COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ansari,
    2015 ONCA 575

DATE: 20150819

DOCKET: C52883

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

BETWEEN

Her Majesty the Queen

Respondent

and

Asad Ansari

Appellant

John Norris and Breese Davies, for the appellant

Croft Michaelson and Amber Pashuk, for the respondent

Heard: December 15 & 16, 2014

On appeal from the conviction entered on June 23, 2010 by
    Justice Fletcher Dawson of the Superior Court of Justice, sitting with a jury.

Watt J.A.:

[1]

Asad Ansari and several others went camping. In the winter. Near
    Washago. Among the others were Fahim Ahmad and Zakaria Amara.

[2]

Campers participated in several different activities. Marching.
    Simulated combat exercises. Running an obstacle course. Lectures and discussion
    circles. Asad Ansari joined in some of the planned activities, but not in all
    of them.

[3]

Some camp activities were videotaped. Later, Asad Ansari helped to
    produce a video for the leaders, Ahmad and Amara, to use to recruit others to
    join their group.

[4]

Asad Ansari knew a lot about computers. When Ahmad was having trouble
    with his hard drive, he took Ansari up on his offer of help. Ansari fixed Ahmads
    computer. Among other things, Ansari removed some malware  a keystroke
    logger and a remote administration tool.

[5]

A few months after the camping activities ended, Ahmad, Amara, Ansari
    and several others were arrested on charges of participating in the activities
    of a terrorist group. The Crown alleged that Ahmad was the leader and Amara a
    prominent member of the group. As against Ansari, the Crown alleged that Ansari
    participated in or contributed to the activities of the group by attending the
    training camp and providing computer assistance to Ahmad and Amara, knowing
    that in doing these things he was participating in or contributing to a
    terrorist groups facilitating or carrying out terrorist activity.

[6]

A jury found Ansari guilty of an offence under s. 83.18(1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46
.

[7]

Ansari appeals. He alleges errors in the admission of various items of
    evidence at his trial, among them evidence of intercepted private
    communications and letters found in his bedroom during a search conducted after
    arrest. He also says that the trial judge erred in his instructions about the
actus
    reus
or conduct element of the offence charged.

[8]

These reasons explain why I would reject Ansaris claims of error,
    dismiss his appeal and affirm his conviction.

THE BACKGROUND FACTS

[9]

The controverted issues at trial focused on the adequacy of Crown
    counsels proof that Ansaris attendance at the training camp and computer
    assistance for Ahmad and Amara:

i.

amounted to participation in or contribution to the activities of a
    terrorist group; and

ii.

were done with the requisite degree of knowledge on Ansaris part and
    for the proscribed purpose.

[10]

For
    present purposes, an overview of the case advanced at trial is sufficient. I
    will supply further detail in considering the specific grounds of appeal.

The Preliminary Meetings

[11]

In
    late November 2005, a confidential source handled by CSIS, who later became a
    civilian agent for the RCMP, went to a meeting at the Taj Banquet Hall to see
    and hear a presentation about security certificates. The source attended in
    order to ingratiate himself with Ahmad and Amara who were suspected as
    principals in a terrorist group.

[12]

The
    confidential source showed Ahmad and Amara a licence that permitted him (the
    source) to possess both restricted and non-restricted firearms. The men had a
    general conversation about jihad and discussed the oppression of Muslims around
    the world.

[13]

Ahmad
    described his plans to the source. He spoke about attacking several Canadian
    infrastructure targets. Ahmad also planned to hold a training camp to recruit
    participants to carry out his plans. Ahmad showed the source a map depicting
    the location of the training camp.

[14]

Amara
    asked the source his position on jihad. The source said he considered jihad a
    personal obligation. After the men hugged, Amara produced a nine millimetre
    magazine containing what he described as cop killers. As the men were
    leaving, Amara gave the source copies of three texts that espoused violent jihad.
    In later conversations, Ahmad and, to some extent, Amara discussed concepts
    consistent with those texts with others they felt shared the ideology.

[15]

Asad
    Ansari did not attend the meeting at the Taj Banquet Hall.

[16]

A
    few days later, the source and Ahmad met again in a Toronto park. Ahmad
    elaborated on his plans to attack specific targets including Parliament, the
    CIA and CSIS buildings in Ottawa, a Pickering nuclear plant, an RCMP building,
    an unspecified military base and critical infrastructure. Ahmad reiterated his
    plans to hold a training camp for a group of individuals who needed training to
    attack the proposed targets. Ahmad claimed to have a weapons cache buried in a park
    in Scarborough. Two others sent to get weapons in the United States had been
    caught and arrested at the border.

[17]

Asad
    Ansari did not attend the meeting of the source and Ahmad at the park.

The Washago Camp

[18]

In
    late November and early December 2005, the source, Ahmad and Amara made plans
    for the training camp in Washago. Ahmad wanted to create a group of individuals
    who could carry out terrorist attacks on specific targets. The purpose of the
    camp was to weed out undesirables and select those who would receive training.

[19]

Asad
    Ansari did not participate in the planning of the camp. The planners did not
    disclose the purpose of the camp to others.

[20]

In
    mid-December 2005, Amara invited Ansari and two of his friends to the camp.
    Ansari and Amara had been friends since middle school, Ansari and Ahmad since
    high school. Ansari understood that it was to be a winter camping experience with
    some of his friends. He was in the last group to arrive at the camp, on
    December 24, 2005. He and his two friends left on December 29, 2005. Ansari
    brought a paintball gun with him and one of his friends brought an air rifle.

The Camp Activities

[21]

Little
    dispute occurred at trial about the nature of the activities that took place at
    the Washago camp. The controversy was with Ansaris presence at and
    participation in some of these activities. Among the activities were:

i.

mock combat;

ii.

paintball;

iii.

obstacle courses;

iv.

hiking and marching; and

v.

firearms training.

The firearms training occurred before Ansari arrived.
    Ahmad brought a black flag with the Islamic creed displayed on it. It was
    posted at the camp and carried at the head of the group during marches.

[22]

Three
    halaqaat or discussion circles took place at the camp. The first, an audio
    lecture played by Ahmad  Constants of Jihad  preceded the appellants
    arrival and appears to have sparked little discussion. The second  a speech by
    Ahmad describing the Fall of Rome  revealed Ahmads long-term terrorist
    plans. Rome referred to the West. The evidence conflicted about whether Ansari
    was present at this time. The third, for which Ansari was present, had nothing
    to do with terrorist acts.

[23]

The
    confidential source considered that the camp failed to achieve Ahmads
    operational goals.

The Recruitment Video

[24]

Amara
    later provided Ansari with raw footage of activities at the camp and asked him
    to convert it to a digitized format. Ansari did so. He said he did not view the
    footage. Ahmad and Amara wanted to use the video to recruit others and to
    obtain support for their proposed activities.

The Computer Repairs

[25]

Around
    the end of January 2006 Amara dropped off Ahmads computer for Ansari to
    repair. Amara said that the computer was not working. He asked Ansari to fix
    it. Ansari ran a virus scan. He found different kinds of malware, including a
    key logger program and a remote administration tool. He deleted the malware,
    backed up the hard drive and tried to reformat it.

[26]

In
    an intercepted phone conversation, Ansari warned Ahmad about weird stuff on
    his computer, including encrypted files with an encryption Ansari had never
    seen before. Ansari told Ahmad that information was being sent from the
    computer.

Destruction
    of the Camp Video

[27]

Amara
    convinced Ahmad to destroy his copy of one of the edited videos from the camp
    at Washago. Investigators did not obtain a copy of the raw footage or edited
    video of the activities at the camp.

The Schism

[28]

Around
    the end of March 2006, Amara grew disenchanted with Ahmad and left the group
    along with several other members from Mississauga. Amara told Ansari of his
    departure the next day.

The Post-Arrest Seizures

[29]

On
    June 2, 2006 police arrested Ansari. They searched his room in his parents
    house. Among other things, officers found a 300-page spiral-bound notebook on a
    bedside table in his bedroom. Inside were several notes, lists and diagrams.
    Near the back were handwritten undated drafts of letters written to his family
    and its individual members: his father, mother and sister.
[1]

[30]

In
    his letter to his family, Ansari began, [m]ay the peace and blessing of God be
    upon you. These letters not only contain the will of one, Asad Ibin Whaqaruddin
    Ansari but are also a testament of what he believed in. Ansari expresses his
    love for his family, apologizes for any wrongs he has done to them, thanks them
    for being good to him, encourages them to follow Allah and to have patience
    and do good. He also advises his family I have left for an unknown location
    to fight for the sake of Allah.

[31]

In
    the letter to his mother, Ansari asks her to pray to Allah in the hope that
    Allah will return me to you safely without harm. Otherwise he may grant me
    [Martyrdom].

[32]

The
    letter to his sister ends in mid-sentence. Ansari did not write a letter to his
    brother.

[33]

Ansari
    claimed that these letters were draft suicide notes, which he had written in
    the fall or early winter of 2004. He had become depressed and suicidal when he
    was unable to attend university because of his familys strained financial
    circumstances. The reference to fighting for the sake of Allah was a red
    herring because he believed it was impermissible in Islamic culture to commit
    suicide.

