COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Esseghaier, 2021 ONCA 162

DATE: 20210312

DOCKET: M51969 (C61095 & C61185)

Fairburn A.C.J.O., Doherty and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent/Moving Party

and

Chiheb Esseghaier

Appellant/Responding Party

AND BETWEEN

Her Majesty the Queen

Respondent/Moving Party

and

Raed Jaser

Appellant/Responding Party

Lisa Mathews, Sarah Shaikh and Ian Bell, for the moving party

Erin Dann and Sarah Weinberger, for the responding party Chiheb Esseghaier (C61095)

Megan Savard and Riaz Sayani, for the responding party Raed Jaser (C61185)

Heard: in writing

REASONS FOR DECISION

Overview

[1] On March 20, 2015, Chiheb Esseghaier and Raed Jaser (“the responding parties”) were convicted of terrorism offences by a court composed of a judge and jury. They were later sentenced to life imprisonment on September 23, 2015: see R. v. Esseghaier, 2015 ONSC 5855 (“Esseghaier (ONSC)”).

[2] Their appeals to this court were bifurcated so that an issue involving the proper process for the selection of the jury at trial could be decided first. The appeals were granted on that basis, the convictions were set aside, and a new trial was ordered: see R. v. Esseghaier, 2019 ONCA 672, 57 C.R. (7th) 388. The Crown then sought and was granted leave to appeal to the Supreme Court of Canada: R. v. Esseghaier, [2019] S.C.C.A. No. 350. The appeals were allowed by the Supreme Court, the convictions were restored, and the remaining grounds of appeal were remitted to this court for determination: see R. v. Esseghaier, 2021 SCC 9 (“Esseghaier (SCC)”).

[3] On November 23, 2020, the responding parties filed a notice of application pursuant to s. 683(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, requesting an order directing the Crown to obtain and disclose certain information from the Federal Bureau of Investigation (“FBI”). The Crown has now brought a motion for directions to address preliminary issues pertaining to the application, requesting that this court make an order summarily dismissing the responding parties’ s. 683(1)(a) application for disclosure. Through case management discussions, it was determined that a panel of this court would first decide the Crown’s motion for directions and request for summary dismissal. On the consent of the parties, we have done that on the basis of a written record.

[4] In these reasons, we explain why we do not accept the Crown’s argument that the application for disclosure should be summarily dismissed and why the Crown is ordered to take further steps to obtain disclosure.

Factual Context

[5] The terrorism offences for which the responding parties were found guilty arose primarily from a plot to derail a VIA Rail passenger train travelling between Toronto and New York, with the goal of killing the passengers: Esseghaier (SCC), at para. 12. Much of the trial evidence came from an FBI agent, operating and testifying under the pseudonym “Tamer El Noury”. There were numerous conversations between the responding parties and Agent El Noury, many of which were intercepted under judicial authorization. There is no dispute that Agent El Noury was a key Crown witness, testifying over the course of about two weeks.

[6] A number of orders were made to protect Agent El Noury’s identity at trial, including that he testify under his pseudonym in a closed courtroom, with the public only able to see the proceedings by way of closed-circuit television from another location. To further protect Agent El Noury’s identity, he and his handlers accessed the courtroom using the hallway of the judges’ chambers.

[7] About two years after the responding parties were sentenced, Agent El Noury published a book under his pseudonym, which he co-wrote with journalist Kevin Maurer: American Radical: Inside the World of an Undercover Muslim FBI Agent (New York: Dutton, 2017). While the views in the book are purported to be Agent El Noury’s alone, the book also suggests, in its “Note to the Reader”, that it was “reviewed and approved by the FBI”.

[8] The book makes specific reference to the responding parties’ trial. The book suggests that, following the completion of his evidence, Agent El Noury waited in the break room for his handler to arrive so that they could leave the courthouse together. His handler’s pseudonym was “Nelly”.

[9] When Nelly arrived, he is purported to have said the following to Agent El Noury, as described near the end of chapter 28 of the book:

“[The trial judge] stopped me in the hall and asked if I was going to see you,” Nelly said. “He wanted me to relay a message. He said to tell you that you’re not only a hero in your country, but in his. Your service and commitment will forever be appreciated. He told me to take care of you.”

