COURT FILE AND PARTIES

COURT FILE NO.: CR-13-10000655-0000
DATE: 20141201

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Chiheb Esseghaier and Raed Jaser

BEFORE: M.A. Code J.

COUNSEL:
Croft Michaelson, Sarah Shaikh and Marcy Henschel, for the Crown

John Norris and Breese Davies, for Jaser

Russell Silverstein, Amicus Curiae

Chiheb Esseghaier, representing himself

HEARD: November 24 and 27, 2014

ENDORSEMENT

A. OVERVIEW

[1] This is a pre-trial Motion seeking to edit certain passages from wiretap interceptions involving the accused Chiheb Esseghaier and Raed Jasser (hereinafter, Esseghaier and Jaser). They are presently facing trial on an Indictment that alleges five terrorism-related offences. I previously ruled that the wiretap interceptions were admissible, after a s. 8 Charter Motion. See: R. v. Esseghaier and Jaser, 2014 ONSC 6052.

[2] The present Motion seeking editing of a small number of the wiretap interceptions was brought by Ms. Davies, counsel for Jaser. Given that Esseghaier is self-represented, I asked Mr. Silverstein (as amicus) to participate in the Motion. Counsel identified eight passages which, they submitted, should be edited on the basis that their legitimate probative worth was outweighed by their prejudicial effect. This long-standing common law rule of evidence involves a form of “cost benefit analysis” in which a number of different kinds of “prejudice” (or “cost”) can be considered. As explained in Watt’s Manual of Criminal Evidence, 2014 Thomson Reuters, at p. 43:

The common law recognizes that a trial judge has a discretion to exclude evidence, otherwise admissible, in certain circumstances. What is required, in essence, is an assessment of the effect of the reception of the evidence on the fairness of the trial.

Evidence tendered by P, which is relevant, material, and otherwise admissible, may be excluded in the application of a cost benefit analysis on the ground that:

i its probative value is overborne by its prejudicial effect;

ii it involves an inordinate amount of time that is not commensurate with its value;

iii it is misleading in that its effect on the trier of fact is out of proportion to its reliability; or

iv it involves the needless presentation of cumulative evidence.

[Italics in the original.]

Also see: R. v. Candir (2009), 2009 ONCA 915, 250 C.C.C. (3d) 139 at pp. 160-166 (Ont. C.A.) where Watt J.A. reviewed and applied the leading authorities.

B. THE FIRST AND SECOND PROPOSED EDITS: DEROGATORY STATEMENTS BY TAMER ABOUT JEWS

[3] The first proposed edit involves an intercepted conversation between Esseghaier and an American undercover police officer known as Tamer. It took place on September 7, 2012 in Montreal, shortly after Tamer had come to Canada from his home in the United States, in order to visit Esseghaier.

[4] The context for the relatively minor edit sought by the defence is a lengthy conversation in which Tamer was trying to win Esseghaier’s confidence. They had previously met in the United States and had befriended each other, to some extent. In the course of their conversation in Montreal, Tamer tells Esseghaier that, “I pray to Allah every day, and every time I pray, I ask Him … tell me what I can do … I look at all the problems that are taking place in this world … and the Muslims who are being beaten up … help me do things for all the Muslims … I don’t want just to give money, I want to do more.”

[5] The conversation turns to a discussion about “the present life … including luxury and cars” in the west, while “bombs are over their heads” in Muslim lands in the east. At p. 37 of the transcript, Tamer tells Esseghaier a story about eating a meal with a Palestinian friend in a restaurant in Virginia. They were approached by a lawyer who engaged the two Muslim men in a debate about the wars in Afghanistan and Iraq. The lawyer was initially unsympathetic to the Muslim perspective, advanced by Tamer, but Tamer eventually succeeded in persuading the lawyer that these wars were akin to a home invasion. Tamer presumably told the story to Esseghaier in order to illustrate his political and religious views.

