COURT FILE NO.:  1750/07A

DATE:  20070723

ONTARIO

 SUPERIOR COURT OF JUSTICE

B E T W E E N:	)
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FAHIM AHMAD,   ZAKARIA AMARA,     SHAREEF ABDELHALEEM,     QAYYUM ABDUL JAMAL,     YASIN ABDI MOHAMED,     JAHMAAL JAMES,   AMIN MOHAMED DURRANI,     STEVEN CHAND,   SAAD GAYA, AND   MOHAMMED ALI DIRIE	) ) ))))))))))))))))))))))))	Mr. Dennis Edney, for Fahim Ahmad   Mr. David Kolinsky, for ZAKARIA AMARA   Mr. William Naylor, for Shareef Abdelhaleem   Mr. Anser Farooq, for Qayyum Abdul Jamal   Mr. Edward Sapiano, for Yasin Abdi Mohamed   Mr. Donald McLeod, for Jahmaal James   Mr. Ravin Pillay, for Amin Mohamed Durrani   Mr. Michael Moon, for Steven Chand   Mr. Paul Slansky, for Saad Gaya   Mr. David Mercury, for Mohammed Ali Dirie
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Applicants	))
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SAAD KHAILD	) )	Ms. Ingrid Grant, for Saad Khaild
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Applicant (Respondent on Cross-Application by the Crown in the Right of Canada)	) ))
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HER MAJESTY THE QUEEN IN THE RIGHT OF CANADA	))	Mr. John North, and Mr. Marco Mendicino, for the Crown (Canada)
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Respondent (Applicant on Cross-Application Against Saad Khalid)	)))
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HER MAJESTY THE QUEEN IN THE RIGHT OF ONTARIO	)))	Mr. Robin Basu, and Mr. Michael Dunn, for Crown (Ontario)
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Respondent	)
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	))	HEARD:  May 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 22, 23, 2007

 

This judgment is subject to an Order pursuant to s. 517 of the Criminal Code of Canada directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a)   if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b)    if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

 

REASONS FOR JUDGMENT

DAWSON J.

 

(i)               The applicants are charged with a variety of terrorism offences under Part II.1 of the Criminal Code.  They are all in custody and are currently being held at the Maplehurst Correctional Complex in Milton, Ontario.

(ii)              The applicants are not permitted to communicate with one another by court order.  Correctional officials have determined that the applicants would be at risk of serious harm or death if they were to be placed in general population, and even if they were to be placed with other inmates in protective custody.  The net result of this combination of circumstances is that they are held in administrative segregation.  Safety concerns prevent them from being placed with others, and court orders prevent them from being permitted to socialize with each other.  They are essentially confined to their cells for 23 hours and 20 minutes per day.  The other 40 minutes are used for showers, phone calls or solo trips to the exercise yard.

(iii)            The applicants seek relief from the isolating circumstances of their detention.  The matter is somewhat complex procedurally, and the application includes bail review applications, applications for habeas corpus with certiorariin aid, and originating applications for relief pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms, for alleged violation of ss. 2(a), (b), (c) and (d), 7 and 12 of the Charter.

(iv)            The application was heard over 12 days from May 7 to 23, 2007.  On June 11, 2007 I released a brief endorsement outlining my conclusions with reasons to follow.  These are the reasons for judgment.

The Procedural Complexities

(v)               Eight of the ten applicants have had bail hearings.  All of the applicants who had bail hearings were ordered detained.  Five of the applicants who were detained were made subject to an order pursuant to s. 515(12) of the Criminal Code that they not communicate with their co-accused.  Those five are the applicants Chand, Gaya, Durrani, Amara and Jamal.  As Mr. Durrani did not file proper material and his counsel did not attend the hearing, I dismissed his application as abandoned.  The four applicants who remain and who are subject to an order pursuant to a s. 515(12) of the Code have each brought an application pursuant to s. 520 of the Criminal Code to review their detention order.  They do not seek release from custody, but argue that the non-communication provision included in the order should be set aside.  Each of the four have also brought an application for habeas corpus with certiorari in aid to review the legality of their conditions of detention, and also allege a variety of Charter violations.

(vi)            Four other applicants who were ordered detained are not subject to a non-communication order pursuant to s. 515(12) because the Crown did not ask for one.  These applicants are James, Mohamed, Dirie, and Khalid.  However, it appears that errors were made when the warrants of committal were prepared, as Maplehurst Correctional Complex received documentation indicating erroneously that these four applicants were also subject to non-communication orders.  Consequently they are held in administrative segregation as well.  Each of these four men brings an application for habeas corpus with certiorari in aid.  To further complicate matters, the Crown claims it always intended to seek a s. 515(12) order against one of these four – Saad Khalid.  The Crown has brought a review application pursuant to s. 521 of the Criminal Code asking this court to impose a non-communication order on Mr. Khalid at this time.

(vii)           Finally, there are two applicants who have not had bail hearings.  They are the applicants Ahmad and Abdelhaleem.  When they were remanded from time to time, the Crown sought and obtained an order pursuant to s. 516(2) of the Criminal Code that they not communicate with their co-accused.  No statutory form of review of such an order is provided for in the Criminal Code, and they have brought applications for habeas corpuswith certiorari in aid and allege various Charter violations.

The Position of the Ministry of Safety & Correctional Services of Ontario

(viii)         The prosecution of this case is being conducted by the federal Crown.  Ontario has been made a party by the applicants.  Ontario is a required party by virtue of s. 109 of The Courts of Justice Act, R.S.O. 1990, C.43, because Charter relief is sought against the province.

