Her Majesty the Queen v. Jaser

[Indexed as: R. v. Jaser]

Ontario Reports

Court of Appeal for Ontario

Doherty J.A.

September 24, 2020

152 O.R. (3d) 673 | 2020 ONCA 606

Case Summary

Criminal law — Appeal — Fresh evidence on appeal — Accused obtaining retrial after convictions for terrorist-related offences — Accused having bail application pending trial dismissed on secondary and tertiary grounds — Accused applying for review — Bail judge misapprehended risk assessment, did not address accused's claim to have been rehabilitated, and considered irrelevant factors — Fresh evidence received in determining order to be made — Accused released with four sureties on very strict terms — Criminal Code, R.S.C. 1985, c. C-46, ss. 522, 680.

Criminal law — Bail — Detention order — Review — Accused obtaining retrial after convictions for terrorist-related offences — Accused having bail application pending trial dismissed on secondary and tertiary grounds — Bail judge misapprehended risk assessment, did not address accused's claim to have been rehabilitated, and considered irrelevant factors — Application for review allowed and accused released with four sureties on very strict terms — Criminal Code, R.S.C. 1985, c. C-46, ss. 515(10), 522, 680(1).

The applicant and his co-accused were charged with terrorist-related offences. The co-accused faced five counts and was convicted by a jury on all five. The applicant faced four counts and was convicted on three. His defence was that he was a fraudster rather than a terrorist. At trial, his counsel had argued that he was only pretending to engage in a conspiracy for the purpose of defrauding someone he believed to be a wealthy real estate developer ready to fund terrorist activity, but who was in fact an undercover agent. The applicant was sentenced to life imprisonment for conspiracy to commit murder for the benefits of a terrorist group, concurrent to sentences of five and eight years imposed for the other two counts. The accused appealed their convictions. The appeals were allowed on the basis of a flawed jury selection process, and a new trial was ordered. The applicant sought release on bail pending retrial. The bail judge found that the applicant was unlikely to flee if released and as such determined that detention was not necessary on the primary ground of ensuring appearance at trial. However, with respect to the secondary ground, the bail judge was not satisfied that the applicant had shown that detention was not necessary for protection or safety of the public. The judge described the applicant as a long-time manipulator and liar who could not be controlled or supervised by his parents. On the third ground, the judge found that the applicant failed to show that his detention was not necessary to maintain confidence in the administration of justice based on the strength of the Crown's case, the gravity of the offences, the circumstances surrounding the offence and the potential for a lengthy term of imprisonment. The bail application was dismissed. The applicant sought an order under s. 680 of the Criminal Code directing a review of his detention and releasing him on bail.

Held, the application should be allowed.

The bail judge erred in holding that the appellant failed to demonstrate his detention was not necessary on the secondary ground. His first error was in misapprehending the relevance of a portion of the risk assessment performed by correctional authorities. In considering that risk assessment, the judge noted [page674] that there was a high risk to the public in the event of escape, but did not consider the risk the applicant might pose if released on strict bail conditions. The second error was a failure to address the applicant's present ideology in light of evidence that he had become a different person in prison after having invested in various counselling and rehabilitative programs. On the record, the bail judge could have found that the applicant continued to hold jihadist beliefs and, as a master manipulator, had concealed those beliefs from his family and others while in custody. Had the judge made that finding, his conclusion on the secondary ground would have been justified, but the judge left unanswered the crucial question of whether the applicant continued to hold terrorist beliefs. The third error was in considering irrelevant factors when assessing the suitability of the applicant's parents to act as sureties. The judge had legitimate concerns that the applicant could manipulate and deceive his family. However, the judge referred to the father's belief in his son's innocence and the failure of both parents to appreciate the significance of their son's sudden interest in Islam as negatively affecting their ability to act as sureties. Neither of those irrelevant factors could carry any weight in the assessment.

The bail judge erred in holding that the appellant failed to demonstrate his detention was not necessary on the tertiary ground. Although the judge did not err in his consideration of the relevant factors specified in the Criminal Code, he failed to take into account other relevant circumstances. As addressed in the second ground, he made no findings as to whether the applicant continued to hold terrorist beliefs and the genuineness of his apparent rehabilitation.

The applicant was released with four sureties and on strict terms. Fresh evidence was received in determining what order should be made. The bail judge anticipated that the retrial would occur in September 2020 but it had since been rescheduled to April 2021. The added delay had to be placed in the context of the over seven years the applicant had been in custody. Concerns over the COVID-19 pandemic were relevant in the tertiary ground assessment, though not determinative. A psychological report prepared after the bail hearing and letters of two Imams who provided spiritual counselling to the applicant in prison were accepted as relevant to both the secondary and tertiary grounds. Release terms minimizing the applicant's movements, limiting his contact with non-family members, and involving monitoring by the police to verify compliance were necessary to address concerns about the applicant's belief system and the genuineness of his rehabilitation.

R. v. Oland, [2017] 1 S.C.R. 250, [2017] S.C.J. No. 17, 2017 SCC 17, 36 C.R. (7th) 1, 347 C.C.C. (3d) 257, 409 D.L.R. (4th) 457, 379 C.R.R. (2d) 63; R. v. St.-Cloud, [2015] 2 S.C.R. 328, [2015] S.C.J. No. 27, 2015 SCC 27, 471 N.R. 256, 336 C.R.R. (2d) 80, 321 C.C.C. (3d) 307, 384 D.L.R. (4th) 676, 19 C.R. (7th) 223; R. v. Zora, [2020] S.C.J. No. 14, 2020 SCC 14, 446 D.L.R. (4th) 358, 63 C.R. (7th) 247, 388 C.C.C. (3d) 1, apld

R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711, [1992] S.C.J. No. 98, 77 C.C.C. (3d) 91, 144 N.R. 176, 51 Q.A.C. 161, 77 C.C.C. (3d) 91, 17 C.R. (4th) 74, 12 C.R.R. (2d) 31, consd

Other cases referred to

R. v. D. (R.) (2010), 106 O.R. (3d) 755, [2010] O.J. No. 6111, 2010 ONCA 899, 281 O.A.C. 43, 337 D.L.R. (4th) 737, 273 C.C.C. (3d) 7 (C.A.); R. v. Esseghaier, [2015] O.J. No. 4922, 2015 ONSC 5855 (S.C.J.); R. v. Esseghaier, [2019] O.J. No. 4373, 2019 ONCA 672, 57 C.R. (7th) 388 (C.A.); R. v. Gale, [2011] O.J. No. 6410, 2011 ONCA 144 (C.A.); R. v. Hersi, [2019] O.J. No. 671, 2019 ONCA 94, 430 C.R.R. (2d) 365, [page675] 373 C.C.C. (3d) 229 (C.A.); R. v. Hope (2016), 133 O.R. (3d) 154, [2016] O.J. No. 4552, 2016 ONCA 648 (C.A.); R. v. Jaser, 2014 ONSC 1058 (S.C.J.); R. v. Jaser, 2020 ONSC 1001 (S.C.J.); R. v. Khalid (2010), 103 O.R. (3d) 600, [2010] O.J. No. 5475, 2010 ONCA 861, 272 O.A.C. 228, 266 C.C.C. (3d) 405 (C.A.); R. v. M. (E.W.), 2006 CanLII 31720 (ON CA), [2006] O.J. No. 3654, 223 C.C.C. (3d) 407, 215 O.A.C. 125, 41 C.R. (6th) 259 (C.A.); R. v. M. (K.) (2017), 137 O.R. (3d) 721, [2017] O.J. No. 5432, 2017 ONCA 805 (C.A.); R. v. Manaseri, [2017] O.J. No. 1460, 2017 ONCA 226 (C.A.); R. v. Myers, [2019] 2 S.C.R. 105, [2019] S.C.J. No. 18, 2019 SCC 18, 375 C.C.C. (3d) 293, 53 C.R. (7th) 1, 438 D.L.R. (4th) 60; R. v. R. (J.), [2020] O.J. No. 1670, 2020 ONSC 1938, 62 C.R. (7th) 143 (S.C.J.); R. v. Ranger, 2003 CanLII 15438 (ON CA), [2003] O.J. No. 5126, 180 O.A.C. 138 (C.A.); R. v. Whyte (2014), 119 O.R. (3d) 305, [2014] O.J. No. 1633, 2014 ONCA 268, 10 C.R. (7th) 88, 318 O.A.C. 221, 310 C.C.C. (3d) 335

Statutes referred to

Canadian Charter of Rights and Freedoms

Criminal Code, R.S.C. 1985, c. C-46, ss. 515 [as am.], (6) [as am.], (10) [as am.], (a), (b) [as am.], (c), (iv), 520 [as am.], 521 [as am.], 522 [as am.], 680 [as am.], (1) [as am.], (2), 679 [as am.], (7.1)

Authorities referred to

Trotter, G., The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2017)

APPLICATION by the accused to review his detention pending retrial.