[6] None of this seems objectionable to me and it should not be edited. It flows naturally from the earlier conversation, where there is no proposed editing, and it is not inflammatory or prejudicial. When pressed on the point, Ms. Davies conceded that this part of Tamer’s story did not need to be edited. However, at the very end of Tamer’s telling of the story he mentions the fact that the Virginia lawyer is a Jew. Tamer then proceeds to make a number of derogatory statements about Jews. Esseghaier does not appear to participate in this concluding aspect of the story in any significant way, although he does not disagree with Tamer’s expressed views.

[7] These final brief references to the religion or ethnicity of the Virginia lawyer should be edited out. In my view, they are not necessary to the real thrust of the story (which is about various religious and political views relating to the wars in Afghanistan and Iraq), they involve utterances made by the undercover officer Tamer (as opposed to utterances made by either of the two accused), and they could have an inflammatory effect on some members of the jury. There are passages, later in the wiretaps, where Jaser and Esseghaier discuss the conspiracies alleged and, in that highly relevant context, they express their own views about Jews. It is not suggested that these later passages should be edited.

[8] For all these reasons, I would edit a much shorter passage from the September 7th transcript than what Ms. Davies had initially proposed. Specifically, the edit should begin at p. 38, l. 2197 with the words, “go away you Jew …” The edit should end at p. 38, l. 2207 with the words, “… damn them all”.

[9] Later in the wiretaps, Tamer repeated this story about a lawyer from Virginia and their political and religious debate in a restaurant, while Tamer was eating a meal with a Palestinian friend. This later intercept took place on September 9, 2012, while Tamer and Esseghaier were in Toronto visiting with Jaser. The three of them went for a walk and Tamer provided a more truncated version of the same story. The word “Jewish” should be edited from p. 119, l. 6922, and the words “by these Jews” should be edited from p. 119, ll. 6951 and 6955, for the same reasons already set out above.

C. THE THIRD AND FOURTH PROPOSED EDITS: STATEMENTS BY ESSEGHAIER ABOUT A “BOMB”

[10] The next set of proposed edits concerns two statements made by Esseghaier about a “bomb”. He made these statements to Tamer, while they were driving from Montreal to Toronto on September 8, 2012 and then again, while they were driving back to Montreal from Toronto on September 10, 2012. Esseghaier introduced Tamer to Jaser, in Toronto, in between these two road trips.

[11] The context for the first utterance about a “bomb” is that Tamer had already had a lengthy discussion with Esseghaier on the previous day, September 7, upon arriving in Montreal. During that prior discussion, Esseghaier had told Tamer about traveling to the “borders between Iran and Afghanistan” and visiting there with “brothers who are … Mujahedeen” and who are “carrying out Jihad for the sake of Allah”. Esseghaier also confided in Tamer that these “brothers like told me, go back to Canada and stay there and of course, we’ll keep in touch, Allah’s willing … So I am in contact with them, thanks to Allah.” Esseghaier advised Tamer, “I communicate with the brothers” by “using code … using cypher … we talk using symbols”. Finally, Esseghaier had told Tamer that they would meet “the brother from Palestine” (Jaser) and “a brother that is from Pakistan” in Toronto and that “the brother … from Pakistan loves the Jihad and he loves Mujahedeen” and that “this brother from Pakistan and the brother from Palestine are like brothers”.

[12] The next day, on September 8, 2012, Esseghaier and Tamer were driving to Toronto to meet “the Palestinian brother” (Jaser). Early in their conversation, Esseghaier advised Tamer, “don’t tell him [Jaser] a thing” and “take it one step at a time”, so that Jaser and Tamer could “get to know each other”. Esseghaier advised that Jaser may be “a little bit afraid, we don’t know … because he’s married. He could be scared for his wife”. In this context, Tamer enthusiastically tells Esseghaier, “You’re sitting and I am driving, now you got me so fired up and juiced up and I’m … I’m ready, I’m ready. Praise God”. Presumably, Tamer was trying to show Esseghaier that he had no fears. Esseghaier responds, “God willing, if I tell you prepare the bomb, the bomb”. Tamer chuckles and replies, “give it to me, give it to me habibi”. Esseghaier laughs and they both say, “Allah is the greatest”.

