Convictions restored for two accused in plot to attack Via Rail train

The legislation in the Criminal Code that allowed for both static and rotating triers in trying challenges for cause has since been repealed, says Savard; “the thing that was unexpected and frustrating about this case is that the entire Supreme Court appeal focussed on interpreting legislation that was repealed, well before the Crown sought leave to appeal.”

Chiheb Esseghaier and Raed Jaser were charged in 2013 with terrorism-related offences related to a plot to attack a train on the route between Toronto and New York City; they elected trial before a jury. Before the trial, Jaser’s counsel requested that prospective jurors be challenged for cause, as the accused were from visible minority groups and Muslim.

At that time, the Criminal Code allowed for two procedures for trying challenges for cause: rotating triers and static triers, who were themselves prospective jurors. Rotating triers had reportedly been used in Canada since the 1890s, and were seen as limiting the potential bias among jurors by increasing, through rotation, the number of triers in order to preclude the possibility of the entire jury being selected by a single, biased trier. Static triers were introduced into the criminal justice system when the Criminal Code was amended in 2008.

Jaser asked for rotating triers (or, alternatively, static triers), and for the trial judge to exercise his common law discretion to exclude prospective jurors during the challenge for cause process. The trial judge denied the request for rotating triers, believing he did not have the power to exclude unsworn jurors from the courtroom where rotating triers were being used, which could undermine the trial’s fairness. Instead, static triers were used, with all sworn and unsworn jurors excluded from the courtroom during selection.

The jury convicted both men of terrorism offences in 2015. The trial judge refused to sever the trials of the co-accused, one of whom, Esseghaier, was reported unfit to stand trial, and possibly schizophrenic, by a forensic psychiatrist ahead of a sentencing hearing.

On appeal, the Court of Appeal for Ontario held that the request to use rotating triers, with unsworn jurors excluded, should have been granted, and that the jury was not properly constituted. It also held that the error could not be cured by the curative proviso of s. 686(1)(b)(iv) of the Criminal Code, which states that:

“On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal … (b) may dismiss the appeal where … (iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby.”

Since the improperly constituted jury deprived the trial court of jurisdiction over the class of offence (indictable) that both men were charged with, the appellate court ordered a new trial. The Crown appealed.

In Friday’s unanimous judgment, the Supreme Court agreed there was an error in the jury selection, which for Jaser was incorrectly selected by static triers. It found the jury was also improperly formed for Esseghaier, who was likewise denied the right to rotating triers.

However, the Supreme Court found that the trial judge’s error could be remedied by the curative proviso in the Criminal Code. Procedural irregularities need not lead to a new trial, and the verdict could be saved by s. 686(1)(b)(iv) of the Criminal Code because both criteria were satisfied: the trial court had jurisdiction over the class of offence for which an appellant was convicted, and no prejudice was caused. Static triers being used in place of rotating triers would not have changed the outcome of the trial, the court found.

The convictions were therefore restored.

The Crown’s appeal had been bifurcated to deal with the jury process selection first, and the other matters will now be sent back to the Ontario Court of Appeal to determine the other grounds of appeal.

In Friday’s decision, the Supreme Court found the same technical errors in jury selection that the Ontario Court of Appeal had found, says Savard. “I would say they reinterpreted the curative proviso, including some of their own caselaw, and found that on their new interpretations [the curative proviso] could apply to cure the error,” she told Canadian Lawyer.

The appeal from the convictions was bifurcated only because the matter of the improperly constituted jury “was a technical error, which in Ontario would automatically require a new trial,” she says. Back in 2018 and 2019, it made sense to argue this technical ground first, but the most important grounds have still to be argued, she adds. They relate to the fitness of Esseghaier, who was found unfit at the sentencing hearing by an expert witness, and, for Jaser, whether the trial judge should have agreed to sever his trial from that of his “potentially unfit co-accused,” as requested, and whether the trial judge  “erred in instructing the jury about conspiracy, and imposed unfit sentence.”

Savard also questions the Supreme Court’s finding of “no prejudice” to the accused in the case. The Supreme Court decision “invites appeal courts assessing prejudice to speculate about how the jury actually reasoned or decided the case, as opposed to focusing on whether the in-court proceedings created an unacceptable … risk of unfairness,” she says.

“This is a problem, because Canadian juries can’t talk about their deliberations, so an appellate court can never truly know whether or to what extent a jury was actually influenced by a procedural error and actually failed in their duty. My hope is that this decision will be narrowly confined to its facts.”

Counsel for the Crown was not available for comment.