(ix)            Ontario takes no position with respect to the validity of the non-communication orders.  However, of importance to this application, Ontario, through the Ministry of Safety and Correctional Services, has determined that if the non-communication orders are struck out by the court, the Ministry will immediately undertake construction to create one or more day room areas adjacent to the cells where the applicants are currently held in segregation.  It will take an estimated six to eight weeks to complete this construction.  Construction is required as there is no common area in the unit where the applicants and their co-accused are housed.  Once the construction is complete, any of the applicants who are permitted to communicate with each other will be able to associate with their co-accused in the day room area during those hours when inmates in general population are allowed out of their cells.  This position is subject to the reasonable proviso that the Ministry retains its discretion to act to return the applicants to segregation should there be any threat, behaviour or new information that warrants it, in accordance with the Ministry of Correctional Services Act, R.S.O. 1990, M.22.  The Ministry would also retain discretion to move some or all of the applicants to other institutions, to regulate privileges and to enforce the rules of the institution, as for any inmate.

(x)               With respect to the four applicants who never did have a non-communication order, once the Ministry learned of the error the Ministry offered them a transfer to another institution where they could associate with each other in a smaller detention unit.  I am advised that each of those four applicants wants to remain where they are pending this court’s decision.

(xi)            Ontario also takes the position that if the non-communication orders are to remain in effect, the conditions of detention do not constitute any violation of the Charter, given certain other accommodations that the Ministry has made in relation to the applicants.  Those are matters for argument in what I have termed “phase two” of this application.

Phase One and Phase Two of the Application

(xii)           I determined that the applications should be broken into two phases.  The first will deal with whether the non-communication clauses are valid.  If they are not, that may be the end of the matter given the Ministry’s agreement to build a day room.  If the non-communication provision remains for all or for some of the applicants, it may then be necessary to hear further evidence and submissions as to whether the conditions of detention brought about by Ontario’s response to the orders violate the applicants’ Charter rights, or are otherwise unlawful.  As that aspect of the applications was not fully argued, these reasons deal only with the validity of the non-communication orders.

The Non-Publication Order

(xiii)         Counsel for Mr. Khalid requested an order for non-publication pursuant to s. 521(10) of the Criminal Code.  That section makes the provisions of s. 517 of the Code applicable on a Crown review conducted pursuant to s. 521 of the Code.  Under s. 517(1) the court must make the order if requested and I made such an order at the commencement of the hearing.  As all of the evidence was led in relation to all aspects of the phase one hearing, this order has the practical effect of prohibiting publication of all of the evidence led.

(xiv)         During the course of the hearing counsel for the Toronto Star newspaper appeared and argued that the publication ban should be modified to allow the media to broadcast and publish evidence relating to the conditions of detention the applicants are subject to.  I have determined that the order pursuant to s. 517(1) will stand.  I will release a separate brief endorsement dealing with arguments raised by the Toronto Star.  I should point out that much of the evidence led before me is identical or similar to that led on earlier bail hearings that remain subject to other non-publication orders.

The Evidence – An Overview

(xv)           I heard extensive evidence in this matter.  A police officer testified and produced numerous exhibits.  I viewed videos and listened to recordings.  A number of affidavits were filed from the superintendent of Maplehurst; the unit manager of Maplehurst where the applicants are housed; from Professor Mohammad Fadel, an expert in Islamic law, commenting on the religious needs of the applicants; and from the applicants themselves.  Cross-examination proceeded on the affidavits.  I also have before me transcripts of all of the bail hearings conducted for the applicants.  Each of those lasted for more than a day.

(xvi)         Due to the volume of the evidence, and also keeping in mind the non-publication order, I will not undertake a detailed review of the evidence in these reasons.  I will, however, make both general and specific references to the evidence where it is necessary to explain my reasoning process.

(xvii)      In general, the evidence shows that there are three aspects to the prosecutions and that the activities of the various accused fall, for the most part, into one of those three aspects, although there is some overlap.

(xviii)     First, there was a scheme to import firearms and ammunition into Canada, which the Crown alleges was for the purpose of aiding a terrorist group in terrorist activities.  Second, there is evidence of a training camp being held north of Toronto in a rural area during winter conditions.  The training camp lasted for approximately two weeks during December, 2005.  There is evidence that the participants engaged in general physical training, firearms training and that they were involved in the discussion of and, arguably, indoctrination into, extremist ideology that included acts of terrorism against both civilian and military targets.  The evidence also indicates that during the training camp the participants were being evaluated by those in leadership positions, both as to their abilities and dedication.

(xix)         The police have recovered video and audio recordings of some events at the training camp.  A police agent who infiltrated the group was present at the training camp and has provided extensive evidence about what occurred and who was involved.  The authorities have also conducted extensive physical and electronic surveillance of those who participated in the training camp.  At about the time of the training events the evidence shows that plans were being formulated to take over the Parliament of Canada and to hold politicians as hostages to try to force Canada to withdraw its troops from Afghanistan, and to force the release of Muslim prisoners.  The politicians were to be beheaded as part of this plan.  There were also schemes to obtain and use assault rifles and other firearms.

(xx)           Third, there was a plot to build and detonate three large truck bombs.  Proposed targets included the Toronto Stock Exchange, the Toronto headquarters of the Canadian Security Intelligence Service (CSIS) and a military base.  Considerable loss of human life was contemplated.  The group involved in this plot had secured a warehouse and obtained several tonnes of what they understood to be ammonium nitrate fertilizer.  The target date for detonation of the bombs was late September 2006.  This group also obtained other bomb making chemicals, and the applicant Zakaria Amara had constructed a sophisticated detonator.  I have seen a video of Mr. Amara demonstrating that detonator, which utilized a photo sensitive switch and a light source.  The detonator could be triggered from almost anywhere by means of a cell phone.

(xxi)         While the evidence shows that police agents were involved in providing the accused with what they thought were the chemicals they were seeking, for the purpose of this application I can say that there is considerable evidence that the applicants and various other accused were dedicated to undertaking terrorist acts of the nature I have described, and had demonstrated their intent by taking active steps to pursue that intent quite independently of the actions of the police agents.  The Crown’s case appears to be a relatively strong one at the moment.

(xxii)      On the other side of the coin, the evidence also shows that there was some variability in the degree of dedication by the individual applicants.  The evidence also shows that some had less knowledge than others about the precise nature of the proposed terrorist acts or intended targets.

