Raed Jaser, convicted in Via Rail terror plot, loses appeal

Ontario’s highest court has upheld the conviction and life sentence of one of the two men found guilty of terrorism charges in a plot to derail a passenger train between Canada and the U.S.

Raed Jaser had challenged the outcome of the 2015 trial on several grounds, including that his case should have been severed from that of his co-accused, Chiheb Esseghaier – something he requested twice, unsuccessfully.

Esseghaier, who was self-represented, refused to meaningfully participate in the court proceedings related to the trial, saying he would only be judged by the Qur’an, and had several outbursts in court, including one where he spat at lawyers and threw a cup of water.

Jaser argued on appeal that the trial judge’s refusal to grant him a separate trial compromised the fairness of the proceedings.

In a unanimous ruling released Wednesday, the Court of Appeal for Ontario said the trial judge made reasonable and legally correct decisions on the issue, and going ahead with a joint trial “did not result in an injustice.”

“It must be emphasized that the trial judge was confronted with an uncommon severance scenario. The more common situation involves accused persons who are adverse in interest on factual or legal issues, whereas this was a case of a disruptive co-accused,” Justice J. Michal Fairburn wrote on behalf of the three-judge panel.

Having spent many hours talking to Esseghaier during the court process, the trial judge was in the best position to assess the situation as well as “the feasibility of the steps he took to preserve trial fairness,” and deference to his discretion is important, Fairburn wrote.

“This was a long, complex, and unique trial. It would have been a challenge for any trial judge to maintain the fairness of the proceedings for all concerned – both the two accused and the community, represented by the prosecution,” she wrote. “The trial judge managed to maintain that balance.”

Jaser also argued the trial judge erred in assessing Esseghaier’s fitness for sentencing, and should instead have found Esseghaier unfit and declared a mistrial for both of them.

The issue arose months after the jury delivered its verdict but before sentencing, according to the court ruling. The lawyer appointed by the court to assist Esseghaier requested a psychiatric evaluation to help with sentencing, the document said.

The psychiatrist’s report went beyond a psychiatric diagnosis and suggested Esseghaier was not fit to go through the proceedings, the ruling said. The judge then ordered a second assessment that contradicted the first on the matter of fitness, it said.

The judge accepted the second opinion and continued with the sentencing process, the document said.

At the time, the judge noted that no one, including Jaser’s lawyers, had raised any concerns over Esseghaier’s fitness before the first psychiatric report, it said. He also found there were a number of flaws in the first report, it said.

Even if he had found Esseghaier unfit, the likely outcome would have been a delay in sentencing, not a mistrial, the panel said.

“Once a jury has returned its verdict, a mistrial can be declared in only highly restricted circumstances,” Fairburn wrote.

In challenging his sentence, Jaser argued the trial judge didn’t take into account the role of an undercover FBI agent in fuelling the conspiracy. Without the agent’s “active encouragement,” he argued, it’s likely the plan wouldn’t have come together.

The appeal court said it couldn’t accept that argument based on the judge’s findings that the pair had already come up with a plan involving multiple terrorist acts by the time they were introduced to the agent.

“On this view of the evidence, nothing (the agent) did could possibly have mitigated the culpability of Mr. Jaser for having entered into an agreement to commit mass murder,” the appeal court said.

This is the second time the Appeal Court has weighed in on Jaser and Esseghaier’s case.

They were found guilty in 2015 on a total of eight terror-related charges between them. They were sentenced to life in prison with no chance of parole until 2023.

Jaser and Esseghaier were granted a new trial in 2019 after the Appeal Court found the jury that convicted them was improperly selected.

However, the Supreme Court of Canada later ruled the pair had received a fair trial despite the error, sending the case back to the provincial Appeal Court to hear their challenges on other grounds.

Esseghaier eventually gave up his appeal of his conviction, but Jaser proceeded with his and further sought leave to appeal his sentence. The appeal court gave him leave to appeal his sentence but ultimately rejected the challenge.