Citation: Date: x File No: 78987 Registry: New Westminster [NEW WESTMINSTER JAN 23 20h) THEIPROVINGIAL COURT OF BRITISH COLUMBIA REGISTRY REGINA KHALID AHMAD IBRAHIM REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T. ALEXANDER Counsel for the Crown: ©, Bick and L. Kiigore ‘Counsel for the Defendant: D. Ferguson Place of Hearing: New Westminster, B.C. Dates of Hearing October 23, 24, 25, 26, November 2, December 6 & 7, 2017 Date of Judgment: January 23, 2018y Rv. Ibrahim Page 1 {1} The Public Prosecution Service of Canada (‘the Crown’) seeks an order thatthe Defendant Khalid Ibrahim (the Defendant) enter into recogrizance pursuant o section 810.011 of the Griminal Code. It says that the Informant, ergeant Douglas Craig of the ROMP (the Informant, has reasonable grounds to fear thatthe Defendant may ‘commit a terrorism offence for the benefit of ISIS. [2] The Informant testified that he has reasonable grounds to fear that the Defendant ‘may commit a terrorism offence based on his review of the documents contained within the exhibits fied in these proceedings. [3] Those documents are contained within three large birders and one DVD disc ‘marked as Exhibits 1 to 4 herein. They comprise 3,000 pages and include the following: + police PRIME reports; * Peace bond recognizance with conditions (New Westminster Provincial Cour fle No, 79085); ‘+ transcripts and video interviews of the Defendant’ fermer landlord and two former roommates; + Copy of New Westminster Provincial Court Information No.78848-1; ‘+ transcripts and video interviews of the Defendant; ‘photographs of the interior of the Defendant's residence;lbrahim Page 2 * partial health records of the Defendant from 2015-2016; * Task Action Report regarding review of Defendant's cell phone data; ‘+ Samsung cell phone images; + Analysis Report of Cell Phone; * review of SMS messages chart; * Technical examination report of 5 computers, 2 cameras, 2 USB's and one cell phone; + Task action reports; * Police notes of Constable, Ashley MMilan; * Will say statements of Constables Khoury and MeNillan; ‘+ Emails between ball supervisors, police and Surrey Forensics; {4] There is considerable duplication and overap inthe exhiit material, During his {estimony the Informant went through each document. He testified that he also relied (on briefings from the investigative team to inform his fear. (5) The Informant has never met or spoken to the Defendant, He had a brief ‘encounter involving the Defendant outside the courtroom in October 2017, though they id not speak. The informant says that event aly Rv forahin {61 The Defence argues thatthe Crown's application should be dismissed as itis. based entiely on untested hearsay evidence. It points to inconsistencies in the evidence which cannot be resolved onthe face of the materials themselves and thet the 'nformant has no personal knowiedge beyond his own reading ofthe materials. in ‘short, the evidence is unreliable, [7] The Defence further submits that the Informant did not evaluate the fle materials {from an objective perspective. It argues that he looked for pattems to conform to a particular narrative rather than objectively evaluating the materials to inform any ‘Subjective fear. ‘The Defence argues that on the evidence, the Informan’s fear is not reasonable, karound [8] All information inthis partis derived from the exhibits and submissions of counsel. [8] The Defendantis a Canadian citizen. He Is 41 years old and resides in New Westminster with his mother and adult sister. He has two adult brothers. The family is Originally from Northem iraq. He came to Canada in 2005 with his mother and three siblings. The Defendant ved in Russia and Saudi Arabia before his arival in Canada. [10] The Defendant became @ Canadian citizen in 2010, He speaks Kurdish, Arabic and Russian His English is very limited, He required an interpreter throughout these proceedings.2 v.tbrahim a [11] The Defendant and his family are nor-practicing Muslims. ‘The Defendant does Not attend any mosque or church and does not subscribe to any religious ideology. He has a deep interest in the news and events in the Middle East and closely followed intemational news for information about developments in that region. [12] The Defendant works periodically as a painter. He has had periods of ‘unemployment due to depression and other undiagnosed mental health issues. He is currently on Social Assistance. [13] The Defendant came to the attention of the police in 2011 as a result ofa third Party concer about his mental health. The Defendant had just broken up with his flancée at the time. {14] |The Defendant ras struggied with depression for several years. He was apprehended pursuant to eection 28 of the Mental Health Actin June 2016 though he was not certified, He was again apprehended pursuant to the Mental Health Actin September 2015. At that ime he was certified. He spent approximately five days in the hospital. [15] Since 2015, the Defendant has been the subject of en increasing number of complaints tothe police. Those complaints can be divided int the following categories: femily arguments, nancial dlsputes over rent, dsrupve or odd behaviour inthe community, and, beginring in 2014, non-specific musings about ISIS and wanting to harm Canadians,Rv. Ibrahim _ Page 5 [16] The Defendant has no history of weapons and no history of violence. He has no military traning. [17] There are 20 PRIME entries between 2014 to 2015. The police investigated each of those complaints, They included the Defendant yelling Allah Akbar in publi, threatening to stab Canadians, saying “one day | will be ISIS", and saying “Tm going to fuck all the mothers and daughters of Canada with my big dick of Istam.” {18] The police visited the Defendant at his apartmentin late August 2016. They ‘observed nothing of religious or politcal signifcance. They noted thal the Defendant didnot have the financial abity or mental capacity to be involved in any extremist activity. They identified mental health concems as a signifeant component ofthese ‘complaints. No charges ensued. [19] The Defendant's former landlord contacted the police in September 2015. She said the Defendant was behind in rent. He said he was concemed that people were after him and he wanted to shoot them. She believed he had mental health issues. He ‘was disruptive and scaring the other tenants. [20] On October 19, 2016, the Defendant entered into a recognizance pursuant to section 810.1(a) of the Criminal Code, prohibiting contact with and attendance at the residence of his former landlord for a period of one year. The recognizance contained a Rogers Order and a term to attend Fraser Outpatient Clinic as directed.Rv. Ibrahim Page 6 [21] | The Defendant had three contacts with the police from November 2015 to January 2016. He was found on the UBC Endowment Lands on November 22, 2015 He told the police that he had walked there from New Westminster. [22] On December 1, 2015 the Defendant's brother had a panic attack and fell down, ‘The police attended to find the Defendant waiting outside. They took him to a shelter. [23] On January 19, 2016, the Defendant was observed outside the New Westminster Police station. He was waving an umbrella and yelling at security cameras. He sald he Was there in response to an eartier call from the police. He wanted to find out who had called. None of these incidents resulted in any charges. [24] In June 2016, two of the Defendants former roommates contacted the police, They each alleged that the Defendant sald he wanted to kill Canadian people by cutting off their heads and that he wanted to join ISIS, They both noted recent changes in the Defendant's behaviour. They had each known him for over 10 years. [25] One roommate alleged that the Defendant wanted a “piece”. That witness ‘epeated that expression several times in his subsequent interview (in English) with the. police. it was an expression that the Defendant did not appear to understand when it ‘was translated to him during the course of these proceedings. [26] On June 17, 2017, there was a tied party report ofan incident at a jobsite. it was alleged that the Defendant had reacted when someone threw his hat. The Defendant was alleged to have yelled something about “racist Canadians” and that he wanted to pin ISIS.Bev. train Page 7 [27] The Defendant met with the police on June 17, 2016, During the course ofthat ‘meeting, he confirmed his disdain for ISIS, that ithates everything and everyone. [28] On July 1, 2016, the police responded to a further report that the Defendant had ‘said something about ISIS while 17 in a local shopping plaza for a ride to a jobsite, ‘The Defendant told the police that he was angry about ISIS and about not having a wife and etl, [28] The Defendant was arrested on July 19, 2018. He remained in custody until December 8, 2016, [30] The pole interviewed the Defendant for over two hours following his arrest. He was not represented by counsel. There was no interpreter present or offered. [31] During that interview, the Defendant