Court of Appeal for Ontario

DATE: 20220428 DOCKET: M52865 (C61095)

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

Parties and Counsel

BETWEEN

Her Majesty the Queen Respondent/Responding Party

and

Chiheb Esseghaier Appellant/Responding Party

Delmar Doucette, appearing as amicus curiae Chiheb Esseghaier, acting in person Ian Bell and Lisa Mathews, for the respondent

Heard: April 22, 2022 by video conference

Reasons for Decision

[1] Mr. Chiheb Esseghaier wishes to abandon his appeal. Concern has been expressed over whether this court should accept his Notice of Abandonment because of potential issues relating to his current capacity, as opposed to his capacity at the time of trial.

[2] In the highly unusual circumstances of this case, where fitness was in issue throughout the trial and is now raised by amicus in the context of the appellant’s desire to abandon his appeal, it was determined during a case management meeting that two overarching questions may need to be decided:

• Does … fitness have anything to do with the effectiveness of an appellant’s abandonment of his appeal?
• Assuming fitness is relevant, should Mr. Esseghaier’s mental state impact on the effectiveness of his abandonment of his appeal?

[3] During the case management hearing, it was determined that the panel would hear submissions on the preliminary legal question first: “the relevance, if any, of Mr. Esseghaier’s fitness to the effectiveness of his purported abandonment of the appeal.” It was also determined that amicus curiae should be appointed to advance submissions on this issue.

[4] At the outset of the hearing forming the subject of these reasons, two things transpired: (1) Mr. Esseghaier confirmed that it is still his intention to abandon his appeal; and (2) an actual order was made, appointing amicus curiae for the “limited purpose” of making submissions on whether the “appeal should be dismissed as abandoned” and whether Mr. Esseghaier’s “fitness is relevant” to that question.

[5] Amicus curiae and the respondent Public Prosecution Service of Canada agree, as do we, that this court has the discretion to reject a Notice of Abandonment if the appellant is lacking in capacity. The respondent helpfully likens the test for capacity in this situation to the test for capacity when entering a guilty plea. Having determined that we have the jurisdiction to reject a Notice of Abandonment where capacity is in issue, this matter must move to the second stage of analysis: whether the court should accept the Notice of Abandonment.

[6] Before dealing with that question, a case management conference will be set up to explore how to proceed from here, particularly as it relates to the source of any evidence that may inform the question of capacity. While Mr. Esseghaier says that he is prepared for this court to communicate with his doctor to determine his current mental status, it is fundamental that Mr. Esseghaier’s privacy and related interests be protected during this next stage.

[7] Accordingly, if Mr. Esseghaier wishes, the court is prepared to appoint counsel for the purpose of advising and representing him on issues relating to his capacity at this stage of the proceedings only and, specifically, on the question of developing an evidentiary record upon which the court can decide whether to accept the Notice of Abandonment. This will be discussed at the next case management meeting.

[8] The parties will be contacted with respect to setting a date for that meeting.

“Fairburn A.C.J.O.” “Doherty J.A.” “G.T. Trotter J.A.”