to die for them, for the principle.

That he would be with them (IS) as long as they followed what God said. [86] It would be difficult to find a better example of his intention to enhance the IS’s ability to carry out its operations.

He knowingly wanted to leave Canada for Syria in order to join the IS. [87] The Court concludes that the Crown has proved all the essential elements of the offence beyond a reasonable doubt. (Footnote omitted) GOUNDS OF APPEAL [ 44 ] The appellant raises two grounds of appeal, one pertaining to the judgment dated March 6, 2017 regarding the admissibility of his statements and the other pertaining to the judgment dated June 19, 2017 regarding the verdict:

(1) The trial judge erred in law by admitting into evidence the appellant’s statements gathered during the “Mr. Big” police operation;

(2) He erred in law by likening the appellant’s conduct to an attempt to leave Canada within the meaning of the offence described in s. 83.181 Cr.C . ANALYSIS First ground of appeal: the admissibility of the appellant’s statements [ 45 ] The appellant concedes that the trial judge was correct in characterizing the undercover operation as a “Mr. Big” operation. He argues, however, that the trial judge erred in admitting the statements. He submits that the operation constituted an abuse of process, because it was tantamount to entrapment.

Subsidiarily, he argues that the probative value of the admissions is outweighed by their prejudicial effect.

Abuse of process [ 46 ] At the beginning of his judgment dated March 6, 2017 pertaining to the admissibility of the statements, the judge indicated that the appellant had conceded that the conduct of the police did not constitute abuse: [20] [ translation ] [7] If the Court concludes that the statements are more probative than prejudicial, the second part of the two-pronged approach proposed in Hart need not be applied, because the accused’s lawyer has conceded that the conduct of the police officers was not reprehensible and did not result in an abuse of process. [ 47 ] Indeed, it appears that counsel for the appellant acknowledged at the trial that the police conduct was beyond reproach, such that the existence of an abuse of process was not at issue. [21] Consequently, it is difficult to blame the judge for not having excluded the statements based on abusive police conduct, particularly since it is up to an accused to establish abuse of process. [22] [ 48 ] Nonetheless, since the doctrine of abuse of process is designed to protect the integrity of the justice system and the fairness of the trial, it is nevertheless appropriate to consider the appellant’s new arguments on appeal in order to determine whether the police officers’ conduct was liable to constitute an abuse of process, in particular, whether this is a case of entrapment, as the appellant claims.

[ 49 ] In R. v. Mack [23] , the Supreme Court considered the subject of entrapment. Justice Lamer there stated that entrapment exists if: (

a) the authorities provide an opportunity to commit an offence without acting on a reasonable suspicion that the person is already engaged in criminal activity or pursuant to a bona fide inquiry; or (

b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence. [24] It is this second type of entrapment that is raised by the appellant. [ 50 ] Conduct goes beyond providing a mere opportunity and becomes entrapment when it is such that an ordinary or average person placed in the accused’s situation would be led to commit a crime. [25] To determine whether the police have employed means which go beyond providing an opportunity, it is useful to consider any or all of the following factors: [26] - the type of crime being investigated and the availability of other techniques for the police detection of its commission; - whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime; - the persistence and number of attempts made by the police before the accused agreed to commit the offence; - the type of inducement used by the police including: deceit, fraud, trickery or reward; - the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity; - whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship; - whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction; - the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves; - the existence of any threats, implied or express, made to the accused by the police or their agents; - whether the police conduct is directed at undermining other constitutional values. [ 51 ] The appellant does not refer directly to these factors.

Rather, he argues that a “Mr. Big” operation is not the appropriate method for obtaining admissions regarding criminal intent and constitutes, in and of itself, entrapment. This argument must be rejected. In the case at hand, the evidence reveals that the police authorities suspected the appellant of having committed acts comprising the various offences with which he is charged and had collected several tangible items of evidence to that effect.

The police operation was initiated when the offence of attempting to leave Canada for the purpose of participating in and contributing to the activities of a terrorist group was in fact underway. [ 52 ] The police authorities certainly took advantage of the appellant’s consistent and obvious intention to leave the country, by demonstrating the means and practices of the fictitious organization that would be useful to a person wanting to leave Canada illegally.

The facts, however, show that it was the appellant who took the initiative and asked about the possibility of obtaining a forged passport and leaving Canada by boat. At no time did the undercover agents exploit the appellant’s vulnerabilities or act insistently so as to incite him to commit the offence of attempting to leave Canada for the purpose of participating in or contributing to the activities of a terrorist group. The undercover agents did not pressure the appellant to commit such an offence, not even to leave the country.

They gave him the opportunity to move forward with his plan to leave the country, a plan that existed well before the police operation. [ 53 ] In short, based on the evidence and the various factors outlined in R. v. Mack , the appellant has not established that there was entrapment. Instead, he merely seized the opportunity the undercover agents offered to further his plan to leave Canada.

