RCMP rights breach won’t affect evidence in terror case

RCMP breached the rights of a Fort St. John man facing terrorism charges, but the violations are not so serious that they warrant the exclusion of evidence gathered by police, a judge has ruled.

In July 2015, Othman Ayed Hamdan was arrested and charged with three counts of counselling the commission of indictable offences for the benefit of, at the direction of or in association with a terrorist organization.

He was also charged with one count of indirectly instructing persons to carry out terrorist activities.

The offences relate to a series of Facebook posts between September 2014 and July 2015 that are alleged to have been supportive of the Islamic State, a terrorist organization listed by the Canadian government.

Hamdan also made a number of statements to police before and after his arrest.

Following pre-trial hearings, B.C. Supreme Court Justice Bruce Butler concluded that the police had violated Hamdan’s right to a lawyer at the first reasonably available opportunity.

“The police could have, but failed to account for his rights by bringing a mobile phone with them and arranging for a private place for him to speak with counsel at the scene of the arrest,” said the judge.

“It was not until 37 minutes after the arrest that the police phoned Legal Aid on Mr. Hamdan’s behalf. I found that the RCMP did not, however, breach its obligation not to elicit any information from Mr. Hamdan before he was able to speak with his lawyer.”

The judge also found that Hamdan’s right against unreasonable search and seizure was violated when a civilian member of the RCMP, who was less familiar with the requirement for warrants than officers, made an unauthorized search of the accused’s email accounts.

“Accordingly, even though the unauthorized search occurred without any intent to violate Mr. Hamdan’s rights, the violation was the result of police negligence,” said the judge, adding that the breach was “promptly” and “appropriately” dealt with when it was discovered.

The defence argued that there was a “contextual” connection between the Facebook posts and the breaches and that allowing the evidence would bring the administration of justice into disrepute.

But the judge disagreed with those arguments, finding that most of the posts were obtained long before the arrest.

“The accused was not directly involved in the events that led to the capture of the posts; Facebook posts are open source material found on the Internet. The collection of the posts was not part of an event between the accused and the police.”

Any connection between the breach of a right to a lawyer and the accused’s statements to police was also tenuous, said the judge.

On at least two occasions before he got to speak to his lawyer, Hamdan tried to discuss the charges with the police officers, with the officers reminding him of his right to speak to counsel and refusing to discuss the charges with him, said Butler.

“As a result, prior to obtaining legal advice, Mr. Hamdan made no statements to the police of any substance or relevance to the charges. Accordingly, the impact of the breach on Mr. Hamdan’s protected interests was not serious.”

Court heard that Hamdan came under scrutiny after the shootings on Parliament Hill in Ottawa in 2014 prompted the RCMP to search social media for potential threats to national security.

“I found that the RCMP did not, however, breach its obligation not to elicit any information from Mr. Hamdan before he was able to speak with his lawyer.” — JUSTICE BRUCE BUTLER