(xxiii)     Many but not all of the applicants are youthful.  In some ways there was a lack of sophistication to things they were doing, but only in the sense that they demonstrated a lack of experience in the execution of criminal activity.  On the other hand, there is quite a degree of sophistication in the sense that many of these men are well educated, computer literate, mathematically and scientifically inclined, and very resourceful.  They persisted in their plans although it is clear they were aware they were under surveillance.  Events around the world have shown that groups of young men much like this group are quite capable of causing grave harm to innocent people on a large scale.

The Imposition of the Non-Communication Orders

(xxiv)      The procedures and tests for release or detention at the stage of a judicial interim release hearing (bail hearing) are set out in s. 515 of the Criminal Code.  Some related procedures are dealt with in the surrounding sections.  Section 515(12) permits a justice who detains an accused at a bail hearing to include a non-communication clause in the detention order.  Section 516(2) allows a justice to make a similar order when a case at the bail hearing stage is adjourned and the accused is remanded to custody.  These provisions of the Criminal Code read as follows:

1. 515(12)

A justice who orders that an accused be detained in custody under this section may include in the order a direction that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, except in accordance with such conditions specified in the order as the justice considers necessary.

1. 516(2)

A justice who remands an accused to custody under subsection (1) or subsection 515(11) may order that the accused abstain from communicating directly or indirectly, with any victim, witness or other person identified in the order, except in accordance with any conditions specified in the order that the justice considers necessary.

(xxv)        It will immediately be seen that the order “may” be imposed.  Clearly these sections invest the court with a discretion.  It is trite to say that such a discretion, being exercised in the context of an important aspect of a judicial proceeding, must be exercised judicially on a principled basis and having regard to the evidence and the issues that are relevant to the nature of the legal proceeding in question.  Section 515(12) is part of the release or detention process that is set out in considerable detail in the other provisions of that section.  I would note that s. 515(5) requires a justice who orders the detention of an accused to provide reasons for doing so.  The non-communication order provided for in s. 515(12) is part of that detention order.

(xxvi)      Drawing these fairly obvious points together, I would conclude that a non-communication order made pursuant to s. 515(12) must be the product of a considered judicial evaluation of whether the order is justified and appropriate having regard to the purpose of the section and weighing all relevant considerations.  Reasons for the decision are required.

(xxvii)   I would also note that s. 515(12) invests the justice making a non-communication order with the ability to specify circumstances in which the non-communication order will not apply.  This is clear from the concluding words of both ss. 515(12) and 516(2).  The non-communication order, if made, applies, “except in accordance with such conditions specified in the order as the justice considers necessary.”  This is an indication that even where the making of the order is otherwise justified, the justice is to take into account the impact of the non-communication order and may impose terms to prevent the order from interfering unreasonably with legitimate competing interests.

(xxviii)  Against this background I will now turn my attention to what did and did not occur when the non-communication orders were imposed.  I will deal first with the s. 515(12) orders.

(xxix)      A review of the transcripts of the bail hearings for each of the applicants allows some general statements to be made.  In most cases the imposition of the order seems to have been almost an afterthought.  In most cases, after reasons for detention were delivered and as the applicant was about to be taken from the courtroom, the Crown would ask for the s. 515(12) order.  The orders were then made, in almost all cases, in a perfunctory fashion.  With some exceptions, no further argument took place, counsel was not called upon, and the order was made without any reasons being given.

(xxx)        I have spoken in generalities as Mr. North for the federal Crown candidly concedes that there is manifest error in the way in which the orders were made.  Nonetheless, the Crown forcefully argues that there was ample evidence to support the orders and that I should uphold them.  I will get to that argument in due course but for now it is important to establish that errors were made in the making of the orders.  The error was in failing to demonstrate on the record that the court was exercising its discretion judicially on the basis of evidence, and having regard to the various relevant considerations.  One of the things that ought to have been taken into account was the impact the non-communication orders would have on the conditions of the applicants’ detention.

(xxxi)      In fairness to the justices of the peace who heard the bail hearings, I should say, again with some exceptions, that counsel representing the applicants did not challenge the imposition of the non-communication orders at the bail hearings.  As well, it seems to me from a review of the transcripts that while it was known that the applicants and their co-accused were being held in administrative segregation and certain protests about that were voiced on the record, it was not well understood that there was a direct relationship between the non-communication orders and the isolating circumstances in which the accused were being held.

(xxxii)   When protests about conditions at the jail were made by counsel on the record, they were often met with comments from the justices of the peace of having some sympathy for the situation but that there was nothing the court could do about it.  I say this not to be critical of the justices of the peace, but as evidence of the fact that, at least in the earlier stages, no one was making the connection between the non-communication orders and the applicants being held in administrative segregation.

(xxxiii)  Such a link was suggested at the end of the bail hearing for the applicant Steven Chand.  On February 6, 2007 the justice of the peace who presided at Mr. Chand’s bail hearing gave approximately 57 pages of reasons for detaining Mr. Chand.  At the end of the reasons the Crown appearing that day asked for an order pursuant to s. 515(12) for non-communication with all of Mr. Chand’s “adult or youth co-accused.”

(xxxiv)  Counsel for Mr. Chand argued against the making of the order because there was evidence in that case about the use of segregation.  The justice of the peace indicated that such orders were routine, and would not prevent Mr. Chand from being moved out of the unit where he was held in solitary confinement.  Defence counsel then clearly indicated that there was no place to move the accused to.  The presiding justice of the peace indicated that she had no jurisdiction over the accused’s “custodial placement,” and reflected on the fact that the charges were serious.  After hearing further submissions the justice of the peace then gave four paragraphs of reasons for making the non-communication order.  The gist of her brief reasons for making the order was: “…because nothing has been presented to the court that the only places that these persons…will be, will always be that detention area.”  The justice of the peace then stated that there were “other avenues left open to the defence.”

