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CRIMINAL CODE OFFENCES - Offences in relation to terrorism

Thursday, March 21, 2019 @ 8:07 AM  

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Appeal by Hersi from his conviction, by jury, of attempting to participate in the activities of Al-Shabaab, a terrorist group, and counselling another person to knowingly participate in the activities of Al-Shabaab and from his sentence. After his employer became concerned about the appellant’s radical and violent beliefs, the police commenced an investigation. An undercover officer began working with the appellant. The officer testified that over several months, the appellant told him he planned to travel to Somalia, via Egypt, to join Al-Shabaab and encouraged him to do the same. The appellant was arrested at the airport, waiting to board a flight to Egypt. The appellant denied he said what was attributed to him by the officer. The trial judge refused to stay the proceedings based on the officer’s destruction of certain text messages between himself and the appellant. The officer had made verbatim copies of the contents of the messages. The trial judge gave the jury a lost evidence instruction. The appellant, who did not have a previous record, was sentenced to five years’ imprisonment, consecutive on each count, less time served, for a total sentence of nine years and seven and a half months’ imprisonment.

HELD: Appeal dismissed. The Crown failed to show the absence of unacceptable negligence in the destruction of the text messages. The trial judge erred in holding that the destroyed text messages did not result in a breach of the appellant’s s. 7 Charter rights and his ability to make full answer and defence. No remedy beyond an appropriate jury instruction was appropriate and just in the circumstances. The trial judge did not misdirect the jury on the actus reus component of an attempt. The appellant’s actions could reasonably be seen as the commencement of a journey intended to end with the joining of Al-Shabaab in Somalia, which crossed over the line from preparation to attempt. A lengthy prison sentence had to be imposed for terrorist crimes to emphasize denunciation and deterrence. The sentence imposed, while severe, was fit. Sentence: nine years and seven and a half months’ imprisonment -- Criminal Code, s. 83.18.

R. v. Hersi, [2019] O.J. No. 671, Ontario Court of Appeal, D.H. Doherty, B. Miller and G.T. Trotter JJ.A., February 11, 2019. Digest No. TLD-March182019008