[13] The defence submits that the reference to “the bomb” is irrelevant to the offences charged, as they do not involve allegations about bombs. Furthermore, the defence submits that it is highly prejudicial and likely to lead to “moral prejudice” as the jury may infer that the accused have a disposition to commit bombing offences. The defence, therefore, seeks a minor edit of the two lines in this September 8th transcript that refer to a “bomb”.

[14] I do not agree that this reference to a “bomb” is irrelevant, nor do I find it particularly prejudicial, as that term is understood in the law of evidence. In my view, this exchange between Esseghaier and Tamer is an important step in the building of their relationship and Esseghaier’s reference to “the bomb” is a good indication of the confidence and trust that is developing between the two. Furthermore, it is highly relevant to the terrorist objectives of the offences that are charged in the Indictment.

[15] The five counts in the Indictment include a charge in Count One of conspiracy to cause damage to property used in transportation with intent to endanger persons. This count refers to a plan to derail a train by damaging a railway trestle. Count Two charges conspiracy to commit murder. Both conspiracies are alleged to have been for the benefit of a terrorist group. In addition, there are three counts charging the offence of participating in the activity of a terrorist group. The factual means by which the Crown seeks to prove these offences, in particular, the Count Two murder conspiracy, involve a number of plans, including derailing the passenger train, poisoning food at a military base, and shooting prominent people with a “sniper rifle”. Later in the wiretaps, while discussing these plans, Esseghaier tells Tamer that making a hole in a railway bridge, such that the train derails with “gas inside … the train, the train itself will become bomb … Everything will blow up”. Later still, after examining a particular railway bridge and finding that it was “too well-built”, Jaser suggests buying “supplies” or “components” from a construction company that could be assembled, because dynamite is “tough to get”. When Tamer inquires as to whether Jaser means “we blow it [the trestle] up”, Jaser replies, “I don’t see any other way”.

[16] In all these circumstances, I am not satisfied that the use of bombs or explosives is irrelevant to the offences charged. Indeed, it appears to be a component part of the conspiracies alleged. Furthermore, this initial reference to a “bomb” in the September 8th transcript appears to be a joke or a bluff by Esseghaier, as he seems to be testing his relationship with Tamer. In my view, it is not particularly prejudicial because it is light-hearted, in contrast to the subsequent and far more serious utterances concerning bombs and explosives. Accordingly, I would not make this third proposed edit.

[17] The fourth proposed edit raises somewhat similar issues. Tamer and Esseghaier were driving back to Montreal on September 10, 2012, after meeting with Jaser in Toronto. They referred back to their discussions with Jaser on the previous day and the need “to have multiple plans”. In those earlier discussions, on September 9, Jaser had said to Tamer and Esseghaier, for example, “in the meantime if you guys think of some other target that will also be good if you find something … so we don’t waste our time … we’re always working … Even if one thing doesn’t work, another one works … then we can keep going”. Tamer asked Jaser, later in the same discussion, “What do you think Raed about America? Like we do something, what do you think?” Jaser replied, “there are lots of opportunities … because of population … so any small business can have a large impact”.

[18] On the next day, September 10, Tamer and Esseghaier referred back to these earlier discussions with Jaser in Toronto, for example, when discussing a plan to have a chef poison food at a military base and discussing “the sniper” plan which would target prominent people who “are exposed … in public”. At this point in the discussion, Tamer asks Esseghaier, “What do you think about in America? Anything we can do now to get ready for anything? Sniper or anything, any other ideas, whatever you have, over there in Iran, you learned these things, teach me. What is there in America that could …” This question from Tamer appears to repeat the question he had asked Jaser in Toronto on the previous day, as set out above.