(xxxv)   Mr. North concedes on behalf of the federal Crown that the brief reasons in Mr. Chand’s case represent the “high-water mark” in terms of recorded reasons for why a s. 515(12) order was made in any of these cases.  I agree with this concession.

(xxxvi)  When the comments and reasons of the justices of the peace are taken together, they show that the making of the orders was considered to be routine.  In addition, by referring to the absence of evidence as she did, the justice of the peace who dealt with Mr. Chand placed an onus on him to adduce evidence in order to avoid what she considered to be a routine order.  This imposed a burden on the accused which does not arise on a proper interpretation of the section.  Although this was a reverse onus bail hearing by virtue of the terrorism offences charged, that onus is with respect to demonstrating a basis for release: see s. 515(6) of the Code.  There is nothing in that subsection that places an onus on the accused to establish that a non-communication order should not be made under s. 515(12).  The section is silent as to onus in this regard.  It may well be that this is not a situation where there is an onus or burden.  However, the Crown was seeking the order and there would have to be evidence in the record to justify it.  Such an order is not one to be made routinely in the absence of the accused adducing evidence to show why the order should not be made.

(xxxvii)I turn now to the orders made pursuant to s. 516(2).  As previously indicated, two of the accused who have not had bail hearings are subject to non-communication orders imposed under that provision.  Orders were made on a number of occasions as the accused were remanded from date to date.  Again, the imposition of the non-communication orders seems to have been considered a matter of routine.  On a number of occasions when remands occurred the court was made aware that the accused were being held in solitary confinement.  Again, those comments were not specifically linked to the non-communication orders.

(xxxviii)                     In summary, the s. 516(2) orders were made without a considered weighing of the evidence or without any evidence at all, and without evaluating the impact the orders would have upon the conditions the applicants would be subjected to while they were in detention.  Reasons for making the orders were either inadequate or non-existent.

The Legal Effect of the Manner in Which the Non-Communication Orders Were Made

(xxxix)  I will commence by referring again to the fact that the applicants who are subject to a s. 515(12) order have brought both a “bail review” pursuant to s. 520 of the Code, and applications for habeas corpus with certiorari in aid.  The two applicants who are subject to s. 516(2) orders have been forced to resort only to applications for habeas corpus with certiorari in aid as no statutory review process is available.

(xl)            With respect to the applicants who have brought a s. 520 detention review application, as there were errors in principle when the detention orders were made, I am in a position to reconsider the matter on the basis of the record below and any additional evidence led, and to make any order that could have been made at the bail hearing: s. 520(7).  The Crown concedes this.  In these circumstances it is unnecessary for me to resort to habeas corpus: R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665.

(xli)           With respect to the applicants who are subject to an order under s. 516(2), it is the habeas corpus application that has brought them before the court and which requires me to examine the lawfulness of their detention.  It is well recognized that habeas corpus will lie to review the lawfulness of an accused persons detention in a “prison within a prison.”  For example, the remedy is available to review an inmate’s reclassification to higher security, placement in solitary confinement or administrative segregation, or placement in a special handling unit: May v. Ferndale Institution, 2005 SCC 82 (CanLII), [2005] 3 S.C.R. 809; R. v. Miller, 1985 CanLII 22 (SCC), [1985] 2 S.C.R. 613; Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643; Morin v. National Special Handling Review Committee, 1985 CanLII 24 (SCC), [1985] 2 S.C.R. 662.

(xlii)         I am satisfied that there was a jurisdictional error in the making of the s. 516(2) non-communication orders.  As I have said, those orders were made without an evidentiary foundation and without any consideration of the impact those orders would have on the conditions of the applicants’ detention.  No reasons were given.  The remaining question, however, is whether certiorari should issue to quash the non-communication orders.  While habeas corpus is not a discretionary remedy, certiorari is.  The Crown argues that despite the errors in the making of the orders I should decline to quash the non-communication orders because the evidence, when properly evaluated, demonstrates that the orders would inevitably have been granted.

(xliii)      I agree that certiorari to quash does not flow automatically from my determination that there was a jurisdictional error in the making of the orders.  That is particularly so when neither of the two applicants who are subject to a s. 516(2) order (Ahmad and Abdelhaleem) have taken any issue with the amplification of the record before me.  The evidence that would have been led had Ahmad and Abdelhaleem had a bail hearing was all led before me with the agreement of counsel.  This places me in a position to determine whether an order under s. 516(2) would inevitably have been made had the evidence been before the justice of the peace.  All counsel were content to proceed in this fashion.

(xliv)        Pursuant to my reasoning so far, my ultimate conclusion in this case, whether made under the rubric of a s. 520 review or in determining whether certiorari should issue to quash the s. 516(2) orders, requires me to evaluate the evidence in order to determine whether there is adequate evidence to justify the making of the orders.  This requires that I identify the purpose that ss. 515(12) and 516(2) are intended to achieve and that I determine what must be shown – or the standard that must be met – to justify the making of such an order.

(xlv)         With respect to purpose, it is clear from the wording of both ss. 515(12) and 516(2), that the subsections are designed to protect victims and witnesses by prohibiting an accused from communicating with them.  Preventing communication with “other persons” is obviously broad enough to include co-accused.  It is common to impose release conditions upon co-accused to prevent them from improperly colluding in order to protect the integrity of the administration of justice, and it is logical to think that the same reasoning should apply to co-accused who are in custody.  In its factum the Crown points to the proceedings of the Senate Committee on Legal and Constitutional Affairs held on February 10, 1994 and April 26, 1994.  The Committee spoke of these provisions applying to an accused’s “accomplices” as well as to victims and witnesses, in order to safeguard the administration of justice.  It seems to me this is plain on the face of the provisions.  When a number of co-accused are in custody the same considerations would apply as when they are out of custody.

