COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jaser, 2020 ONCA 648

DATE: 20201015

DOCKET: M51647

Doherty J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Raed Jaser

Applicant (Appellant)

Counsel:

Megan Savard and Riaz Sayani, for the applicant

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

Heard: August 20, 2020 and by supplementary submissions on October 13, 2020 by video conference

Supplementary reasons to the judgment in R. v. Jaser, 2020 ONCA 606, released on September 24, 2020.

ADDENDUM

[1] On August 20, 2020, I heard an application under s. 680 for an order setting aside an order made under s. 522 by O’Marra J. of the Superior Court of Justice. Justice O’Marra ordered the applicant (Jaser) detained pending his re-trial on four terrorist-related charges.

[2] On September 24, 2020, I released reasons directing that subject to further submissions, referable to the terms of release, I was prepared to release Jaser on bail pending his re-trial. The parties agreed to reconvene on October 13, 2020 to make further submissions with respect to the terms of release.

[3] On October 7, the Supreme Court of Canada heard the Crown’s appeal from the order granting Jaser and his co-accused, Esseghaier, new trials. At the end of oral argument, the Court announced the appeals were allowed, the convictions restored, and the appeals remitted to the Court of Appeal for consideration of the other grounds of appeal. The Court indicated reasons for their disposition would follow.

[4] As of today, Jaser stands convicted of the three counts on which the jury returned guilty verdicts. He is serving a life sentence on count 2. He has appealed those three convictions. His appeal on those three counts remains outstanding in this Court. Jaser is also subject to a new trial on count 1, the count on which the jury could not reach a verdict on his first trial.

[5] In light of the Supreme Court of Canada’s order allowing the Crown appeal and restoring the convictions, Jaser is no longer awaiting trial on count 2 (conspiracy to commit murder), the jurisdictional basis for the s. 522 bail application giving rise to this s. 680 application. Jaser is presently serving his life sentence imposed on count 2.

[6] The Crown submits s. 679, the provision dealing with bail pending appeal, should govern. If Jaser seeks his release, he should bring a s. 679 application.

[7] Jaser submits he is still awaiting his re-trial on count 1 and the s. 522 order made by O’Marra J. remains alive as far as count 1 is concerned. Counsel argues I should make the order I had proposed to make under s. 680, but limit the order to count 1. She acknowledges if I do so, it would have no immediate effect on Jaser’s liberty. He would remain in custody pursuant to the convictions on counts 2, 3 and 4, unless he were to receive bail pending appeal or the convictions were to be quashed on appeal. Counsel submits, however, anything I might say about the terms upon which I would release Jaser on count 1 might assist a judge hearing a subsequent application for bail pending appeal on counts 2, 3 and 4.

[8] I will not deal with the question of bail on a piecemeal basis. Jaser is in custody serving a life sentence. His entitlement to bail should be determined under s. 679, the provision which specifically addresses bail pending appeal.

[9] The s. 522 bail hearing and the subsequent s. 680 review were both predicated on a new trial having been ordered on all counts. That status quo has now changed. The question whether Jaser should obtain bail pending trial is now moot. Jaser’s application under s. 680 is dismissed without prejudice to his right to bring an application for bail pending appeal pursuant to s. 679.

[10] As indicated in my earlier reasons, counsel for Jaser and Esseghaier agree the s. 517 ban on publication should be lifted. The Crown does not oppose this request. I will order the s. 517 publication ban lifted. I note Crown counsel advises there are other narrower publication bans in place, for example, there is apparently a publication ban relating to the identity of a police informant. Nothing I have said is intended to have any effect on non-publication orders other than the order made under s. 517. That order is lifted.

“Doherty J.A.”