disclosed his struggles with depression. He ‘aid his statements about ISIS were due to his “sickness", He said he did not want to join ISIS. He viewed them as "savage" and that he did not want to kill Canadians. [32] The Defendant provides the police his cell phone and password during that first Interview. He referred to the cell phone as his “personality *, where he recorded his ‘most private thoughts. The Defendant does not have email or Facebook. The cell, phone was sent for forensic examination. [33] _ The police discovered a number of troubling search entries and images on the cell phone. They obtained a warrant to search the Defendant's computers and electronic devices. RCMP experts were able to extract images including many that had already been deleted.Ibrabim Page 8 [34] There were in excess of 2,300 images extracted from the cell-phone. Only @ small portion of those images (approximately 100) have been reproduced in these proceedings, [35] The police discovered graphic images, searches related to ISIS activities in Syria ‘and elsewhere, and searches of the names of well-known purpetrators of terrorist offences throughout the world. They found images of adult pornography. [98] Some of the images reproduced are graphic pictures of beheadings and corpses, firearms, bombings and known terrorists. The majority of the images, nature scenes, landscapes, and celebrities are, without further explanation, completely innocuous, [37] The police also discovered various iterations of a Google search enquiry that was incoherent, laced with profanity and sexist language, Those searches were not disseminated to third parties (except on one occasion in response to spam message) [38] All other communications on the cell phone were appropriate social or work ‘elated contacts. The investigators found no evidence of communication or outreach to or with ISIS or any other terrorist organization, [39] The Defendant participated in three subsequent interviews with the police in the {all of 2016, again all conducted in English without an interpreter. [40] The Defendant said that his depression began in around 2015 when he began ‘watching news reports of ISIS activities in the Middle East. He was concerned about how members of the community would perceive him in light of these events in the Middle East.Rv. Ibrahim Page 9 [41] | The Defendant's interest in these matters became an obsession. The constant exposure to graphic, violent images led to mental lines. He repeatedly denied that he was a member or sympathizer of ISIS and expressed his absolute disapproval for its activities, [42] The Defendant sald that any ISIS related utterances he may have made were due to his sickness", He seid that he sometimes made those utterances to make himseit fee! more powerful and intimidating, |. n the face of perceived racism and bullying by co-workers or members of the community. He emphatically denied any intent to harm anyone. [43] The Defendant spent 5’ months in custody. He was ultimately charged with threatening Canadians pursuant to section 264.1 of the Criminal Code. He was ‘released on ball on that charge on December 7, 2016. Those charges remain outstanding. (44] The Defendant continues to ive wth is mother and sister in New Westminster. He has a curfew of 6:00 pum, 0 7:00 am. dally. He has been subject to electronic ‘monitoring, random compliance checks at his residence and complete prohibition from the intemet and possessing a computer, smartphone or similar electronic device since December 2016, [45] The Defendant has been compliant with his bail conditions though he is clearly Unhappy with those restrictions. He reports regularly to the bail supervisor. He is on "medication for his mental health issues and depression, He sees a doctor reguiarly.Rv. Ibrahim Page 10 [46] | There have been four PRIME reports generated in 2017, Two pertain to battery issues wth the Defendant's electronic monitoring equipment; another referred to an ‘outburst at the probation office in August 2017. The last entry was a repor thatthe Defendant was acting suspiciously at the New Westminster Law Courts. None ofthese incidents resulted in further action or charges, [47] The Defendant has expressed concern to his ball supervisor that he is being followed. He was once disruptive at the probation office: ripping up a newspaper or ‘exhibiting strange behaviour when forced to waitin a room with other individuals. [48] In October 2017, the Defendant complained to the ball supervisor that "Travis" another probation officer, had splashed him, That incident did not occur. On a recent ‘court appearance in late fall, he pointed an umbrella at Crown Counsel and the police witness and then walked away. [49] The Defendant has complained to his bail supervisor about the restrictions on his. liberty as a result ofthese proceedings. He has made those same statements in open Court. He says those restrictions are adversely affecting his mental state, He wants to move on to 2 normal fe, [50] Though the Defendant has a history of erratic behaviours while in the community, he has no criminal record or history of violence. The Crown has not alleged any new charges, Statutory Framewor [51] Section 810.011 provides as follows:Rv. Ibrahim Page 11 Fear of terrorism offence + 810.014(1) __Aperson who fears on reasonable grounds that another Person may commit a terrorism offence may, with the Attomey General's ‘consent, lay an information before a provincial court judge. + Appearances (2) The provincial court judge who receives an information under ‘subsection (1) may cause the parties to appear before a provincial court judge. + Adjudication (3) Ifthe provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonable grounds forthe fear, the judge may order that the defendant enter into a recognizance, with or without sureties, to Keep the paace and be of ‘900d behaviour fora period of not more than 12 months, + Duration extended (4) However, ifthe provincial cour judge is also satisfied that the defendant was convicted previously ofa terrorism offence, the Judge ‘may order that the defendant enter into the recognizance for a period Cf not more than five years + Refusal to enter into recognizance (5) The provincial court judge may commit the defendant to prison fora term of not more than 12 months if the defendant falls or refuses to eter into the recognizance, + Conditions in recognizance (6) The provincial court judge may add any reasonable conditions to the ‘recognizance that the judge considers desirable to secure the good ‘conduct of the defendant, including conditions that require the defendant © (@) _ to participate in a treatment program; © {b) to wear an electronic monitoring device, if he Attorney General makes that request; © (©) __toreturn to and remain at their place of resdence at ‘Specified times;Rv. Ibrahim Page 12 Revtbrahim age © (a) _ to abstain from the consumption of drugs, except in accordance with a medical prescription, of alcohol or of any other intoxicating substance; © (€) to provide, for the purpose of analysis, a sample of a bodily Substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under paragraph 810.2(2)(a) to make a demand, at the plaes and time and on the ay specified by the person making the demand, if that person has reasonable grounds to believe thal the defendant has breached a Condition of the recognizance that requires them to abstain from the ‘consumption of drugs, alcohol or any other intoxicating substance; © (f)__to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are ‘specified, in a notice in Form 51 served on the defendant, by @ probation officer or a person designated under paragraph £810,3(2\b) to specify them, ifa condition of the recognizance requires the defendant fo abstain from the consumption of drugs, alcohol or any other intoxicating substance. + Conditions — firearms @ @) ‘The provincial court judge shall consider whether itis desirable, in the Interests of the defendant's safety or that of any other person, to Prohibit the defendant from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things. if the judge decides that itis desirable to do so, the judge shall add that condition to the recognizance and specify the period during which it apolies. ‘Surender, etc. Hf tne provincial court judge adds a condition described in subsection (7)t0 a recognizance, the judge shall specity in the recognizance how the things referred to in that subsection that are in the defendant's possession shall be surrendered, disposed of, detained, stored or dealt with and how the authorizations, licences and registration certificates thet are held by the defendant shall be surrendered, + Condition — passport O} ‘The provincial court judge shall consider whether it is desirable, to ‘secure the good conduct of the defendant, to include in the ‘recognizance a condition that the defendant deposit, in the specified ‘manner, any passport or other travel document issued in their nameRv. Ibrahim Page 13 thats in their possession or control. If the judge decides