Court of Appeal for Ontario

Date: 2017-12-08

Docket: M48419 (C61095, C61185)

Judge: Watt J.A. (In Chambers)

Parties

Between

Her Majesty the Queen Respondent (Responding Party)

and

Chiheb Esseghaier and Raed Jaser Appellants (Responding Parties)

and

Canadian Broadcasting Corporation Moving Party

Counsel

• Iain MacKinnon, for the moving party, Canadian Broadcasting Corporation
• Erin Dann, amicus curiae in relation to the responding party, Chiheb Esseghaier, and agent for the responding party, Raed Jaser
• Nicholas Devlin, for the responding party, Attorney General of Canada

Heard: November 9, 2017

Motion

Motion by the Canadian Broadcasting Corporation for access to certain DVD audio recordings filed as exhibits made the subject of a sealing order at the appellants' trial before the Honourable Justice Michael Code, sitting with a jury.

Endorsement

The Background Facts

The Sealing Order

[1] Chiheb Esseghaier and Raed Jaser ("the appellants") were tried jointly on an indictment alleging various terrorism offences. At their trial, several DVDs containing audio recordings were filed as exhibits. The recordings were of conversations between two undercover police operatives, in particular one who went by the name of Tamer El Noury, and either or both Esseghaier and Jaser. In some circumstances, transcripts of the recordings were also filed as exhibits.

[2] In advance of jury selection the Crown sought several orders, the purpose of which were to ensure the anonymity or, put another way, to prevent disclosure of any information that could reveal the true identity of the undercover operatives.

[3] Counsel for Jaser did not oppose the application by the Crown. Esseghaier was self-represented. He suggested that the undercover operatives had no reason to fear disclosure of their true identity.

[4] Notice of the Crown's application was provided to various media outlets. None responded.

[5] Relying on affidavits from senior police officials in Canada and the United States describing:

i. ongoing or anticipated undercover work of the operatives in both countries in terrorism investigations; and

ii. ongoing efforts of terrorist groups and individual operators of internet websites to identify potential undercover operatives,

the trial judge granted an omnibus order, invoking the statutory authority of s. 486.5 of the Criminal Code and the inherent jurisdiction of a superior court of criminal jurisdiction to control the process of the court to do so. Among the terms of the order were these:

i. Any audio recording of the two undercover officers that may be filed as an exhibit during the course of the trial shall be sealed and prohibited from access to the public, subject to further order of this Court.

ii. Any official audio recording of the testimony of the two undercover officers shall be sealed, subject to further order of this Court. Furthermore, any official audio recording shall not be accessed except by the court reporter (including at the request of counsel for the accused or for the Crown) for the purpose of creating official transcripts of the proceedings. Upon completion of the transcripts, the official audio recording must be re-sealed.

iii. No person, except for the court reporter, shall make any audio recording of the testimony of the undercover officers.

iv. All members of the public shall be prohibited from carrying or using any electronic devices capable of making an audio or video recording inside the two courtrooms during the testimony of the two undercover officers, subject to further order of this Court. This paragraph does not apply to counsel for the respondent, counsel for the applicant, or amicus.

v. No person shall publish or otherwise disseminate any information tending to reveal the true identity of the two undercover officers, including a description of the officers' physical appearance.

The Verdict at Trial

[6] The jury found the appellants guilty as charged. The trial judge imposed lengthy terms of imprisonment on each appellant.

The Appeals

[7] The appellants have filed notices of appeal from conviction and sentence. Counsel who represented Jaser at trial also represent him on appeal. Esseghaier remains self-represented. He has the assistance of amicus to make representations in connection with grounds of appeal that relate to him.

[8] To facilitate completion of the appeal record and supervise perfection of the appeal, counsel, amicus and I have participated in various case management conferences. With their consent, I have agreed to hear any motions associated with the appeal that can be heard and determined by a single judge, rather than by a panel of the court.

The Motion for Unsealing and Release

[9] Some time ago, a representative of the Canadian Broadcasting Corporation ("the CBC") attended at the court office to review the exhibits filed at trial and forwarded to this court for appeal purposes. She noticed that some exhibits, which were subject to the sealing order made by the trial judge, had been commingled with others which were not subject to any sealing order. With commendable restraint, she notified court staff of this error. As a result, all the materials forwarded by the trial court were ordered sealed pending identification of the material subject to the sealing order. Those materials were then separated out, the temporary sealing order was lifted and the journalist notified of the availability of the remainder for review.

[10] By Notice of Motion the CBC asks for an order varying the sealing order made by the trial judge to allow them access to the DVDs containing audio and video recordings of the undercover agent, Tamer El Noury, for journalistic purposes.[1] The CBC undertakes to ensure that the speech and, if necessary, physical appearance of Mr. El Noury is altered to such an extent so as not to reveal his true identity.

[11] The Crown opposes the request. Counsel for Jaser and amicus take no position on the motion.

The Post-Trial Events

[12] After the appellants' trial concluded, Tamer El Noury wrote a book, American Radical. The book describes some of his activities as an undercover operative in counter-terrorism. The publisher is actively promoting its sale.