The weight of the probative value versus the prejudicial effect [ 54 ] The trial judge concluded that the appellant’s statements had a very high threshold of reliability and that the prejudicial effect of admitting them into evidence was minor. [ 55 ] The reasons for the judgment on the admissibility of the statements show that the judge assessed their reliability by first considering the circumstances in which the appellant had made them.

He noted that the appellant was not helpless or vulnerable, that he had not obtained substantial sums from the fictitious organization and that the operations had been free of violence or coercion. [ 56 ] The judge then looked for indicia of the statements’ reliability. He noted that the statements were highly detailed and he pointed out that the appellant had made two statements regarding his intention to join the Islamic State. He also concluded that there were several corroborating elements.

Based on these observations, the judge determined that the statements were highly reliable such that they could be admitted into evidence. [ 57 ] The judge therefore followed the proper legal process, but the appellant argues that he erred in his analysis of the evidence. This ground of appeal disregards the appellate standard of review and asks the Court to question the trial judge’s assessment of the evidence.

The appellant, however, has not identified a palpable and overriding error that would allow the Court to intervene; he rather seeks that this Court assess the evidence anew, which is not its function. [ 58 ] The prejudicial effect of the confession is based on admitting into evidence elements that reveal certain reprehensible conduct by the accused. Such bad character evidence may lead to two types of harm, namely, moral prejudice and reasoning prejudice. [27]

Indeed, the trial judge acknowledged that the statements provided the court with information about the appellant’s participation in various petty crimes as well as his stay in Syria and that this could lead to moral prejudice. [28] The judge therefore gave himself a self- caution in this regard. In light of this caution, the appellant has not established that the trial judge was mistaken when weighing the probative value against the prejudicial effect. [ 59 ] In short, the judge did not commit an error of law by admitting the statements, and this ground should be dismissed.

Although the undercover operation targeting the appellant differed from traditional “Mr. Big” operations, the admissibility of the statements had to be assessed in light of the criteria developed in Hart . In the present case, the operation was not abusive and there is no reviewable error in the trial judge’s weighing of the probative value against the prejudicial effect.

The appellant’s statements were therefore legally admitted into evidence. [ 60 ] At the appeal hearing, counsel for the appellant nevertheless put great emphasis on a ground of appeal that was not very developed in his brief, namely, that the trial judge erred in law by admitting the statements made to the police without having considered the fact that there was no testimony from the civilian informant, Lyes, a friend and confidant of the appellant. [ 61 ] Lyes, however, was not called as a witness by the Crown or by the appellant, neither at the voir dire on the admissibility of the statements nor at trial.

Nonetheless, according to the appellant’s appeal brief, [ translation ] “the civilian agent pressed him to give incriminating answers to the police officers”, which contributed to the unreliability of his statements and also raises doubts regarding their truthfulness. [29] [ 62 ] The evidence does not support this ground of appeal. Moreover, counsel for the appellant did not raise this ground before the trial judge during his oral arguments pertaining to the admissibility of the statements.

Although counsel for the appellant noted the absence of testimony from the civilian informant Lyes when debating the admissibility of the statements, he did not do so in order to support the claim (now put forth on appeal) that Lyes had incited the appellant to declare to the police that he wanted to join the ranks of the Islamic State.

Quite the contrary, the arguments put forth by counsel for the appellant dealt primarily with the fact that, given that there was no evidence that the appellant had admitted such an intention to the civilian informant Lyes, the judge could infer that this was not really the appellant’s intention. [30] [ 63 ] The evidence reveals that Lyes did in fact play a role in the implementation of the scenarios of the “Mr.

Big” operation, by informing the appellant of the possibility of meeting with Plouffe, the head of the fictitious organization, and by providing information to the police about the appellant’s past, his plans and activities and his state of mind regarding his relationship with the fictitious organization [31] . The evidence, however, does not reveal that Lyes incited the appellant to lie to the head of the fictitious organization regarding his intentions or to confess his intention to join the Islamic State.

Second ground of appeal: the evidence of the elements of the offence described in s. 83.181 Cr.C . [ 64 ] The appellant argues that the judge erred in law when assessing the material and mental elements of the offence. As regards the actus reus , he claims that the various steps he took for the purpose of leaving Canada were nothing more than preparatory acts. With respect to mens rea , he argues that the evidence does not establish beyond a reasonable doubt his intention to participate in terrorist activities. [ 65 ]

Section 83.181 Cr.C . was introduced in 2013 by the Combating Terrorism Act , [32] which sought to criminalize the activities of terrorists before they leave Canada to join terrorist groups abroad. The addition of s. 83.181 Cr.C . therefore stems from Parliament’s desire to round out the legislative arsenal available for fighting terrorism, by criminalizing conduct that precedes an individual’s participation in terrorist activities.