[34]

Police
    also seized several data storage devices including a computer, external hard
    drives, CDs, DVDs and written materials. The data storage devices contained information
    downloaded from publicly available websites on explosive devices and
    detonators, or bomb-making materials, as well as numerous religious texts and
    videos espousing radical Islamic views, violence and terrorism.

Asad Ansaris
    Version

[35]

Asad
    Ansari testified. He explained that, after 9/11, he committed himself to
    showing the world that not all Muslims are terrorists. That he was a Muslim and
    that he was not a terrorist. Amara and Ahmad were friends of long standing with
    whom he often debated political issues involving Muslims. Neither Amara nor
    Ahmad communicated or espoused any terrorist ideology. The black flag with the
    Muslim creed displayed at the camp in Washago and carried in marches there had
    no jihadist connotation for him.

THE GROUNDS OF APPEAL

[36]

Ansari
    (the appellant) advances four discrete grounds of appeal. The first three
    allege improper admission of evidence. The fourth claims error in the trial
    judges final instructions regarding an essential element of the offence
    charged.

[37]

I
    would paraphrase the grounds of appeal as submissions that the trial judge
    erred in:

i.

admitting evidence of private communications intercepted in breach of s.
    8 of the
Charter
because those interceptions were not made in a manner
    permitted by the enabling authorization;

ii.

admitting evidence of the departure letters to the appellants family
    found among other items on the night table in the appellants bedroom;

iii.

permitting Crown counsel to cross-examine the appellant on materials
    previously excluded as evidence on the ground that, in giving evidence in his
    own defence, the appellant had put his character in issue; and

iv.

instructing the jury on the
actus reus
or conduct element of
    the offence charged by failing to make it clear that the conduct had to create
    a risk of harm beyond the
de minimis
level.

Ground #1: The Admissibility of Intercepted Private
    Communications

[38]

This
    ground of appeal challenges the correctness of the ruling by the trial judge
    under s. 24(2) of the
Charter
to admit three intercepted private
    communications to which the appellant was a party as evidence at trial. The
    underlying breach of s. 8 that triggered the s. 24(2) analysis was the failure
    of police to intercept those private communications in the manner in which the
    enabling authorization permitted them to do so.

[39]

To
    appreciate the nature of the complaint and the manner in which the authorities
    govern its resolution, it is helpful to begin with brief references to the
    terms of the applicable authorizations, the nature of the alleged breach and
    the reasons of the trial judge for admitting the evidence despite the
    constitutional infringement.

The
    Authorizations

[40]

The
    relevant interceptions were made under the auspices of the first two of four
    judicial authorizations to intercept private communications granted during the
    investigation. The appellant was not named in either of the first two
    authorizations as a person whose private communications could be intercepted.
    However, in each of those relevant interceptions, the appellant was speaking
    with an individual included in the authorization as a Principal Known Person.

[41]

In
    the first authorization, granted on December 20, 2005, the following clause
    describes the manner of interception to be followed:

Provided however that
interceptions at all
    vehicles, places and devices and over the mobile telephones shall be
live
    monitored
. The interception of a communication shall be discontinued once
    it has been determined that none of the Principal Known Persons is a party to
    it.  However, interception may be resumed at reasonable interval [sic] to
    determine whether one or more of the Principal Known Persons has become party
    to the communication.  If so, then the interception may continue. [Emphasis added.]

[42]

In
    the second authorization, granted on February 15, 2006, a similarly-worded clause
    directed the manner of interception at certain locations and for certain
    devices, including cellphones. The second and third calls admitted in evidence
    against the appellant were cellphone calls.

[43]

Neither
    authorization defined the terms live monitored.

The Manner
    of Interception

[44]

To
    manage interception activity on this project, the RCMP used Voicebox software
    configured so that the interceptions would comply with the requirements of the
    authorization. This involved inputting the names and phone numbers of the
    Principal Known Persons and selecting other features of the program to ensure
    that the interception process was faithful to its judicial mandate. Incoming
    calls on authorized lines could be programmed as either automatic (all calls
    recorded automatically) or live (requiring activation and acknowledgement by
    a monitor before recording). Throughout the project, the number of lines to be
    live-monitored exceeded the number of available monitors.

[45]

Among
    the options available on the Voicebox software was a put away feature that
    allowed the monitor to discontinue listening to a call but to continue
    recording it. The monitors tried to listen to each intercepted communication in
    its entirety and to use the put away feature sparingly, when a monitor needed
    to tend to a call on another line. The put away feature was not used unless
    the monitor had ensured that a Principal Known Person was a party to the
    intercepted private communication.

[46]

On
    February 6, 2006, the appellant spoke to Ahmad for more than ten minutes on the
    telephone. Ahmad was a Principal Known Person. The monitor, satisfied that Ahmad
    was a party to the call, put the call away after about two and one-half minutes
    so that she could attend to another live call that was coming in on another
    unmonitored line. Subsequently, the monitor put the call away again for the
    same reason and did so later for a further two seconds for some other reason.

[47]

The
    other two calls tendered against the appellant occurred on March 27 and March 29,
    2006. The first was with Ahmad, the second with Amara who was also a Principal
    Known Person. The put away feature was used in the call with Ahmad, but only
    after their conversation had ended. The feature was not used at all in the
    Amara call.

[48]

The
    affiant, some group supervisors and the room coordinator testified about how
    they interpreted the live monitored provision in the authorization. The term
    was borrowed from an existing precedent and was a common feature in many
    judicial authorizations granted in different jurisdictions across Canada. Each
    considered that the put away function could be used while live monitoring as
    long as the monitor had first identified a Principal Known Person as a party to
    the call. Spot monitoring of the call to ensure that a Principal Known Person
    remained a party was not required.

[49]

The
    manner in which the RCMP interpreted the live monitored term of the
    authorization was first raised in an unrelated prosecution in April 2008.
    Proceedings in that case were stayed without any judicial assessment of the
    acceptability of the practice. The police force began a review of the practice and
    determined it was being followed across Canada even in the absence of a live
    monitored term.

[50]

By
    June 27, 2008, the RCMP was aware that the impugned procedure had been followed
    in this case. In November 2008, the RCMP notified the Crown. A subsequent
    directive advised RCMP members not to use the put away feature unless the
    authorizing judge specifically approved of it.

The Motion at Trial

[51]

At
    trial, counsel for the appellant, who is also counsel on appeal, sought
    exclusion of the three intercepted calls to which the appellant was a party.
    The s. 8 infringement advanced was that the search  the interception of
    private communications  was conducted in an unreasonable manner because the
    interceptions had not been made in accordance with the live monitored term of
    the authorization.

[52]

Counsel
    for the respondent at trial took the position that the live monitored term
    allowed the use of the put away feature provided a Principal Known Person was
    identified as a party to the call. In the alternative, counsel for the
    respondent contended that if live monitored required monitors to listen to
    the entire call, the failure to do so infringed s. 8 but did not render the
    intercepted private communications inadmissible as evidence under s. 24(2).

The Trial Judges Ruling

[53]

The
    trial judge found that the failure to comply with the live monitored term of
    the authorization infringed s. 8 of the
Charter
, but did not warrant
    exclusion of the intercepted private communications as evidence under s. 24(2).
    The trial judge interpreted live monitored as the equivalent of listened to
    without interruption.

[54]

In
    his s. 24(2) analysis under
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R.
    353, the trial judge considered that the first line of inquiry favoured
    exclusion of the evidence, but the second and third favoured admission as did
    the balance of the three lines of inquiry.

[55]

The
    trial judge considered the infringement of s. 8 was serious, but not at the
    most serious end of the infringement spectrum. It was the result of investigative
    negligence, not reckless or wilful conduct. What occurred here was part of an
    ongoing pattern of conduct, but one that ended when identified, albeit not
    immediately. The infringement was aggravated because it was a breach of court
    order and was accompanied by an institutional failure to ensure proper
    disclosure.

[56]

The
    trial judge was satisfied that the infringement had little to no impact on the
    appellants
Charter
-protected rights. Nothing was captured beyond what
    would have been obtained by proper compliance. The infringement did not have a
    greater impact on the appellants privacy than would have been the case with
    listening while recording.

[57]

The
    trial judge viewed the societal interest as favouring admission. The evidence
    was real, reliable and undiminished in its probative value by the infringement.
    Overall, a proper weighing of the relevant factors favoured admission.

The Arguments on Appeal

[58]

The
    appellant says that the trial judge erred in characterizing the seriousness of
    the s. 8 breach and its impact on the appellants
Charter
-protected
    interest under the section. He argues that the trial judge also overvalued
    societys interest in a determination of the allegations on their merits. In
    the result, the appellant contends, the trial judges s. 24(2) analysis reached
    an erroneous conclusion.

[59]

The
    appellant argues that, in considering the seriousness of the s. 8 infringement,
    the trial judge failed to factor into his analysis the institutional nature of
    the improper implementation of the authorization, which was exacerbated by the RCMPs
    institutional failure to disclose its practice to the Crown so that it could,
    in turn, be disclosed to the appellant and others in similar circumstances.
    This, the appellant says, reflects a pattern of disregard for
Charter
rights. The infringement enabled investigators to collect evidence beyond their
    entitlement and thus had a profound effect on the appellants
Charter
-protected
    rights.