[10] On the basis of this purported communication between the trial judge and Nelly, the responding parties wish to now advance on appeal a reasonable apprehension of bias claim. To this end, the responding parties sent a disclosure request to the Crown on November 13, 2020, asking for the following:

all out-of-court communications between the … trial judge … and the FBI agents known publicly as ‘Tamer El Noury’ and ‘Nelly.’ I am content for this disclosure to take the form of affidavits or willsays from the two agents. If the agents created contemporaneous notes or memory aids relating to any such communications, please disclose those as well.

[11] The Crown initially took the position that neither agent had relevant evidence to provide. In correspondence from the Crown to the responding parties, it was suggested that Agent El Noury did not have relevant evidence because he was not present during the alleged conversation with the trial judge. As for Nelly, the Crown took the position that he did not have relevant information because the purported conversation, even if true, could not give rise to the level of a reasonable apprehension of bias and, therefore, the alleged conversation was “not relevant to the outcome of the appeal.”

[12] Shortly after the Crown’s response, the responding parties filed a notice of application for disclosure in this court. That application seeks to have this court invoke its purported powers under s. 683(1)(a) of the Criminal Code to order the Crown to obtain and disclose:

(a) all out-of-court communications between the … trial judge and the FBI agents known publicly as ‘Tamer El Noury’ and ‘Nelly,’ in the form of affidavits or willsays; and

(b) any contemporaneous notes or memory aids prepared by the agents in relation to any such communications.

[13] The Crown took steps to have the Royal Canadian Mounted Police (“RCMP”) follow-up on the disclosure request. In letters dated December 1, 2020, the RCMP requested the Office of the Legal Attaché, Embassy of the United States of America, to inquire as to whether either Agent El Noury or Nelly are:

in possession of any contemporaneous notes of [sic] memory aids prepared by [them] in relation to any out-of-court communications that may have taken place between [them] and the trial judge[.] [Emphasis in original.]

[14] The RCMP letters did not make any reference to Agent El Noury’s book or the content of the alleged communication between the trial judge and Nelly.

[15] Responses were returned to the RCMP. Agent El Noury’s response, dated December 18, 2020, is as follows:

[H]e did not have any out of court communications with the trial judge … and does not have in his possession any contemporaneous notes of [sic] memory aids.

[16] Nelly’s response, dated January 25, 2021, is a little more nuanced:

[H]e did not have any substantive or relevant out of court communications with the trial judge … and does not have in his possession any contemporaneous notes of [sic] memory aids. [Emphasis added.]

The Crown’s Motion for Directions and Request to Summarily Dismiss the Disclosure Application

[17] The Crown requests that the responding parties’ s. 683(1)(a) disclosure application be dismissed before it is argued because it cannot succeed. The Crown advances two arguments in support of this position. We do not accede to either argument.

[18] The Crown’s first position is that even if the comment was made, taken at its highest, it is not capable of raising a reasonable apprehension of bias because: (a) the trial judge was not the trier of fact; (b) the alleged comment was not made in the presence of the jury, as it was made after Agent El Noury’s evidence was complete; (c) the alleged comment appears to have been an isolated and casual remark; and (d) there is nothing in the record to support the claim that the trial judge pre-judged the responding parties’ guilt or closed his mind to different points of view.

[19] There is much to be said for the Crown’s position. Judges are presumed to be impartial, so much so that a “heavy burden” is placed on anyone attempting to dislodge that presumption: R. v. Dowholis, 2016 ONCA 801, 341 C.C.C. (3d) 443, at para. 18; R. v. Ibrahim, 2019 ONCA 631, 379 C.C.C. (3d) 414, at para. 84. To rebut the presumption of impartiality, a strict test is applied, one that asks what an “informed person, viewing the matter realistically and practically – and having thought the matter through – [would] conclude”: Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting).

[20] While the Crown’s position is certainly an arguable one, that even if true the alleged communication would not give rise to a reasonable apprehension of bias, it is premature to advance that argument at this stage. We are not here to determine whether, even if the alleged communication took place, a reasonable apprehension of bias claim is unlikely to succeed. Nor are we here to determine the likelihood of success of such an argument. The question is whether there is no basis upon which to conclude that a reasonable apprehension of bias claim could be made out in the face of the alleged comment. As the record currently stands, we are not in a position to reach that conclusion.