that itis desirable, the judge shall add the condition to the recognizance and soecify the period during which it applies. Condition — specified geographic area (10) The provincial court judge shall consider whether it is desirable, to secure the good conduct of the defendant, to include in the recognizance a condition that the defendant remain within a specified geographic area uniess written permission to leave that area is obtained from the judge or any individual designated by the judge. If the judge decides that itis desirable, the judge shall acd the condition tothe recognizance and specify the period during which it applies. Reasons (11) Ifthe provincial court judge does not add a condition described in ‘subsection (7), (8) or (10) to @ recognizance, the judge shall include in the record a statement of the reasons for not adding it. Variance of conditions (12) _Aprovincial cour judge may, on application ofthe informant, the ‘Attomey General or the defendant, vary the conditions fixed in the recognizance, Other provisions to apply (13) Subsections 810(4) and (5) apply, with any modifications that the ‘circumstances require, o recognizances made under this section. Definition of Attorney General (14) With respect to proceedings under this section, Attorney General ‘means either the Attomey General of Canada or the Attorney General ofthe province in which those proceedings are taken and includes the lawful deputy of any of them, 2015, ¢. 20, . 26. The provincial court judge may commit the defendant to prison for a term not exceeding twelve months ifthe defendant fails or refuses to enter into the recognizance, Judge may vary recognizance (4) A provincial court judge may, on application of the informant or the defendant, vary the conditions fixed in the recognizance.Rv. Ibrahim Page 14 + Other provisions to apply (5) Subsections 810(4) and (5) apply, with such modifications as the Circumstances require, to recognizances made under this section. [52] Terrorism offence is defined in section 2 of the Criminal Code: Terrorism offence means an offence under any of sections 83.02 to 83.04 or 83.18 to + (b) _anindictable offence under this or any other Act of Pariament Committed for the benefit of, atthe direction of or in association with a terrorist group, + (6) _anindictable offence under this or any other Act of Parliament Where the act or omission constituting the offence also constitutes a terrorist activity, or + (@)__ a conspiracy or an attempt to commit, or beling an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a), (b) or (c); (infraction de terrorisme) [53] The provisions of sections 83.02 to 83,04 and 83,18 to 83.23 referenced in section 2 of the Griminal Code are lengthy. For reasons of brevity, | will not include them within the body of this decision, They set out the range of offences and activities captured by the terrorism provisions of the Criminal Code. Burd Standard of Proot {54] Section 810.011 ofthe Criminal Code provides that a peace bond may issue if ‘an Informant has a reasonably held fear that a person may commit a terrorism offence. ‘This provision has not had extensive judicial consideration since its enactment in 2015, Counsel relies on authories interpreting peace bond provisions generally as there is litle jurisprudence on this section. The cases provided offer helpful guidance.Rv. Ibrahim Page 16 [55] Section 810 does not create an offence and nor does it result in a conviction or sentence. See: R. v. Patrick 75 CR. (3d) 278 (B.C.Co.Ct). Peace bonds are preventative, not punitive, see: Haydock v. Baker 44 C.R (5") 43 {YTTC). [56] In Rv. Bucreo 27 O.R, (3d) 347, the Court considered at length the provisions Of section 810.1 ofthe Criminal Code which allowed forthe impostion of @ ‘recognizance on persons ikely to commit any ofthe enumerated sexual offences on a child under the age of 14 years. The applicant in that case was a paedophile who challenged the consttutionalty of that provision, Then J. as he then was, found the ‘section constitutional and held at page 14: 4. Standard of Proof While no offence is created under s. 810.1, a judge must stil determine if the judge is "satisfied by the evidence adduced that the informant has reasonable grounds for the fear" that one of the listed offences will be committed ‘Most of the jurisprudence on the similar wording in s. 810 supports the View that proof on a balance of probabilities is the appropriate standard, [57] _And further at page 16 , the Court addressed the care that must be taken as judges exercise their preventative jurisdiction’ Itis clear then that the use of the word “fear" in a legislative context does ‘ot put the judicial process at the mercy of unsubstantiated paranoia but Fequires an allegation to be objectively provable, Judges should take care before exercising their preventive jurisdiction. Both ss, 810 end 810.1 ‘speak of @ reasonably grounded fear that the defendant "wil" commit an offence. To my mind, as a matter of legislative construction, this takes the appropriate threshold a notch above a simple demonstration that the defendant is more likely than not to commit an affence. A reasonably ‘grounded fear of a serious and imminent danger must be proved on balance of probabilities. The court under s. 810.1 must therefore ‘scrutinize carefully the evidence put before i: Banks, supra, a p. 705,Rv. Ibrahim - = Page 16 ‘This cautious approach exists also respecting the common law peace bond power: R. v. Justices of Londondeny (1891), 28 L.R. Ir (C.L.) 440 (Q.B.) at p. 462, per Holmes J.; at p. 448 per O'Brien C.J, As Sopinka J. noted in R. v. Parks, 1992 Cankll 78 (SCO), [1992] 2 S.C R. 671 at p. 911, 75 C.C.G. (3d) 287, with La Forest, L'Heureux-Dubé and Gonthier JJ. concurring on this point at p. 08: this common law power cannot be exercised on the basis of mere speculation, but requires a proven factual foundation Which raises 8 probable ground to suspect of future misbehaviour. [88] The Ontario Court of Appeal upheld the trial decision in Budreo, that section 810.1 was constitutional. In discussing the quality of evidence upon which a judge can rely, it held at paragraphs 61-52: [51] Ido not accept the appellant's argument. The word "fear" or “ears” should not be considered in isolation but together with the modifying words in s. 810.1(1) ‘on reasonable grounds". Fear alone connotes a state of belief or an apprehension that a future event, thought to be undesirable, may or will occur, But “on reasonable grounds! lends objectivity o the apprehension. In other words, the phrase “Years on reasonable grounds" in s. 810.1(1) connotes a reasonably based sense of ‘apprehension about a future event, or as Then J. putt, it "equates to a belief, objectively established, thatthe individual will commit an offence" (at p. 381) [52] Moreover, although an informant's fear triggers an application under s, 810.1, under s-s. (3) a recognizance order can only be made if the presiding judge is satisfied by "evidence" thatthe fear is reasonably based. Section 810.1(3) therefore requires the judge to come to his or her ‘wn conclusion about the likelihood that the defendant will commit one of the offences listed in s-s (1). Although the “evidence’ the judge relies on might include hearsay, a recognizance could only be ordered on evidence that is credible and trustworthy. (89] The Saskatchewan Court of Appeal in R. v. Banks, [1995] 4 W.W.R 698, ‘emphasized the importance of the reasonable grounds requirement at pages 702-03:Rv. Ibrahim. Page 17 Its evident from ss. (1) and (3) that before an order can be made against the defendant, two elements must be established in evidence, (for claity | will use the masculine gender): 1. ‘The informant actually fears that the defendant will cause personal injury to him, his spouse, his child, or will damage his property, and 2. Reasonable grounds exist for the informants fears. ‘The first condition is a subjective condition while the second is an objective one. The Code uses the term "reasonable grounds" while the information uses the term "reasonable and probable grounds". In any event, the Justice who conducts the trial must be satisfied, (presumably at least on a balance of probabilties If not beyond a reasonable doubt), that the subjective and objective elements have been proven in evidence. Unless both elements have been proven the justice has no jurisdiction to make the order. ‘The reasonable grounds requirement is to protect individuals from unwarranted restrictions on their liberty through an order made solely on the subjective (and possibly unreasonable) perceptions of an informant. Only in those instances in which the subjective perceptions of an informant are supported by objective reasonable grounds can such an intervention order be made. R. v. Patrick (1990), 75 C.R. (3d) 222 at 228 (@C. Co, Ct), [60] The Court is permitted to consider reliable and trustworthy hearsay evidence: R. v. Hawkins 202 BCPC 59% ; R. v. D.A.D. 2007 BCPC 0016; and past conduct of the Defendant may be considered: R. v. Patrick (supra). Imminence of potential harm is also a factor that the Court must consider in its analysis, see: R. v. Firth 2004 BCPC 0449, R. v. Lanferman 2006 BCSC 980; R. v. Bonsan 2008 BCSC 161. [61] The only authorty cited by counsel addressing section 810.011 isa Provincial Court of Manitoba decision Rv. Driver 2016 MBPC 3. In that case, the applicant sought a declaration that section 810.011 was consttuonaly invalid due tothe change in language from probability based reasoning to possibilty based reasoning. Those changes result from the 2015 amendments to sections 83.3 and 810,011 of theRv. Ibrahim Page 18 Criminal Code brought about by the Anti-Terrorism Act. S.C. 2016 ¢, 20. The decision contains a thorough analysis ofthe legislative changes but finds that the standard of proof has not changed, at par. 29: {29} _Inrespect of section 810.011, Parliament has elected to retain the ‘standard of proof on a balance of probabillies which accords with other forms of peace bonds. As discussed, the fact to be proven is reflective of the necessity for the state to stem rapidly emerging and evolving hostile actions that impact the security of the nation. Parliament has struck a balance that requires an informant to demonstrate on reasonable grounds that the subject may commit a terrorism offence, The requirement for reasonable grounds is not speculative but requires a “proven factual foundation which raises a probable ground to suspect future behaviour” (See Budreo paragraph 27), as is required for a recognizance pursuant to section 810.1, Furthermore, the requirement for a ‘reasonable possibilty” {0 be proven pursuant to section 810.011 Is semantically equivalent to the “real possibilty’ of danger of harm to Canadian security accepted by the ‘Supreme Court of Canada in Suresh, supra, [62] A summary of the guiding principles governing an analegous application under section 810 of the Criminal Code is set out in the final paragraphs of Soungie, [2003] AJ..No. 899 [46] _Let me set out in point form the principles appliceble to s. 810 applications: (1) __ Section 610 is preventive in nature protecting the applicant In appropriate circumstances from future harm to the applicant, the applicant's spouse, the applicant's common law partner, the applicants children, or future damage to the applicant's property. ‘The Courts allowed to intervene to prevent a breach of the peace prior to an actual offence being committed. (2) _ Section 810 restrains the liberty of the defendant to live his Or her ife free from restraint of that liberty, (3) The Judge must balance the two competirg interests in determining whether to place the defendant on a recognizance. ‘Thats, the Judge must balance the right of the defendant to privacy or to be left alone against the right of the applicant to aRv. Ibrahim Page 19 protective intervention in appropriate circumstances. Certainly, the ‘Judge must be cautious in exercising discretion to affect the liberty of the subject, but this caution must be tempered with a view to the protection provided to the applicant where grourds have demonstrated the need for the recognizance, (4) _ The applicant must actually fear that the defendant will ‘cause personal injury to the applicant, the applicant's spouse, the ‘applicant's common law partner, the applicant's children, or wil cause damage to the applicant's property. (5) The Judge must find that the applicant's fears are reasonable, ie. that an objective person armed with the same knowledge as the applicant would agree that the applicant's fear are reasonable. The reasonable fear must be tragered by some action of the defendant. (8) __ Evidence of the defendant's previous misconduct is ‘admissible to determine the basis forthe belies held by the applicant. This evidence can be used by the Judge in determining ‘whether the applicant's fears are reasonable. (7) The Judge is not asked to predict future behaviour; rather, the Judge must be satisfied from the evidence the likelihood of future harm or damage. The quality and strength ofthe evidence must be sufficient to satisfy this likelihood, (8)___The onus of persuasion is upon the applicant. The applicant ‘must satisty the Judge on the balance of probablities of the {grounds for the issuance of a recognizance. [63] These procedures and principles are applicable to the case at ber. Crown Position [64] The Crown argues that in an application under this provision of the Criminal ode, the law provides that there are “permissive evidentiary rules and a relatively low Persuasive burden’. The Crown describe this as an “objectively established belief of a mere possiblity’. The Crown maintains that the totality ofthe evidence forms a strong objective foundation for the Informant's fear and that his fear is reasonable.Rv. Ibrahim Page 20 [65] The Informant tested that he fears the Defendant may commit aterorsm offence based on the number of incidents of the Defendant causing fear or creating confit wit citferent people in @ numberof contexts including: femilyrhome, roommates and landlords, workplaces, public venues, during compliance checks with the police and at the probation office, all documented in the exhibits (66] He tested that his fears based on the Defendant's past and present behaviour He relies on PRIME records and historical data dating back to 2005. He tested that he believes thatthe materials presented are comprehensive and that PRIME reports are reliable because they are prepared by police officers who are trained in note-taking. He testifed that even though there were some variations in the evidence, tha all the Information available to him pointed in the same direction, that + the Defendant is angry: ‘+ the Defendant suffers from depression and other mental health issues for which there have been several medical interventions; + the Defendant has acknowledged that he has a “sickness the images (and timing) on the Defendant's cell-phone remain unexplained; + the images extracted are violent; + the Defendant's viewing of this material was obsessive; ‘+ the juxtaposition of violent photos with images of Vancouver, guns, bombings suggest 2 possibilty that the Defendant intended to actin a similar manner, ‘the language of the search entry on the respondent's cell-phone was profa non-sensical and misogynistic + the Defendant had made repeated utterances in the community about ISIS, one day being part of ISIS;Rv. Ibrahim Page 24 ‘+ former roommates suggested that the Defendant wanted to acquire a gun; and + the Defendant has poor coping mechanisms and over-eacts to benign situations. [67] _ The Informant’ fear is based in part on his experience as a member ofthe behavioural sciences unit inthe E Division ofthe RCMP. He testified that he oversees the high isk offender management nit. He lsu works as criminal and geographic Profiler and threat specialist. The Crown did not seek to qualify him as an expert in that or any other field [68] Though beyond the scope of hese proceedings, he Informant testifed about terms that could be imposed inorder to mitigate his fear. His suggestions reflect the current ball terms, including electronic monitoring and monitoring of any electronic communications should the Defendant be permitted to access a smartphone or computer. [69] The informant testified that even if conditions were imposed to manage the Defendant's behaviour in the community, itis stil his belief that the Defendant remains 2 risk to commit a terrorism offence. [70] The Crown maintains that the comprehensive extibit materials constitute credible ‘and reliable evidence to support the order it seeks. It submits that the burden of proof ‘on the balance of probabilities, that the Defendant may" commit a terrorism offence is relatively low and that it has been metRv. Ibrahim Page zz Defendant's Position [71] The Defence submits that the Crown's evidence is not credible or reliable and that it has not met the required burden of proof. It maintains that the Crown has offered untested hearsay evidence presented through an informant who has no personal knowledge of the contents of the Crown exhibits [72] Itfurther submits that the Defendant's racialzed identity as a Muslim Iraqi Immigrant adds another layer in assessing the reasonableness of the Informant’ fear. [73] The Defence notes tha the Grown has called no expert evidence; it has tendered no psychiatric reports, norsk assessments, and no recent medical reports. Ithas not called any ofthe police offcers who interacted withthe Defendant, probation ofcers, medical professionals or any other individuals who provided statements about the Defendant. [74] The Defence says that the Crown failed to call evidence from pivotal witnesses, ‘specifically; two former roommates who allegedly overheard the Defendant make threats against Canadians and request assistance in procuring a gun. Those witnesses provided detailed statements (in English) to the police, [75] The Defence points to intemal inconsistencies within those statements, particularly with respect to the Defendant wanting a gun (denied