



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Esseghaier, 2017 ONCA 970

DATE: 20171208

DOCKET: M48419 (C61095, C61185)

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

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 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]

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 Crowns application was provided to various media outlets.
    None responded.

The Background Facts

The Sealing Order

[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 CBCs 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
    operatives 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 (in Chambers).

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 CBCs motion is limited to the recordings of Mr. El Noury; it does not seek
    access to the recordings involving the second undercover agent.