[19] Esseghaier responds to this broad inquiry from Tamer about potential targets in the U.S.A. by stating that they could consider “attacking the Jewish, Jewish advantage in U.S.A. … Jewish economic” interests, such as restaurants that provide financial support to Israel. Esseghaier states that an “attack on those … points, maybe can change many things”, and he asks Tamer to look for “Jewish locations” in New York. Esseghaier then asks Tamer, “but the attack has to be, attack with what? Meaning with what?” Tamer responds by asking, “Do you mean a bomb?” A discussion then ensues as to whether they could obtain a bomb in the U.S.A. and as to whether Esseghaier has any knowledge about bomb-making. On this latter point, Esseghaier states that “Our brother the sheikh explained to me … they have a way to make it, very specific, how he produce that weapon with very specific formulation”. Esseghaier states that, “he [the sheikh] gave me some detail”, about the use of soil and electrical wire, but that the bomb formula is “very confidential” and “he [the sheikh] did not clarify to me any further on how to exactly use it”.

[20] The defence objects to these references to bombs and bomb-making on the same basis as the earlier reference to a bomb, already discussed above. In my view, these references are highly relevant to the “multiple plans” that appear to have been under consideration at the time of the alleged offences. For the same reasons already set out above, the potential use of bombs and explosives appear to have been included in those plans. Accordingly, the discussion between Tamer and Esseghaier about bombs and bomb-making is directly relevant to the terrorist objectives and offences which the Crown seeks to prove. It is not minimally probative nor is it prejudicial in the sense of raising improper or collateral issues. In addition, Esseghaier’s discussion about bomb-making casts important light on his relationship with the overseas “sheikh” who he apparently met with on his travels to the Iran/Afghanistan frontier. This is the apparent leader of the “terrorist group” which was instructing and directing the accused, as I understand the Crown’s allegations.

[21] For all these reasons, the part of the Motion relating to references to “bombs” (which I have called the third and fourth proposed edits) is dismissed.

D. THE FIFTH AND SIXTH PROPOSED EDITS: REFERENCES TO OSAMA BIN LADEN

[22] During the September 8, 2012 drive from Montreal to Toronto, Tamer and Esseghaier engaged in a lengthy discussion about marriage. Esseghaier raised the topic, and sought Tamer’s advice, because he had recently met a Palestinian woman from Jordan who was working on her PhD in the same office as Esseghaier.

[23] Esseghaier thinks that the woman loves him, and he thinks that he may love her, but he is concerned as to whether marriage would somehow be inconsistent with his commitment as a “Mujahid” to “the project”. Tamer’s advice to Esseghaier, in substance, is to “follow your heart” provided “you’re not going to tell her anything regarding any operation”. In this regard, Tamer points out the fact that he is married and that Jaser is married and that Esseghaier is “not gonna deviate … if you get married … you’re just bringing her with you”.

[24] Most of this lengthy discussion about marriage is marginally relevant, except that it tends to infer the degree of Esseghaier’s commitment to being a “Mujahid”. There is also a brief but important discussion about the date on which “we plan on doing this first mission”. Tamer asks, “When’s the big day”, in reference to the date of the first mission, in order to be sure that the potential marriage they are discussing will not interfere with their “project”. Esseghaier replies, “the biggest day, God willing, in December”.

[25] The defence concedes the admissibility of the above discussion. The only proposed edit is a brief reference to “Sheikh Osama” which occurs at the end of almost twelve transcript passages concerning the marriage issue. It is Tamer who raises the subject of “Sheikh Osama” and uses him as another example of a person who was married and who did not “deviate”. Tamer and Esseghaier agree that “Sheikh Osama” had four wives and that he did not “deviate” from “his plan”, as Tamer puts it. It is conceded that the reference to “Sheikh Osama” would be understood as a reference to Osama bin Laden.

