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.
The case is one of several, including that of Eaton Centre shooter Christopher Husbands, that have been appealed due to a judge’s decision to order a specific method of jury selection against the explicit wishes of the defendant.
After a six-week jury trial in 2015, and ten 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 additional grounds beyond 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 will no longer be heard as a result of the Ontario Court of Appeal’s decision to order a new trial.
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” where lawyers are permitted to ask potential jurors about whether their decisions might be biased by pre-trial 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.” They decide if the potential juror should be on the jury or not. The triers can either be “static” —the same two people assess each potential juror and don’t sit on the final jury — or “rotating” where the triers are two people on the jury and they rotate as triers each time a new jury member is selected.
Jaser requested rotating triers be used and that the jury pool be excluded from the courtroom while each potential juror was questioned to “protect jury impartiality by avoiding exposing unsworn jurors to other jurors’ answers,” according to the Court of Appeal decision.
Superior Court Justice Michael Code ruled that the jury pool could only be excluded if static triers were used. He ordered that static triers be used and that 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. This resulted in “prejudice to the due administration of justice flowing from the denial of a jury selection method which was in law properly invoked,” according to the decision.
The court also found that since the jury was not properly constituted for Jaser, it cannot be considered to have been properly constituted for Esseghaier, and therefore both men are entitled to a new trial.
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