Megan Savard and Riaz Sayani, for applicant.

Lisa Mathews, Xenia Proestos and James Clark, for respondent.

DOHERTY J.A.: —

I

Overview

[1] This is an application under s. 680 of the Criminal Code, R.S.C. 1985, c. C-46 for an order directing a review of the order of O'Marra J. (the "bail judge") made pursuant to s. 522 of the Criminal Code, dismissing the applicant's ("Jaser") application for bail pending his retrial and, if a review is directed, for an order releasing Jaser on bail pending his retrial. The chief justice designated me to hear the application to direct a review. Pursuant to s. 680(2), the parties have agreed I can exercise the review powers assigned to the court, should I direct a review. The application proceeded by way of a single hearing before me in which the motion to direct a review and the actual review were argued together.

[2] The bail judge found Jaser had failed to show his detention was not necessary for the protection or safety of the public, or to maintain the public confidence in the administration of justice. [page676] On this application, Jaser alleges material, factual and legal errors by the bail judge. Jaser also offers evidence on the application that was not before the bail judge. He submits this court should receive that evidence as it will materially affect the bail calculus. Jaser submits a proper application of the applicable bail principles to the entirety of the record compels the conclusion Jaser is entitled to be released pending his retrial, albeit on strict terms amounting to house arrest.

[3] The Crown resists Jaser's application. Although the Crown accepts some of the new evidence should be received on review, the Crown argues the evidence does not materially impact on Jaser's entitlement to bail. The Crown further contends the bail judge made no legal or factual errors. The Crown submits, stripped to its essentials, Jaser's application comes down to an attempt to secure a de novo bail hearing under the guise of a s. 680 review. The Crown argues a review should not be directed and, in any event, the detention order should stand.

[4] For the reasons that follow, I direct a review of the detention order and will make an order releasing Jaser pending his retrial, assuming adequate terms can be fashioned after further submissions from counsel. As I will explain, the bail judge made material errors warranting intervention. Having regard to the record on the bail hearing, and the new evidence I would receive, Jaser has satisfied me his release on very strict terms will adequately address the legitimate public safety and public confidence concerns associated with his release on bail pending his retrial. I will hear further submissions with a view to fixing suitable terms.

II

[5] This prosecution has a lengthy history. The applicant ("Jaser") and the co-accused ("Esseghaier") were charged with terrorist-related offences in April 2013. The events giving rise to the charges occurred in August and September of 2012. The Crown preferred an indictment in the Superior Court in September 2013.

[6] In November 2013, Jaser unsuccessfully applied in the Superior Court, pursuant to s. 522 of the Criminal Code, for bail pending his trial: R. v. Jaser, 2014 ONSC 1058.

[7] The trial commenced in January 2015. Jaser and Esseghaier faced four charges:

-- conspiracy to damage transportation infrastructure with an intent to endanger safety (derailing a VIA passenger train) for the benefit of a terrorist group (count 1); [page677]

-- conspiracy to commit murder for the benefit of a terrorist group (count 2); and

-- participating in, or contributing to, the activity of a terrorist group (counts 3 and 4).

[8] Esseghaier faced an additional charge of participating in or contributing to the activity of a terrorist group (count 5).

[9] In March 2015, the jury convicted Esseghaier on all five counts. The jury convicted Jaser on counts 2, 3 and 4, but could not agree upon a verdict on count 1. On September 23, 2015, the trial judge sentenced Jaser to life imprisonment on count 2 (conspiracy to commit murder for the benefit of a terrorist group). He imposed sentences of five and eight years on counts 3 and 4. Those sentences were made consecutive to each other, as required by statute, and concurrent to the life sentence imposed on count 2. Esseghaier received concurrent life sentences on counts 1 and 2: R. v. Esseghaier, [2015] O.J. No. 4922, 2015 ONSC 5855 (S.C.J.).

[10] Jaser and Esseghaier appealed. They raised several grounds, including an argument the jury selection process contravened the mandatory provisions of the Criminal Code. Jaser and Esseghaier, relying on authorities from this court post-dating their trial, argued the challenge for cause process at trial failed to comply with the provisions of the Criminal Code. They further argued this non-compliance meant the court was improperly constituted and the verdicts must be set aside, without regard to the conduct of the rest of the trial, or the weight of the evidence. Watt J.A. directed the appeal bifurcated and the jury selection issue addressed first in a separate hearing. In August 2019, the court allowed the appeal, holding that the jury selection process did contravene the requirements of the Criminal Code. The court ordered a new trial and did not address the other ground of appeal: R. v. Esseghaier, [2019] O.J. No. 4373, 2019 ONCA 672.

[11] The Supreme Court of Canada granted leave to appeal in February 2020. The hearing of the appeal is tentatively scheduled for October 7, 2020. If the Crown appeal succeeds in the Supreme Court of Canada, the appeal will have to be remitted to this court for consideration of the other grounds of appeal. There is also the likelihood of collateral litigation in the Federal Court arising out of national security privilege claims advanced by the Crown in respect of certain information relied on to obtain authorizations to intercept private communications.

[12] After this court ordered a new trial, Jaser brought a second s. 522 bail application seeking his release pending retrial. The [page678] application failed and Jaser remains in custody: R. v. Jaser, 2020 ONSC 1001. That decision is the subject of this application.[^1]

[13] The retrial is tentatively scheduled for April 2021. Jaser and Esseghaier have re-elected trial by judge alone. If the trial proceeds as scheduled, Jaser will have spent eight years in custody when his retrial begins. If Jaser is convicted on the retrial and sentenced once again to life imprisonment, he will have been eligible for day parole as of April 2020, at least a year before the retrial. He will be eligible for full parole in October 2022.

III

The Allegations

[14] The Crown alleged Jaser and Esseghaier, both committed Islamic zealots, conspired to commit mass murder in furtherance of their jihadist cause. To that end, they considered various plots, including derailing a VIA passenger train (the "train plot") and systematically assassinating prominent members of the community, with a particular emphasis on murdering prominent Jews (the "sniper plot").

[15] The Crown alleged Jaser and Esseghaier discussed the plots in August and September of 2012. They made visits to various locations under consideration as sites for the derailment of the VIA train.

[16] Esseghaier was under investigation by American authorities in June 2012. As part of their investigation, the American authorities arranged for Esseghaier to meet an undercover agent, referred to as "Tamer" at trial. Tamer posed as a rich real estate developer, anxious to fund and otherwise support jihadi terrorist activity.

[17] Esseghaier introduced Jaser to Tamer early in September and the three men met several times. They spoke of the train plot and visited potential sights where a VIA train might be derailed. They discussed Tamer's role in bringing about the derailment and publicizing the purpose of the derailment after it had occurred. In some of these discussions, Jaser also spoke of the sniper plot, which he saw as a more effective way to terrorize the community. [page679]

[18] On September 24, 2012, Jaser, Esseghaier and Tamer visited a bridge on the VIA rail line and discussed, in some detail, how the bridge could be blown up to derail a VIA passenger train. The three men were sitting in their vehicle in a parking lot when two police officers approached the car. Someone had reported seeing the three men walking along the tracks. The officers requested identification. Jaser, Esseghaier and Tamer produced their identification and told the police they had been looking at the scenery when they became lost. The officers left.

[19] Jaser became convinced the plot to blow up the bridge and derail the VIA train was fatally compromised once the police were aware Jaser and Esseghaier had been on the bridge. In discussions with Esseghaier and Tamer, Jaser spoke of finding a new location for the derailment plot. He also repeatedly, and in strong terms, reiterated his belief the random murder of prominent members of the community, especially Jewish persons, would more effectively terrorize the community by striking at "high value targets".

[20] Jaser had stopped speaking with Esseghaier about any of the plots by the end of September. Jaser was not arrested until April 2013, however, there was no evidence of any discussions about the plots or any other terrorist activity between Jaser and Esseghaier after the end of September. Jaser remained under police surveillance until he was arrested.

[21] The Crown's case rests primarily on interceptions of private communications among Jaser, Esseghaier and Tamer, physical surveillance placing them at certain sights, and the testimony of Tamer, the undercover agent. On their face, the communications provide powerful evidence supporting the Crown's case. Jaser spoke like a committed terrorist determined to kill as many people as he could in a way that would maximize the harm caused to the peace, security and safety of the Canadian community. According to these conversations, Jaser detested Canadian society and the Canadian way of life. He cared nothing for the lives of others or his own life. Jaser embraced the glory of martyrdom.