(xlvi)        I turn now to what must be shown and to what standard.  Sections 515(12) and 516(2) both appear in Part XVI of the Criminal Code which deals with compelling the appearance of the accused before the court in the early stages of the criminal process.  While both subsections deal with circumstances where there has been a remand into custody, they are tied up in the process of determining whether an accused should be granted judicial interim release or be detained.  As already mentioned, s. 515(12) is embedded in the very section that establishes the most important aspects of the bail process, both procedural and substantive, including the tests for release or detention, the onus, and the nature of the conditions that may be attached to a release order.

(xlvii)      Pursuant to s. 515 of the Code the issue of detention or release is determined having regard to the primary, secondary and tertiary grounds described in s. 515(10).  Irrespective of whether the Crown or the accused bears the onus, where conditions can be imposed that will adequately address concerns related to the primary, secondary and tertiary grounds, an accused may be released when it would not have been appropriate to do so absent a restrictive condition.  In other words, when it comes to determining whether release on conditions is appropriate, the conditions are evaluated in the context of the need to address the primary, secondary, and tertiary grounds described in s. 515(10), and the ability of the condition proposed to do so.  It has been held that in order for a condition of a release order to be judged a “reasonable condition” the particular term must be related to a purpose which would otherwise justify the accused’s detention: R. v. Keenan (1979), 57 C.C.C. (2d) 267 (Que. C.A.).  It seems to me that if conditions of release are to be evaluated in this fashion that the same approach should apply when it comes to determining whether conditions should be imposed at the time of detention.

(xlviii)   In his text The Law of Bail in Canada, 2^nd. ed., Justice Gary Trotter includes a brief comment on s. 515(12).  At p. 260 the author contends that: “The considerations that animate the imposition of an order under s. 515(4)(d) [non-communication condition upon release] ought to apply to orders made under s. 515(12)….”  He also writes in relation to orders under s. 515(12) at page 260: “As with the imposition of all other conditions, there must be a legitimate basis for restricting the accused person’s associations and activities prior to trial.”  I agree with these comments.  These comments offer further support for my conclusion that the need for a non-communication condition upon detention should be evaluated in terms of the criteria that govern the question of release or detention.

(xlix)        Conditions that deal with non-communication attached to a release order will not usually be addressed to the primary ground.  However, they may satisfy concerns under the secondary and tertiary grounds for detention or release.  The secondary ground in s. 515(10) (b) and the tertiary ground in s. 515(10)(c) read as follows:

515(10)

For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(b)     where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c)     on any other just cause being shown and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.

(l)                 In the case before me Crown counsel and counsel for the applicants have focused their arguments as to whether the non-communication orders in this case are justified on the secondary ground.  I agree with this approach.  The Crown has not expressly placed any reliance on the tertiary ground.  I also find that it is particularly appropriate to apply the standard of the secondary ground in this case because if the non-communication orders remain in place, the applicants will be subjected to a much more restrictive confinement than most inmates are.  They will continue to be detained in “a prison within a prison” in administrative segregation, the exact details of which were the subject of considerable evidence.

(li)               Before proceeding further I wish to repeat that it seems to me that even in circumstances where there is a reverse onus with respect to the issue of release, the words of s. 515(6) which create that reverse onus do not go so far as to render the reverse onus applicable to the issue of whether conditions should be imposed upon detention.

(lii)            Against this background the Crown submits there are three reasons which justify the non-communication orders within the terms of the secondary ground described in s. 515(10)(b).  The Crown submits in its factum that the same rationale should be applied to the s. 516(2) orders.  The three reasons are:

(a)              The orders are necessary for the protection and safety of the public, having regard to the substantial likelihood that the accused will, if permitted to associate and communicate with each other, continue to conspire to commit acts of terrorism;

(b)

(c)              To maintain the integrity of the trial process and to ensure there is no interference with the administration of justice;

(d)

(e)              To protect the safety of the correctional officers who are guarding the accused.

(f)

(liii)           I will deal with these in reverse order, as I conclude there is more substance to the first reason, than to the last two, based on the evidence I heard.

(liv)           Dealing with the third reason, I have heard no evidence of any specific threat to the safety of correctional officers.  Considerable evidence has been called about the situation at Maplehurst.  The farthest the evidence goes is to express a concern that staff at Maplehurst do not know how the accused will act if they are allowed to associate because correctional staff have not had an opportunity to see the accused men interacting.  However, there have been no significant incidents since the applicants have been detained at Maplehurst.

(lv)            The main thrust of the Crown’s argument is that some of the applicants and their co-accused expressed the resolve to shoot or kill police officers or others who got in their way.  That was prior to their arrests when the applicants had access to weapons and were actively pursuing their objectives.  It is speculation to say that there is a likelihood, let alone a substantial likelihood, of a threat of violence to correctional staff if the applicants are allowed to communicate and associate in the highly controlled environment of a maximum security remand facility.

(lvi)           As to the second reason, to maintain the integrity of the trial process and ensure there is no interference with the administration of justice, from what I have seen of the Crown’s case it is based almost entirely on wiretaps, seized video’s and computer based communications, surveillance, and the testimony of police agents.  The case appears to be strong.  There is very little danger of a case based on this type of evidence being undermined by collusion amongst the applicants and their co-accused.  In addition, although the Crown may have a formidable case, the accused applicants are presumed to be innocent.  Even if there is some risk of this nature, the cost of achieving the minimal protection to this interest is too high given the implications the orders have on the applicants’ conditions of detention.

(lvii)         The Crown’s first reason for seeking to uphold the non-communication orders is the most meritorious.  The Crown submits that the nature of the offences and the particular allegations make protection of the public the dominant consideration on any bail issue involving the applicants.  I agree.  The federal Crown argues in its factum that the motivation of the terrorist group is:

…Unique, inexplicable and inherently at odds with social norms and the rule of law.  They are bound by a covenant that supersedes any authority they would recognize this court as having over them….The alleged conduct in this case reflects a premeditated attempt to work together as a group to commit terrorist activities leading to mass murder. (emphasis in original).