by the Defendant). ‘This allegation is missing from the second statement of one of the witnesses, which was sven in Arabic, apparently a more familiar language to the witness than English.Rv. Ibrahim Page 23 [76] The Defence raised the issue of credibility regarding those two witnesses. He highighted allegations within the Crown's own evidence that at least one of those individvals may have long-standing criminal or gang associations, and that one is a known lar within his community. Absent testimony from those individual, the Defence ‘submits that its dificult to assess the weight ofthat evidence. I77] The Defence concedes that on an application under section 810.011 ofthe Code, itis open tothe Crown to presenta case based entirely on hearsay evidence. It submits, however, thatthe Court must tke info account the Crown's explanation for not making the best evidence avaiable, Seo: R. v. Zeolkowsk, [1909] 1S.C.R. 1378 at paragraph 18, [78] The Defence submits thatthe Crown has not presented the best evidence and has not ofered any explanation other than the potential impact onthe length ofthese proceedings should it have called oral evidence, It argues that absent the scrutiny of cross examination, the Court willbe unable fo meaningfully assess the weight and rellablity of evidence that is integral to this case, {79] The Defence maintains thatthe PRIME reports relied on by the Informant to inform his fear do not offer @ complete picture of the events described therein The Defence argues that those reports are incomplete because they do not always include the surrounding context and circumstances. The Informant conceded that the latter may be true.Fv. Ibrahim Page 24 [80] The Defence points to the report regarding a compliance check at the Defendant's home on February 9, 2017. The incident was recorded and there is a ‘transcript of that event. [81] The Defence identified a number of inconsistencies between the police incident summaries and the transcript ofthe event, The "tone" ofthe interaction was not captured inthe police summaries, nor was the Defendant's concem for how the police interacted with his elderly mother and ther cultural insensitivity in the manner they centered the home, [82] The Defence notes that most interactions with the Defendant were not recorded ‘There is a suggestion that perhaps the Court should give pause as to what other information may be inaccurate or excluded in PRIME reports, [83] Further, the reports of the work place incidents of June 17, 2016 fall to capture the workplace bullying of the Defendant by co-workers. The narrative offered by the Crown again lacks context and leave the impression of a random overreaction by the Defendant. [84] The Defence offers these as but a few examples of how the PRIME documents are flawed, lack context and thus should be given litle weightin assessing the objective basis for the informants fear. [85] The Defence further argues that even the statements made by the Defendant to the police are not reliable as he was never offered an interpreter in the face of lengthy and skiful questioning by investigators, It/s clear that the Defendant struggles toRv. Ibrahim. Page 28 ‘communicate in English. There are points in each interview where the Defendant's, answers are not responsive to the questions or where the interviewers appear to misconstrue his answers. [86] The Defence concedes that some of the images and searched on the Defendant's cell phone are odd, sometimes disturbing. They were downloaded from conventional news and internet sites and were not disseminated to third parties. [87] The Defence points to the transcript and video of interviews where the Defendant explained in broken English that he was unwell when these images were downloaded. He had deleted many of them before they were extracted by the RCMP, The majority of images were never tendered in evidence. [88] The recurring Google searches though profane and incoherent, were private entries the Defendant wrote to himself and deleted, These were the Defendant's personal notes and private thoughts. They were not transmitted to third parties, [89] The Defence submits thatthe Defendant's onine acy inthe privacy of his own home was not contrary to any law. He was net inappropriately reaching out to anyone and the material recovered from his cell phone and computer does not reflect any nefarious activity, and does not support a reasonable grounds to belleve that he may commit a terrorism offence, [90] |The Defence further argues that the Informant is not neutral. It submits that his perspective is tainted by his exclusive focus on the risk of terrorism through his workRv. Ibrahim Page 26 with the RCMP over the last three years. The informant conceded in cross examination that he has a heightened sense of awareness of risk factors. He looks for pattems, [1] The Defence submits that tis much easier to find hose pattems when the evidence and supporting materials are not complicated by thorough exomination and scrutiny. It submits thatthe Crown case has been tallored to conform to a particular narrative, rejecting or according litte weight to other explanations such as mental illness, social isolation unemployment and poverty. [92] The Defence argues that the lens through which the Informant has assessed the Defendant is coloured by his position rather than an objective evaluation and his fear in the circumstances is not reasonable. [93] The Defence points to the lifelong stigma to the Defendant should this application ‘Suoceed. It submits that the application should fall as the evidentiary burden has not been met, Discussion [24] Matters of suspected terrorism are of great concern to Canadians and for valid reason. Parliament has chosen to enact legislation giving law enforcement agencies the tools to combat such threats. The provisions of section 810.011 are a part of that “toolbox” [95] The Code provides that the Court may impose a section 810.011 peace bond it there is a possibilty that a terrorism offence may be committed, as opposed to a probability that one will be committed. The Crown bears the burden of proof an theR.v. Ibrahim Page 27 balance of probabilities. Hearsay and past conduct are admissible (see R. v. Patrick, (supra), and R. v. D.A.D, (supra)) [96] An order under this provision should not be made lightly, The consequence of Such an order is a significant curtailment of individual liberty and may result in a lifelong ‘stigma of being branded a suspected terrorist and the ongoing restrictions that may entail [97] The evidence consists of 3000 pages of documents and Informant’s interpretation ofthe Defendant's alleged actions and comments noted in those documents. The Court must consider whether that hearsay evidence Is credible and reliable and whether is supports a fearon reasonable grounds that the Defendant may commit a terrorism offence. [98] _Itis not necessary for the Court to share the Informant’s view, only that his fear is reasonable on the totality of the evidence: See: R. v. Patrick (supra) Does the evidence support a fear on reasor rounds? fo) INnRev. JS. . [2017] B.C.J. NO. 144, the Court considered the sometimes ‘competing considerations in imposing a recognizance pursuant to section 810.2 (fear of serious personal injury offence) of the Code. The Court found at paragraph 4: [4]__ Orders of this nature call for a balance of competing but equally important considerations. Many individuals who have a violent past continue to pose a serious risk to the safety of others, and society is entitied to be protected from such individuals even after they have served their sentences for previous crimes. On the other hand, persons Convicted of crimes who have paid their debt fo society and who are not likely to pose an ongoing risk to others are entitled to move on with theirRv. Ibrahim Page _ 28 lives and put their past betind them. Applications ofthis nature are very difficult because they call for a type of crystal ball gazing; an exercise in which the line between what is reasonable and what is speculative can ‘sometimes become very blurry. [100] The Informant guided the Court through the entirety of the exhibits. He ‘acknowledged that these documents were produced by third parties and that he had no Personal knowledge of the contents. {101] He testified about his perscnel observations ofthe Defendant during the course ofthese proceedings. He gave evidence about his experience as a threats assessment specialist. He has offered his interpretation of one ofthe Defendant's actions, i yelling Allah Akbar when he has ro reigious afition and the signfeance of references and photos of shoes. [102] | note that the Informant wes not qualified as an expert witness to offer opinion ‘evidence or that his opinion would ft the R. v. Mohan, [1984] 2 S.C.R. 9 criteria of ‘admissibility or expertise. | accord no weight to his personal interpretations, [103] tun now to a review of the documents contained within the exhibits: 1) PRIME Reports (Exhibit 1 Tabs 1-27; 29, 36; Exhibit 3 Tabs 69; 77, 83, 86, 