[22] The Crown did not allege any connection between Jaser and any other terrorist supporter other than Esseghaier. Nor did the Crown point to any activity by Jaser allegedly connected to any radical group or terrorist plot outside of the activities with Esseghaier and Tamer in August and September 2012. Apart from the conversations among the three men, and their visits to various locations along the railway line, the Crown adduced no evidence of any overt act by Jaser in furtherance of the conspiracy. The Crown offered no evidence of Jaser's actual [page680] ability to initiate and implement any of the plots discussed with Esseghaier.

[23] Jaser did not testify at trial. Through counsel, he argued he was only pretending to engage in a conspiracy to commit mass murder in support of a terrorist agenda. According to the defence, Jaser's real goal was to defraud Tamer, who he believed to be a rich real estate developer ready to fund terrorist-related activity. As counsel succinctly put it at trial, "Jaser was a fraudster, not a terrorist". In support of that claim, the defence pointed to conversations between Jaser and Tamer in which Jaser spoke of potential business opportunities to be funded by Tamer. According to the defence, Jaser was trying to get his hands on Tamer's money.

IV

Jaser's Background

[24] Jaser was born in 1977 in the United Arab Emirates. His family came to Canada as refugee claimants in 1993. Jaser is presently a permanent resident of Canada, but after he was convicted of the terrorist-related offences, the authorities commenced proceedings to remove that status.

[25] Jaser was convicted of failing to comply with a recognizance in 1997. Later in 1997, he was convicted of several counts of fraud, attempted fraud, conspiracy to commit fraud, and an additional count of breach of recognizance. In 2001, he was convicted of uttering threats.[^2] By his own admission, before his arrest in 2013, Jaser regularly engaged in fraudulent activity, and when under court orders disobeyed those orders. He even cheated members of his own family. Jaser had little, if any, gainful employment. As matters stood when Jaser was arrested in 2013, his personal history and character made him a bad bail candidate.

[26] Prior to 2009, Jaser showed no interest in Islam. His lifestyle, which included excessive use of drugs and alcohol, was hardly consistent with that of an observant Muslim. In 2009, Jaser appeared to develop an interest in Islam. He adopted Islamic religious practices and took on the appearances of an observant Muslim. His parents did not think these changes reflected any actual change in their son's belief system. The [page681] Crown maintained Jaser's interest in religion had, by the summer of 2012, mutated into a commitment to jihadist terrorism.

[27] On the s. 522 bail hearing, Jaser put a great deal of information before the bail judge in an effort to show he was a fundamentally different person in 2020 than he was in 2013. The evidence in support of this claim came from Jaser, his family members, and the records from various correctional institutions where Jaser had lived in the seven years since his arrest. The corrections records described Jaser as cooperative, amenable to therapy and counselling, including anger management, and motivated to make positive changes in his life. Jaser appeared to be strongly invested in various counselling and rehabilitative programs offered in the penitentiary system. According to the reports, he remains anxious to continue down the road of self-improvement. Jaser has also upgraded his education and technical skills. The correctional authorities had no evidence of any attempt by Jaser to involve himself in the radicalization of other inmates while he was in custody.

[28] The corrections reports were not, however, entirely positive. In the March 2018 report recommending Jaser's transfer to a medium security penitentiary, the reports described him as "highly egocentric" with a "proclivity to manipulate others for personal gain", a "pervasive lack of empathy", and a "grossly inflated" sense of self-worth. The report did acknowledge some positive strides in addressing these significant character and behavioural deficiencies.

[29] Jaser did not initially participate in any religious programming or counselling while in custody. However, as time went by, he began to attend some sessions. His interest and participation in those sessions grew. According to those who conducted the sessions, Jaser appeared very remorseful, although it is not entirely clear what he was remorseful about. Jaser's religious counsellors also indicated Jaser used his faith to gain insights into his behaviour and improve himself as a person. He became a regular attendant at religious functions and is highly thought of by the imams who presided over his religious sessions.

[30] Jaser was not close to his family prior to his arrest in 2013. Indeed, they were among the victims of his frauds. He routinely lied to his parents. There was no evidence Jaser's parents or brother, the proposed sureties, had any ability to control or even influence Jaser's behaviour as of his arrest in 2013.

[31] Since his arrest, Jaser has forged much closer connections with his family. They have maintained regular contact with him, despite significant limitations on their abilities to do so while Jaser is in custody. [page682]

[32] Jaser has never testified, either at his trial, or by way of any affidavit, he did not hold jihadist terrorist beliefs in 2012. Nor has he offered any testimony about his present beliefs. His religious instructors have offered no evidence of any conversations in which Jaser disavowed any jihadist beliefs, either in 2012 or at any subsequent time. There is no direct evidence post-dating Jaser's arrest of any changes in Jaser's belief system.

[33] When I asked counsel to point to any disavowal by Jaser of current jihadist beliefs, counsel referred to a single answer given by Jaser at the bail hearing. Jaser was asked by his counsel about his reaction when he listened to his diatribes promoting mass murder in the intercepted communications. In a response I can only describe as ambivalent, given his "pretending to agree" defence at trial, Jaser replied:

I felt like a rollercoaster really. There's fear, I feel regret, I felt kind of afraid of who I used to be and how, what I sounded like. It almost sounded like a madman really.[^3]

V

The Bail Decision: 2020 ONSC 1001

[34] Because of the charges brought against him, Jaser had the onus to show cause why he should be released pending his trial: Criminal Code, s. 515(6). To meet that onus, Jaser was required to show his detention was not necessary

-- to ensure his attendance at trial (s. 515(10)(a)) [the primary ground];

-- for the protection or safety of the public (s. 515(10) (b)) [the secondary ground]; or

-- to maintain confidence in the administration of justice (s. 515(10)(c)) [the tertiary ground].

[35] The extensive record before the bail judge included extracts from Jaser's trial, police investigative reports, records from various correctional institutions, affidavits from Jaser and his proposed sureties, and an affidavit detailing the electronic monitoring available. The proposed sureties and Jaser testified before the bail [page683] judge. The record also contained a detailed release plan, including proposals for electronic monitoring of Jaser while he was on bail.

[36] The bail judge found Jaser had shown his detention was not necessary to ensure his appearance at trial. After referring to the proposed release plan, which included house arrest and electronic monitoring, and the absence of a real connection to any country other than Canada, the bail judge said, at para. 40:

I am satisfied there is little likelihood that Mr. Jaser would seek to flee if released and that he has met his onus on the primary ground.

[37] The bail judge was not, however, satisfied Jaser had shown his detention was not necessary for the protection or safety of the public as required in s. 515(10)(b). In coming to that conclusion, the bail judge described Jaser as a long-time manipulator and liar, prepared to assume whatever role he deemed to be to his advantage. The bail judge referred to correctional records, which he read as indicating that Jaser had significant psychological and behavioural deficiencies and presented a risk to the public. Finally, the bail judge expressed concern about the ability of Jaser's parents to effectively control and supervise his conduct were he released on bail. The bail judge was not satisfied the proposed electronic monitoring could overcome those concerns.

[38] The bail judge also found Jaser had failed to show his detention was not necessary to maintain public confidence in the administration of justice, as required under s. 515(10) (c). After setting out the statutory provisions and referring to the controlling case law, the bail judge examined the specific factors identified in s. 515(10)(c). He concluded, at paras. 76-77:

In my view, all factors noted in s. 515(10)(c), the strength of the Crown's case, the gravity of the offences, the circumstances and potential for a lengthy term of imprisonment if convicted are engaged in this case with "maximum force".

In the face of the enumerated factors at maximum force, the release of the applicant on bail, no matter how stringent the conditions for an offender at the centre of a terrorist conspiracy where "everyone is a target", would cause reasonable well-informed members of the public to lose confidence in the administration of justice.

VI

The Operation of Section 680

[39] The relevant language in s. 680 read:

680(1) A decision made by a judge under section 522 . . . may, on the direction of the Chief Justice or acting Chief Justice of the Court of Appeal, be reviewed by that court and that court may, if it does not confirm the decision

(a) vary the decision; or [page684]

(b) substitute such other decision as, in its opinion, should have been made.

[40] Section 680 sets out a two-stage process. At the first stage, the Chief Justice or his designate decides whether to direct a review of the order made by the bail judge. If a review is directed, a panel (or if the parties agree a single judge) reviews the order made by the bail judge. On that review, the court has broad powers to confirm or vary the order made by the bail judge or substitute a different order.