 

(lviii)      There is no doubt that what the evidence shows was being planned would, if successfully carried out, have had horrible consequences.  However, it must be remembered that the applicants are now all in jail.  Approximately a year has gone by since their plans were disrupted.  Most of the applicants and their co-accused are young men without criminal records who, to varying degrees, became caught up in what some would refer to as radical Islamic fundamentalism.  There is controversy about the use of such terms.  The evidence does not establish that there was complete cohesiveness amongst the group.  The Crown’s argument is painted with broad and all encompassing strokes.  While I hesitate to use the descriptor in a case of this sort, it is really an in terrorem argument.

(lix)           When I sift and evaluate the evidence in the individual cases of the applicants, as amplified before me, and balance the competing interests having regard to the impact the non-communication orders are having on the applicants’ conditions of detention, except in the cases of two of the applicants, I cannot find compelling evidence that incarceration alone is inadequate to protect the safety of the public.  The two exceptions are Fahim Ahmad and Zakaria Amara.  They were the two leaders of this group.  I put their cases to the side for the moment.

(lx)            For the others I find I am unable to conclude that there is a substantial likelihood that they will commit further offences that will endanger the public if they are allowed to communicate with one another in the same fashion that other inmates do while confined at Maplehurst.  It is not that there is not a risk; I think there is, but they are in custody and it does not rise to the level of a substantial likelihood.  This standard is significant as it appears to have been of central importance to the Supreme Court of Canada in upholding the constitutional validity of the secondary ground for detention in s. 515(10)(b) in R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711, at para. 39.

(lxi)           I wish to add that the force of the Crown’s argument is to some degree undermined by the way the applicants are dealt with when they are brought to court.  This is something in the Crown’s control.  Although the Crown submits the public will be endangered if the applicants are permitted to communicate with one another, the evidence shows that when the applicants and their co-accused are transported to court they are handcuffed together and placed in close confines in a police transport van.  When they arrive at the courthouse they are placed side by side in open front cells, and often two to a cell.  Outside the courtroom they are kept in group holding cells.  In court they are seated together in the prisoners box.  These things are not insignificant.  The preliminary hearing may take 6 months to complete.  The motions before me have taken a number of weeks.  There is very little monitoring of the applicants in these circumstances.

(lxii)         When I balance all of the factors I am entitled and required to take into account on a detention review under s. 520 of the Criminal Code, I conclude the non-communication orders made pursuant to s. 515(12) should be struck out for all of the applicants who are subject to such an order, to the extent the orders apply to co-accused who are in custody, with the exception of Zakaria Amara.  In his case I conclude the non-communication order is warranted and I would not disturb it.  I will deal with Fahim Ahmad separately in a moment, but I will now explain my reasoning for Amara, who is being dealt with by means of a s. 520 detention review.

(lxiii)      Amara was one of the two main leaders.  Ahmad was the other one.  Amara was very involved at the training camp and was present when Ahmad worked on indoctrinating the trainees.  Amara was involved in evaluating the trainees.  He later became dissatisfied with the degree of progress and speed with which Ahmad was pursuing implementation of the terrorist plans.  He also favoured large truck bombs as a way of getting his point across.  He was able to splinter his group off from Ahmad’s.  He led and some followed him away from Ahmad.  The evidence shows that he then oversaw the truck bombs plot.  He was pressing forward fairly relentlessly.  Under his direction premises were rented and bomb making chemicals were obtained, including three tonnes of fertilizer to be used to make the bombs.  He developed the detonators.  Given his leadership role, his dedication to terrorist projects and the fact that others saw him as a leader and followed him, I conclude that there is a substantial likelihood that if he is permitted to communicate with his co-accused, he will urge them to continue to follow the cause.  I also conclude there is a substantial likelihood that he will assert himself in attempts to improperly influence the course of the criminal proceedings.  The evidence shows Amara to be a fanatic dedicated to his cause and capable of leading others to assist him in its fulfillment.

(lxiv)        Fahim Ahmad is also a dedicated leader.  The evidence, if anything, is even stronger against him in terms of demonstrating that he is dedicated to achieving his goals on a long term basis.  He developed the plan to take over Parliament.  He was also the one who repeatedly exhorted those at the training camp to follow what he described as the “Covenant.”  Ahmad is captured on a video made at the training camp that was reconstructed by the police from seized computer files.  He instructs others that they must do whatever it takes to work towards their objectives, no matter the cost, the consequences, or how long it takes.  Ahmad implores the trainees to remain dedicated to the cause, and speaks of them all having been “purchased by Allah” in return for heaven.  He also urges them to go back to their jobs, families and communities and to pretend to fit in, while pursuing the terrorist cause.

(lxv)         In the case of Mr. Ahmad I conclude the evidence is overwhelming in terms of the need for a non-communication order.  Mr. Ahmad has not had a bail hearing and his order is made under s. 516(2).  His means of seeking a remedy is habeas corpus with certiorari in aid.  Notwithstanding the jurisdictional error I have found, I decline to issue an order in the nature of certiorari to quash the non-communication order.  I have exercised my discretion on the basis of my conclusion, based on the amplification evidence all counsel participated in placing before me, that the making of a s. 516(2) order was and is inevitable on the basis of the evidence: R. v. Papadopoulos, 2005 CanLII 8662 (ON CA), [2005] O.J. No. 1121 (C.A.), at paras. 19-28.

(lxvi)        Mr. Abdelhaleem is the other applicant who must rely on habeas corpus with certiorari in aid to attack a s. 516(2) order.  For clarity, in his case there was also jurisdictional error in the making of the order.  He is not in the same position as Ahmad.  The evidence placed before me does not lead to the same conclusion.  On the basis of the jurisdictional error in the court below an order in the nature of certiorari will issue to quash the non-communication order, but only to the extent it prohibits communication with co-accused who are in custody.  I find that the amplification evidence supports a non-communication order prohibiting Abdelhaleem from communicating with any co-accused who is not in custody.

