Court of Appeal for Ontario

Date: 20230117 Docket: M53845 (C61185)

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

Between

His Majesty the King Respondent (Responding Party)

and

Raed Jaser Appellant (Moving Party)

Counsel: Megan Savard and Riaz Sayani, for the moving party Lisa Mathews and Ian Bell, for the responding party

Heard: in writing

By the Court:

A. Overview

[1] Raed Jaser (“Jaser”) and his co-accused Chiheb Esseghaier (“Esseghaier”) were convicted of terrorism related offences in 2015 and sentenced to life imprisonment. Both appealed. Jaser raised several issues including Esseghaier’s fitness to stand trial. Esseghaier claimed, as he had at trial, that Canadian courts had no jurisdiction over him and he could be tried only under the Holy Qur’an.

[2] This court ordered Jaser’s appeal bifurcated and directed that the ground of appeal relating to the applicability of amendments to the jury selection process be heard first. In 2019, this court allowed Jaser’s appeal on that ground and ordered a new trial: R. v. Esseghaier, 2019 ONCA 672, 396 C.C.C. (3d) 298. The Crown appealed. In 2021, the Supreme Court of Canada allowed the appeal and ordered the matter remitted to this court for a determination of the remaining grounds of appeal: R. v. Esseghaier, 2021 SCC 9, 396 C.C.C. (3d) 326.

[3] In the interim, Esseghaier, who had received psychiatric treatment while in custody, filed a supplementary notice of appeal, claiming he had been mentally ill throughout the trial. Esseghaier raised various grounds of appeal, including his fitness to stand trial.

[4] Esseghaier subsequently reverted to the position he had taken at trial. He eventually abandoned his appeal in 2022. Esseghaier is no longer a party to these proceedings.

[5] For various reasons, Jaser’s appeal has not yet been heard. Jaser brings this motion, requesting production of a post-sentence psychiatric report pertaining to Esseghaier.

B. Jaser’s Position

[6] Jaser seeks production of a psychiatric assessment of Esseghaier prepared post sentence at the request of amicus (later counsel for Esseghaier before he discharged her and abandoned his appeal). Counsel submits that there is a reasonable possibility, if not a likelihood, that the report will speak to Esseghaier’s fitness to stand trial. Counsel submits that were the court to receive the evidence and determine that Esseghaier was unfit to stand trial, that finding would compel the conclusion that Jaser did not receive a fair trial and his convictions must be quashed as a miscarriage of justice.

C. The Crown’s Position

[7] The Crown argues that the court should not order production of the psychiatric report. The Crown submits that Esseghaier’s fitness to stand trial was the subject of two detailed reports adduced on sentencing and that there is no reason to think that a third report would shed any new light on his mental state at trial. The Crown also contends that whether or not Mr. Esseghaier was fit to stand trial, the fairness of Jaser’s trial falls to be determined on the trial record. Esseghaier’s conduct and his impact if any on Jaser’s fair trial rights is unaffected by any psychiatric opinion as to the explanation for that conduct.

D. Esseghaier’s Position

[8] Esseghaier is no longer a party to the appeal. However, as the report Jaser seeks produced is an assessment of Esseghaier’s mental state, Esseghaier has an interest in the motion to produce that assessment. Esseghaier, who is in custody in British Columbia, has been provided with the motion material by the Crown.

[9] Efforts were made over several weeks to determine whether Esseghaier wanted to participate in this motion. Mr. Embry, who acted as co-counsel for Esseghaier for some of the pretrial motions in this matter, agreed to contact Esseghaier and determine his position on the motion. Mr. Embry made two attempts to contact Esseghaier but received no response. He has advised the court, through counsel for Mr. Jaser, that he does not expect any response from Esseghaier. We have decided to proceed with the motion.

E. The Consideration of Esseghaier’s Fitness at Trial

[10] Esseghaier’s fitness to stand trial was raised by Jaser at trial. He claimed he was prejudiced by being tried with Mr. Esseghaier, who was unable to make rational, informed decisions or to behave in a manner at trial that was in his own best interests. Jaser submitted that the effects of Esseghaier’s choices and his erratic behaviour would inevitably have impacted negatively on Jaser in the eyes of the jury.

[11] Jaser submitted that the potential prejudice to him caused by Esseghaier’s conduct during the trial was particularly acute given the nature of the allegations. The Crown alleged that Jaser and Esseghaier, acting in concert in furtherance of a religiously inspired terrorist plot, had agreed to blow up a train and kill dozens, if not hundreds of people. Jaser submitted that Esseghaier’s conduct during the trial, and particularly his displays of religious zealotry, could be taken by the jury as lending credence to the Crown’s allegations, not only as against Esseghaier, but also as against his co-accused, Jaser.

[12] The trial judge was alive to concerns about Esseghaier’s mental state at trial and the potential prejudicial impact of his conduct at trial. He took repeated steps to mitigate any potential prejudice flowing from Esseghaier’s conduct. The trial judge was, however, satisfied that Esseghaier’s decisions during the trial were motivated by his religious fervour and were not the product of any mental illness making Esseghaier unable to understand the nature of the charges or the consequences of his decisions.

