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APPEALS - Publication bans and confidentiality orders

Tuesday, January 02, 2018 @ 8:25 AM  


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Motion by the Canadian Broadcasting Corporation (CBC) for access to sealed DVD audio recording exhibits. The appellants were two accused tried jointly for various terrorism offences. At trial, several DVDs containing audio recordings and related transcripts were filed as exhibits. The recordings included conversations with undercover police operatives. In advance of jury selection, the Crown sought several orders designed to prevent disclosure of information that could reveal the identity of the undercover operatives. The trial judge granted a sealing order and publication ban in respect of the materials, with related relief. The appellants were convicted following a jury trial and sentenced to a lengthy term of imprisonment. They appealed the conviction and sentence. The CBC moved for an order varying the sealing order to permit access to the DVDs in respect of one of the two operatives, El Noury, for journalistic purposes. Following the trial, El Noury wrote a book regarding his work as an operative and gave supporting interviews with his features and voice altered. The CBC undertook to ensure El Noury's speech and appearance would be altered to ensure protection of his identity. The Crown opposed the request. The appellants took no position.

HELD: Motion allowed. El Noury wrote a book about his work as an undercover operative using the same name he utilized in the current investigation and case in which he testified. He appeared on national network news programs in the United States and Canada with his voice and physical appearance altered. It could be inferred that El Noury regarded such alterations as sufficient to alleviate any risk related to his work as an operative. The salutary effects of the ban on the efficacy of police operations and the safety of undercover operatives were outweighed by the deleterious effects on other Charter-protected interests, such as freedom of expression and of the press. CBC was granted access to the materials sought, subject to terms and conditions regarding alteration of the recordings to disguise El Noury.

R. v. Esseghaier, [2017] O.J. No. 6420, Ontario Court of Appeal, D. Watt J.A.(In Chambers), December 8, 2017. Digest No. TLD-January12018002