



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Esseghaier, 2018 ONCA 659

DATE: 20180723

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

Sarah Shaikh, for the responding party, Attorney General of Canada

Heard: February 7, 2018 followed by written submissions on June 19, 2018

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.

David Watt J.A.




appendix a

Court File No. C61095 and

61185

COURT OF APPEAL FOR

ONTARIO

B E T W E E

N:




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 journal ist
    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:

1.

To keep confidential and secure the Original
    Audio Recordings, and any copies

made
    of the Original Audio Recordings, at all

times.

2.

To

not

allow

access

(including

making

copies)

of

the

Original

Audio

Recordings

to

any
    person.

3.

To preserve the original DVD copies of the
    Original Audio Recordings and to

play
    them from one designated

computer.

4.

To only make
    any necessary copies of the Original Audio Recordings on

the designated computer for the sole purpose of creating the
    Altered

Recordings.

5.

To otherwise
    not reproduce the Original Audio Recordings in any

manner.

6.

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.

7.

To not
    publish, broadcast, distribute, or share, in any manner, the Original

Audio Recordings, except in accordance
    with this undertaking or any court

order.

8.

To delete any and all digital copies of the
    Original Audio Recordings once the

Altered
    Recordings are

created.

9.

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.

10.

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:


