Men in terrorism case win new trial
Sentenced to life in prison in Via terror plot, will get retrial
The province’s top court has ordered a new trial for two men sentenced to life in prison for plotting terrorist acts including, for one, planning to derail a Via Rail train, because of the way the jury that heard their trial was picked.
After a six-week jury trial in 2015 and 10 days of deliberations by the jury, both Raed Jaser and Chiheb Esseghaier were convicted of conspiracy to commit murder for the benefit of a terrorist group and of two counts of participating in terrorist activity. Esseghaier was also convicted of conspiracy to derail a Via Rail train, Jaser was not.
Both men appealed on other grounds beside jury selection, including whether Esseghaier’s deteriorating mental health impacted the trial. Esseghaier refused to participate in the trial and did not have his own lawyer.
Having now been treated for schizophrenia, Esseghaier argues he was unfit during the trial and sentencing.
Those arguments were postponed until the jury-selection issue was decided and will no longer be heard as a result of the Ontario Court of Appeal’s decision to order a new trial, said Esseghaier’s lawyer Erin Dann, adding that she is pleased with the result of the appeal.
On Tuesday afternoon, the Public Prosecution Service of Canada said in a statement it would be proceeding with the prosecution, noting it has 60 days to decide whether to seek leave to appeal the decision to the Supreme Court of Canada.
The problem with the way the jury was selected stems from a part of the process known as the “challenge for cause,” in which lawyers are permitted to ask potential jurors about whether their decisions might be biased by pretrial publicity or by the defendants being visible minorities and Muslim.
The potential juror’s answers are assessed by two people from the jury pool, known as “triers.” The triers can either be “static” — the same two people assess every potential juror but don’t sit on the final jury — or “rotating” — the triers change each time a new member is selected.
Jaser requested rotating triers be used and asked that the jury pool be excluded from the courtroom while each potential juror was questioned to avoid “exposing unsworn jurors to other jurors’ answers,” according to the Court of Appeal decision.
Superior Court Justice Michael Code ruled the jury pool could only be excluded if static triers were used. He then ordered that static triers be used and all potential and selected jurors be excluded from the courtroom.
The Court of Appeal has since found this to be incorrect, ordering retrials in some cases and upholding convictions in others. In this case, the Court of Appeal found that Jaser was denied the jury selection option he was entitled to by law. And everything that came after, including the trial and the sentencing is affected.
The court also found that since the jury was not properly constituted for Jaser, it was not properly constituted for Esseghaier, and both are entitled to a new trial.
“Fair jury selection is especially important in cases with saturation-level publicity and it can be hard to find impartial jurors in a highly publicized case like this one. So it is important to use the jury-selection procedure created by Parliament,” said Jaser’s lawyer Frank Addario.
“Jury selection is one of the few things that a defendant gets to choose around mode of trial and the courts are always protective of it.”