Court File and Parties

CITATION: France v. Tfaily, 2010 ONCA 127

DATE: 20100217

DOCKET: C51118

COURT OF APPEAL FOR ONTARIO

Goudge, Juriansz and Watt JJ.A.

BETWEEN:

The Attorney General (on behalf of The Republic of France)

Respondent

and

Rania Tfaily

Appellant

Ian Carter, for the appellant

Richard Kramer, for the respondent

Heard: February 9, 2010

On appeal from the order of Justice Robert Maranger of the Superior Court of Justice dated October 6, 2009.

Endorsement

By the Court:

[1] With leave, the appellant appeals the order that electronic images of the hard drives of two computers seized from her be sent to France. Both computers were seized pursuant to warrants issued under s. 12 of the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985 c. 30, s. 12(1). The appellant invites this court to conclude that the warrants could not have been properly issued, arguing that in two ways they were not supported by reasonable and probable grounds.

[2] First, she says that there were insufficient grounds to find that Mr. Diab was communicating via email with other suspects in the plot to blow up a Paris synagogue.

[3] We do not agree. The appellant concedes for the purposes of this appeal that there was evidence that her common-law spouse, Mr. Diab, was part of the terrorist plot. There was evidence that members of terrorist cells do communicate with each other by email. The evidence also shows that after Mr. Diab became aware of newspaper articles discussing his alleged role in the plot, there was a spike in his communications with his ex-wife who was associated with the terrorist group responsible for the attack, and that, at the same time he was taking steps to have some of his communications go undetected. Taken together, this would allow the issuing judge to come to the conclusion that there is a practical and reasonable probability that Mr. Diab was in communication by email with other members of the terrorist plot.

[4] Second, the appellant says that there were insufficient grounds to infer that Mr. Diab may have been communicating via the appellant’s two computers.

[5] Again we disagree. The evidence is that Mr. Diab and the appellant lived together at the residence from where the laptop was seized, that they both taught at a university where the second computer was, that the appellant had an office in a building there, that Mr. Diab had been seen leaving that building, and that he appeared to be trying to disguise his communications by using devices (pay telephones), other than his own. This provides a sufficient basis for the issuing judge to have concluded that there is a reasonable probability that Mr. Diab was using these two computers to email others.

[6] The appeal therefore fails. We need not address the question of remedy.

RELEASED: February 17, 2010 (“S.T.G.”)

“S.T. Goudge J.A.”

“R.G. Juriansz J.A.”

“David Watt J.A.”