Saad Khalid – The Crown’s s. 521 Review Application

(lxvii)      Saad Khalid was ordered detained in custody following a bail hearing.  Extensive evidence was led at that hearing that the Crown submits justifies and supports the making of a non-communication order pursuant to s. 515(12).  The problem is the Crown did not ask the justice of the peace to make such an order.  The Crown says this was through oversight.  No evidence was filed to support that submission.  In addition, it should be noted that while the Crown did ask for such orders for many of the co-accused, there were three other accused persons in respect of whom no order was sought.  As the Crown did not seek such an order in all cases I am unable to infer that in Mr. Khalid’s case it was an oversight.

(lxviii)   Counsel for Khalid argues that there is no jurisdiction for me to make the order requested.  That argument proceeds as follows.  Section 521(1) of the Criminal Code provides:

If a justice…makes an order under subsection 515(1), (2), (7), (8) or (12)…the prosecutor may, at any time before the trial of the charge, apply to a judge for a review of the order.

 

Section 521(8) of the Criminal Code provides:

On the hearing of an application under this section, the judge…shall either

(d)     dismiss the application, or

(e)     if the prosecutor shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in s. 515 that he considers to be warranted.

Here the justice made no order other than the one and only order that the Crown sought – a detention order.  The Crown does not seek to have that order set aside, but seeks to add something to the order that was not sought in the first place.  Counsel for Mr. Khalid argues that this is distinguishable from a situation in which an order under s. 515(12) was sought and denied.

(lxix)        Counsel for Mr. Khalid also argues that if a s. 521 review is available, neither an error in principle nor a material change in circumstances have been demonstrated such that this court should become involved.

(lxx)         These are interesting arguments.  However, I have concluded it is not necessary to decide them in this case.  Assuming that a s. 521 review is available to the Crown in these circumstances, having reviewed the evidence concerning Mr. Khalid, I would not make the order the Crown requests.  The Crown seeks the order against Mr. Khalid on the same basis it seeks to maintain the orders made against his co-accused.  Mr. Khalid is detained in custody, and in my view the evidence against him does not go so far as to show that the public and the administration of justice are not adequately protected by his incarceration.  In particular, the evidence fails to show that there is a substantial likelihood that Mr. Khalid will commit further offences while incarcerated if he is permitted to communicate with his co-accused.  He will not be communicating with Mr. Ahmad or Mr. Amara, as the orders applying to them will prevent that.

(lxxi)        As with the s. 520 applicants other than Ahmad and Amara, the evidence is inadequate to establish the need for the non-communication conditions in the context of the secondary ground described in s. 515(10)(b) of the Code.  In reaching this conclusion I have taken into account the impact such an order will have on the conditions of Mr. Khalid’s incarceration.

(lxxii)      The Crown’s s. 521 application in respect of Saad Khalid is dismissed.

The Charter Issues

(lxxiii)   The applicants allege they have suffered numerous Charter violations.  It is said there have been violations of the applicants’ s. 2(a) rights to freedom of religion.  All of the applicants are Muslim.  This submission relates to the impact the non-communication orders are having on the applicants’ obligations as Muslims to pray communally to re-enforce the faith.  It is also alleged that despite the fact the applicants are otherwise lawfully detained, the conditions of their detention have become unlawful because the non-communication orders violate their freedom of expression, of peaceful assembly and of association contrary to ss. 2(b), (c) and (d) of the Charter.  It is also alleged that the applicants have been deprived of liberty and security of the person by means that are in contravention of the principles of fundamental justice in violation of s. 7 of the Charter, and that they are being subjected to cruel and unusual treatment or punishment contrary to s. 12 of the Charter.

(lxxiv)   These claims of Charter violations are brought by the applicants due to their circumstances of confinement in administrative segregation.  A violation of the Charter can only come about as the result of state action.  There are two state actions implicated here.  First, the federal Crown which is prosecuting the case sought and obtained the non-communication orders.  Second, the provincial correctional authorities decided to place the applicants in administrative segregation.

(lxxv)      In these circumstances it is important to distinguish between a submission that the orders should not have been made because to do so would violate the Charter, and a submission that Ontario has violated the Charterby the manner in which provincial correctional officials have reacted to the orders.  Submissions of the first type relate directly to the constitutional validity of the orders.  Submissions of the second type do not.

(lxxvi)   The manner in which the provincial correctional authorities reacted to the orders was a factor the justices of the peace should have taken into account in determining whether to make the orders, and it is a factor this court should consider in determining whether to uphold the orders, but the province’s reaction to the orders is not a factor which can undermine the constitutional validity of the orders.  While the province’s reaction is capable of being the source of a Charter violation, it cannot turn an otherwise lawful order into an unconstitutional one.  This has important implications, because if the orders are upheld as valid – the determination I am making in phase one – the resolution of the alleged Charter violations by the provincial correctional authorities must start with the assumption that they are reacting to valid non-communication orders.

(lxxvii)  I have already determined that the non-communication orders must be modified to allow the applicants, other than Ahmad and Amara, to communicate with their co-accused who are in custody.  I have said that I have taken into account the impact the non-communication orders have had on the conditions of the applicants’ detention.  I have kept in mind that the applicants are presumed to be innocent, and that court imposed restrictions on their liberty should not be increased beyond the norm without justification based on evidence and a principled analysis.  In doing so I have taken into account the tendency of the non-communication orders to interfere with liberty and other interests protected by the Charter by virtue of the provincial correctional authorities reaction to the order.  However, it is my intention to consider the Charter violations alleged as a result of Ontario’s action, in phase two.  It will not be necessary for me to do so for those applicants who are no longer subject to an order prohibiting communication with their co-accused.  If the province follows through with the promised construction their isolation will end.  I indicated in my endorsement of June 11, 2007 that Ahmad and Amara, the only two against whom the orders remain, may contact the trial co-ordinator to bring on phase two for any further evidence and argument that relates to constitutional violations alleged in relation to the provincial correctional authorities approach in responding to the non-communication orders.

