Crown seeks Supreme Court of Canada hearing in railway terror case

Crown seeks Supreme Court of Canada hearing in railway terror case

OTTAWA — The Crown is asking the Supreme Court of Canada to review an appeal court’s decision to order a new trial for two men convicted of plotting to crash a Via Rail train.

In a written submission to the high court, federal lawyers say the Ontario Court of Appeal overturned the convictions on the basis of a “highly technical error” in the jury selection process that did not interfere with the fair-trial rights of either man.

Raed Jaser and Chiheb Esseghaier were found guilty in 2015 on terror-related charges arising from an al-Qaida-inspired plot to derail a passenger train travelling between the United States and Canada. Both were sentenced to life in prison.

In August, the appeal court ordered a fresh trial for the men on grounds the jury that convicted them was improperly chosen.

Following the decision, the Public Prosecution Service of Canada said it would proceed with a new trial, but noted it had 60 days to decide whether to seek permission to appeal from the Supreme Court.

In the submission, the federal lawyers note Jaser and Esseghaier were convicted of the most serious terrorism offences in Canadian law after nearly nine months of pre-trial motions and a three-month jury trial.

“Overturning these convictions on the basis of a technical error that had no appreciable effect on the conduct of the trial is a triumph of form over substance,” the submission says.

“Where, as here, there is no actual demonstrable prejudice to the fairness of the trial, the verdict properly reached by the trier of fact after a long and arduous trial should not so easily be set aside.”

Jaser and Esseghaier will also have an opportunity to make submissions to the Supreme Court, which is likely to rule on whether to hear the matter some time next year.

Before the terrorism trial, the case’s high profile and the fact the two accused were Muslim and members of a visible minority meant that prospective jurors were asked about their ability to be impartial.

Historically during this process, two people were given the role of “triers” who listened to the answers for signs of bias. Lawyers for the Crown and defence then decided whether to allow the individual to sit on the jury.

The use of ”rotating triers” entailed having each newly appointed juror replace one of the two triers for subsequent questioning.

Counsel for Jaser wanted the challenges to proceed with rotating triers, with the other prospective jury members excluded from the room. Esseghaier was unrepresented, as he rejected the criminal justice system on religious grounds.

Due to changes to the law in 2008, there was uncertainty as to whether the procedures Jaser requested were even still available, and the judge eventually approved another method set out in the new statute.

Both men appealed their 2015 convictions. Counsel for Jaser and a court-appointed representative for Esseghaier argued that the jury was improperly constituted.

In its August ruling, the appeal court said Jaser was improperly denied his preferred option for jury selection. The court also said that if Jaser should have a new trial, Esseghaier was also entitled to one.

In their submission, the federal lawyers say the implication of allowing the appeal-court decision to stand extends beyond the case at hand.

“As the law currently stands, a reasonable error by a trial judge on a disputed issue related to jury selection can and will invalidate the trial that follows, regardless of any prejudice.”

This report by The Canadian Press was first published Nov. 18, 2019.

Jim Bronskill , The Canadian Press

Supreme Court

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Red Deer Rebels forward Ethan Rowland battles with Medicine Hat Tigers forward Brett Kemp during WHL action at the Centrium Saturday night. (Photo by ROB WALLATOR/Red Deer Rebels)
Tigers claw back, hand Rebels 11th straight loss

Tigers 5 Rebels 2 The same old issues continue to plague the… Continue reading

There were six additional deaths across Alberta reported over the past 24 hours, bringing the death toll to 1,926 since the beginning of the pandemic. (File photo)
AstraZeneca vaccine is ready to be used at a homeless shelter in Romford, east London, Wednesday, Feb. 3, 2021. THE CANADIAN PRESS/AP-Frank Augstein
AstraZeneca-linked blood clot confirmed in Alberta

A case of an AstraZeneca-linked blood clot has been confirmed in Alberta,… Continue reading