[26] I agree with the defence that this reference should be edited out. The whole marriage discussion has limited relevance and the further example of “Sheikh Osama”, as yet another married “Mujahid” who did not “deviate”, adds little to the previous discussion and to the previous examples. Furthermore, it is Tamer who raises this topic and not Esseghaier. Finally, the reference to Osama bin Laden not deviating from his “plan” is inflammatory as it will likely conjure up memories of the events of September 11, 2001 for some jurors.

[27] I appreciate that there is an earlier reference to “Sheikh Osama”, in the September 8, 2012 intercept, and that it will not be edited. However, that reference is quite different in my view. In the first place, it is made by Esseghaier, and not by Tamer. In addition, there is no mention of Osama bin Laden’s “plan” and whether he “deviated” from it. Finally, this earlier reference to “Sheikh Osama” is made in a highly relevant context. Esseghaier is discussing his previous travels to the Iran/Afghanistan frontier and he refers to having received a “message from that Sheihk … our Sheikh from Egypt … the one who succeed Sheikh Osama”. Esseghaier states that the message from “our Sheikh” was received by him through an intermediary who Esseghaier describes as, “the one who is in charge … in charge of financial, that I have met in Iran. He told me and said that he has soldier in U.S.A., he’s just sleeping, you know? … He’s one sleeping cell … I mean he had more than one … he told me he has a soldier there in the U.S.A. and he said, when I come back from Afghanistan, he said to me, I will contact you … I will ask the soldier to contact you. Either the soldier come to Canada or you go to him in the U.S.A.”

[28] I agree with Ms. Davies that the fact that the jury will appropriately hear this one highly relevant, brief and indirect reference to “Sheikh Osama”, in an entirely different context, does not justify putting another marginally relevant reference before the jury, especially when the further reference includes the potentially inflammatory statement by Tamer about Osama bin Laden not having “deviated” from his “plan”.

[29] In my view, the edit during the marriage discussion should be somewhat shorter than the one Ms. Davies initially proposed. It should begin at p. 23, l. 1331 of the September 8th transcript, with the words “Sheikh Osama right …:”. It should end at p. 23, l. 1343 with the words “… God rest his soul”.

[30] There is a further reference to “Sheikh Osama” that the defence seeks to edit. It occurs on September 23, 2012 at a meeting in Toronto attended by Jaser, Esseghaier and Tamer. They begin by discussing the apartment that Tamer has just rented in Toronto for their project. Tamer advises that he is renting the apartment through his business and that “it is all tax deductible”. This causes Esseghaier to inquire as to whether “the government took a lot of tax from you”. Tamer acknowledges that he pays “a lot” of tax. Esseghaier then tells Tamer, “if you were not helping the Mujahedeen, you would’ve been considered a big criminal … Because you are helping, with the taxes, U.S.A. government to kill your brothers … I am worried about you at the Day of Judgment”. Tamer reassures Esseghaier that he gives “much more [money] to the brothers in Dubai”, than he pays to the U.S. government in taxes, that he hides “the majority of the money” so as to evade U.S. taxes, and that he deducts “all my trips … to meet you here” so as to reduce his taxable income.

[31] There is no objection to this initial part of the discussion about paying U.S. taxes. However, it is in this context that Esseghaier states that Tamer “reminds me of Sheikh Osama … I mean how you move around and the cleverness you have … I remember Sheikh Osama … Sheikh Osama had money, many times more than you have ... He walked away from all the money and went to the mountain”.

[32] I agree with the defence that this further reference to “Sheikh Osama” should be edited. The entire discussion about how Tamer arranges his financial affairs, whether he pays taxes to the U.S. government, and whether he is particularly clever in these matters, is only marginally relevant. It provides some minor additional evidence concerning Esseghaier’s beliefs and motivation. In my view, the final brief reference to “Sheikh Osama” adds little, if anything, to this issue. To the extent that this reference appears to indicate Esseghaier’s admiration for Osama bin Laden and admiration for his retreat “to the mountain” after the events of September 11, 2011, it has the same inflammatory potential as the previous reference that I have edited. In other words, the reference is minimally probative and highly prejudicial.