[60]

The
    appellant says that the seriousness of the charge and the reliability of the
    evidence overwhelmed the other factors in the trial judges analysis. The trial
    judge focused on the short term, rather than the long-term effects of the
    admission of the evidence and overemphasized its importance to the case for the
    Crown. The evidence should have been excluded, not admitted, on a proper
    application of s. 24(2).

[61]

The
    respondent rejects any suggestion of error in the trial judges s. 24(2)
    analysis. The trial judges characterization of the seriousness of the
Charter
infringement and the extent of its effect on the appellants
Charter
-protected
    interest was apt, his assessment of societys interest in the determination of
    the case on its merits appropriate. The judges conclusion  which was based on
    a consideration of the relevant factors, in accordance with the proper
    principles and untainted by any unreasonable findings  is entitled to
    deference and should not be disturbed.

[62]

At
    trial, counsel for the appellant conceded that what occurred was
not
a
    calculated violation of the appellants right to be secure from unreasonable
    search or seizure. The trial judge characterized the violation as serious, but
    not the most serious. He considered, as an aggravating factor, the
    institutional nature of the infringement, its impact on other investigations
    and individuals and the tardy institutional response by the RCMP, both in
    acknowledging error and in its disclosure to prosecution services. In the end,
    the respondent says, the trial judges factual findings were fully supported by
    the evidence and resulted in an appropriate characterization of the nature of
    the infringement.

[63]

The
    respondent contends that the trial judge correctly characterized the nature of
    the impact of the infringement on the appellants protected interests. The
    live monitored term was inserted to protect the privacy of third parties, to
    ensure that their communications were intercepted only when they were speaking
    with a Principal Known Person. That was the case here with both Amara and
    Ahmad. The infringement here did not result in the interception of private
    communications that would not have occurred had the entire conversation been
    live monitored. And so it was, says the respondent, apt to characterize the
    effect of the infringement on the
Charter
-protected interests of the
    appellant as minimal.

[64]

As
    for societys interest in having the allegations determined on their merits,
    the respondent rejects any suggestion that the seriousness of the offence
    predominated in the trial judges analysis. The trial judge acknowledged that
    the seriousness of the offence cuts both ways. He considered that this
    evidence was not the only evidence upon which the Crown relied to establish
    guilt. He did not focus on the short-term effect of admitting this evidence.
    His characterization of this factor and his overall weighing of the factors was
    appropriate and ought not to be disturbed.

The Governing Principles

[65]

The
    argument on this ground of appeal focused exclusively on the trial judges
    ruling under s. 24(2) of the
Charter
. The respondent did not invite us
    to review the correctness of the underlying infringement of s. 8 that the trial
    judge determined had occurred because of the failure of those implementing the authorization
    to adhere to the live monitored term of the order. As a result, I will
    confine my comments on the governing principles to a few brief points in the
    analysis required under s. 24(2) and to the standard we are to apply in
    reviewing such decisions.

[66]

Whether
    the admission of evidence obtained in breach of the
Charter
would
    bring the administration of justice into disrepute engages three lines of
    inquiry. Each line is rooted in the public interests engaged by s. 24(2). Each
    interest is viewed in a long-term, forward-looking and societal perspective:
Grant
,
    at para. 71.

[67]

On
    a motion to exclude evidence under s. 24(2), a court must assess and balance
    the effect of admitting the evidence on societys confidence in the justice
    system having regard to:

i.

the seriousness of the
Charter
-infringing state conduct;

ii.

the impact of the breach on the
Charter
-protected interests of
    the accused; and

iii.

societys interest in the adjudication of the case on its merits.

Grant
, at para. 71.

[68]

State
    conduct resulting in
Charter
violations varies in seriousness along a
    spectrum from the inadvertent or minor on the one hand to the wilful, reckless
    or flagrant on the other:
Grant
, at para. 74. To gauge the extent of
    the departure from
Charter
standards, a court must consider all of the
    circumstances. The departure may be significant in degree or involve conduct
    that the police knew or should have known was not
Charter
-compliant. Or
    the breach may be of a more technical nature, perhaps the result of an
    understandable error in a jurisprudential vacuum or an area of judicial
    uncertainty:
R. v. Harrison
, 2009 SCC 34, [2009] 2 S.C.R. 494, at
    para. 22. Wilful or flagrant disregard of the
Charter
by police may
    require a court to exclude evidence in order to distance itself from such
    conduct:
Grant
, at para. 75;
Harrison
, at para. 22.

[69]

Evidence
    of a systemic problem may aggravate the seriousness of the abuse, as may the subsequent
    conduct of investigators, such as giving misleading in-court testimony:
Harrison
,
    at paras. 25-26. Good faith, which is not to be equated with negligence or
    wilful blindness, may attenuate the seriousness of a breach:
Grant
, at
    para. 75.

[70]

The
    second line of inquiry focuses on the seriousness on the
Charter
breach
    on the
Charter
-protected interests of the accused. A court must
    evaluate the extent to which the breach
actually
undermined the
    interests protected by the right infringed:
Grant
, at para. 76
    (emphasis added). An unreasonable search may impact on the individuals protected
    privacy interests and [a]n unreasonable search that intrudes on an area in
    which the individual reasonably enjoys a high expectation of privacy  is more
    serious than one that does not:
Grant
, at para. 78.

[71]

Under
    the third line of inquiry mandated by
Grant
, the reliability of the
    evidence obtained by the
Charter
-infringing conduct is an important
    factor:
Grant
, at para. 81. Sometimes a breach may undermine the
    reliability of the evidence. Other times not. Where the breach undermines the
    reliability of the evidence, this line of inquiry favours exclusion because the
    admission of unreliable evidence is antithetical to a fair trial, the object of
    which is to uncover the truth of the allegations made by the state:
Grant
,
    at para. 81.

[72]

A
    final point concerns the standard of review of trial judges decisions
    admitting or excluding evidence under s. 24(2). Provided a trial judge has
    considered the proper factors and has not made any unreasonable finding, the
    judges determination is accorded considerable deference on appellate review:
Grant
,
    at para. 86;
R. v. Beaulieu
, 2010 SCC 7, [2010] 1 S.C.R. 248, at para.
    5; and
R. v. Côté
, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44.

The Principles Applied

[73]

I
    would not give effect to this ground of appeal for several reasons.

[74]

First,
    the trial judges decision to admit the three intercepted private
    communications as evidence despite the unconstitutional implementation of the
    live monitored term of the authorization is entitled to considerable
    deference.

[75]

The
    trial judge articulated the lines of inquiry mandated by
Grant
. He
    considered the proper factors in his analysis and assigned the weight he
    considered appropriate to them. A review of his reasons betrays no consideration
    of an irrelevant factor or any failure to consider a relevant factor. His
    findings of fact were not unreasonable and his apportionment of weight to each
    of the lines of inquiry was reasonable.

[76]

Second,
    the appellant concedes that the infringement here was
not
a calculated
    violation of the
Charter
, in particular of s. 8. The trial judge
    characterized the infringement as one that involved negligence, not
    recklessness or wilful blindness, in failing to consider context beyond the
    bare words live monitored as they appear in the order.

[77]

The
    infringement in this case occurred in the execution of a facially valid
    authorization, a court order obtained from a judge of the superior court of
    criminal jurisdiction on the basis of material that satisfied the probable
    cause and investigative necessity requirements of s. 186(1) of the
Criminal
    Code
. It is not suggested that the authorization process was corrupted by
    a lack of full, fair and frank disclosure of all material facts.

[78]

The
    purpose of the live monitored term was to ensure that investigators did not
    intercept communications between third parties  that is, between parties not
    named in the authorization and not conversing with those who were. That purpose
    was achieved here because live monitoring ensured that a Principal Known Person
    was the appellants collocutor.

[79]

Something
    should be said about the systemic nature of the infringement. The manner in which
    the RCMP construed the live monitored requirement in this case was followed
    consistently in several other projects across Canada. This is scarcely surprising.
    Their institutional response in disclosure to prosecution services when issue
    was taken with their practice was at once tardy and ill-informed. That said, no
    precedent had stamped their practice as constitutionally infirm.

[80]

Third,
    the infringement in this case had no negative impact on the appellants privacy
    interest. At the outset of the calls, monitors satisfied themselves that a
    Principal Known Person was a participant. It follows that the interception of
    these calls fell within the four corners of the authorization. The flaw here
    was not in
recording
a communication that was not authorized, but in
    failing to
listen
to the conversation in its entirety
    contemporaneously with the recording. In these circumstances, it is difficult
    to see anything other than a negligible impact on the appellants
Charter
-protected
    right to privacy.

[81]

Fourth,
    the evidence obtained by the infringement in this case is real evidence  a
    recording of words spoken by the appellant. The reliability of this evidence is
    unaffected by the infringement. The evidence is non-conscriptive. It is an
    important part of the Crowns case, but not critical. The trial judge
    recognized that the offence was serious but acknowledged that this factor cut
    both ways.

[82]

The
    trial judges analysis of the
Grant
lines of inquiry was untainted by
    legal error, misapprehension of evidence, consideration of an irrelevant factor
    or failure to consider a relevant factor. The same may be said of his balancing
    of the relevant lines of inquiry. Deference is his due.