[13] In addition to – or in support of – his publishing venture, Mr. El Noury has appeared and been interviewed on two network television news programs – "60 Minutes" and "The Fifth Estate". For each televised appearance, his facial features and voice were altered to prevent disclosure of his true identity. He insisted on these alterations because he feared for his own safety and that of his family and did not want to diminish his ability to continue to work as an undercover operative in counter-terrorism.

The Arguments on the Motion

[14] The CBC invokes the "open court" principle and summons the freedoms of expression and the press in s. 2(b) of the Charter in support of its claim for access to the DVDs. I am reminded that access to trial exhibits, including recordings, is a corollary to the open court principle and, further, that broadcasting official audio recordings of court hearings falls within the sweep of s. 2(b) of the Charter.

[15] In the absence of a governing statutory provision, the CBC's argument continues, it falls to the presiding judge, whether at trial or on appeal, to determine, in accordance with the principles settled in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, how exhibits such as audio recordings can be used by accredited media.

[16] In this case, the CBC says, the circumstances have changed since the sealing order was made prior to jury selection. Mr. El Noury, using the pseudonym under which he befriended the appellants and testified at trial, has written a book describing his activities as an undercover agent investigating alleged terrorist activities. He has been interviewed twice on network news programs in Canada and the United States. As those appearances demonstrate, modern technology can be enlisted to mask his distinguishing features, thus ensuring his anonymity. The agency for whom he works, the Federal Bureau of Investigation, has no objection to a television interview about his book, American Radical, provided the operative is willing to participate.

[17] In the result, the CBC urges, the underpinnings of the original sealing order fall away. To leave it in place in its present incarnation cannot be justified on a reasoned application of the Dagenais/Mentuck analysis. A reasonably available alternative, akin to what was put in place at the operative's request for the network television interviews, affords adequate protection without compromise of the constitutional principles at play.

[18] The Crown resists the motion. It submits that the circumstances that underpinned the original order continue to this day. The safety of the undercover operative and his family. The public interest in ensuring his continued viability as an undercover operative in counter-terrorism investigations. No other reasonably available alternatives can ensure his safety and continued viability as an undercover operative. But other reasonably available alternatives exist for the CBC, such as having an actor read transcripts of the relevant communications.

[19] When the balancing required under Dagenais/Mentuck is done, the Crown says, the potential harm likely to ensue by disclosure continues to outweigh the benefits claimed by the CBC. The sealing order should remain in place.

The Governing Principles

[20] The principles that control the decision in this case are largely uncontroversial. But, as is often so, the parties differ on the result the application of those principles should yield here.

[21] Broadcasting a recording is an expressive activity to which the protection of s. 2(b) of the Charter might apply: Canadian Broadcasting Corp. v. Canada, 2011 SCC 3, [2011] 1 S.C.R. 65, at para. 10. See also, Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927.

[22] Access to exhibits is a corollary to the open court principle. As a result, in the absence of an applicable statutory provision, it is for the court in which the exhibits are lodged to determine the extent to which and the manner in which the exhibits may be used: Canadian Broadcasting Corp., at para. 12; MacIntyre v. Nova Scotia (Attorney General), [1982] 1 S.C.R. 175, at p. 189. Access to exhibits may include the imposition of conditions that must be satisfied before access is granted: Canadian Broadcasting Corp., at para. 14.

[23] Orders relating to access to exhibits do not issue as of right, rather involve the exercise of judicial discretion. Since these decisions are at once discretionary and affect the openness of proceedings, the analytical approach developed in Dagenais and Mentuck applies: Canadian Broadcasting Corp., at para. 13; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at para. 31.

[24] The exercise of judicial discretion involves the balancing of several factors often at odds with one another. The weighing involved in the analysis required by Dagenais/Mentuck, which includes the factors listed in Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] 1 S.C.R. 671, is based on considerations that include the specific context of the case at hand: Canadian Broadcasting Corp., at paras. 13 and 16.

[25] What must be considered under Dagenais/Mentuck is not only the objectives of a restriction, but also the proportionality of the restriction to its effect on Charter-protected rights or freedoms. Dagenais teaches that a publication ban should only be ordered when:

i. the ban is necessary to prevent a real and substantial risk of harm, because reasonably available alternative measures will not prevent the risk; and

ii. the salutary effects of the ban outweigh the deleterious effects to the free expression of those affected by the ban.

See, Dagenais, at para. 73.

[26] To assess the validity (or continued vitality) of the order in this case, it is necessary:

i. to consider the objectives of the order;

ii. to examine the availability of reasonable alternative measures that could achieve those objectives; and

iii. to consider whether the salutary effects of the order outweigh the deleterious impact the order has on freedom of expression.

See, Dagenais, at para. 74.

[27] It is worthy of reminder that the objective of the order is to prevent real and substantial risk to a defined interest, not remote and speculative dangers: Dagenais, at para. 76.

[28] An additional point concerns the authority of a single judge of this court to make the order the CBC seeks.