The scope of s. 83.181 Cr.C . and the elements that make up the offence provided for therein must therefore be understood on the basis of Parliament’s objectives. [ 66 ] The Crown must prove beyond a reasonable doubt the physical element of the offence provided for in s. 83.181 Cr.C . , namely, that the accused left or attempted to leave Canada or went or attempted to board a conveyance with the intent to leave Canada. [33] The Crown must also prove beyond a reasonable doubt the underlying intent, that is, that the departure from Canada was for the purpose of committing

an act or omission outside Canada that, if committed in Canada, would be an offence under s. 83.18(1) Cr.C . , namely, to knowingly participate in or contribute to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity. Actus reus [ 67 ] In the case at bar, the offence pertains to the attempt to leave Canada. A criminal attempt differs from mere preparatory steps. For an attempt to exist, there must be a commencement of execution.

This difference between a criminal attempt and preparatory steps is highly contextual, as Le Dain, J. noted in R. v.

Deutsch : [34] […] It has been frequently observed that no satisfactory general criterion has been, or can be, formulated for drawing the line between preparation and attempt, and that the application of this distinction to the facts of a particular case must be left to common sense judgment […] In my opinion the distinction between preparation and attempt is essentially a qualitative one, involving the relationship between the nature and quality of the act in question and the nature of the complete offence, although consideration must necessarily be given, in making that qualitative distinction, to the relative proximity of the act in question to what would have been the completed offence, in terms of time, location and acts under the control of the accused remaining to be accomplished.

I find that view to be compatible with what has been said about the actus reus of attempt in this Court and in other Canadian decisions that should be treated as authoritative on this question. [ 68 ] In the present case, the actus reus is established by the multiple steps the appellant took in order to leave Canada during the period covered by the indictment (from June 8, 2014 to March 2, 2016):

− On June 9, 2014, the appellant filed a passport application in his twin brother’s name, but with his own photograph. The passport office noticed the fraud and ultimately refused to issue the passport; − On June 1, 2015, the Canadian authorities intercepted a Syrian passport originating from Turkey and intended for the appellant; − The appellant filed an application for a name change with the Registrar of civil status.

His application was refused on January 27, 2015; − He purchased an e-Visa (electronic visa) for Turkey on February 9, 2015; − He purchased a forged British passport; − He sought to be smuggled out of Canada by the fictitious organization and negotiated the price for his trip with the boss of the fictitious organization; − He provided the fictitious organization with passport photographs of himself for the purpose of making a forged passport. [ 69 ] It is important to note that these steps have all been established through physical evidence, the testimony of the undercover agents and that of the appellant.

The reliability and the credibility of this evidence has not been questioned. [ 70 ] The appellant nevertheless claims that his conduct discloses preparatory acts rather than an attempt to leave Canada. He argues that he could still have given up his plan. Yet, the acts in question were committed over a long period of time.

If, in actual fact, they did not allow the appellant to further his plan to leave Canada due to Passport Canada’s refusal, the poor quality of the British passport, the interception of the Syrian passport or the development of a departure plan with an organization that proved to be fictitious, the fact nevertheless remains that the appellant made consistent and numerous efforts to obtain forged travel documents. [ 71 ] This leads to the conclusion that the numerous steps the appellant took for this purpose form part of a continuum aimed at carrying out the offence.

Considering the overall context within which these steps were taken and the consistent and sustained nature thereof, they amount to a criminal attempt to leave Canada. [ 72 ] In short, the appellant’s arguments regarding the absence of an actus reus should be dismissed. Mens rea [ 73 ] The Crown must also prove beyond a reasonable doubt the underlying intent. Applying the principles outlined in R. v.

Khawaja , [35] the Crown must establish beyond a reasonable doubt that the appellant had the intent to knowingly participate in or contribute to the activities of a terrorist group whose terrorist objectives he knew (in the present case, the Islamic State, an entity listed as a terrorist group [36] ) and for the general purpose of enhancing the ability of a terrorist group to facilitate or carry out a terrorist activity within the meaning of the Criminal Code . [37] [ 74 ] The appellant acknowledges that, on several occasions, he admitted that he wanted to join the Islamic State in order to support this terrorist organization and contribute to its fight by any means possible.

The appellant therefore does not really challenge the mens rea of the offence, because his repeated statements regarding his intentions to join a terrorist group and contribute thereto are clear and do not raise any doubt. [ 75 ] The appellant, however, challenges the judge’s assessment of the reliability of his statements and the credibility of his testimony. He claims that the judge found the content of his statements gathered during the “Mr. Big” operation to be too reliable and gave too much credibility to his second wife’s testimony.

He adds that his own testimony should have been accepted or, at the very least, should have raised a reasonable doubt. [ 76 ] The appellant is therefore asking this Court to substitute its assessment of the evidence and the credibility of the witnesses for that of the trial judge, despite the fact that the trial judge’s reasons are very well substantiated and contain no reviewable error. On the contrary, his assessment of the reliability of the appellant’s statements to the undercover agents and of the testimony of the appellant’s second wife is largely supported by the other evidence in the record.

As for the lack of credibility of the appellant’s testimony, the judge addressed this point at length in his judgment, of which lengthy extracts have been reproduced hereinabove. His reasons in that regard are convincing, and the appellant has not identified precisely how the judge erred in this regard. CONCLUSIONS [ 77 ] For these reasons, I propose that the Court dismiss the appeal. ROBERT M. MAINVILLE, J.A.