Ground #2: The Admissibility of the Departure Letters

[83]

This
    ground of appeal also relates to the admissibility of evidence received at
    trial  the departure letters. The challenge at trial was principally
    grounded on the submission that, if relevant and material, the letters should
    have been excluded on the basis that their probative value was overborne by
    their prejudicial effect.

[84]

The
    circumstances in which the departure letters were found and the appellants
    explanation for writing them appear earlier in these reasons and do not warrant
    repetition. The discussion may instead begin with a brief reference to the
    trial judges reasons for admitting them as evidence.

The Trial Judges Ruling

[85]

The
    trial judge considered the admissibility of the departure letters at the same
    time he determined the admissibility of a high school essay the appellant had
    written two and one-half years earlier  Bin Laden Rules. He admitted the
    letters, but excluded the essay.

[86]

At
    trial, Crown counsel advanced the case for a reception of the evidence on the
    basis that the letters, which were undated, were relevant to prove the
    appellants state of mind. As relevant evidence relating to a material issue,
    the letters were
prima facie
admissible. They should not be excluded
    under a cost/benefit analysis because their probative value exceeded their
    prejudicial effect.

[87]

At
    trial, counsel for the appellant advanced two arguments against reception. The
    letters were undated and thus were irrelevant, incapable of supporting an
    inference about the appellants contemporaneous state of mind. Their true
    meaning could not be ascertained in the absence of any evidence of the context
    in which they were written. In any event, even if relevant, the letters fell
    foul of the general exclusionary rule because their prejudicial effect
    overshadowed their probative value.

[88]

The
    trial judge was satisfied that the meaning of the letters was apparent from
    their contents. The appellant cared deeply for his family, but was leaving them
    to fight for Allah in some unspecified place. His fate  life or death
    depended on Allahs wishes.

[89]

The
    trial judge concluded that the letters had been written in temporal proximity
    to relevant events. Although undated, the letters were found on a night table
    beside the appellants bed. The last letter, to his sister, ends in
    mid-sentence.

[90]

The
    trial judge decided that the letters were relevant to establish motive and, in
    turn, to shed light on the nature of the appellants association with the
    co-accused, the reasons for his attendance at the Washago training camp and the
    state of his knowledge about the nature and intentions of the organization
    headed by Ahmad, including its then-alleged plans for a bomb attack,
    hostage-takings and other acts of terrorism. The trial judge considered the
    probative value of the evidence to be well above minimal and the prejudicial effect
    to be minimal. The letters did not disclose extrinsic disreputable conduct or
    require an undue expenditure of time in their introduction. They were easily
    rebuttable by their author, the appellant.

The
    Arguments on Appeal

[91]

The
    appellant says that the trial judge erred in failing to exclude the departure
    letters on the ground that their prejudicial effect exceeded their probative
    value.

[92]

The
    appellant submits that the probative value of the departure letters depended
    upon a temporal or thematic nexus between the letters and the allegations
    framed in the indictment.

[93]

No
    temporal nexus existed. The letters were undated, and thus it cannot be
    determined whether they were written before or after the appellant severed
    relations with Ahmad. Any temporal association is conjectural, not inferential.

[94]

According
    to the appellant, a thematic nexus is also lacking. Relevance is assessed in
    the context of all the evidence, but only that evidence which is properly
    admissible against the appellant. The trial judge should have limited that
    context to the appellants attendance at the training camp and the computer
    assistance he provided to Ahmad and Amara and not extended it to knowledge of
    the bomb plot that formed no part of the case against the appellant.

[95]

The
    trial judge also erred, according to the appellant, in concluding that the
    introduction of this evidence caused him no prejudice. This evidence engendered
    moral prejudice, a real risk that jurors would resort to improper propensity
    reasoning as a route to conviction.

[96]

The
    respondent disagrees. This evidence was properly admitted. It was relevant,
    material and admissible because its probative value exceeded its prejudicial
    effect.

[97]

At
    trial, the theory of the Crown was that the terrorist group was led by Ahmad.
    Amara was a key member. The appellants contribution to or participation in the
    groups activities included his attendance at the Washago training camp and the
    computer assistance he provided to Ahmad and Amara in full knowledge of the
    character of the group and their plans.

[98]

The
    appellant defended the case on the basis that he did know the nature of Ahmads
    group or the true purpose of the training camp. He had no intention of
    assisting a terrorist group or enhancing the ability of any such group to
    facilitate or carry out any terrorist activity. The departure letters passed
    the very modest standard of relevance, affording evidence of the appellants
    knowledge, state of mind and motive, all of which were material at trial.

[99]

The
    respondent says that the letters afforded evidence that the appellant was
    prepared to fight and die for religious purposes. That he was evinced a motive
    to interact with and assist others with similar views. The undated nature of
    the letters did not render them irrelevant, especially in light of their
    thematic nexus, or invoke any exclusionary rule.

[100]

The respondent
    contends that the trial judge did not err in his probative value/prejudicial
    effect analysis. The evidence had significant probative value on contested
    issues involving the appellants mental state at trial. It did not include any
    extrinsic disreputable conduct apt to engender an impermissible chain of
    reasoning based on bad character. There was no danger of reasoning prejudice
    confusion or distraction of the jury from the contested issues at trial  and a
    minimal risk of moral prejudice. In any event, the trial judge gave a thorough
    and accurate limiting instruction to ensure the jurys use of the evidence
    remained within permissible bounds.

The Governing Principles

[101]

The resolution
    of this ground of appeal requires consideration and application of fundamental
    principles of the law of evidence. First, the notion of relevance. And, second,
    the admissibility rule that excludes relevant and material evidence on the
    ground that its probative value is exceeded by its prejudicial effect.

[102]

Relevance is not
    an inherent characteristic of any item of evidence. Relevance exists as a
    relation between, on the one hand, an item of evidence and, on the other, a
    proposition of fact that the evidence is offered to prove. Relevance is a
    matter of everyday experience and common sense. An item of evidence is relevant
    if, by the application of everyday experience and common sense, it renders the
    fact it seeks to establish by its introduction slightly more or less probable
    than the fact would be without it:
R. v. Luciano
, 2011 ONCA 89, 267
    C.C.C. (3d) 16, at para. 204.

[103]

Relevance does
    not exist in the abstract or in the air:
Cloutier v. The Queen
, [1979]
    2 S.C.R. 709, at pp. 730-732;
Luciano
, at para. 205. Relevance is also
    relative; we assess and determine it in the context of the entire case in which
    the evidence is proffered and the positions of counsel in that case:
Cloutier
,
    at pp. 730-732; and
Luciano
, at para. 205.

[104]

To be relevant,
    an item of evidence need not prove conclusively the proposition of fact for
    which it is introduced. Nor does the evidence, to be relevant, need to make the
    proposition of fact more probable than not. An item of evidence is not
    irrelevant simply because it can sustain more than one inference. The
    requirement of relevance is met where the item of evidence reasonably shows, by
    the application of everyday experience and common sense[,] that the fact is
    slightly more probable with the evidence than it would be without it:
Luciano
,
    at para. 206.

[105]

Admissibility is
    a legal concept. Admissibility rules exclude evidence that is both relevant and
    material on the basis of some policy consideration that the law regards as of
    sufficient importance to warrant exclusion of evidence that would otherwise assist
    the trier of fact in ascertaining the truth of the matter at hand. The rule
    that excludes relevant and material evidence on the basis that its probative
    value is outweighed by its prejudicial effect is a rule of admissibility.

[106]

The prejudice
    component of this general exclusionary discretion may involve either or both of
    two types of prejudice.

[107]

Moral prejudice
    refers to the risk of an unfocused trial and a conclusion of guilt based on a
    prohibited chain of reasoning from a general disposition or propensity to guilt
    of the offence charged. In other words, a finding of guilt that is based on
    character, not conduct:
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908,
    at paras. 31 and 139.

[108]

Reasoning
    prejudice involves the distraction of the trier of fact from their proper focus
    on the offence charged by the introduction of evidence of other incidents that
    consume undue time and may be accorded more weight than should be their due:
Handy
,
    at para. 31 and 144.

[109]

When invited to
    exclude relevant, material and otherwise admissible evidence on the basis that
    its prejudicial effect predominates over its probative value, a trial judge
    will consider the individual constituents of the rule  probative value and
    prejudicial effect  and then balance them to determine which predominates.

[110]

The assessment
    of probative value involves consideration of the strength of the evidence; the
    extent to which it supports the inferences the proponent seeks to have drawn
    from it; and the extent to which the matters the evidence tends to prove are at
    issue in the proceedings:
R. v. B. (L.); R. v. G. (M.A.)
(1997), 116
    C.C.C. (3d) 481 (Ont. C.A.), at para. 23.

[111]

An assessment of
    prejudicial effect should take into account:

i.

the degree of discreditable conduct disclosed by the evidence;

ii.

the extent to which the proposed evidence may support an inference of
    guilt on the sole basis of bad character;

iii.

the extent to which the evidence may confuse issues; and

iv.

the ability of the accused to respond to the evidence.

