Court of Appeal for Ontario
Date: 2018-07-23
Docket: M48419 (C61095, C61185)
Judge: Watt J.A. (In Chambers)
Between
Her Majesty the Queen Respondent (Responding Party)
and
Chiheb Esseghaier and Raed Jaser Appellants (Responding Parties)
Canadian Broadcasting Corporation Moving Party
Counsel
Iain MacKinnon, for the moving party, Canadian Broadcasting Corporation
Sarah Shaikh, for the responding party, Attorney General of Canada
Heard: February 7, 2018 followed by written submissions on June 19, 2018
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
[1] On December 8, 2017 I ordered that the Canadian Broadcasting Corporation ("the CBC") could have access to certain DVDs containing audio recordings filed as exhibits at the joint trial of Chiheb Esseghaier and Raed Jaser ("the appellants") on various terrorism charges. The audio recordings are of communications taking place between either or both appellants and an undercover operative using the name Tamer El Noury.
[2] The appellants have appealed their convictions and sentences to this court, but have not yet perfected their appeals.
[3] The order permitting access to the DVDs was "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". Counsel have now made those further submissions and have provided a draft undertaking by the single CBC journalist who requires access to the original recordings to complete the voice alterations.
[4] The draft undertaking provided, attached as Appendix A to these reasons, furnishes a satisfactory basis upon which the CBC can have access to the DVDs. Once the undertaking has been signed and filed with the court, the DVDs may be released; the altered recordings created, reviewed and approved by the Crown; and the original recordings returned to the Court of Appeal in accordance with the terms of the undertaking.
Appendix A
Court File No. C61095 and 61185
COURT OF APPEAL FOR ONTARIO
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA Respondent (Responding Party)
and
CHIHEB ESSEGHAIER and RAED JASER Appellants (Responding Parties)
and
CANADIAN BROADCASTING CORPORATION Moving Party
Undertaking
I, Habiba Nosheen, am employed at Canadian Broadcasting Corporation ("CBC") as a journalist and host. This undertaking relates to my obligations to secure and keep safe DVDs that contain intercepted private communications between an FBI undercover employee, Tamer El Noury, and one or both of Raed Jaser and Chiheb Esseghaier (the "Original Audio Recordings"). Both Raed Jaser and Chiheb Esseghaier were convicted of various terrorism offences after trial. The Original Audio Recordings were filed as exhibits either by the Crown or defence at trial, and were subject to a sealing order at the time to protect the identity of the FBI employee.
I understand that, pursuant to a decision dated December 8, 2017 (the "C.A. Decision"), the Ontario Court of Appeal has granted CBC access to the Original Audio Recordings, for the purpose of publication/broadcast on the condition that the voice of the FBI employee be altered so as to disguise his true identity (the "Altered Recordings"). I further understand that the Crown will be provided with the Altered Recordings prior to any publication or broadcast, so that the Crown may be satisfied that the Altered Recordings do not disclose the identity of the FBI employee. Should the Crown have an objection, I understand that all parties must come to an agreement prior to broadcast or publication. If no agreement can be reached, I understand that the Court of Appeal will be notified.
I understand that I will be provided with copies of the Original Audio Recordings by the Court of Appeal, which will be returned once the Altered Recordings are created. I understand that only the Altered Recordings may be published or broadcast.
I understand that if I permit any other person to have access to the Original Audio Recordings or if I release or publish the Original Audio Recordings in any way, I may be subject to contempt proceedings.
I hereby undertake as follows:
To keep confidential and secure the Original Audio Recordings, and any copies made of the Original Audio Recordings, at all times.
To not allow access (including making copies) of the Original Audio Recordings to any person.
To preserve the original DVD copies of the Original Audio Recordings and to play them from one designated computer.
To only make any necessary copies of the Original Audio Recordings on the designated computer for the sole purpose of creating the Altered Recordings.
To otherwise not reproduce the Original Audio Recordings in any manner.
To keep track of how many digital copies of the Original Audio Recordings are made by me, in order to advise the Crown, if requested.
To not publish, broadcast, distribute, or share, in any manner, the Original Audio Recordings, except in accordance with this undertaking or any court order.
To delete any and all digital copies of the Original Audio Recordings once the Altered Recordings are created.
To not publish or broadcast in any way the Altered Recordings until all conditions of access stipulated in any court order have been complied with by CBC, including any right of the Crown to review and approve the Altered Recordings.
To return to the Court of Appeal the DVDs containing the Original Audio Recordings once the Altered Recordings have been made, without delay.
Dated this ______ day of June, 2018, Toronto, Ontario.
Habiba Nosheen
Witness: _______________________
"David Watt J.A."