89, 90, 93) [104] The Informant testified that PRIME documents are part ofa police database. It ‘captures information generated through calls othe police, The documents are ‘generated by the police offce(s) vho respond to cals for service, They may include @ ‘summary ofthe call or complaint witness or suspect details. bithdate, divers licence, address and nationality.Rv. Ibrahim, Page 29 [105] The informant tested that the PRIME database dacuments may also include transcripts of statements, photos and scanned messages, He believed these reports to be reliable because police officers who are trained in recording events Input the information. [106] The question ofthe reliability of PRIME reports was recently addressed in Kirilenko v. Bowie 2017, BCSC 2047. Though not a criminal case, it provides commentary as to the inherent reliability of PRIME entries at paragraph 22: [22] With further regard to the inherent reliability, or lack thereof, ofthe PRIME database entries relied on by the defence, | find the issue ‘extremely problematic in that | have no evidence before me of what ‘standards govern the entry of information into PRIME. | cannot assume that the database entries are reliable; in fact, what judicial commentary | have been able to find as to their ellabilty would point in the other direction. | refer to the foliowing comments from the decision of Mrozinski P.CAJ. in R. v. Cowley, 2013 BCPC 308 (Cankll, 2013 BCPC 0308, at para 31 ‘The PRIME entries are but one aspect of the ITO application. Clearly on their own they could not support a search warrant. They are not entirely reliable bul nor can it be said they are entirely unreliable. So long as they are not treated as gospel, and there is no evidence that was the ‘case here, the PRIME files can provide some context or background. | have no doubt that the authority issuing the. warrants knew ofthe fralies of the PRIME database. | cannot say that Constable Roberts unreasonably relied on them, nor is there any evidence that he misrepresented what was stated in the fies, Given comment ofthat nature, | do not see how | can assume or take judicial notice of there being any inherent refailty in PRIME. database entries, [107] The Crown relies on PRIME reports dating back to 2008. The Informant conceded that not al the reports tendered were reliable or relevant, The 2009 reportRv. Ibrahim, Page 30 was presented to show a long-standing relationship between the Defendant and one of his former roommates who made a statement to the police in 2016 about the Defendant. [108] That entry suggested that this individual had criminal gang associations. There was nothing to implicate the Defendant, other than his presence at the same nightclub. [109] The Informant said that he did not rely on this entry to inform his fear. itoffers no Context, other than to hint at potential unsavoury associations within the Defendant's [110] The Defence has already identified concems with the accuracy of the PRIME reports in this case and some of those inherent weaknesses have been conceded by the Informant, (114) Its clear that the transcript ofthe February 9, 2017 compliance check reveals @ aitferent interaction than the police “calmly explaining” tothe Defendant why they were there as set outin the officers! summaries. The transcript reveals @ much les fiendly interaction. It also ignores the family’s complaint of cultural insensitivity forthe police entering into the apartment with their shoes on, [112] Similarly, the PRIME report of June 17, 2016 does not set out the antecedents to the workplace incident, and that the Defendant ciaimed to have been bullied by his co- workers. Including these details would have provided some context and explanation. It would have offered assistance in evaluating the Defendant's actions. [113] There are other examples where police officers do not include sufficient detail, \.e. alleging that the Defendant made “veiled threats” (August 28, 2015, Ex. 1 Tab 23)Rv. Ibrahim Page 31. with no indication of exactly what was said to cause the police to reach that eondlusion ‘There are more examples contained within the exhibits. | mention only these for reasons of brevity. [114] The evidence reveals that PRIME reports may contain double and triple hearsay. Itis sometimes impossible to verify who said what to whom and when the entries were ‘made relative to the timing ofthe event being documented. [115] PRIME reports can also create a misleading narrative. Exhibit 1 Tab 14 relates to an allegation that on June 17, 2014 the Defendant drew a gun following a dispute with another male. That male was never located, [116] The police found the Defendant a shor time later in the New Westminster public library. They searched him. There was no gun. The Defendant had a hammer in a leather carrying case which had been erroneously described by a third party witness as the butt end of a gun. [117] The PRIME report contained at Tab 15 of the same exhibit deals with an incident on October 26, 2014. The Defendant was reported as being disruptive in the ‘community by attacking a mailbox, throwing pylons on the sidewalk and yelling ISIS related profanities. ‘The initial synopsis reads: “When asked if he had any weapone on him he stated that he hed "something”. [118] There is a fine distinction between that account an in a more detailed police narrative prepared by a different officer that same day:Rv. Ibrahim Page 32 "When asked if he had anything in his pocket that would concem the police, he said he did have something and described it as a tool for painting.” [119] There is a subtle difference in tone and content. There is a further entry in that same PRIME report which appears to overstate the Defendant's contacts with the police: “Ibrahim has a PRIME history for weapons possession, assault, breach of peace and was a passenger in a gang inte file as recently as July, 2014”, [120] | find that the PRIME reports document that contacts with the police occurred on the dates recorded within those documents. Though police officers may be trained rote-takers that does not imbue those reports with reliability simply because a police officer made the entries, [121] find that many of the PRIME reports fled in these proceedings contain information of elements that the recording police officer perceived as important, but they ‘are not necessarily a reliable account ofthe entire events described therein. [122] Simply put, PRIME reports can be inaccurate in many material respects. | find that they are admissible but! do not accord them significant weight due to their known ‘and inherent faites, 2) Health Records (Exhibit 2, Tab 45) 1123] The medical evidence presented is dated and incomplete. It consists of medical ‘notes from Royal Columbian Hospital from 2014-2016, The notes confirm that theRv. Ibrahim Page 33 Defendant suffers from depression and possibly cannabis induced psychosis. There is no current medicalipsychiatric information regarding the Defendant. [124] It is obvious from the evidence that the Defendant has complex social and mental health challenges. | arn not satisfied that the limited medical evidence presented offers a true picture of the Defendant. | find the medical evidence presented is incomplete and rot reliable. 3) Witness Statements 1. Family Members (Exhibit 2, Tabs 40, 42, 43, 44) [125] The Defendant's, mother, sister and two brothers gave separate statements to the police. Those statements are consistent insofar as they describe the fami antecedents, [126] The Defendant's mother said that the Defendant is not a terrorist. She said he is ‘ot religious but that he suffers from depression and anger issues. She noted changes in his behaviour after the relationship with his fiancée ended, The statement was taken in Arabic, which enhances its reliaily. [127] The Defendant's brother Balnd said that the Defendant isnot religious, that he does not know about ISIS and that he has no friends fighting n the Middle East. He had not observed any recent changes in hs brother.Rv Ibrahim Page 34 [128] The Defendant's sister Eman gave a detailed statemert about the family background. She said they are Kurdish. They are non-practicing Muslims. She said the Defendant has no military traning or service and that he is not religious. [129] The sister believes that the Defendant is depressed bezause he does not have a ‘amily of his own. She said for the last two years he has suffered from severe depression and sadness within himself. She believes mental issues need to be treated ‘or he may do something to himself [130] The Defendant's brother Hadjar also provided a statement. He sald he does not have much contact with the Defendant. He ssid thatthe Deferdant has mary problems and financial dificuies. He said they do not get along and that he had not seen the Defendantin six months. He knew of no reason why his brother would make threats against Canadians. [131] The family statements set out that the Defendant has no particular religious Ideology and that he has long-standing struggles with depression and mental health issues for which he needs treatment, They expressed no concem about him being @ threat to others. 