B. (L.); G. (M.A.)
, at para. 24.

[112]

A trial judges
    decision about where the balance settles between probative value on the one
    hand and prejudicial effect on the other is accorded a high degree of deference
    by appellate courts. Where a trial judge has applied the proper principles, weighed
    the probative value of the evidence and its potential prejudice and decided the
    issue of admissibility, appellate courts will not lightly intervene:
R. v.
    Arp
, [1998] 3 S.C.R. 339, at para. 42;
R. v. Bevan
, [1993] 2
    S.C.R. 599, at p. 613;
R. v. B. (C.R.)
, [1990] 1 S.C.R. 717, at pp.
    733-734;
R. v. Samuels
, 2013 ONCA 551, 310 O.A.C. 175, at para. 47;
B.
    (L.); G. (M.A.)
,
at para.
    51.

[113]

A final point
    concerns prophylactic measures undertaken by the trial judge to reduce the risk
    of reasoning or moral prejudice. A limiting instruction that explains the
    proper use of this evidence and enjoins prohibited reasoning is of critical
    importance in ensuring a fair trial:
R. v. Vukelich
(1996), 108 C.C.C.
    (3d) 193 (B.C. C.A.), at para. 51.

The Principles Applied

[114]

As I will
    explain, I would not give effect to this ground of appeal.

[115]

To begin, the
    departure letters were relevant.

[116]

The departure
    letters were found in the appellants bedroom, on the night table beside his
    bed. That he was their author is unassailable. It is a reasonable inference
    that these letters, as well as the other contents in his bedroom, were in his
    possession. It is well-settled that documents that are or have been in the
    possession of a party are generally admissible against that party as original
    (circumstantial) evidence of their contents and of the partys connection to,
    or complicity in, the transactions to which they relate:
R. v. Turlon
(1989), 49 C.C.C. (3d) 186 (Ont. C.A.), at p. 190;
R. v. Black
, 2014
    BCCA 192, 309 C.C.C. (3d) 484, at para. 29;
Phipson on Evidence
, 18th ed.
(London: Sweet & Maxwell,
    2013), at pp. 1326-1327. Possession of the letters is evidence of the
    appellants state of mind (the intention to fight for Allah) which, in turn,
    tends to establish his motive for joining and his knowledge of the nature of
    the organization and the activities in which he participated and to which he
    contributed.

[117]

Recall as well
    that the threshold for relevance is not onerous. This evidence met that
    threshold. As relevant evidence, it was
prima facie
admissible.

[118]

It is
    uncontroversial that the only admissibility rule that would bar the reception
    of the departure letters as evidence is the rule that excludes prosecution
    evidence the prejudicial effect of which exceeds it probative value.

[119]

Four reasons
    persuade me that we should not interfere with the trial judges calibration of
    the balance between probative value and prejudicial effect in connection with
    the evidence of the departure letters.

[120]

First, decisions
    of trial judges that set the balance between probative value and prejudicial
    effect are entitled to substantial deference on appellate review. In this case,
    the trial judge correctly stated and properly applied those principles. He
    weighed the evidence, assessed this probative value, calculated its prejudicial
    effect and rendered a reasoned conclusion about the location of the balance
    between them.

[121]

Second, although
    the probative value of the evidence may not have been overwhelming, it need not
    be dispositive of the factual issues to which it relates. At bottom, it was
    relevant to the appellants state of mind, in particular his motive, knowledge
    and purpose.

[122]

Third, evidence
    of the departure letters engendered no palpable moral or reasoning prejudice.
    The letters revealed no extrinsic misconduct, only an intention to fight for
    Allah at some undefined location. The evidence was scarcely remarkable in a
    prosecution for an offence of knowingly participating in or contributing to any
    activity of a terrorist group for the purpose of enhancing the ability of that
    group to facilitate or carry out a terrorist activity. The evidence was not apt
    to confuse or distract the trier of fact, take undue time to elicit or impose
    impediments on the appellants ability to rebut.

[123]

Fourth, the
    trial judge provided jurors with a well-balanced limiting instruction that
    enjoined impermissible reasoning in their use of this evidence. Such an
    instruction, which we presume the jurors followed, alleviated concerns about
    any vestige of moral or reasoning prejudice lurking in the evidence.

Ground #3: The Religious and Ideological Evidence

[124]

The final
    complaint about the admissibility of evidence arises out of evidence the trial
    judge admitted after reconsideration of a pre-trial ruling that excluded the
    same evidence. A brief reference to both rulings will be sufficient to place
    the issue in its appropriate context.

The First
    Ruling

[125]

Before the jury
    was selected, several of the persons charged, including the appellant, sought
    exclusion of various documents and videos found in their possession. Some of
    the materials were paper copies but the majority were contained on computers,
    computer discs or USB keys. The videos were found on various forms of computer
    media.

[126]

The documents
    included articles about jihad and bomb-making. The videos included religious
    lectures and scenes of detonation of bombs or improvised explosive devices
    destroying military and civilian targets in what appeared to be Middle East
    locations. Discharge of mortars and firing of rockets were also depicted.

[127]

Crown counsel
    contended that these materials, compendiously described as the Religious and Ideological
    Evidence, were relevant to prove the motive, purpose, intent and knowledge of
    those in whose possession they were found on the basis of the documents-in-possession
    rule.

[128]

The persons
    charged argued that this evidence was irrelevant or, if relevant, should be
    excluded because the moral and reasoning prejudice it encouraged outweighed its
    probative value. Although the persons charged did not challenge their possession
    of the physical items or computer media, they submitted that, because of the
    volume of the material stored on the various media, the Crown could not
    establish their knowledge of the contents, a critical element in proof of
    knowledge.

[129]

The trial judge
    admitted three items. At para. 61 of his ruling, he said:

The three items I conclude are admissible in relation to any
    accused in whose possession any one or more of them were found, are the three
    articles that were provided to Mr. Shaikh by Mr. Amara and Mr. Ahmad as part of
    a recruiting-like process. Those articles are titled Fundamental Concepts
    Regarding Al-Jihad (Fundamental Concepts), Milat Ibrahim (The Religion of
    Ibrahim) and the Essay Regarding the Basic Rule of the Blood, Wealth and
    Honour of the Disbelievers (Essay). Based on the evidence, Fundamental
    Concepts was found in circumstances capable of supporting a conclusion of
    possession in relation to the accused Mr. Ansari, Mr. Khalid and Mr. Chand.
    The Religion of Ibrahim was found in such circumstances in relation to the
    accused Mr. Ansari, Mr. Durrani and Mr. Chand. The Essay was found in such
    circumstances in relation to Mr. Ansari, Mr. Chand and Mr. Gaya. I would add
    that although there was other material said to have been passed to police
    agents or distributed for recruiting purposes by Mr. Ahmad, that material was
    not found in the possession of any other accused.

[130]

The trial judge
    excluded several documents related to bomb-making stored on a hard drive in the
    appellants bedroom. The trial judge described the documents in these terms, at
    para. 69:

Mr. Ansari had some 40 documents related to bomb-making on a
    hard drive located in his bedroom. These documents have titles such as 10
    Great High Explosive Mixtures, Ammonium Nitrate, Basic Explosive Theory,
    Blowing Up a Car and Bombs for Beginners.

[131]

After pointing
    out that the appellant was no longer charged with the bomb plot, the trial
    judge explained why he excluded this evidence, at paras. 76-77:

I have taken all of the Crowns submissions into account. It
    seems to me that the only means by which the evidence of possession of these
    items leads to an inference of knowledge of the purpose of the training camp at
    the time of Mr. Ansaris initial attendance is through a bad character or
    general disposition reasoning processes: because Mr. Ansari possessed such
    material he is the kind of person who would likely know or likely have been
    told the purpose of the camp. This is reasoning from general disposition to a
    specific form of knowledge that is very important to proof of the case against
    Mr. Ansari. In my view, the Crown has not been able to articulate a logical
    path between possession and knowledge that does not depend on this prohibited
    form of reasoning. The problem with this evidence, therefore, is that while it
    may be logically relevant it runs afoul of an exclusionary rule.

Even if I am wrong and there is some logical chain of reasoning
    other than from general disposition that I have not been able to discern, it seems
    to me that there is a great danger that the jury will use the evidence in this
    impermissible way.  The nature of the material and its quantity invites bad
    character or general disposition reasoning, while other logical chains of
    reasoning are obscure at best. In such circumstances a limiting instruction to
    a jury is less likely to be effective than in circumstances where there is an
    easily identifiable chain of reasoning that does not depend upon inferences
    from general disposition. The potential for prejudice is increased by the
    relative lack of other evidence against Mr. Ansari, as the questioned evidence
    with its prejudicial effects is bound to become central to the proof of the
    Crowns case.

The
    Reconsideration Ruling

[132]

At the request
    of Crown counsel, the trial judge reconsidered his pre-trial ruling about this
    evidence shortly after the cross-examination of the appellant had begun.

[133]

Crown counsel
    submitted that he should be permitted to cross-examine the appellant on the
    religious and ideological materials:

i.

to prove the falsity of material parts of the appellants evidence; and

ii.

because the appellant had put his character in issue during his examination-in-chief
    and the ideological and religious evidence was relevant to neutralize or rebut
    this claim.