[33] I appreciate that there is a subsequent reference to the events of September 11, 2001 that will not be edited. It occurs on September 24, 2012, when Jaser raises the topic in the highly relevant context of a discussion about his proposed plan to attack prominent people, in particular, wealthy Jews. Once again the fact that the jury will hear one appropriate and necessary reference to the events of September 11, 2001 does not justify hearing a further minimally probative and unnecessary reference to these events.

[34] For all these reasons, this passage should be edited from the September 23rd transcript, although the edit can be somewhat smaller than what Ms. Davies initially proposed. In my view, the transcript should be edited at p. 16, l. 915, beginning with the words “I swear this, he reminds me …”, and ending at p. 17, l. 950 with the words “…Yes, of course”.

E. THE SEVENTH AND EIGHTH PROPOSED EDITS: REFERENCES TO ADULTERY AND TO PUNISHMENT FOR ADULTERY

[35] The last two proposed edits involve discussions between the accused about appropriate punishments for adultery. The first discussion takes place in Toronto on September 10, 2012, just before Tamer and Esseghaier drove back to Montreal, and it involves the two accused and Tamer.

[36] Tamer, Esseghaier, and Jaser all engage in a lengthy discussion that is mainly about the Muslim religion. They are not explicitly discussing the offences before the court. However, this lengthy religious discussion is relevant to motive. It shows strong beliefs about the Muslim religion that are directly relevant to the terrorism offences before the court. In particular, evidence of motive can be significant in proving intent and, in this case, intent is an important issue. See: R. v. Lewis (1979), 1979 19 (SCC), 47 C.C.C. (2d) 24 (S.C.C.); R. v. Merz (1999), 1999 1647 (ON CA), 140 C.C.C. (3d) 259 at para. 59 (Ont. C.A.); R. v. Griffin (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 at para. 60 (S.C.C.). In addition, terrorism offences require proof of a religious, political, or ideological motivation as a result of the s. 83.01 definition of “terrorist activity”. See: R. v. Khawaja (2012), 2012 SCC 69, 290 C.C.C. (3d) 361 (S.C.C.).

[37] In the midst of this lengthy discussion about religion, Jaser expresses the following views about non-believers:

“… you are not supposed to even bother waste your time with these people. Ignorant people, arrogant people, criminals, you leave them alone. You actually have to fight them, kill them, eliminate them … you take them and you get rid of them … Islam is not a religion of choice. The Islam forces itself to the world. Forces itself. Islam is here to conquer … not as an option. There is no ‘live and let live’ in Islam. There is no ‘you have your religion and I have mine’ … but you see, people don’t want Allah’s rule because it’s very, you know, it constraint … they’re too arrogant to follow. Listen, I’ll tell you why. Because they have too many desires. Allah tells us why, they want to fornicate, they want to drink alcohol, they want to do evil. For Allah does not like wickedness. Allah hates wickedness. So our job is to stop this wickedness … Islam is a very powerful weapon okay, and if it’s … in … the right hand then you can bulldoze the whole world … How many people on this earth right now want the law of Allah? Minority. Very small. But you can see on this minority the Caliphate will be established. In the Caliphate is a gift for the whole world but it will have to be carried on the shoulders of true believers.”

[38] Although Jaser is the predominant speaker in this discussion, Esseghaier joins in at various points, adding his observations, as follows:

“…the most important thing is that Allah, he’s ruling … and the beauty of the Islam is that even the ruler or the president or the Caliph who is ruling the state of Islam … that ruler and Caliph who is ruling the state of Islam, himself, he submitted to the law of Allah.”

[39] The discussion eventually reaches a point where Jaser and Esseghaier appear to be completing each other’s sentences and echoing each other, in the following exchange:

R.J.: You have

C.E.: religion

R.J.: It has to be whole.