2. Roommate Statements (Exhibit 2 Tabs 41 and 49) [132] The statements of the Defendant's two roommates outine specific threats that the Defendant s alleged to have made against Canadians. [133] M.A.F. was interviewed by the police on June 21, 2016, The interview was. ‘conducted in English with no interpreter present. He claimed fo have heard through hisRv. Ibrahim Page 35 other roommate, |.H.G., that the Defendant wanted to kill Canadian people by cutting off their heads. He did not indicate when he intended to act. The witness also said that the Defendant spoke favourably of ISIS and that he wanted to join. M.A.F. reported these comments to the police. [134] LH.G. was interviewed on July 5, 2016, That interview was dificult fo follow, both on the DVD recording and the transcript itself. The interview was conducted in English without an interpreter. There are broken and incomplete sentences and obvious difficulties with spoken English. [195] The witness confirmed that he suspected thatthe Defendant may have mental problems. He said thatthe Defendant had made ant-Canadian remarks at a jobsite and espoused suppert for ISIS. He claimed thatthe Defendant tld him that he needed to get apiece". He claimed to be afraid of the Defendant who had said he wanted to. “chop people's heads". He also claimed to be afraid of their other roommate, MA. [196] The witness gave a second interview in Arabic some months later, apparently a language in which he has greater faclty than English, The translation is much easier to follow than the prior interview. The tone is more measured. The witness said the Defendant told him that he had watched ISIS beheading videos and that it made him sick, [137] He further claimed that the Defendant liked weapons and that he had twice asked him to go to a shooting range - the last time being 6-7 years ago. He said he would become frightened when the respondent yelled: “Allah Akbar’.Rv. Ibrahim Page 36 [138] LH.G. also said that the other roommate, M.A.F.,.was a known liar within their community. There was no mention of the Defendant asking to procure a gun as alleged in the frst interview. [139] Both these individuals have a long-standing relationship with the Defendant ‘They have levelled serious allegations against him. These witnesses offer important evidence that goes to the heart of these proceedings. They did not testify though the Informant relies on these statements as part of the basis for his fear. [140] There are subtie differences in those statements and between the first and second statements of IHG, There are also credibility and reliability issues that this Court is unable to resolve based on the transcripts and DVD's of those statements. [141] Absent further scrutiny through oral testimony and cross examination, itis Unclear what weight should be accorded to these statements. The Informant conceded that he did not consider potential background credibility issues, nor did he follow up on inconsistencies Though these statements are admissible, | accord them litle weight. 4) Interviews with the Defendant (Exhibit 1 Tab 38; E>hibit2 Tabs 46, 47 48) [142] ‘The Defendant submitted to four intervows with the police between his arrestin July 2016 and his release on ballin these proceedings on December 8, 2016. Each was conducted in English, There are video recordings and transcripts, The Defendant was never offered the assistance ofan intorpreter though his limited facity in English is apparent.Rv. Ibrahim Page 37 [143] The Informant opined that he was satisfied that any misunderstandings that may have occurred were corrected by the end of each interview. With respect, the transcript reflects otherwise. [144] At the beginning of his July 20, 2016 interview, the Defendant misapprehended the most basic small talk. In response to a question about his soccer ebiliies in the past, the following exchange occurred at line 65: MR: OK. Hmm, Were you good? Ki: Sorry? MR: Were you good? Ki: Yeah, now 'm good. MR: No, in soccer, were you good at soccer? [145] Throughout each interview, the skied police interviewers used complex vocabulary. They refer to wanting o “orchestrate” the retun of the Defendant's cell phone (Interview July 20,2016 page 78) and advising him hat they needed his cll shone because it was the “whole encompassing reason” as to why the Defendant was there. At times, they appear to misinterpret the Defendan’s answers (July 20, 2016, page 64) MR: Who are you contacting on your phone then, when you do or are you watching the news? Kl Uh, just afew, a few friends about the work. MR: Justa few fiends about the war? Ki Yeah.Rv. Ibrahim. [146] The Defendant struggled lo explain his “sickness, his cisdain for ISIS and the offects of watching violent videos of evens in the Middle East, particulary the war in Syria, He spoke at length in broken English about his views on ISIS tothe interviewers and said his sickness began in 2014 and that he sought medical attention on his ov at that time, [147] The interviewers sought to establish direct ties between the Defendant and ISIS throughout the interviews. They used presumptive questions about when the Defendant was first “drawn in to ISIS" and when he decided to leave ISIS. [148] When the Defendant insisted that a “see” that depicted him in black clothing had nothing to do with ISIS, they were dismissive of Nis explanation, The photo was taken inside the Defendant's residence. He denied trying fo emulate “Jihad! John’. He sald he was wearing black sthltic clothes and was trying to look strong. He likened his appearance to Israeli Special Forces. He shared is high regard for Israel as a safe county. [149] The Defendant offered hs insight into the appeal of ISIS to those ooking for a place to belong. He said he thought that way when he was sick. Attimes he appeared to speak in the hypothetical. He insisted throughout his communications withthe investigators that his retaionship with ISIS was confined to folowing news in the Middle East. He was insistent that he would never harm anyone. [150] The Defendant rejected ISIS beliefs in each interview with police investigators. He viewed them as evil and not representative of the true Islamic faith.Rv. Ibrahim Page 39 [154] There is no evidence that the Defendant made any contact or outreach to ISIS or that he was a sympathizer. That being sai, his reported statements in the behaviour in the community were conceming and warranted further investigation, [152] In pursuing any criminal investigation itis dificult to conceive that in a muticultural county like Canada, in a post R.v. Tran [1994] 2 S.C.R.951 (S.C.C,) ere, that the police would not make every effort to ensure that a non-English speaker has ‘access to an interpreter, particularly when facing the potential of serious criminal charges. | have litte confidence thatthe Defendant was ble to fully comprehend the ‘nuance let alone the vocabulary used by the police interviewers. [153] When considered objectively, it is impossible to determine if the Defendant ‘grasped the implications and subtleties ofthe interviewers’ questions. It cannot be concluded on an objective basis that he truly understood and was able to communicate ‘what he intended to say. [154] The interviews disclose a troubled middle aged man suffering from depression and other possible mental illness, who also faces a number of social challenges. 5) mages and Google Searches on Cell Phone (Exhibit 2, Tabs 50-54) [155] Some of the images captured on the Defendant's cell phone are disturbing, particularly with respect to the timeline and juxtaposition some of those images downloaded in July 2016.Rv. Ibrahien age _40 [156] That being said, of over 2,300 images captured - only a fraction were produced in. evidence. The only images that have been produced appear io be those that are consistent with the Crown theory. [187] The Defendant's explanation to police interviewers was that he takas photos and Creates collages on his cell phone. Those images were for his private viewing. He referred to his cell phone as his "personality’. He did not share it with others. [158] This wes confirmed in the statements of his two former roommates who said the Defendant was very secretive regarding his cell phone, [189] The Google searches consisted of long, incoherent phrases referencing “mothers land daughters of Canada" followed by profanity and sexually charged language. As ‘word groupings, these searches make no sense. tis unclearif they were a literal translation of swearing in another language or something else. [160] The language and references are troubling, but again, hey were private, internal searches on the Defendant's ell phone. They were not disseminated to third pares. There is one exception noted eatier-a response to @ spam text. The Defendant said he had deleted many ofthese images and searches. The forensic examiners were able to recover them nonetheless, [161] The Informant suggests that these