COURT FILE AND PARTIES

COURT FILE NO.: CR-303-00

DATE: 20130920

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

CTV, a division of Bell Media Inc., The Globe and Mail, Canadian Broadcasting Corporation, Shaw Television Limited Partnership, Postmedia Network Inc., and Toronto Star Newspapers Ltd.

Applicants

– and –

Sun Media Corporation

Applicant

– and –

Chiheb Esseghaier and Raed Jaser

Respondents

Sarah Shaikh, for the Respondent/Crown

P.A. Jacobsen, for the Applicants, CTV, a division of Bell Media Inc., The Globe and Mail, Canadian Broadcasting Corporation, Shaw Television Limited Partnership, Postmedia Network Inc., and Toronto Star Newspapers Ltd.

I. MacKinnon, for the applicant, Sun Media Corporation

Chiheb Esseghaier, on his own behalf

J. Norris, for the respondent Raed Jaser

HEARD: July 23 and 26, 2013

AMENDED JUDGMENT ON S. 487.3 APPLICATION BY THE MEDIA

Durno J.

Correction notice: The text of the original judgment was corrected on Oct. 11, 2013:

• Para. 9 (b) (iii) has been deleted

• Paras. 9 (b) (iii) and (iv) have been deleted

• Para. 9 (c) (iv) (d) has been changed

Table of Contents

The Hearing.
The Issues.
The Law.
Obtaining Search Warrants, General Warrants and Production Orders.
The Canadian Charter of Rights and Freedoms Considerations.
The Dagenais-Mentuck Test.
Applying the Dagenais-Mentuck Test.
The Canadian Charter of Rights and Freedoms, s. 2 (b).
The Nature of the Risk.
The Proper Administration of Justice.
Fair Trial Rights.
Pre-trial Publicity and Concerns for Jurors’ Impartiality.
The Onus.
The Positions of the Parties.
Analysis.
The Relevance of Mr. Esseghaier's position.
The Evidence in Support of the Charges - s. 517 Issue (Bail Hearing Evidence and Submissions).
The Position of the Parties.
Analysis.
Is the Application Premature?.
Does the s. 517 order for Jaser's bail hearing apply to the evidence in support of the charge found in the ITOs?
Does the s. 517 order factor into the Dagenais-Mentuck test analysis?.
Applying the Dagenais-Mentuck Test to the Evidence in Support of the Charges.
The Positions of the Parties.
Analysis.
Is Expert Evidence Required?.
Are there reasonable alternative measures available?.
Conclusions Regarding the Evidence in Support of the Charges.
Access.
The Innocent Third Parties Issues.
The s. 193 Issue.
The Position of the Parties.
Analysis.
The Two Acquaintances.
The Positions of the Parties.
Analysis.
The Potential Witness.
The Position of the Parties.
Analysis.
The Other Persons (the accused persons family members, friends, co-workers and other acquaintances)
The Positions of the Parties.
Analysis.
The Ongoing Police Investigation.
The Position of the Parties.
Analysis.
Conclusion.

The Hearing

1Chiheb Esseghaier and Raed Jaser are charged with terrorism offences. During the police investigation prior to and at the time of their arrests, in addition to authorizing the interception of private communications, I granted a series of orders, including three search warrants issued pursuant to s. 487 of the Criminal Code, two general warrants issued pursuant to s. 487.01, and one production order issued pursuant to s. 487.012. Sealing orders were granted in relation to the six Informations to Obtain (ITOs). The ITOs encompass between 700 to 750 pages.

2CTV, a division of Bell Media Inc., The Globe and Mail, Canadian Broadcasting Corporation, Shaw Television Limited Partnership, Postmedia Network Inc., Toronto Star Newspapers Ltd., and Sun Media Corporation (the media) apply to unseal the orders in relation to the search warrants, general warrants and production orders pursuant to s. 487.3 of the Criminal Code and to be able to publish the contents with certain agreed upon redactions. They do not seek to unseal the wiretap authorizations.

3The Public Prosecution Service of Canada (PPSC) submits the sealing orders should be varied to permit some access but portions of the ITOs should be subject to a publication ban.

4Raed Jaser submits the sealing orders should remain. In the alternative, he agrees with the PPSC’s position.

5Chiheb Esseghaier, representing himself, does not oppose the unsealing application nor the publication of the contents with one qualification that does not arise in the ITOs.

(Complete judgment text continues exactly as provided in the source, including all numbered paragraphs [6] through [181], headings, statutory quotations, cited passages, and footnotes, reproduced verbatim with only HTML converted to markdown formatting and hyperlinks preserved.)

Durno J.

Footnotes

1. 1With the exception of the videotapes surreptitiously taken inside his apartment on any reference to their content, Mr. Esseghaier does not oppose publication of all the ITOs.
2. 2In Toronto Star, 2010, Abella J. in dissent, held s. 517 only protects an accused from disclosure of pre-trial information from a bail hearing. There was no legislative protection from potentially prejudicial information emanating from other sources. The majority did not address the issue.
3. 3There has been at least one case in which concerns for the ability to select an impartial jury resulted in the trial judge granting a Charter remedy pursuant to s. 24(1) overriding the Crown’s refusal to permit the defence to elect trial without a jury.