[134]

Counsel for the
    appellant responded that the proposed cross-examination was only permissible if
    the appellant had put his character in issue, which counsel denied. In the
    alternative, counsel argued that even if the appellant had put his character in
    issue, the cross-examination should not be permitted because the prejudicial
    effect of any evidence admitted would exceed its probative value.

[135]

The trial judge
    rejected the appellants claim that the cross-examination was only permissible
    if the appellant had put his character at issue in examination-in-chief. The
    trial judge was satisfied that the proposed cross-examination was permissible
    on two grounds:

i.

as relevant circumstantially to prove the falsity of parts of the
    appellants testimony; and

ii.

as relevant in rebuttal of the evidence of good character the appellant
    had given, which portraying himself as one who did not hold extremist views,
    thus rendering it unlikely that he would knowingly participate in or contribute
    to the activities of a terrorist group.

The Arguments on Appeal

[136]

The appellant
    says that the trial judge erred in finding that the appellant had put his
    character in issue during his examination-in-chief. He did nothing more than
    repudiate the allegations made against him and offer an explanation for his
    conduct. Neither is sufficient to put his character in issue.

[137]

The appellant
    points out that determining whether an accused who testifies on his or her own
    behalf has crossed the line between repudiating the allegations and putting his
    or her character in issue requires the consideration of the essential elements
    of the offence, the nature of the case for the Crown and the overall context of
    the allegations. In this case, there was no direct evidence of the appellants
    knowledge of the groups plans or of his intention to assist them in their
    activities. The jury was left to infer from the fact and the nature of the
    relationship among the principals the essential elements of knowledge, purpose
    and intention to assist.

[138]

According to the
    appellant, it was open to him to describe his relationship with Ahmad and
    Amara, to explain his own religious and ideological views  including his
    reasons for attending a mosque  and to deny being a terrorist without putting
    his character in issue. He was entitled to explain and repudiate the context of
    the allegation made by the Crown and the nature of the evidence adduced against
    him. His evidence went no further and did not amount to putting his character
    in issue.

[139]

The appellant
    acknowledges that Crown counsel was entitled to adduce evidence in
    cross-examination to prove the falsity of evidence the appellant gave in-chief.
    But, the appellant says, the evidence Crown counsel proposed to (and did) put
    to him was not capable of achieving this purpose. This evidence was
    circumstantial and the inferential gap between it and the evidence it sought to
    demonstrate was false was so vast that it should not have been permitted on a
    cost/benefit analysis.

[140]

The respondent
    contends that the trial judge was correct in permitting the cross-examination
    on both grounds. The appellant, in giving evidence, took advantage of an unduly
    restrictive ruling made prior to jury selection and put his character in issue
    by his own testimony in-chief and the manner in which he chose to rebut the
    case for the Crown. These changes in circumstances warranted the trial judges
    reconsideration. The cross-examination permitted was carefully circumscribed by
    the trial judge and curtailed any meaningful risk of improper jury use of the
    evidence.

[141]

The appellant
    was in possession of a large quantity of material, the contents of which were
    philosophically aligned with the intentions of Ahmad and Amara. He had
    downloaded this material and burned it onto discs shortly before the Washago
    training camp. This material, described as good stuff Islamic videos, was
    relevant to the appellants knowledge, his purpose in attending the camp, his
    state of mind and his motive. Any moral or reasoning prejudice could easily be
    mitigated by limiting instructions. The trial judges first ruling was unduly
    restrictive of the Crowns proof and overly charitable to the appellant.

[142]

In his first
    ruling, the respondent continues, the trial judge made it clear that a change
    in circumstances during the trial might require a reconsideration of that
    ruling. The defence advanced at trial was inconsistent with the appellants possession
    of large amounts of jihadist material contemporaneously with his association
    with Ahmad and Amara and attendance at the training camp; the appellant held
    himself out as a moderate Muslim, not the sort of person who supported or would
    participate in terrorist activities.

[143]

The respondent
    says that, irrespective of whether the appellant put his character in issue,
    Crown counsel was entitled to cross-examine the appellant to show, if he could,
    that material parts of the appellants testimony were false. The evidence that
    Crown counsel proposed to put to the appellant in cross-examination was
    relevant to show the implausibility of the appellants claim that he was a
    moderate Muslim who eschewed jihadist activity and the jihadist mindset. The
    evidence supported the further inference, from the implausibility of the claim,
    that the evidence expressing the claim was false. This created no danger of propensity
    reasoning.

[144]

In addition, the
    respondent continues, the appellant put his character in issue. He testified
    that he wanted to show the world that all Muslims are not terrorists. He was
    not a terrorist or the sort of person who would be interested or participate in
    terrorist activities. Whether an accused has put his or her character in issue
    is a matter of no little complexity. It follows, the respondent says, that we
    should accord substantial deference to the trial judges decision because of
    his advantaged position of watching the trial as it unfolded over several
    months.

[145]

The respondent
    points out that the trial judges ruling on reconsideration represented a
    measured response to the Crowns application. The appellant was in possession
    of a significant volume of material that could have been used in
    cross-examination and what was permitted was limited and not apt to engender
    propensity reasoning, especially in light of the trial judges clear and
    specific limiting instructions.

The Governing Principles

[146]

The ruling of
    the trial judge and the argument advanced here require a consideration of the
    principles that govern the scope of the right to cross-examine an accused to
    demonstrate the falsity of his testimony and the test to be applied in determining
    whether, in giving evidence in-chief, an accused has put his character in
    issue.

[147]

An accused who
    gives evidence in a criminal trial has a dual character. As an accused he is
    protected by an underlying policy rule against the introduction of evidence by
    the prosecution tending to show that he is a person of bad character, subject
    to the recognized exceptions to that rule:
R. v. Davison, DeRosie and
    MacArthur
(1974), 20 C.C.C. (2d) 424 (Ont. C.A.), at p. 441, leave to
    appeal to S.C.C. refused, [1974] S.C.R. viii. As a witness, however, an
    accuseds credibility is subject to attack:
Davison
, at p. 441.

[148]

The law imposes
    limitations on the cross-examination of an accused that do not apply to
    non-accused witnesses. For example, an accused may not be cross-examined on
    extrinsic misconduct or discreditable associations unrelated to the charge that
    is the subject-matter of the trial for the purpose of leading to the conclusion
    that, by reason of bad character, she or he is a person whose evidence should
    not be believed:
Davison
, at p. 444. But cross-examination directly
    relevant to prove the falsity of the accuseds evidence falls does not fall
    within the ban, notwithstanding that it may incidentally reflect upon the accuseds
    character by disclosing discreditable conduct:
Davison
, at p. 444.
    For example, an accused may be cross-examined to show that her or his
    explanation of the purpose for which she or he was in possession of certain
    material was untrue. Rejection of an explanation of innocent purpose may entitle
    the trier of fact to draw an inference of illicit purpose, design or knowledge:
Davison
, at p. 445.

[149]

In a criminal
    case an accused may put his or her character in issue in several different
    ways, including by giving evidence in-chief in his or her defence at trial:
R.
    v. Farrant
, [1983] 1 S.C.R. 124, at p. 145;
Morris v. The Queen
,
    [1983] 2 S.C.R. 190, at p. 204;
R. v. P. (N.A.)
(2002), 171 C.C.C.
    (3d) 70 (Ont. C.A.), at para. 31;
R. v. McNamara (No. 1)
(1981), 56
    C.C.C. (2d) 193 (Ont. C.A.), at p. 346, leave to appeal to S.C.C. on this point
    refused (1981), 56 C.C.C. (2d) 576.

[150]

An accused is
    entitled to repudiate the allegations of the Crown and does not put his or her
    character in issue by doing so:
P. (N.A.)
, at para. 34. But, in giving
    evidence, an accused is not entitled, under the guise of repudiating the
    allegations made against him or her, to assert expressly, or impliedly, that she
    or he would not have done what is alleged because she or he is a person of good
    character. An accused who does so puts his or her character in issue:
McNamara

(No. 1)
, at p. 346; and
P. (N.A.)
, at para. 31.

[151]

The line between
    permitted repudiation of the Crowns case and putting ones character in issue
    becomes especially difficult to draw in cases in which the Crown adduces
    evidence to provide context and that evidence reveals disreputable conduct by
    an accused:
P. (N.A.)
, at para. 34. In those cases, the accused must
    be able to repudiate the charge by offering his or her own version of that
    context without suffering the disadvantage of having put his or her character
    in issue:
P. (N.A.)
, at para. 34. But this repudiation is not without
    bounds:
P. (N.A.)
, at para. 35; and
R. v. W. (L.K.)
(1999),
    138 C.C.C. (3d) 449 (Ont. C.A.), at pp. 465-466, leave to appeal to S.C.C.
    refused, [2000] S.C.C.A. No. 383.

[152]

An accused who
    puts character in issue may be cross-examined about previous acts of
    disreputable conduct, but the jury should be carefully instructed about the
    permitted and prohibited uses of that evidence:
McNamara (No. 1)
, at
    pp. 352-354; and
W. (L.K.)
, at pp. 465-467.

The Principles Applied

[153]

I would not
    accede to this ground of appeal. As I will explain, I am satisfied that the
    trial judge did not err in permitting the impugned cross-examination on the
    basis that it tended to demonstrate the falsity of the appellants evidence
    in-chief and was equally permissible as a response to the appellants having
    put his character in issue.