[41] The first stage is akin to a motion for leave to appeal and is intended to weed out cases with no realistic possibility of success. The chief justice will order a review if he concludes the applicant has an arguable case, in the sense there is a reasonable chance of success if a review is ordered: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, [2017] S.C.J. No. 17, at paras. 63-64; R. v. Gale, [2011] O.J. No. 6410, 2011 ONCA 144, at paras. 22-23. The chief justice must make some assessment of the potential merits of the application, bearing in mind the scope and nature of the review contemplated by s. 680 if a review is directed.[^4]

[42] Section 680 applies to orders made by a Superior Court judge on applications for bail pending trial under s. 522, and orders made by a Court of Appeal judge under s. 679. As noted by G. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2017) (looseleaf updated 2020, release 1), at pp. 8-25 to 8-30, the different orders subject to review under s. 680 has led to some confusion and inconsistency as to the scope of the review contemplated by s. 680.

[43] I think some of the uncertainty and inconsistency identified by Mr. Justice Trotter also flows from the failure to distinguish between arguments on a s. 680 review alleging errors in the bail proceedings, and arguments on the s. 680 review predicated on new evidence admitted on the review application. To the extent the s. 680 review alleges errors by the bail judge, the review is, in effect, an appeal of the bail judge's order. In R. v. Oland, a case involving a s. 680 review of a bail pending appeal decision, Moldaver J., at para. 61, described the scope of the review in this way: [page685]

Ultimately, in my view, a panel reviewing a decision of a single judge under s. 680(1) should be guided by the following three principles. First, absent palpable and overriding error, the review panel must show deference to the judge's findings of fact. Second, the review panel may intervene and substitute its decision for that of the judge where it is satisfied the judge erred in law or in principle and the error was material to the outcome. Third, in the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted.

[44] The review principles outlined in Oland mimic those applicable on conviction appeals. That approach provides for a review of an order for material error in law or principle and for palpable and overriding factual error. The review also contemplates an overriding review of the reasonableness of the decision rendered. Oland uses the phrase "clearly unwarranted". I see no distinction between a reasonableness inquiry and a review to determine whether a decision was "clearly unwarranted": see R. v. M. (K.) (2017), 137 O.R. (3d) 721, [2017] O.J. No. 5432, 2017 ONCA 805, at para. 33.

[45] It is true Oland is distinguishable from the present case in that Oland involved a review of an order in respect of bail pending appeal and not a s. 522 order. However, when the review is premised on alleged errors by the bail judge, I see no principled reason for distinguishing, for the purposes of the scope of the review contemplated, between an order of a Superior Court judge under s. 522 and an order of a Court of Appeal judge under s. 679. There is nothing in the nature of the hearings contemplated by the two sections, the factors to be considered in making orders under the two provisions, or the relative expertise of the judges in bail matters, warranting different levels of scrutiny.

[46] The applicant points to R. v. St.-Cloud, [2015] 2 S.C.R. 328, [2015] S.C.J. No. 27, 2015 SCC 27, as suggesting a different standard of review than the standard outlined in Oland. St.-Cloud was not a s. 680 review. That case addressed the scope of the review contemplated under ss. 520 or 521. Those sections apply to bail reviews by Superior Court judges of initial bail orders made by a justice.

[47] In any event, to the extent St.-Cloud speaks to the standard of review when the bail review is premised on alleged errors in the bail hearing, there is no material difference between the standard described in St.-Cloud and the standard set down in Oland. The court in St.- Cloud said, at para. 121:

It will be appropriate to intervene if the justice has erred in law. It will also be appropriate for the reviewing judge to exercise this power if the impugned decision was clearly inappropriate, that is if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge therefore does not have the power to interfere with the initial [page686] decision simply because he or she would have weighed the relevant factors differently.

[48] The standard of review discussion in St.-Cloud occurred in the context of a bail decision turning on the application of s. 515(10)(c), the public confidence criterion. That section requires a balancing of competing factors. St.-Cloud envisions review of that balancing process for legal error, and for a "clearly inappropriate" weighing of the competing factors. If the reviewing court is satisfied the bail judge's weighing of those factors was sufficiently skewed to produce a "clearly inappropriate" order, the court will intervene on the bail review. In my view, a finding a bail decision is "clearly inappropriate" amounts to a finding the bail decision is unreasonable. As I read St.- Cloud, if the review under s. 520 or s. 521 rests on an alleged error at the initial bail hearing, St.-Cloud contemplates review for legal error and unreasonableness.

[49] To the extent Jaser alleges errors by the bail judge, I would apply the standard of review set down in Oland, at para. 61. That is not, however, the whole picture. Jaser also relies on new evidence introduced in the s. 680 proceeding. Oland does not speak to the impact of fresh evidence on a s. 680 review.

[50] Neither party has a right to produce new evidence on a s. 680 review, but the reviewing court has the discretion to receive that evidence: see R. v. Gale, at para. 23; R. v. D. (R.) (2010), 106 O.R. (3d) 755, [2010] O.J. No. 6111, 2010 ONCA 899, at para. 23; G. Trotter, The Law of Bail in Canada, at pp. 8-32. Fresh evidence is routinely received on s. 680 reviews if the evidence is relevant and relates to matters post-dating the bail decision under review. For example, in this case, both parties have offered fresh evidence in respect to the impact of COVID-19. The pandemic arrived after the bail judge's order in February 2020.

[51] While Oland does not address fresh evidence on s. 680 applications, St.-Cloud considered the topic at length, as it applies to fresh evidence in bail reviews conducted under s. 520 and s. 521: St.-Cloud, at paras. 129-38. St.-Cloud recognizes there is no right to adduce new evidence on a bail review. If new evidence is offered, the reviewing court, in considering whether to receive the evidence, will have regard to the well-known principles controlling the admission of fresh evidence on appeals from conviction.

[52] St.-Cloud emphasizes those principles must be tailored to the bail process. Circumstances relevant to bail are dynamic and can change significantly as a case progresses and time passes: see R. v. Zora, [2020] S.C.J. No. 14, 2020 SCC 14, at para. 92. Bail orders are inherently more interim in nature than final. [page687] The integrity of the criminal justice process would suffer if the finality principle was afforded the same weight in bail reviews as it is given on appeals from convictions.

[53] St.-Cloud adopts a flexible, more receptive approach to fresh evidence on bail reviews under s. 520 and s. 521. That approach reflects the inherently interim nature of bail decisions and accommodates Canadian Charter of Rights and Freedoms principles underlying the presumption of innocence and access to reasonable bail. On s. 520 and s. 521 reviews, the court may receive new evidence not available at the bail hearing if the evidence is relevant and potentially material to the question of bail. The reviewing court may also receive new evidence available at the initial hearing, if the applicant provides a "legitimate and reasonable" explanation for the failure to present the evidence at the initial hearing: R. v. St.Cloud, at para. 132.

[54] I would apply the approach to fresh evidence outlined in St.-Cloud to fresh evidence offered on a s. 680 review. In this case, the applicant alleges material errors by the bail judge. The applicant also relies on fresh evidence, contending that evidence materially alters the evidentiary landscape, as it relates to both the public safety criterion (s. 515(10)(b)), and the public confidence criterion (s. 515(10)(c)). I will review the alleged errors in the s. 522 proceeding on the standard set down in Oland. I will consider the fresh evidence using the flexible approach described in St.-Cloud and will, to the extent I receive fresh evidence, determine the impact of that evidence on any findings or assessments made by the bail judge. If the new evidence does not impact on a particular finding made by the bail judge, I will defer to that finding, absent a finding of a material, legal or factual error, or a determination the bail judge's finding or assessment was unreasonable.

[55] I do not propose to address the question whether I should direct a review separately from the ultimate merits. The parties have thoroughly argued the ultimate merits of the review, both in writing and orally. It will be apparent from my reasons addressing those merits, I am satisfied the applicant clears the arguable case standard, both in respect to some of the errors alleged to have been made by the bail judge, and by virtue of the new evidence offered on the review.

VII

The Alleged Errors

A. Did the bail judge err in holding Jaser failed to show his detention was not necessary on the secondary ground? [page688]

[56] Section 515(10)(b), often referred to as the secondary ground, provides pretrial detention is justified:

where the detention is necessary for the protection or safety of the public, . . . having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.

[57] In R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711, [1992] S.C.J. No. 98, 77 C.C.C. (3d) 91, para. 39, at p. 107 C.C.C., the court upheld the constitutionality of the public protection/safety criterion in the predecessor section to s. 515(10)(b). In doing so, the court stressed the strict qualifications imposed by the relevant statutory language:

I am satisfied that the scope of the public safety component of s. 515(10)(b) is sufficiently narrow to satisfy the first requirement under s. 11(e). Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice and only where this "substantial likelihood" endangers "the protection or safety of the public". Moreover, detention is justified only when it is "necessary" for the public safety. It is not justified where detention would merely be convenient or advantageous[.]