(lxxviii)I should point out that I have already heard a considerable amount of evidence relevant to phase two.  Certain witnesses had evidence to give which has a bearing on both phase one and phase two issues, and everyone agreed to try to avoid having those witnesses testify twice.

(lxxix)   This brings me back to a consideration of whether any of the Charter issues raised impact on the validity of the non-communication orders.  As only Ahmad and Amara are in a position where I have upheld the non-communication orders, I must consider whether the state action that resulted in the imposition of their orders violated their Charter rights and, if so, determine a remedy that is appropriate and just in the circumstances.  The state actions I am concerned with here are the actions of the federal Crown in seeking the orders, combined with the imposition of the orders by the court below.

(lxxx)      I conclude that the state action involved in the making of the non-communication orders has not interfered with the applicants’ freedom of religion, expression or association as protected by s. 2 of the Charter.  If such interference has occurred it must be as a result of actions for which Ontario, not Canada, is responsible.  Normally, detainees not permitted to communicate with one another would simply be placed in different jails or different units at the same jail.  They would not become isolated.  It is the response of the provincial correctional authorities that has caused the isolation the applicants complain about.  The making of the non-communication orders did not per se cause the isolation.  It must also be remembered that the justices of the peace had no power to dictate the circumstances in which the applicants would be confined, although they could take that into account in determining whether the orders should be made.

(lxxxi)   I conclude that the same may be said with respect to alleged violations of s. 12 of the Charter.  If the applicants are being subjected to cruel and unusual treatment or punishment – which remains to be seen – that flows from the imposition of administrative segregation by the province.  The orders have as their purpose protecting the public from further crimes based on the substantial likelihood that Mr. Ahmad and Mr. Amara will continue to unlawfully promote their cause if they are permitted to communicate with their co-accused.  There is nothing in the orders that would prevent Mr. Ahmad or Mr. Amara from being placed in general population while in custody.  Again, the orders per se are not the cause of the isolation.

(lxxxii)  Mr. Ahmad and Mr. Amara also allege violations of s. 7 of the Charter.  They submit that the principles of fundamental justice were violated when the orders were made.  I have already held that there were errors in the making of the orders.  In the case of the s. 516(2) order against Mr. Ahmad, I have concluded the error was jurisdictional in nature.  That would tend to suggest a violation of the principles of fundamental justice.  I have also concluded there were errors in the making of the s. 515(12) order at the end of Mr. Amara’s bail hearing.  It is not clear to me that the errors in Mr. Amara’s case go so far as to constitute a violation of the principles of fundamental justice.

(lxxxiii)A review of the transcript of the proceedings concerning Mr. Amara on September 19, 2006 indicates that after extensive reasons were given detaining Mr. Amara, the Crown requested the s. 515(12) order on the basis of the evidence at the hearing and the reasons just delivered.  Counsel appearing for Mr. Amara opposed the order and indicated he had already brought an application in Superior Court to quash a non-communication order made under s. 516(2) prior to the bail hearing.  While the s. 515(12) order was made in a perfunctory way and without giving any reasons, and therefore there was error, those particular circumstances do not equate with denying an opportunity to be heard, or making an order without an evidential foundation.

(lxxxiv) I am not satisfied on a balance of probabilities that the principles of fundamental justice were violated in Mr. Amara’s case at that time.  I note that counsel did not ask to make a more complete argument.  He did ask the justice of the peace to postpone determining whether to make an order under s. 515(12) until after he had argued his attack on the previous s. 516(2) order in Superior Court.  However, as the Crown correctly pointed out, the s. 516(2) order only remained in effect until the decision was rendered on the bail hearing.  As the justice of the peace had just made a detention order, the s. 516(2) order was no longer in effect to be challenged.  Counsel let it go at that and did not seek to make any further submissions.

(lxxxv)   In any event, with respect to both Mr. Ahmad and Mr. Amara, the impingement upon their liberty and security of the person interests comes not from the non-communication orders, but again from the reaction of the provincial correctional authorities to the making of the orders.  Mr. Ahmad was detained because he was lawfully arrested and chose not to seek bail.  Mr. Amara had been detained following a judicial interim release hearing which he does not challenge, beyond the imposition of the s. 515(12) order.  It was the movement of the applicants into administrative segregation that has further impacted their liberty interests and, possibly, their security of the person interests.  Again this is an issue to be determined in phase two.  Even if there were violations of the principles of fundamental justice when the orders were made by the justice of the peace, the impact on protected s. 7 interests that the applicants are concerned about do not result from state action in the imposition of the order, but from the reaction of the provincial correctional authorities to the order after it was made.

(lxxxvi) I am not persuaded that there were any Charter violations in the making of the s. 516(2) order against Mr. Ahmad or the s. 515(12) order against Mr. Amara.

Conclusion

(lxxxvii)                       For all of the foregoing reasons the non-communication orders are to be modified as set out in my endorsement of June 11, 2007.

___________________________

DAWSON J.

 

Released:    July 23, 2007

COURT FILE NO.:  1750/07A

DATE:  20070723

ONTARIO   SUPERIOR COURT OF JUSTICE     B E T W E E N:   FAHIM AHMAD, ZAKARIA AMARA, SHAREEF ABDELHALEEM, QAYYUM ABDUL JAMAL, YASIN ABDI MOHAMED, JAHMAAL JAMES, AMIN MOHAMED DURRANI, STEVEN CHAND, SAAD GAYA, AND MOHAMMED ALI DIRIE   Applicants     –         and –     SAAD KHAILD   Applicant (Respondent on Cross-Application by the Crown in the Right of Canada)   –         and –   HER MAJESTY THE QUEEN IN THE RIGHT OF CANADA   Respondent (Applicant on Cross-Application Against Saad Khalid)   –         and –   HER MAJESTY THE QUEEN IN THE RIGHT OF ONTARIO   Respondent       REASONS FOR JUDGMENT

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