[154]

I begin with a
    preliminary point about the nature and source of the material used in cross-examination.
    The information originated in documents, whether in electronic or paper form,
    found in possession of the appellant at times reasonably proximate to the
    offence charged. The documents-in-possession rule permitted the introduction of
    these documents as original (circumstantial) evidence to establish the
    appellants knowledge of their contents. Such possession and knowledge was
    relevant to cast doubt on the truthfulness of the appellants claim that he was
    a moderate Muslim who eschewed jihadist activity. Rejection of his evidence on
    this issue left open to the jury an inference of design, motive, knowledge and
    purpose on the part of the appellant.

[155]

The trial judge
    limited the amount of material that Crown counsel was entitled to use in
    cross-examination of the appellant. This cross-examination for the purpose of
    demonstrating the falsity of various aspects of the appellants evidence
    in-chief did not depend on a ruling that the appellant had put his character in
    issue. The evidence did not disclose extrinsic disreputable conduct apt to
    engender an impermissible chain of reasoning leading to proof of guilt. The
    careful limiting instructions of the trial judge provided an effective
    prophylactic against forbidden use.

[156]

I am further
    satisfied that the trial judge did not err in permitting the impugned
    cross-examination on the basis that the appellant, in giving evidence in-chief
    on his own behalf, had put his character in issue. I reach this conclusion for
    several reasons.

[157]

First, even with
    due allowance for context, including the nature of the offence charged, the
    appellants repudiation of the case for the Crown extended beyond the proffer
    of an alternative explanation for the conduct. The explanation of innocent
    purpose was inextricably bound with the use of character as circumstantial
    evidence of innocent conduct.

[158]

Second, the
    governing authorities make it clear that character may be put in issue either
    directly or by implication. A canvass of the appellants evidence in-chief
    supports the conclusion that, at the very least, the appellant put his
    character in issue impliedly, if not directly.

[159]

Third, this is
    not a case like
P. (N.A.)
, in which the case for the Crown involved
    the introduction of evidence of a lengthy relationship among the principals  including
    other disreputable conduct  to provide context for the specific allegations
    contained in the indictment. The evidence in this case consisted of specific
    conduct and inferences of knowledge and purpose said to emerge from that
    conduct.

[160]

Fourth, the
    trial judge took two measures to guard against impermissible use of this
    evidence. He carefully limited the items that Crown counsel could put to the
    appellant in cross-examination to ensure that the proper balance of probative
    value and prejudicial effect was maintained. And he devoted several paragraphs
    of his charge to limiting jury use of this evidence to what the law permits.

Ground #4: Instructions on the
Actus Reus
of the
    Offence

[161]

The final ground
    of appeal takes issue with the trial judges charge to the jury. The complaint
    is not so much that the trial judge misstated the essential elements of the
    offence, but rather that he failed to include in his instructions something
    that was said more than two years later by the Supreme Court of Canada in
R.
    v. Khawaja
, 2012 SCC 69, [2012] 3 S.C.R. 55. What is now said to be a
    fatal deficiency was not the subject of objection at trial.

[162]

The focus of the
    complaint relates to the conduct element or
actus reus
of the offence
    in s. 83.18(1) of the
Criminal Code
, not to any of the myriad
    components of the fault element which constituted the crux of the appellants
    defence at trial.

[163]

This claim of
    error does not command any evidentiary review. An overview of the charge and
    recapitulation of the argument advanced on appeal will provide an adequate
    background for an assessment of the alleged error.

The Charge
    to the Jury

[164]

The trial judge
    defined for the jury the terms terrorist group and terrorist activity and
    explained the importance of the motive requirement, which distinguishes terrorism
    offence from many other offences in the
Criminal Code
.

[165]

The trial judge
    defined the four essential elements of the offence charged:

There are four essential elements to this offence, each of
    which must be proven beyond a reasonable doubt. They are as follows:

1.

A terrorist group comprised of Fahim Ahmad and others, existed;

2.

The accused knew of the existence of the terrorist group;

3.

The accused knowingly participated in or contributed to, directly or
    indirectly, any activity of the terrorist group; and

4.

The accuseds participation or contribution was intended by the accused
    to enhance the ability of the terrorist group to facilitate or carry out a
    terrorist activity. That really means it was for the purpose of.

[166]

The trial judge
    then converted each essential element into a question, explained what was
    required to prove each element, reviewed the salient features of the evidence
    and related them to the proof of each element before he left the issue for the
    jury to decide, together with instructions about the consequences of their
    assessment, with respect to further deliberation or verdict, of the adequacy of
    the Crowns proof of each element.

[167]

The question
    framed by the trial judge in connection with the third essential was this:

Did the accused knowingly participate in or contribute to,
    directly or indirectly, any activity of the terrorist group?

The trial judge explained that there were two parts to
    the question. The first part required the Crown to prove beyond a reasonable
    doubt that the accused engaged in acts of participation in or contribution to,
    directly or indirectly, any activity of the terrorist group. The second part of
    the question, the judge explained, required proof that the appellant knew at
    the time that his acts constituted such participation or contribution.

[168]

The trial judge
    instructed the jury on the first part of the conduct requirement in these
    words:

Sections 83.18(3) and (4) of the
Criminal Code
provide
    some assistance in determining the first part of this question; whether a
    persons actions constitute participation in, or contribution to, any activity
    of a terrorist group. I would flag for you that they do not assist with the
    second part of this question; whether the accused had the requisite knowledge.

Now, I am going to refer to those. They are on that page I gave
    you that has the excerpts from s.83.18 of the
Criminal Code
. And what
    we are going to do now is we are going to skip over two and we are going to
    look at three and four.

Those subsections, that is three and four, insofar as they
    apply to this case, read as follows:

(3) Participating in or contributing to
    an activity of a terrorist group includes:

(a) providing,
    receiving or recruiting a person to receive training;

(b)  providing or
    offering to provide a skill or an expertise for the benefit of, at the
    direction of or in association with a terrorist group;

(4) In determining whether an accused
    participates in or contributes to any activity of a terrorist group, the court
    may consider [and you are the court in this instance] among other factors,
    whether the accused

(a) uses a name,
    word, symbol or other representation that identifies or is associated with, the
    terrorist group;

(b) frequently
    associates with any of the persons who constitute the terrorist group;

With respect to subsection (4), I would point out that it
    provides guidance as to what may be considered, but does not require you to
    conclude from the use of a name word or symbol or from frequent association
    that there was participation or contribution. These are simply mentioned as
    factors for you to consider.

Subsection (3), however, would require you to conclude that an
    accused participated in or contributed to the activity of the terrorist group
    if you find that he did one or more of the things mentioned in that provision,
    provided you are also satisfied that the second requirement of concurrent
    knowledge has been established.

I would suggest to you that it is obvious how subsection (3)(a)
    would apply in relation to the training camp, the alleged training camp. If you
    are satisfied beyond a reasonable doubt that Mr. Ansari and/or Mr. Chand
    provided or received training at the Washago camp, that would constitute
    participation in or contribution to the activities of the terrorist group under
    the first part of this question.

With respect to Mr. Ansari, if you were satisfied that while at
    the winter camp he offered his computer skills for the benefit of, at the
    direction of or in association with the terrorist group that would constitute
    participation in or contribution to the activities of the terrorist group under
    the first part of this question.

In addition, if you were to conclude that Mr. Ansari provided
    computer or technical skills after the training camp for the benefit of, at the
    direction of or in association with the terrorist group, that would also
    constitute participation in or contribution to the group under the first part
    of this question by virtue of section 83.18 (3) (b) of the
Criminal Code
.

For the benefit of means to the profit, advantage or service
    of. Whether something profits, advantages or is of service to a group is
    determined having regard to the groups objectives. It is for you to determine
    what the groups objectives were based on a consideration of all of the
    evidence and my earlier instructions.

At the direction of means at the instruction of or under the
    guidance of the terrorist group.

In association with means in linkage with. A person may act
    in association with the group even if they are not a formal member of the
    group.

As I am sure is obvious to you, while s. 83.18 (3) provides
    some direction as to what constitutes participation and contribution, you are
    not restricted to the activities described in that section. You have heard the
    arguments of Crown counsel about what other activities the Crown says
    constitute participation in, or contribution to, directly or indirectly, the
    activities of the terrorist group, at the training camp and otherwise. You have
    also heard defence arguments to the contrary. You might conclude that there are
    a number of things that constitute participation or contribution for one or
    both of the accused; or you might not. That is entirely for you to decide.

You are not restricted to conduct that falls within s.83.18 (3)
    (a) and (b), but if you find that an accused acted in a manner that brings his
    conduct within those provisions, you must conclude that the first part of this
    question should be answered yes. You do not all need to agree on what conduct
    constitutes participation in or contribution to the activities of the terrorist
    group but each of you must be sure that there was some such conduct on the part
    of the accused you are considering before you would move on to consider the
    second part of this question for that particular accused.