The Red Deer Catholic Regional Schools Board of Trustees selected the name St. Lorenzo Ruiz Middle School to be built in the north end of Red Deer. (Photo Courtesy of  Red Deer Catholic Regional Schools)
Red Deer Catholic Regional Schools raises about $8,720 for Terry Fox Foundation

Red Deer Catholic Regional Schools raised about $8,720 for the Terry Fox… Continue reading

A nurse gets a swab ready at a temporary COVID-19 test clinic in Montreal, on Friday, May 15, 2020. Health Canada has reversed course on home test kits for COVID-19, saying it will now review applications for such devices. THE CANADIAN PRESS/Paul Chiasson
Alberta declines Ontario’s request to send health-care workers

Alberta is “not in a position” to send health-care workers out of… Continue reading

Red Deer Public Schools will not pilot the new draft curriculum at its elementary schools. (File photo contributed by Red Deer Public Schools)
UPDATED: Red Deer Public Schools says no to piloting new curriculum

Alberta Teachers’ Association support school boards

Ontario Premier Doug Ford points on a COVID-19 caseload projection model graph during a press conference at Queen's Park, in Toronto, Friday, April 16, 2021. Ontario was set to backtrack on controversial new police powers to enforce stay-at-home orders implemented in the battle against COVID-19.THE CANADIAN PRESS/Frank Gunn
Ford backtracks on new police COVID-19 powers amid intense backlash

TORONTO — Furious criticism of new anti-pandemic powers that allow police in… Continue reading

The official program for the National Commemorative Ceremony in honour of Prince Philip, The Duke of Edinburgh, sits on an empty pew prior to the ceremony at Christ Church Cathedral in Ottawa on Saturday, April 17, 2021. THE CANADIAN PRESS/Sean Kilpatrick
Prince Philip remembered as ‘a man of great service’ during Canada’s memorial service

Canada’s commemorative ceremony in honour of the late Prince Philip offered a… Continue reading

CF Montreal head coach Wilfried Nancy speaks to his players during the team's practice Tuesday, March 16, 2021 in Montreal. THE CANADIAN PRESS/Ryan Remiorz
CF Montreal puts on a show, defeating Toronto FC 4-2 in MLS season opener

FORT LAUDERDALE, Fla. — CF Montreal, carving open Toronto FC’s defence, cruised… Continue reading

Demonstrators using umbrellas as shields approach a point in a perimeter security fence during a protest over the fatal shooting of Daunte Wright during traffic stop, outside the Brooklyn Center Police Department, Friday, April 16, 2021, in Brooklyn Center, Minn. (AP Photo/John Minchillo)
Journalists allege police harassment at Minnesota protests

Some journalists covering protests over the police fatal shooting of Daunte Wright,… Continue reading

A container ship is docked in the Port of Montreal, Wednesday, February 17, 2021 in Montreal.THE CANADIAN PRESS/Ryan Remiorz
Montreal dockworkers begin weekend strikes as talks drag on

MONTREAL — Dockworkers at the Port of Montreal kicked off a series… Continue reading

Brad Dahr, 53, is facing numerous charges. (Photo contributed by Alberta RCMP)
Alberta man charged for alleged sexual offences against children

An Edmonton man has been charged for alleged sexual offences against children… Continue reading

A person walks past a COVID-19 mural designed by artist Emily May Rose on a rainy day during the COVID-19 pandemic in Toronto on Monday, April 12, 2021. Employment lawyers say flouting COVID-19 public health orders when off the job or coming into work while knowingly sick could warrant discipline in the workplace. THE CANADIAN PRESS/Nathan Denette
Risky pandemic behaviour off the clock could mean workplace discipline: lawyers

CALGARY — Employment lawyers say flouting COVID-19 public health orders when off… Continue reading

Vials containing Russia's Sputnik V vaccine for COVID-19 are seen at the San Marino State Hospital, in San Marino, Friday, April 9, 2021.  THE CANADIAN PRESS/AP-Antonio Calanni
China, Russia using their COVID-19 vaccines to gain political influence

OTTAWA — China and Russia have been using their locally produced COVID-19… Continue reading

Most Read