(Emphasis added)

[58] The bail judge made three errors in his assessment of the secondary ground. First, he misapprehended the relevance of a portion of the risk assessment performed by the correctional authorities in March 2018. Second, he failed to consider whether, as of 2020, Jaser held terrorist beliefs. Third, he considered irrelevant factors when assessing the ability of Jaser's parents to properly serve as sureties for Jaser.

(i) The misapprehension of the risk assessment

[59] In early 2018, Jaser successfully applied for a transfer from a maximum to a medium security penitentiary. The correctional authorities prepared a detailed risk assessment. In addressing the safety risk posed by Jaser, the authorities proceeded on the basis Jaser had committed the terrorist offences for which he stood convicted. That assumption does not apply in this proceeding.

[60] In considering the risk assessment done by the correctional authorities in the context of the secondary ground, the bail judge focused on the part of the report referencing Jaser's risk to the public should he escape from custody. The bail judge quoted the relevant passage from the report, at para. 45 of his reasons:

He claims he is no longer a risk to the public and points to the correctional classification report that his risk level was downgraded from maximum [page689] security to minimum security while incarcerated. However, based on the internal factors considered in the March 9, 2018 report -- institutional adjustment escape risk and public safety concerns -- the assessment was that he presented a "moderate probability of escape and a high risk to the public in the event of escape". It was within the institution that he required a lower degree of supervision and control.

(Emphasis added)

[61] The risk Jaser posed to the public if he escaped and was unlawfully at large provides no insight into the risk he might pose if released on bail on strict conditions. It is self-evident a person who has been convicted of a very serious offence, and escapes while serving his sentence, poses a significant risk to the public. It is not self-evident a person charged with a serious offence and released on bail poses the same risk.

[62] In the same assessment quoted by the bail judge, the correctional authorities describe Jaser as posing "no escape related concerns". To assess Jaser's risk to the safety of the community by assuming he was an escapee unlawfully at large, is to make a risk assessment premised on a hypothetical the correctional authorities were not concerned about. The risk assessment actually classified Jaser's risk of reoffending "after release" as "low". This assessment was much more germane to the secondary ground than an assessment based on a presumed escape.

(ii) The failure to address Jaser's present ideology

[63] Counsel for the applicant submits the bail judge could only have concluded Jaser had not shown his detention was not necessary for the protection and safety of the public if he concluded Jaser continued to hold terrorist beliefs. Counsel acknowledges the bail judge did not expressly make that finding, but argues the bail judge must have inferred, or simply assumed, as of the bail hearing, Jaser held beliefs consistent with those expressed in his intercepted communications in 2012.

[64] Counsel further contends a finding Jaser held terrorist beliefs in 2020 ignores all of the evidence about his maturation and development in the over seven years he has been in custody. Counsel submits the detailed evidence from many sources relating to Jaser's behaviour over the last seven years compels the conclusion he is a very different person and poses no risk of engaging in any terrorist-related activity. Counsel characterizes the error as a failure to take into account all of the evidence relevant to a proper determination of the secondary ground.

[65] I do not agree with counsel's reading of the bail judge's reasons. As I understand them, the bail judge made no finding with respect to Jaser's present ideology. Instead, he concluded Jaser, [page690] who was a long-time fraudster with an established propensity to disobey court orders and a proven ability to manipulate others, including his family members, could not be relied on to comply with the terms of any release order, or submit to the supervision of his parents and brother. The bail judge determined the likelihood of Jaser's reoffending in some way was enough to justify the finding Jaser had not met his onus on the secondary ground. The bail judge did not turn his mind to the nature of the potential reoffending beyond concluding it would reflect Jaser's dishonesty and disregard for court orders. In short, the bail judge read the secondary ground as prohibiting release if there was a substantial likelihood Jaser would commit a criminal offence: R. v. Jaser, at para. 41.

[66] It was open to the bail judge to conclude there was a likelihood Jaser would commit offences involving dishonesty, and/or disobey the terms of his bail order. Crown counsel submits this finding necessarily means Jaser's detention was necessary for the protection or safety of the public.

[67] I do not agree with this interpretation of the secondary ground. It runs directly against the analysis found in the above-quoted passage from Morales (see para. 57). Not only must there be a substantial likelihood of committing an offence, that substantial likelihood must endanger the protection or safety of the public. It is one thing to conclude there is a significant risk Jaser would deceive his parents and breach curfew terms of a bail order, and another to conclude Jaser, motivated by a terrorist ideology, would seek out and participate in terrorist-related activity. The former may or may not compromise public safety. The latter clearly does.

[68] A proper analysis of the risk Jaser's release would pose to the protection and safety of the public required an assessment of his present belief system. If, as of 2020, Jaser adhered to the terrorist worldview expressed in his 2012 conversations, or if there was a significant risk he held those beliefs, public safety concerns were clearly very real. The same conclusion would not follow if the bail judge was satisfied Jaser did not hold a terrorist ideology, but was a manipulative liar who could well breach the terms of his bail or become involved in the kind of fraudulent activity he had engaged in prior to his arrest.

[69] On this record, the bail judge could have found Jaser held jihadist beliefs as of February 2020 and, as a master manipulator, had concealed those beliefs from his family and others while in custody. Had the bail judge made that finding, his conclusion Jaser had not satisfied the onus on the secondary ground would have been justified. The problem is the bail judge left unanswered [page691] the crucial question in the assessment of the risk posed by Jaser's release on bail -- did Jaser continue to hold terrorist beliefs?

(iii) The bail judge considered irrelevant factors when assessing the suitability of Jaser's parents to act as sureties

[70] In the course of examining the secondary ground, the bail judge, at para. 52, expressed "concerns" about the ability of Jaser's parents, two of the proposed sureties, to "control and supervise" Jaser. The bail judge did so primarily because of Jaser's proclivity in the past to manipulate and deceive others, including his parents, for his own personal gain and advantage. This was the same consideration that led him to conclude there was a substantial likelihood Jaser would commit an offence if released.

[71] I see no error in the trial judge's concern that Jaser's family could be manipulated and deceived by him. The concern was supported by the evidence, albeit evidence from many years earlier, and was relevant to the suitability of Jaser's parents as sureties. I note, however, the bail judge did not consider the extent to which his concerns could be mitigated by specific stringent bail terms allowing for significant ongoing police oversight of Jaser's compliance with his bail terms. Nor did the bail judge consider whether Jaser's parents' susceptibility to his deceit and manipulation would continue in the very different circumstances presented in February 2020. Jaser faced serious allegations. His parents were very familiar with those allegations. They had to know Jaser, if released, would be under ongoing police scrutiny. They also knew they faced serious financial consequences if Jaser breached his bail.

[72] The bail judge, however, identified two additional concerns with Jaser's parents acting as sureties. Neither, in my view, were relevant. First, the bail judge referred to Mr. Jaser Sr.'s evidence that, even after listening to the interceptions in which Jaser advocated mass murder, he still "knew" his son "could not kill an insect on the ground" (para. 48). I take the trial judge to be saying Mr. Jaser Sr.'s belief in his son's innocence must negatively impact on his ability to fulfil his duties as a surety.

[73] I see no connection between Mr. Jaser Sr.'s belief in his son's innocence and his ability to properly fulfil his obligations as a surety. Many individuals, prepared to assume the significant obligations of a surety, do so because they firmly believe the accused person is innocent. Jaser is presumed innocent at this point.

[74] It is clear from their affidavits and evidence the parents understood their obligations as sureties. The Crown does not [page692] suggest they are not responsible law-abiding citizens. It cannot reasonably be inferred from Mr. Jaser Sr.'s belief in his son's innocence he would not diligently perform his obligations as a surety.

[75] The bail judge also had concerns about the suitability of Jaser's parents as sureties because neither seemed to appreciate the significance of Jaser's new-found interest in Islam in around 2009-2010 (paras. 49-51). It is unclear to me what the bail judge means by this observation. Certainly, it cannot be assumed a newfound religious fervour signals a dissent into terrorism. There is no evidence Jaser manifested any terrorist beliefs to anyone in his family. With the benefit of hindsight, it may be Jaser's interest in Islam in 2009-2010 was a twisted precursor to the development of a terrorist ideology. His parents cannot be faulted for missing that connection.

[76] Even if one were to assume Jaser's parents should have appreciated the significance of his apparent newfound interest in religion, the failure to do so says nothing about their ability to act as sureties. The situation is crystal clear to everyone now. Jaser's parents appreciate the nature of the allegations and they clearly understand their responsibilities as sureties if Jaser is released.