The Arguments on Appeal

[169]

The appellant
    says that the trial judge erred in failing to instruct the jury that the
    conduct element of participating in or contributing to the activities of a
    terrorist group requires proof of conduct that creates a risk of harm beyond
de
    minimis
. The charge, he submits, should have contained this express
    instruction; what was said did not make it clear that the appellants conduct
    must be capable of materially enhancing the ability of the group to carry out
    terrorist activity.

[170]

The appellant
    contends that the omission here was significant in light of the activity relied
    upon by the Crown to prove this essential element  the camp attendance and
    computer assistance. Neither was obviously above the
de minimis
threshold,
    nor was their combined force. This was a jury question and should have been the
    subject of an express instruction.

[171]

The respondent
    takes the position that, even if an express instruction like that now sought by
    the appellant were required, its omission did not cause the appellant any
    prejudice.

[172]

The respondent
    points out that the Crown is not required to prove beyond a reasonable doubt
    that an accuseds conduct
actually
enhanced the ability of a terrorist
    group to facilitate or carry out terrorist activity to prove this element of
    the offence. It is sufficient if the conduct is of a nature to materially
    assist the group. The conduct here plainly met that standard, as s. 83.18(3)
    points out in its reference to receiving training and providing a skill or
    expertise for the benefit of the group. From a functional perspective, the
    respondent says, the instructions substantially complied with the Supreme Court
    of Canadas later elucidation of the law in
Khawaja
and caused the
    appellant no prejudice.

The Governing Principles

[173]

The principles
    that inform the determination of this ground of appeal are those that describe
    the requirements of proof of this essential element and those that describe the
    standard we are to apply in reviewing the adequacy of jury instructions,
    especially those delivered prior to an elaboration or exposition of a legal
    principle by an appellate court of binding authority.

[174]

To take, first,
    the requirements for proof of an offence under s. 83.18(1).

[175]

Section 83.18(1)
    criminalizes participation in or contribution to the activities of a terrorist
    group and requires proof that an accused:

i.

knowingly;

ii.

participated in or contributed to;

iii.

directly or indirectly;

iv.

any activity of a terrorist group; and

v.

for the purpose of enhancing the ability of any terrorist group to
    facilitate or carry out a terrorist activity.

See
Khawaja
, at para. 41.

[176]

A person commits
    an offence under s. 83.18(1) even if his or her contribution or participation
    does not
actually
enhance the ability of the terrorist group to carry
    out or facilitate a terrorist activity:
Code
, s. 83.18(2)(b).

[177]

Section 83.18(3)
    contains an inclusive list of various activities that constitute participation
    in or contribution to an activity of a terrorist group. Among those activities
    are receiving  training and providing or offering to provide a skill or
    expertise for the benefit of the group.

[178]

The offence of participation
    in and contribution to a terrorist activity is confined, as a matter of constitutional
    requirement, to conduct that creates a risk of harm that exceeds a
de
    minimis
threshold:
Khawaja
, at para. 51. In other words, what is
    excluded from the reach of the criminal law is conduct that a reasonable
    person would not view as capable of materially enhancing the abilities of a
    terrorist group
to facilitate or carry out a terrorist activity
:
Khawaja
,
    at para. 51 (emphasis in original). Moreover, [t]he determination of whether a
    reasonable person would view conduct as capable of materially enhancing the
    abilities of a terrorist group to facilitate or carry out a terrorist activity hinges
    on the nature of the conduct and the relevant circumstances:
Khawaja
,
    at para. 52.

[179]

What is excluded
    from the conduct requirement is innocent or socially useful conduct that is undertaken
    absent any intent to enhance the abilities of a terrorist group to facilitate
    or carry out a terrorist activity, as well as conduct that a reasonable
    person would not view as capable of materially enhancing the abilities of a
    terrorist group to facilitate or carry out a terrorist activity:
Khawaja
,
    at para. 53.

[180]

Several brief
    points should be made about the standard we are to apply in our review of the
    adequacy of jury instructions.

[181]

First, we review
    jury instructions from a functional perspective to determine whether the
    instructions fulfil their purpose of equipping the jurors to decide the case in
    accordance with the proper legal principles. The parties are entitled to a
    properly, but not a perfectly instructed jury:
R. v. Jacquard
, [1997]
    1 S.C.R. 314, at paras. 2 and 32.

[182]

Second, when the
    substance of a complaint of misdirection, or non-direction amounting to
    misdirection, arises as a result of a decision rendered after the charge has
    been given, the essential issue is whether the charge substantially complies
    with the principles later expressed:
R. v. Rhee
, 2001 SCC 71, [2001] 3
    S.C.R. 364, at para. 21.

[183]

Third, the
    review just described is
not
a mechanical task, but rather involves an
    assessment of whether the deficiencies in the charge delivered, compared to the
    standard later pronounced, give rise to a reasonable likelihood that the jury
    misapprehended the correct legal standard:
Rhee
, at para. 21;
R.
    v. Avetysan
, 2000 SCC 56, [2000] 2 S.C.R. 745, at para. 12.

[184]

Finally, our
    evaluation of the likely consequences of any errors in jury instructions
    requires an assessment of the shortcomings in light of the charge as a whole
    and in the context of the entire trial, including the nature of the defence
    advanced on the appellants behalf:
Rhee
, at para. 22.

The Principles Applied

[185]

In my respectful
    view, this ground of appeal fails for several reasons.

[186]

First, the
    conduct element does not require proof that what the appellant did
actually
enhanced the ability of the terrorist group to carry out or facilitate a
    terrorist activity, only that the conduct creates a risk of harm beyond
de
    minimis
.

[187]

Second, the constitutional
    requirement that the offence not be overbroad relates only to the
capacity
of the conduct materially to enhance the groups ability to carry out or facilitate
    a terrorist activity. What the absent instruction would have excluded is
    conduct that a reasonable person would not view as
capable
of
    materially enhancing the abilities of the group to facilitate or carry out a
    terrorist activity. In this case, the appellants actions do not fit this
    description; rather, his conduct is expressly included in the
Code
s
    definition of [p]articipating in or contributing to an activity of a terrorist
    group: ss. 83.18(3)(a) and (b).

[188]

Third, the
    defence advanced at trial focussed principally on the fault element of the
    offence charged, in particular the elements of knowledge of the character of
    the group and the purpose underlying the appellants camp attendance and
    computer assistance. The defence was not directed to the
actus reus
of
    the offence.

[189]

Fourth, the jury
    clearly rejected the defence advanced on the basis of a jury instruction that is
    unimpeachable. The failure to include what is now sought, in light of the
    charge as a whole and the manner in which the defence was run, does not give
    rise to a reasonable likelihood that the jury misunderstood the essential
    elements of the offence.

CONCLUSION

[190]

For
    these reasons, I would dismiss the appeal.

Released: August 19, 2015 (DW)

David
    Watt J.A.

I
    agree G.R. Strathy C.J.O.

I
    agree Gloria Epstein J.A.

[1]
The admissibility of these letters, the departure letters, is a ground of
    appeal.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Beckwith, 2015 ONCA 588

DATE: 20150828

DOCKET: C59234

Laskin, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Lee Wayne Beckwith

Appellant

Brian Weingarten and Michael Dineen, for the appellant

Mabel Lai, for the respondent

Heard: August 26, 2015

On appeal from the sentence imposed on April 4, 2014 by
    Justice Ramsay of the Superior Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals his sentence on three grounds.

1.

The trial judge
    erred by denying him 1.5 to 1 credit for pre-sentence custody.

2.

The trial judge
    erred by sentencing him to a penitentiary term so he could get treatment.

3.

The four year
    sentence is demonstrably unfit.

[2]

On the appellants first ground of appeal, the trial judge did err by
    denying 1.5:1 credit on the ground the appellant would have been denied bail
    had he asked for it. The applicable principle comes from
Summers
: 1.5
    for 1 credit can be denied if the possibility of early release or parole is
    highly unlikely. On the record before us we cannot say it is highly unlikely
    the appellant will be denied early release or parole. His record, though lengthy,
    is dated, as is his parole violation. By itself the appellants claim in his
    texts that he will repeat his conduct once he gets out of jail is not
    sufficient to meet the threshold in
Summers
. Thus, we grant the
    appellant 1.5 for 1 credit for his one year of pre-sentence custody.

[3]

On the appellants second submission the trial judge did not sentence
    the appellant to the penitentiary so he could get treatment. The trial judge
    had already decided on a penitentiary sentence. His comment that the
    penitentiary had facilities to deal with the appellants psychiatric condition
    was simply an observation in response to
amicus
 submission. Thus we
    would not give effect to the appellants second ground of appeal.

[4]

On the appellants third submission, we accept that the trial judge
    imposed a lengthy sentence and that the trial Crowns position is a relevant
    consideration in assessing the fitness of his sentence. Nonetheless, we are not
    persuaded that this sentence is demonstrably unfit. The appellants conduct,
    which amounted to egregious domestic abuse, demanded a sentence that provided
    specific deterrence and denounced the appellants conduct. Two years for his
    criminal harassment of his former partner was not unfit. Nor was the two-year
    sentence for his serious assault of his partner two years earlier. Thus, we do
    not give effect to the appellants third ground of appeal.

[5]

For these reasons leave to appeal sentence is granted and; credit
    for pre-sentence custody is increased to 1.5:1 credit, but the appeal is
    otherwise dismissed.