C.E: It has to be whole. Don’t touch, don’t choose.

R.J.: Commitment must be

C.E.: don’t choose

R.J.: one hundred percent.

[40] There is no objection to the admissibility of the above general discussion about religion. However, it is at this point in the intercepted conversation, which has now extended over seventy-five pages of transcript, that Esseghaier raises the topic of adultery. He and Jaser proceed to recount how stoning to death is “the punishment of Allah in this life [for adultery] and this is his law”. The discussion about adultery extends over seven and a half pages. It includes an account of a woman who “made adultery in the time of the prophet”, who repented and asked the prophet to “purify” her by being “punished in this life”. She was stoned to death and went “directly to paradise”.

[41] I agree with Ms. Davies and Mr. Silverstein that this passage should be edited. It is on the outer margins of relevance as none of the offences before the court are concerned with adultery or the punishment for adultery under Islamic law. At best, part of this discussion provides some minor incremental addition to the Crown’s large body of evidence indicating that Esseghaier and Jaser were profoundly committed religious adherents who took a particular view of Islam. That body of evidence, indicating religious fervour, already provides substantial evidence of motive. I appreciate the fact that the apparent religious fervour of the two accused also makes it more likely that they genuinely intended to put any agreement into effect, if they believed it would further their religious and political points of view. See: R. v. O’Brien (1954), 1954 42 (SCC), 110 C.C.C. 1 (S.C.C.). However, the discussion about adultery was a mere tangent in a larger discussion about religion. It adds little to the Crown’s strong body of evidence relating to motive and intent. Furthermore, it is prejudicial as some jurors may find the accused’s views about the appropriate punishment for adultery to be repugnant.

[42] For all these reasons, I would edit the September 10, 2012 intercept, beginning at p. 77, l. 4516 with the words “when one woman is making adultery …”, and ending at p. 84, l. 4949 with the words “… and there is some”.

[43] The second intercept involving discussions about adultery, and the appropriate punishment for adultery, takes place on January 1, 2013. It involves only Esseghaier who is speaking to an individual named Ghafori, in an apparent attempt to get Ghafori involved in one or more of his plans. The conversation begins with a discussion about religion in which Esseghaier states the following:

“But Jihad is an obligation … in the Qur’an you will see a lot of verses talking about Jihad and the order to fight and to do Jihad against disbelievers. Because why? … The purpose of Jihad is to let the word of Allah is supreme … the purpose of Jihad is to bring the law of Allah in supreme … the consequence of Jihad is to liberate the territory, the land from infidel, and to let Sharia of Allah is ruling that land … It’s not Mujahedeen’s ruling, no. The one who is ruling in this territory is Allah. So the Sharia, of course, the Sharia of Allah, the law of Allah is not applied only on the people. It’s applied also on the leader including the leader of Taliban himself or the leader of the Mujahedeen. He is submitted to the law of Allah.”

[44] There is no objection to the admissibility of the above evidence, setting out Esseghaier’s general religious views, as it is relevant to motive. However, Esseghaier then proceeds to give an example, to illustrate the point that he is making. The example involves “the leader of the Taliban or the leader of the Mujahedeen” committing adultery, repenting to Allah, and being punished with one hundred lashes.

[45] In my view, this brief digression concerning adultery, and the punishment for adultery, should be edited for the same reasons already set out above. It adds little, if anything, to the substantial evidence of motive, and it carries a likelihood of prejudice. Accordingly, the transcript of this intercept should be edited, beginning at p. 2, l. 77 with the words “Let’s say I give you just one example …”, and ending at p. 2, l. 104 with the words “Yeah, a hundred lashes”.

F. CONCLUSION

[46] In the result, the Motion seeking editing of eight excerpts from the wiretap intercepts is allowed, but only in part, in accordance with the above reasons.

M.A. Code

Date: December 1, 2014