[29] Neither the CBC nor the Crown took issue with the authority of a single judge, as opposed to a panel of judges, to make the order sought. Nothing in Part XXI incorporates by reference s. 486.5 of the Criminal Code. There, the term "judge" is used, but not defined in or for the purposes of the section. Nor does Part XXI contain a specific provision relating to management of exhibits within the custody and control of the court.

[30] In the absence of controversy, I need not determine the precise authority that can serve as a juridical source for the order sought. I leave for another day whether it can be exercised by a single judge or only by a panel of the court. See, R. v. Morin (1997), 32 O.R. (3d) 265 (C.A.); R. v. Derbyshire, 2016 NSCA 67, 340 C.C.C. (3d) 1; and R. v. Canada (Attorney General), 2014 ABCA 330.

The Principles Applied

[31] As I will explain, subject to certain conditions about which I will hear further submissions at the convenience of counsel, I am satisfied that the CBC is entitled to the access to the audio recordings it seeks.

[32] The recordings are now subject to a sealing order granted by the trial judge on a pre-trial application by the Crown. Subject to inclusion of a condition not material to this application, the order sought was not opposed at trial. Invited to participate there, the CBC did not appear.

[33] The juridical basis upon which the trial judge relied was twofold: s. 486.5 of the Criminal Code and the common law authority of a superior court of criminal jurisdiction to control its own process, which in turn required consideration and application of the Dagenais/Mentuck test. The order did not contain an expiry date, but was subject to "being revisited at a future date and being subject to further order of the court".

[34] In their submissions, the parties have treated this application as a matter of first instance based on a material change in circumstance, rather than a review of the order made by the trial judge. As it would appear to me, their approach is sound since it is this court that now has custody of the recordings which were entered as exhibits at trial and to which access is now sought.

[35] The test I will apply is that of Dagenais/Mentuck, rather than the statutory mandate s. 486.5 of the Criminal Code provides. Section 486.5 is in Part XV of the Criminal Code – Special Procedure and Powers. It is a section and a Part which is not incorporated in or by Part XXI – Appeals – Indictable Offences. Absent a definition of the term "judge" in the section, nothing there suggests the jurisdiction it confers may be exercised by a single judge or by a panel of a court of appeal.

[36] As a corollary to the open court principle, access to exhibits follows, subject to the authority of the court as custodian to determine the extent to which and the manner in which the exhibits may be used.

[37] In this case, the sealing order is the functional equivalent of a publication ban. Each displaces the presumption of openness and requires justification by the Crown under the Dagenais/Mentuck standard or regime.

[38] I consider first whether the sealing order is necessary to prevent a serious risk to the proper administration of justice, because reasonable alternative measures will not prevent the risk.

[39] It is difficult to gainsay that an order that directly or indirectly prohibits publication of information tending to identify operatives involved in an undercover operation, including such identifiers as likeness and voice, can be regarded as necessary to further the proper administration of justice. Current investigations would be compromised and the future utility of the operative arrested.

[40] It is not every risk to the administration of justice that satisfies the necessity requirement under Dagenais/Mentuck that justifies a publication ban or its functional equivalent, a sealing order. The risk must be serious and it must not be preventable by reasonable alternative measures.

[41] In this case, I have no evidence upon which I can reach a reasoned conclusion about the seriousness of the risk to the administration of justice. Not in terms of the likelihood that the risk will become reality. Nor as to the gravity of the consequences, whether in terms of the compromise of ongoing or future investigations or the life or safety of the operative. On the other hand, it would seem self-evident that disclosure of his identity or identifiers could jeopardize an ongoing investigation and compromise the safety or security of the operative. In addition, it would seem a reasonable inference that operatives with the necessary language facility and other attributes to successfully insinuate themselves into closely-knit alleged terrorist organizations are not numerous. Compromise of one reduces the pool even further.

[42] A publication ban or its functional equivalent, a sealing order, is necessary to prevent a serious risk to the administration of justice only where reasonable alternative measures will not prevent the risk. Put somewhat differently, the case for a publication ban or sealing order fails where reasonable alternative measures will achieve the same purpose.

[43] In this case, Mr. El Noury has written a book about his work as an undercover operative. He used the same name he assumed in the investigation in this case and under which he testified. He has appeared twice on national network news programs, once in the United States and once in Canada. In each case, his voice and physical appearance were altered. The irresistible inference from these appearances is that Mr. El Noury considers these disguises adequate to protect a serious risk to himself, his family and current and future investigations. It follows that the Crown cannot satisfy the necessity requirement under Dagenais/Mentuck.

[44] Further, although it may not be necessary to conduct this balancing, I am satisfied that the salutary effects of the ban on the efficacy of police operations and the safety of undercover operatives are outweighed by the deleterious effects on other Charter-protected interests, such as freedom of expression and of the press.

Conclusion

[45] In the result, the CBC shall have access to the DVD audio recordings it seeks, subject to the terms and conditions for the alteration of the recordings to disguise Mr. El Noury that will be settled after counsel make further submissions.

David Watt J.A.

[1] The CBC's motion is limited to the recordings of Mr. El Noury; it does not seek access to the recordings involving the second undercover agent.