[77] It is impossible to say how much weight the bail judge gave the two irrelevant factors described above when assessing the parents' suitability as sureties. Clearly, he weighed both against the parents to some degree. Neither, in my view, could carry any weight in the assessment.

B. Did the bail judge err in holding Jaser failed to show his detention was not necessary on the tertiary ground?

[78] Section 515(10)(c), the tertiary ground, provides pretrial detention is justified:

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) the apparent strength of the prosecution's case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment[.]

[79] Section 515(10)(c) was considered at length in St.-Cloud. The bail judge, at para. 54, accurately summarized the principles found in St.-Cloud. I do not understand the applicant to argue the bail judge misstated the law. [page693]

[80] The applicant does, however, argue the bail judge misapplied those principles to the evidence, especially as it relates to the strength of the Crown's case. The applicant further contends the bail judge limited his consideration to the four specific factors identified in s. 515(10)(c) and failed to have regard to "all the circumstances", especially Jaser's rehabilitation during his more than seven years in jail after his arrest.

[81] I do not agree the bail judge erred in his consideration of the factors specifically enumerated in s. 515(10)(c). I accept, however, counsel's submission the bail judge failed to consider Jaser's personal circumstances as of February 2020.

(i) The strength of the Crown's case

[82] The bail judge described the case against Jaser as a strong one. The Crown's case came primarily out of Jaser's own mouth. Jaser, through counsel, acknowledged he said what he is alleged to have said. Those words are powerful evidence of his enthusiastic support for mass murder in the name of religion. Taking those conversations at face value, Jaser was a committed terrorist, whose main concern was selecting the best plan to maximize the havoc and harm caused to Canadian society by his mass murders.

[83] Jaser's claim he only pretended to agree to defraud Tamer raises a valid defence. There are elements of the evidence capable of supporting Jaser's position. Some of Jaser's conversations with Tamer could reasonably be interpreted as a fraudsman making his pitch. Jaser's decision to walk away from any discussions in late September, and the absence of any further connection with Esseghaier after late September, also lends some credence to Jaser's defence.

[84] However, as Code J. cogently explained in his reasons for sentence, Jaser's defence is inconsistent with a significant part of the evidence. Jaser's many discussions with Esseghaier about plots to commit mass murder began well before Jaser knew of Tamer's existence. Esseghaier had no money and hardly presented as a plausible fraud target: R. v. Esseghaier, 2015 ONSC 5855, supra, at paras. 28-36. In describing the case as a strong one, the bail judge joined company with the judge who heard the first bail application and the trial judge.

[85] The applicant also submits the bail judge wrongly treated Jaser's convictions as proof of the strength of the Crown's case. The verdicts have been set aside and are obviously not determinative of the weight of the Crown's case. Nor, however, was the bail judge required to ignore those verdicts. The jury heard a great deal of evidence. Jaser was fully and vigorously defended. [page694] There is nothing in the ground of appeal on which the appeal was allowed that would justify ignoring the verdicts of the jury for the purposes of assessing the strength of the Crown's case: R. v. Esseghaier, 2019 ONCA 672, supra, at para. 95. The bail judge was entitled to take the verdicts into account when assessing the apparent strength of the Crown's case against Jaser.

[86] I also do not agree the jury's failure to return a verdict against Jaser on count one reflects negatively on the strength of the fundamental allegation made by the Crown. The Crown alleged Jaser conspired to commit mass murder. The jury convicted him on count two, the count making that allegation in general terms. Unlike jury verdicts, findings of fact cannot be inferred from a jury's failure to reach a verdict. Code J., in his reasons for sentence, offers a viable explanation for the jury's conviction of Esseghaier on count one, and its failure to reach a verdict in respect to Jaser on that count. On his explanation, the failure to reach a verdict on count one does not suggest the jury gave any credence to Jaser's "I was only pretending" defence. The verdict on count two is a flat-out rejection of that defence: see R. v. Esseghaier, 2015 ONSC 5855, supra, at para. 21.

[87] Finally, the applicant suggests, even if the Crown's case was strong at the first trial, it will be much weaker on the retrial, as many of the intercepted communications may be ruled inadmissible. I cannot make an informed assessment about the admissibility of wiretaps that may be challenged on the retrial. The challenge was unsuccessfully advanced at the first trial: R. v. Jaser, 2014 ONSC 6052, although the applicant apparently has new arguments to make on the retrial. I proceed on the basis the evidence adduced at the first trial will be available at the second trial.

(ii) The potential sentence

[88] The applicant contends the bail judge erred when considering the potential length of the sentence Jaser might face if convicted. This consideration is made relevant to the tertiary ground by s. 515(10)(c)(iv). The bail judge identified the controlling cases from this court, e.g., R. v. Khalid (2010), 103 O.R. (3d) 600, [2010] O.J. No. 5475, 2010 ONCA 861 at para. 34; R. v. Hersi, [2019] O.J. No. 671, 2019 ONCA 94, at para. 54. Those cases hold convictions for terrorist activities aimed at the indiscriminate murder of innocent people will often warrant a life sentence, and failing a life sentence, sentences of 20 years or more. The bail judge accurately identified the appropriate range of sentence should Jaser be convicted at the retrial on count one, count two, or both. [page695]

[89] For the reasons set out above, I am satisfied the bail judge did not err in his consideration of the four factors specifically identified in s. 515(10)(c). Those are the "main factors" to be balanced in considering the tertiary ground: R. v. St.-Cloud, at para. 69. In most cases, if all four factors clearly favour detention, bail will be refused on the tertiary ground, especially if the accused has the onus to show cause why he should be released: see R. v. Jaser, 2014 ONSC 1058 at para. 74; R. v. M. (E.W.), 2006 CanLII 31720 (ON CA), [2006] O.J. No. 3654, 223 C.C.C. (3d) 407, at 415-16 C.C.C. (C.A.).

(iii) The other relevant circumstances

[90] Despite the importance of the four identified factors in the tertiary ground assessment, the language of s. 515(10) (c) and St.-Cloud make it clear the bail judge must take into account, not just the four enumerated factors, but all relevant circumstances: R. v. St.-Cloud, at paras. 66-71. Those factors include the personal circumstances of the accused, and any significant pretrial custody flowing from delay in the accused's trial: R. v. St.-Cloud, at para. 71.

[91] Not only is it clear the relevant factors extend beyond those enumerated in s. 515(10)(c), the balancing of the relevant circumstances envisioned by the provision is not value neutral. Instead, that balancing must reflect the law's commitment to the fundamental principles of the presumption of innocence and the entitlement to reasonable bail: R. v. St.- Cloud, at paras. 56, 70.

[92] In summarizing the principles from St.-Cloud, the bail judge acknowledged the four factors enumerated in s. 515(10)(c) were not the only factors to be considered when engaging in the balancing required by the tertiary ground. The bail judge did not, however, make any reference in his tertiary ground analysis to any other factors. He did not address the substantial body of evidence said to demonstrate that Jaser had become a very different person in the seven years since his arrest. Those changes reflected a prosocial attitude, a willingness to take responsibility for his own actions, and a determination to improve himself. Those changes, if real, were relevant to the balancing required under the tertiary ground.

[93] The bail judge did not consider whether Jaser's asserted rehabilitation was genuine. Instead, his tertiary ground analysis does not differ materially from the analysis at the first bail hearing in 2013.

[94] Just as the bail judge had to make findings about Jaser's belief system as of 2020 to properly address the secondary ground, he had to make findings about Jaser's purported rehabilitation to properly address the tertiary ground. Those two findings, that is whether Jaser continued to hold terrorist beliefs, and the genuineness of his apparent rehabilitation, are obviously closely [page696] related and turn largely on an assessment of the evidence relating to Jaser's conduct while in custody for the last seven years. Without making any finding as to the genuineness of the apparent changes in Jaser, the bail judge could not properly decide whether public confidence in the administration of justice could be maintained if Jaser were released on strict bail terms.

VIII

What Order Should be Made?

A: The fresh evidence

[95] Having found the bail judge made errors in his analysis of both the secondary and tertiary grounds, I must determine the appropriate order under s. 680(1). In doing so, I will first consider whether any of the fresh evidence should be received.

(i) The delay in the retrial

[96] The parties agree the retrial is now scheduled for April 2021 and not September 2020, as anticipated by the bail judge. The added delay is attributable to the ongoing appeal process. If the trial proceeds in April, one could reasonably expect a decision by the trial judge in the summer of 2021. The applicant also points to the real possibility of additional delay. The applicant submits this evidence should be received, as delay in the retrial is relevant to the balancing under the tertiary ground.

[97] The Crown agrees the evidence the retrial will occur at least several months after the anticipated trial date is properly considered on this review. The Crown argues, however, the delay has no impact on the secondary ground and, having regard to the strong case for detention on the tertiary ground, does not tip the ultimate balancing under that provision in the applicant's favour.