images and searches may reflect the Defendant's intent to engage in acts of terrorism. As troubling as some of the images ‘and searches may be, given that only a very small proportion ofthe cell phone imagesRv. Ibrahim Page 41 have been offered in evidence, there may be other possibilities that fall outside that theory, [162] While such evidence is not a requirement, | note that there is no expert Psychological or psychiatric evidence presented to show that private downloaded photo images and profane Google searches are indicators of a predisposition to engage it criminal or antisocial acts. [163] These images and searches are troubling and the surrounding circumstances indicate that they warranted investigation. They must be considered together with all the other evidence, 6) Subsequent conduct while on bail (Exhibit 3 Tabs 59-101) [164] The Defendant's has been supervised in the community since his release from custody on December 2018. There are a series of emails from various bail supervisors. None testified in these proceedings. The emails show that the Defendant has been ‘generally compliant with community supervision, [165] The emails reflect that there remain mental health concerns and possibly delusions. This was revealed by the Defendant reporting that he had been “splashes by a probation officer named Travis. [166] The Defendant has engaged in other odd behaviours at the probation office that are unexplained, ie. ripping up a newspaper and making sexual gestures in @ room ull Cf waiting probationers. These incidents have been rare, They have not resulted in any further action,Rv. Ibrahim Page 42 [167] The bail supervisors’ emails also reflect that the Defendant is frustrated by the protracted nature of these proceedings and the restrictions imposed on him. {168} | find the emails from the bail supervisors are credible. [168] PRIME reports fortis period other than February &, 2017 - addressed earlier) reflect two concerns about the battery onthe Defendant's electronic monitoring device, ‘one compliance check following an outburst at the probation ofce and one report for an unscheduled attendance at the Courthouse. There was no further action taken on any of these matters. 7) The Observations of the Informant [170] ‘The Informant testified about his personal observations ofthe Defendant on October 25, 2017, He tested thatthe Defendant advanced toward him and two Crown lawyers as they conferedin an alcove outside the courtroom. He said the Defendant Pointed his umbrella at them three times ina threatening manner, aggressively brushed the bottom of his pants and footwear. [171] He saw the Defendant pick up a payphone recelver; hold itto his ear without Putting coins in. He then left. He testified that the Defendant's actions on that day ‘caused him fear for his safety. | have difficulty accepting this assertion. [172] At times, the Defendant has been agitated during the course of these proceedings, There have been occasional outbursts in the courtroom. | note the reference to the word “escort” in a PRIME entry relayed by the Informant. TheRv. Ibrahim Page 43 Defendant appeared to not understand the term and when it was translated with refence to one of his family members, he became very upset. [173] The Defendant was usually calmer when given the opportunity to collect hima. | ind that his reactions are not unlike other individuals facing the stress of serious allegations in ar unfamiliar cout environment. | find his agltalion Is more a reflection of his frustration overlaid with undiagnosed mental illness, Conclusion (174) In R. v J.S.H. (supra), the Court addressed the challenging role of the court in an ‘analogous proceeding pursuant to section 810.2 of the Code. The standard of proof \was different but the considerations are similar. It found at Par. 23-24: [23] The problem with applications of this nature is that they invite an. ‘overly cautious approach to thelr consideration. Nobody wants to be blamed if something goes badly wrong. Caution is rarely a bad thing, and certainly not within this context. There are however two problems with @ ‘one-size-fits-all approach to this problem. Firstly, it presumes that the presence of a court order will fx all problems. This is not always the case, {and at times the order may be so onerous as to add to the stress within the subject's home, increasing the risk for things to go off the rails. ‘Secondly, itis unfair and discouraging to those persons who are genuinely {tying to move forward in their lives. For persons in this category. prolonging the time that someone is in “the system’ can often impede the process of breaking the cycle. [24] _ If this was a case where the evidence suggested that the Defendant was not making any sincere efforts to become a law abiding citizen, or that there was ongoing drug use, domestic violence in the hhome, or if there was good reason to believe that the Defendant was being manipulative, | would not hesitate to grant the order the Crown has requested. In this case however, the Defendant has been the subject of @ very restrictive bail order for over fourteen months, perhaps as long, or longer, than an 810.2 order might have been if he had consented fo enter Into the order at his frst appearanceRv. Ibrahim Page 44 [175] The Crown relies on three binders of exhibits and the testimony ofthe Informant in support of an order under section 810.011 of the Code. The Informant has no personal knowiedge or background information on the contents of the exhibits. [176] He has relied entirely on information collected by third parties to inform his fear. He has taken no steps to verify credibilty concerns regarding any ofthe individuals who offered witness statements and nor has he explored any Inconsistencies in he documentation presented, [177] | find thatthe Informant overeached inhi interpretations of the meaning and significance of the actions of the Defendant, ie. that saying Allah Akbar when one is not religious is consistent with terorst ideation, otha the Defendant's photographs of footwear are consistent with disrespect in Islamic culture. There is no expert evidence ‘on these matters and the Informant is not qualified to advance such an opinion. [178] The Crown has not tendered any expert evidence on ISIS, on terrorism recruitment practices, on basic tenants ofthe Islamic faith and practices; ithas tendered 10 psychiatric reports, no recent medical reports, no risk assessments and no viva voce ‘evidence from anyone who has interacted directly with the Defendant. [179] The Defendant has made ISIS utterances since 2014. The PRIME reports show that the police have historically atvibuted these utterances to mental ines. His public behaviours include disruptions by yeling and acting out. He is sometimes agitated but not violent.Rv. Ibrahim Page 45 [180] The Crown has presented a highly focused narrative that appears minimize o° ignore evidence that is inconsistent with its theory. It has not objectively evaluated the exhibit materials. [181] The Defendant's utterances and behaviour in the community are disturbing and warranted investigation. Itis clear that the Defendant is at times a social nuisance. Kis actions in the community from yelling and other minor disruptive actions have engaged ificant police resources. He also suffers from mental ilness and depression. [182] There is no suggestion on the evidence presented that there is any imminent possibilty that the Defendant may commit a terrorism offence, for the benefit of ISIS or otherwise. Such a conclusion is not reasonable on the totality ofthe evidence. [183]. find that there is a lack of credible and reliable evidence to support the Informant's fear on both a subjective or objective basis. [184] find that on the totality ofthe evidence, the Crown has nat met the burden of proof on the balance of probabilities that there is an objective basis for the Informant's fear that the Defendant may commit a terrorism offence. [185] | note that even if reasonable grounds are established, the language of s 810.011 provides that the imposition of a recognizance under this section is. discretionary. [186] If am wrong in my finding that the Crown has not established on the balance of probabilities reasonable grounds to fear that the Defendant may commit a terrorismRv. Ibrahim. Page 48. offence, on the evidence presented, | would exercise my discretion and stil not impose the order sought. [187] The Defendant has spent 51% months in custody and has been subject to strict bail terms for almost 14 months, likely longer than the term that would been imposed if, he had initaly consented to this application. 1188} It is apparent that the Defendant continues to struggle with mental health issues, as do many other individuals in this community. The criminal law is a blunt instrument. ‘There are other options which may be more effective to address mental health, poverty, cultural and social issues. [189] The Crown's application is dismissed. eo ‘The Honourable Judge T. Alexander Provincial Court of British Columbia