[21] Although the Crown properly points to the fact that this was a jury trial and the alleged comment was made outside of the jury’s presence, the fact remains that the trial judge was responsible for other important aspects of the trial. For instance, the trial judge alone was responsible for the sentencing proceeding, where he rejected the claim that Mr. Jaser’s sentence should be mitigated on the basis that he had been entrapped by Agent El Noury: Esseghaier (ONSC), at paras. 28-37. The trial judge also imposed life sentences: Esseghaier (ONSC), at paras. 125-27.

[22] We should not be taken as suggesting that there is anything wrong with those determinations or that they are at all suggestive of a bias claim. We advert to the sentencing proceeding only as an example of one of the factors an “informed person, viewing the matter realistically and practically” would take into account when considering the potential impact of the alleged comment to Nelly on an allegation of bias: Committee for Justice and Liberty, at p. 394, per de Grandpré J. (dissenting).

[23] In conclusion, we do not agree that at this stage it can be said that the alleged comment, even if true, is not capable of raising a reasonable apprehension of bias. Assuming the responding parties are able to obtain admissible evidence to show that the statement was made by the trial judge, it will be for a panel of this court to decide whether, when considered against the backdrop of the whole case, the reasonable apprehension of bias claim is made out. It is simply premature at this stage to bring an end to the responding parties’ attempts to gather admissible evidence to support the claim that the comment, as recounted in Agent El Noury’s book, was made.

[24] The Crown’s second position is that this court cannot compel the Crown to have a willsay or affidavit created. The Crown relies upon R. v. Karimi, 2014 ONCA 133, in support of this position. Karimi involved an application to this court under ss. 683(1)(a) or 683(1)(b) of the Criminal Code to compel a witness who testified at trial to attend at a specified place and provide a sample of his voice to be used by a retained expert in a comparison exercise: Karimi, at paras. 1-3. This court concluded that there was no power to make that order under these sections of the Criminal Code, as s. 683(1)(a) refers to the production of “existing” material, while s. 683(1)(b) relates to compelling witnesses to “attend and be examined”: Karimi, at paras. 4-7. Therefore, the Crown indicates that s. 683(1)(a) of the Criminal Code cannot be used to compel the creation of a willsay or affidavit.

[25] We need not resolve now whether Karimi applies to the circumstances of this case. The fact is that the responding parties filed a supplementary factum, in which they appear to have modified their original request for willsays and affidavits. In light of Nelly’s information, received after the responding parties’ application was filed, that “he did not have any substantive or relevant out of court communications with the trial judge” (emphasis added), the responding parties now argue that there is one “central question” left to be answered: “Did Nelly and the trial judge have the conversation described in [Agent] El Noury’s memoir?” It appears that the responding parties are content, at least for now, to obtain an answer to that question.

[26] The need to obtain the answer to that question is a matter involving Crown disclosure. The Crown is not an ordinary litigant in the criminal courtroom or on appeal, its undivided loyalty being to the proper administration of justice: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at paras. 17, 49. When Crown counsel is notified of the existence of relevant information, unless the notice appears baseless, the Crown is duty-bound as an officer of the court to make inquiries of the police to obtain that information where it is “reasonably feasible to do so”: McNeil, at para. 49; R. v. Ahluwalia (2000), 2000 CanLII 17011 (ON CA), 138 O.A.C. 154 (C.A.), at paras. 71-72.

[27] The Crown’s obligation is to make proper inquiries. While the Crown properly asked the RCMP to inquire as to whether Agent El Noury or Nelly had contemporaneous notes or memory aids in respect of the communications, the Crown did not ask for information about the obvious question: did the alleged communication occur? From the outset, the responding parties have been asking for an answer to that question in the form of a willsay or affidavit. While we would not at this stage order that the information be provided in either of those formats, leaving the argument of that matter to another day should the need arise, it is time for the Crown to meet its disclosure obligations and ask the RCMP to make inquiries about:

(a) whether the alleged communication between Nelly and the trial judge, as recounted in Agent El Noury’s book, or some similar type of communication, took place and, if so, whether there are any notes, electronic or otherwise, making reference to that communication?

(b) whether the alleged communication between Nelly and Agent El Noury, as recounted in Agent El Noury’s book, or some similar type of communication, took place and, if so, whether there are any notes, electronic or otherwise, making reference to that communication?

Disposition

[28] We order the Crown to take further steps to obtain the requested disclosure. We will remain seized of this matter.

“Fairburn A.C.J.O.”

“Doherty J.A.”

“G.T. Trotter J.A.”