Regina v. Othman Ayed Hamdan

Court	Supreme Court of British Columbia, Canada, Canada
Case number	2017 BCSC 1770
Decision title	Oral Reasons for Judgment
Decision date	22 September 2017
Categories	Terrorism
Keywords	Terrorism, Incitement, Counselling, Foreign fighters
Links	Oral Reasons for Judgment

Summary

Palestinian refugee Othman Ayed Hamdan was charged after posting on various Facebook accounts and pages regarding Middle East politics, particularly supporting ISIS presence in Iraq and Syria. He believed he was carrying out jihad, meaning struggle. The charges arose from 85 posts from Facebook accounts and pages. To prove the elements of the crime, the Crown had to prove two things: 1) that posts were likely to incite a reader to commit a terrorist act and 2) that Hamdan intended to incite his audience.

The Court determined that a reasonable person would find only one of the posts to be an active inducement to commit a terrorist act; however, the court also determined that the Crown could not prove Hamdan intended to induce a reader beyond a reasonable doubt. While the Court did not find Hamdan’s testimony on his intent credible, the court acquitted him because there was reasonable doubt.

Procedural history

The Crown charged Hamdan with counselling the commission of murder, assault causing great bodily harm, and mischief in relation to property, as well as knowingly instructing any person to carry out a terrorist activity (para. 2).

In a previous ruling issued on 24 April 2017, the Court had determined that Facebook posts from Hamdan’s various accounts were admissible in evidence.

Related developments

Upon acquittal, Hamdan was detained by the Canada Border Services Agency, which has been investigating whether Hamdan may remain in Canada in light of his support for terrorist groups, and which has applied to have Hamdan’s refugee status revoked. As of 19 January 2018, no updates on the application are available. K. Bolan, ‘Immigration Board in B.C. Orders ISIS Supporter Detained’, The Province, 5 October 2017.

On 26 January 2018, Hamdan filed a lawsuit against the federal and the provincial governments, claiming he was prosecuted without probable grounds for his guilt and that the Court ignored a body of evidence that supported his innocence. L. Kane, ‘B.C. man acquitted of terror charges sues provincial, federal governments,’ 26 January 2018.

Legally relevant facts

The Court had various issues with the Canadian authorities’ collection of evidence, which presented 85 Facebook posts that spanned over many months and several accounts (para 5). Much of this evidence lacked comments on the posts or surrounding posts, depriving the posts of context. This interfered with the Court’s ability to determine if the posts would induce a reader to commit a terrorist act, and if Hamdan had the requisite intent to induce his readers (para 11).

Many of the posts were Hamdan’s own words, including reports on ISIS attacks, posts indicating support for terrorist acts and lone wolf terrorists (para. 120), and posts expressing his disapproval of Facebook’s policy of deleting ISIS supporters’ accounts, including his own accounts (para. 125). Others were re-posts from the ISIS social media page, including the re-post “…our advice to supporters in the #US…carry your actions there…swiftly lone wolves activate all across the #USA” (para. 121). The mischief to property count regarded a post instructing readers on how to purchase weaponry and on the lack of security at a bridge in Ontario (para. 64).

Hamdan argued he had no intentions of inciting violence and that he was simply advocating his political beliefs (para. 59).

Core legal questions

Has the Crown proved the actus reus for counselling the indictable offense of mischief to property?
Has the Crown proved the actus reus for counselling the indictable offenses of murder and assault causing bodily harm?
Has the Crown proved the mens rea for the offenses of counselling mischief to property, murder, and assault causing bodily harm?

Specific legal rules and provisions

Criminal Code (Canada)

s. 83.2 – Commission of offense for terrorist group

s. 235 – Punishment for murder

s. 267 - Assault with a weapon or causing bodily harm

s. 430 - Mischief

s. 464(a) – Counselling offense that is not committed

Court's holding and analysis

The Court found that the Crown failed to prove actus reus for counselling the mischief against property, as there was no evidence that the posts would incite readers, and that the surrounding posts did not provide context to infer inducement (para. 80).

The Court found that the Crown had proved actus reus for counselling the commission of murder or assault, on a single post, where Hamdan re-posted the following from ISIS: “…lone wolves activate across the #USA…” (para. 123). However, the Crown failed to prove intent, as Hamdan had provided a reasonable doubt when he testified that rather than intending to incite, he simply sought to prove that Facebook’s discriminatory policies were actively radicalizing Muslim Youth.

The charges of counselling require that the statement, viewed objectively, actively induces the commission of the offense. The applicable mens rea is intent (para. 37). Because the Crown only selected a few posts that were taken out of context of surrounding posts and comments, and because they spanned over various accounts and months, likely targeting different audiences, the Court found that there was reasonable doubt as to both inducement and intent; therefore, Hamdan was not guilty of any of the offenses charged (para. 195).