[98] The evidence of the added delay in the retrial is relevant to the tertiary ground and properly received on this application: see R. v. Hope (2016) 133 O.R. (3d) 154, [2016] O.J. No. 4552, 2016 ONCA 648, at paras. 28-29; R. v. Myers, [2019] 2 S.C.R. 105, [2019] S.C.J. No. 18, 2019 SCC 18, at paras. 50-54. Public confidence in the administration of justice must suffer when trials are delayed beyond their anticipated completion date, and accused who have been denied bail, but are nonetheless presumed innocent, must languish in custody. Here, the added delay of at least eight months must be placed in the context of the over seven years Jaser has been in custody as his case has worked its way through the system. [page697]

(ii) The COVID-19 evidence

[99] The applicant also offers evidence of the impact of COVID-19 on persons held in custody in Ontario. He submits the pandemic, which arrived after the s. 522 bail hearing, puts prisoners' health at risk, and makes the conditions of their detention significantly more onerous. The applicant submits, that while the pandemic is upon us, detention on the tertiary ground should be rare: see R. v. R. (J.), [2020] O.J. No. 1670, 2020 ONSC 1938, at para. 47.

[100] The Crown accepts the court should receive the COVID-19-related evidence, including the Crown's evidence. The Crown submits, however, the impact of the pandemic must be assessed by reference to the specific circumstances of the accused and the institution in which he is being held.

[101] Dr. Orkin's affidavit, filed on behalf of the applicant, was prepared in May 2020. The affidavit is thorough, impressive and thought-provoking. Dr. Orkin specifically addresses the possibility of a "second wave" in the fall of 2020.

[102] The material filed by the Crown is also helpful. It speaks directly to circumstances in Ontario correctional institutions as of late August. The material describes the measures taken in the institutions in the face of the pandemic and the effects of those measures. Prison population has been substantially reduced and correctional authorities have acted aggressively in instituting other measures known to provide some protection against the pandemic. To date, there has not been a single case of COVID-19 in the institution in which Jaser is being held. While we have all come to know how little we know about this virus, the measures taken by the correctional authorities have clearly been effective in limiting the spread of COVID-19, particularly within the institution in which Jaser is being held.

[103] The presence of COVID-19 is a factor to be balanced in the tertiary ground analysis, especially where there is a viable alternative to actual incarceration, which can go a long way to achieving de facto incarceration outside of the correctional institution. I must, however, reject the contention that post-COVID-19 detention on the tertiary ground will "rarely be justified". Like all other factors in the tertiary ground balancing, the significance of the pandemic depends on the individual case and the evidence provided to the court. On the evidence I have, COVID-19 concerns are relevant in the tertiary ground assessment. They are far from determinative.

(iii) The spiritual counselling/psychological testing evidence [page698]

[104] The applicant offers fresh evidence in the form of letters from two Imams who provided spiritual counselling to Jaser while he was in the penitentiary. In addition, the applicant offers a psychological report prepared after Jaser had been returned to the provincial system in 2019, when his new trial was ordered. The psychological report post-dates the bail judge's decision and was obviously not available to him.

[105] The Crown correctly observes the evidence provided by the Imams is general and, to some extent, not different from the evidence before the bail judge. It does, however, add to the overall picture of Jaser in his post-arrest life. Both Imams had significant interaction with Jaser, particularly in the last few years of his incarceration in the penitentiary. In their letters, both report significant positive changes in Jaser's attitude, self-awareness and behaviour, although neither purports to engage in any kind of risk assessment.

[106] The information provided by the Imams was available to the applicant at the time of his bail hearing. The applicant has provided evidence in this proceeding offering a reasonable explanation for the failure to put the information from the Imams before the bail judge. I accept that explanation. Bearing in mind the flexible approach to the reception of new evidence on bail reviews, I will receive the evidence provided in the correspondence from the Imams. That evidence is relevant to both the secondary and tertiary grounds.

[107] The psychological report is based on 16 sessions with Jaser between October 2019 and May 2020. The psychologist reports significant progress and describes Jaser as motivated to obtain further assistance in his rehabilitation. The report also suggests Jaser is a good candidate for community-based counselling. The psychological report is relevant to both the secondary and tertiary grounds and was not available at the bail hearing. I will admit the report.

B: The appropriate order

[108] I start with the crucial question -- does Jaser presently hold terrorist views, which would justify random murder in the name of religion? The trial judge faced this same question on sentencing. He said, at para. 61:

In these circumstances, the defence has failed to prove certain mitigating factors such as a remorse and renunciation on a balance of probabilities. However, the Crown has also failed to prove the aggravating factors of an ongoing present commitment to violent jihadist ideology on a standard of proof beyond a reasonable doubt. I am left in the position . . . of not knowing where the truth lies in relation to Jaser's present beliefs and present rehabilitative prospects. [page699]

(Emphasis added)

[109] After reviewing the bail record and the new evidence, I find myself in somewhat the same position as the trial judge. I cannot answer the question with a definitive yes or no. There is a real possibility Jaser presently holds terrorist views. There is equally a real possibility he does not. I reach this conclusion for several reasons.

[110] The interceptions provide powerful evidence through Jaser's own words of a strong commitment to terrorist ideology in August and September of 2012. His words are terrifying. Nor can his words be entirely discounted because they were uttered many years ago.

[111] Jaser has never said under oath, or otherwise as far as I can tell, he does not presently hold any terrorist beliefs. Nor has he directly offered any explanation for the statements he made in the interceptions. I accept concerns about self-incrimination would limit what he could be expected to say, especially before his trial. However, given the defence Jaser advanced, I have difficulty understanding why, if Jaser does not hold terrorist beliefs, he has not repeatedly, expressly and loudly said so in these bail proceedings. Instead, Jaser says nothing about his beliefs, and certainly says nothing in a forum in which he could be cross-examined on his statements. I am left to discern his present beliefs by reference to his conduct in custody, while the very explicit language of his conversations in 2012 rings loud and clear.

[112] Jaser has apparently never said anything to his religious counsellors about his attitudes with respect to terrorist activity. I understand that the practice of "confessions" is not part of the Muslim faith. Nonetheless it is strange the topic of whether Jaser holds terrorist beliefs has apparently never been raised by Jaser or the Imams in the course of their many discussions about religion and Jaser's attitudes.

[113] Placed against Jaser's words in 2012, and his silence on the topic since, is his conduct while in custody, especially after his sentencing in 2015. That conduct has been largely positive throughout and has become more positive as time has gone on. Many sources, some independent of Jaser and experienced in dealing with persons in Jaser's situation, are satisfied Jaser has gained real insight into his behavioural issues, developed a determination to improve himself and to become involved in prosocial activities. Much of Jaser's conduct in the last five years is inconsistent with any adherence to a terrorist ideology.

[114] I recognize Jaser's history dictates caution in accepting the genuineness of Jaser's apparent behavioural changes. His history as a liar and manipulator goes well beyond his arrest in 2013. [page700] The trial judge found Jaser lied to the psychologist retained by the defence for the purposes of sentencing in 2015. The federal correctional authorities in 2018 also described Jaser as a manipulator. If Jaser maintained a terrorist ideology, he would no doubt see the value of falsely presenting himself to the correctional authorities, his counsellors, and even his own family, as a changed person. Indeed, Jaser described this kind of manipulation in one of the intercepted communications.

[115] My doubts about the genuineness of Jaser's purported rehabilitation and changed worldview do not, however, cause me to reject the evidence entirely and conclude Jaser has not changed. I do not discount his apparent rehabilitation as simply part of a long con game. Given the source of the reports, the time period covered by the reports, and their almost uniformly favourable description of Jaser, there is a real possibility Jaser has indeed changed and will, if released on bail, continue down that course and abide by his bail terms. Jaser's apparent rehabilitation while in custody may well be real.

[116] It may be suggested my inability to positively conclude Jaser does not harbour terrorist beliefs and is a changed person is enough to require his detention in light of the onus placed on Jaser by s. 515(6) to show cause why he should be released. Section 515 must be read as a whole. Section 515(6) requires Jaser to show cause why his detention is not necessary on any of the three grounds identified in s. 515(10). This inquiry requires a consideration of the alternatives to detention available on the evidence. Detention may be necessary if release without any significant terms is the only realistic alternative. Detention may not be necessary if concerns arising out of release can be adequately addressed by terms. Put differently, if I were able to positively conclude Jaser did not harbour terrorist beliefs and was rehabilitated, I would release him on minimal terms. Because I harbour concerns about his belief system and the genuineness of his rehabilitation, I must consider whether adequate terms can be imposed to render detention unnecessary.

[117] The adequacy of any release plan depends, in part, on the availability of suitable sureties who are prepared, not only to supervise Jaser, but also to co-operate with the authorities in their attempts to monitor compliance with the bail order. The sureties are not, however, the only thing standing between compliance and non-compliance with a bail order. If the terms of the release give the police significant supervisory powers to be exercised at the discretion of the police, the court, in deciding whether terms adequately address bail-related concerns, is entitled to assume [page701] the police will diligently exercise supervisory powers given to them under the bail order.

[118] Based on my findings, Jaser poses a risk to public safety, and there is a genuine concern public confidence in the administration of justice would be undermined by his release. The question becomes -- can release terms be fashioned which sufficiently address those risks so as to render the detention unnecessary? In answering that question, one must bear in mind Jaser is presumed innocent and Jaser will have spent over eight years in custody before his retrial is completed.

[119] I believe the appropriate terms can be fashioned. The terms must minimize Jaser's movements outside of his mother's home, limit his contacts with non-family members, and give the police the ability to oversee Jaser's movements and monitor his compliance with the bail terms. On the terms I envision, Jaser's liberty will be substantially circumscribed and the police will have broad authority to monitor and verify Jaser's compliance with his bail terms on a daily, if not an hourly, basis.

[120] Many of the terms I impose are contained in the draft order provided by counsel for the applicant after oral argument. While I propose a somewhat less strict house arrest provision, I propose other terms restricting Jaser's movements and civil liberties going well beyond those suggested by counsel. Some of the terms I envision will also impose significant limits on the civil liberties of the sureties. It will, of course, be for them to decide whether they are content to accept those limits and act as sureties. The details of some of the terms I propose have not been discussed with counsel. Nor have counsel been offered the opportunity to address further terms in light of those I propose. A further hearing is necessary to permit counsel to make submissions concerning the workability, appropriateness, and sufficiency of the proposed terms.

[121] Jaser should be released with four sureties, the persons named in the draft order provided to me.[^5] The sureties shall be in the total amount of $310,000.

[122] Jaser will reside at his mother's home at [redacted address]. One or more of the sureties must be present in his home at all times when Jaser is in the home. No person other than a surety can be alone with Jaser in the home. Jaser must be in the [page702] home at all times between 7:00 p.m. and 9:00 a.m., subject only to personal, medical emergencies. If such emergency arises, the surety shall advise the designated authority within one hour of leaving the home, of both the nature of the emergency and Jaser's location. Whenever Jaser leaves the home, he shall be accompanied by one or more of his sureties at all times.

[123] By 8:00 p.m. of each day, Jaser, and at least one of his sureties, shall provide, in the designated form, to the named authority, Jaser's full itinerary for the next day. That itinerary will set out, on an hourly basis, where Jaser will be, who he will be with, an, if he proposes to leave his mother's home, the purpose of that trip and the identity of any persons who will accompany him. If Jaser proposes to change that itinerary, he shall provide at least one hour's notice to the appropriate authority before departing from the itinerary. Except as indicated in his itinerary, Jaser must remain in his mother's home. If he is unable to provide the requisite notice of any proposed change in his itinerary, he must remain in his mother's home.

[124] When Jaser is out of his mother's home, he shall carry photo identification and a copy of his daily itinerary. Jaser will, when outside of his home, if requested by the police, produce his identification and itinerary. He must also, if requested, submit to a search of his person for the purpose of determining whether he is in compliance with the terms of his bail order.

[125] By 8:00 p.m. of each day, Jaser and a surety shall also provide to the same named authority a summary, on an hourly basis, of Jaser's activities on that day. The summary shall indicate where Jaser went, who he was with, and the purposes for any trip or visit outside of the home.

[126] The police may attend at [redacted address] at any time at which Jaser is, under the terms of this release, obligated to be in the home. Jaser, with at least one of his sureties, will immediately personally respond to the police attendance and, upon request, present photo identification to the attending police officers. If requested by the police, Jaser and his surety will allow the police to enter the home and search the home, but only for the purpose of determining whether Jaser is in compliance with the terms of his bail.

[127] The electronic monitoring terms contained in the draft order provided to me after argument (paras. 4-7) should be included in the order. [page703]

[128] Paragraphs 8, 10, 11, 12, 13, 14, 15 and 16 from the draft order should also be included.[^6]

[129] Term 11 of the draft order provides:

The accused shall not access or use any mobile, landline, telecommunication device or any device capable of connecting to the internet by any means.

[130] Given the risks outlined above, I see this as a significant, but nonetheless necessary restriction on Jaser's liberty. I would be interested in hearing any submissions the Crown might have as to terms which could be imposed to allow the police to effectively monitor compliance with this term. It may be adequate monitoring would require the sureties to consent to police activity limiting their own privacy rights. It will be for the sureties to decide if they are prepared to agree to those concessions. I regard the ability of the police to monitor compliance with the term prohibiting Jaser's use of the internet to be a significant consideration in determining whether release on specified terms can adequately address the secondary and tertiary grounds in s. 515(10).

[131] In the draft order, counsel suggests Jaser should be allowed to attend educational courses, counselling sessions, and employment venues. While I see the value in all three, I would not include that term in my order. Instead, I propose a term prohibiting Jaser from leaving his home to attend any educational courses, counselling sessions, or employment.

[132] If at some stage Jaser presents a detailed plan with respect to counselling, education or employment, making it clear exactly what he proposes and exactly what he would be doing, I would be prepared to consider amending the order. Any proposed plan of counselling, education or employment must also demonstrate those who would be engaged in providing counselling, education or employment have been made fully aware of Jaser's legal situation, and are prepared to co-operate with the authorities in the enforcement of any bail terms applicable to those activities. I will remain seized of this matter for the purpose of considering any application to vary the terms of the order.

[133] In attempting to formulate appropriate terms, I have borne in mind the strong admonition in R. v. Zora, at paras. [page704] 83-89, cautioning against unclear, unnecessary, punitive bail terms, and terms which seem calculated to produce a breach of the bail order. I am satisfied the conditions I propose are directly related to the risks associated with Jaser's release. The terms are needed to ameliorate those risks to the extent detention will not be necessary on either the secondary or tertiary ground.

[134] Counsel should arrange a further videoconference to hopefully finalize the exact terms of Mr. Jaser's release. It would be helpful if counsel could each provide me with draft orders containing their understanding of the terms I have outlined and any additional terms counsel propose.

C. The Non-Publication Order

[135] Counsel for Jaser submitted the non-publication order applicable to these bail proceedings can be lifted. Counsel for Esseghaier agrees.[^7] I will address the non-publication order after the further hearing to address the specific terms of the order. In the meantime, the non-publication order remains in effect.

Application allowed.

Notes

[^1]: The applicant chose to bring his application for bail pending his retrial in the Superior Court pursuant to s. 522. He could have brought the application before a judge of this court: Criminal Code, s. 679(7.1). Given the nature of the evidence produced on the application, the Superior Court was the preferable forum: see R. v. Ranger, 2003 CanLII 15438 (ON CA), [2003] O.J. No. 5126, 180 O.A.C. 138; R. v. Manaseri, [2017] O.J. No. 1460, 2017 ONCA 226.

[^2]: Jaser received a pardon in 2009. That pardon was revoked in 2013 after these charges were laid.

[^3]: Jaser is also reported by his father, in his father's affidavit, to have made an equally ambivalent comment. He apparently told his father "no good" came from his actions in 2012. Certainly from the perspective of a committed jihadist, the 2012 events came to "no good".

[^4]: In addition to declining to order a review if the applicant does not demonstrate an arguable case, I think the Chief Justice could also refuse to order a review if the applicant relied primarily on material changes in circumstances as a basis for the review. The Chief Justice could conclude a second s. 522 application was the more appropriate forum in which to deal with the new evidence: see R. v. Whyte (2014), 119 O.R. (3d) 305, [2014] O.J. No. 1633, 2014 ONCA 268 (C.A.), at para. 21.

[^5]: Jaser's father was out of the country and unable to return because of the COVID-19 travel restrictions at the time of the application before me. He has since returned and will soon complete the necessary self-isolation. Jaser's father must be one of the named sureties.

[^6]: Paragraph 8 relates to the non-use of non-medically prescribed drugs or alcohol; para. 10 refers to waivers to the sureties, if necessary; paras. 12 and 13 are non-communication clauses with Esseghaier and certain other named persons; para. 14 prohibits possession of travel documents; and para. 15 prohibits possession of firearms and related paraphernalia.

[^7]: At my request, counsel for the applicant spoke with counsel for Esseghaier and confirmed he was agreeable to the lifting of the non-publication order.