[13] Esseghaier’s fitness was also raised on sentence. Two detailed psychiatric reports were prepared. The psychiatrists agreed that Esseghaier suffered from a major psychiatric disorder, probably schizophrenia. One psychiatrist found that Esseghaier’s mental state likely meant that Esseghaier was not fit to participate in his sentencing. The other psychiatrist believed that Esseghaier was fit within the legal meaning of that term. The difference of opinion between the two psychiatrists would appear to flow primarily from differing views as to the nature of the legal test to be used when determining fitness to stand trial.

[14] The trial judge reviewed the reports in detail and considered them in the context of Esseghaier’s conduct during the lengthy trial. He concluded that Esseghaier was fit for the purposes of sentencing.

F. Should the Court Order Production of the Psychiatric Assessment?

[15] The appellant seeks production of the psychiatric assessment of Esseghaier prepared while the appeal was pending. He seeks that production in support of a fresh evidence application he will bring on the appeal. Other than the psychiatric assessment itself, there is no indication of any other fresh evidence. We approach this production motion on the basis that the psychiatric assessment is the fresh evidence that Jaser will ultimately seek admitted at the appeal.

[16] This court can order the production of a “writing” in support of a fresh evidence application if the court “considers it in the interests of justice” to do so: Criminal Code, R.S.C. 1985, c. C-46, s. 683(1)(a). The approach taken by this court to an application for production of a document in aid of a fresh evidence application is set down in R. v. Trotta (2004), 23 C.R. (6th) 261 (Ont. C.A.), at para. 25. The moving party must demonstrate two things:

• There is a reasonable possibility that the production of the psychiatric assessment could assist on the motion to adduce fresh evidence; and
• There is a reasonable possibility that the psychiatric evidence may be received as fresh evidence on Jaser’s appeal.

[17] In addition, because the psychiatric assessment in issue is a report pertaining to Esseghaier, a non-party to the appeal, and Esseghaier’s privacy interests are engaged, the factors relevant to the production of a third-party record must also be considered: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at paras. 28-44.

[18] We will first address the Trotta factors.

[19] The first criterion identified in Trotta is clearly established. The report sought to be produced is the fresh evidence that Jaser wishes to tender on the appeal: Trotta, at para. 25. Production of the psychiatric assessment would obviously assist Jaser on the motion to have the assessment admitted as fresh evidence.

[20] The second criterion is more contentious. Jaser must demonstrate a reasonable possibility that the psychiatric assessment could be received as fresh evidence on his appeal.

[21] The content of the psychiatric assessment is unknown to counsel or the court. It is, however, not uncommon when a party seeks production of a document under s. 683(1)(a) that the contents of the documents will not be known to the parties or the court. When the contents are unknown, the court can draw reasonable inferences as to the likely content from the circumstances.

[22] In light of the events at trial, and the contents of the psychiatric assessments which are part of the trial record, we are satisfied that the psychiatric assessment Jaser seeks produced may contain information relevant to Esseghaier’s fitness to stand trial. We do not understand the Crown to suggest otherwise, although Crown counsel maintains that there is no realistic possibility that this third psychiatric assessment will contain information that is not in the two assessments which are already part of the appeal record.

[23] The second Trotta factor, the reasonable possibility that the psychiatric evidence may be received as fresh evidence, requires a consideration of the well-known factors for receiving new evidence on appeal identified in R. v. Palmer, [1980] 1 S.C.R. 759. At this stage, the question is not whether the psychiatric report is admissible as fresh evidence, but whether there is a reasonable possibility the assessment could be admitted as fresh evidence.

[24] Concerns relating to the due diligence of the appellant and the credibility of the psychiatric assessment, two of the Palmer criteria, are not germane here. The existence of the psychiatric assessment postdates the trial. There is no reason to think the psychiatric assessment is not credible.

[25] The ultimate admissibility of the psychiatric assessment will turn on the other two Palmer factors: relevance and potential probative value to any of the issues raised by Jaser on the appeal. We accept that if the psychiatric assessment does no more than offer a medical explanation for Esseghaier’s behaviour at trial, including decisions he made, that assessment probably could not be said to be potentially admissible as fresh evidence going to a potentially determinative issue on appeal. However, counsel for Jaser submits that if the assessment offers the opinion that Esseghaier was unfit to stand trial during all or part of his trial, that opinion constitutes much more than a mere medical explanation for Esseghaier’s behaviour. Counsel argues that if Esseghaier was not fit to stand trial, he should not have been on trial, and it is at least reasonably arguable that decisions made by Esseghaier when he was unfit adversely affected both Jaser’s ability to conduct his defence, and the appearance of the fairness of Jaser’s trial, resulting in a miscarriage of justice.

[26] We think there is merit to this argument. Take one of the examples offered by counsel for Jaser. Jaser apparently initially elected trial by judge and jury. Jaser was prepared to re-elect trial by judge alone. Esseghaier had refused to elect and was therefore deemed to have elected judge and jury. Since Esseghaier was not participating in the trial, there was no possibility that he would re-elect trial by judge alone. Unless Esseghaier was prepared to re-elect, Jaser could not re-elect trial by judge alone and was required to be tried by a judge and jury: Criminal Code, s. 567.

[27] On the scenario posited by counsel for Jaser, Jaser’s mode of trial would be effectively determined by Esseghaier’s conduct. Counsel submits there is a reasonable possibility, based on the psychiatric assessment, that this court could conclude that Esseghaier was unfit to stand trial, and that his conduct while unfit denied Jaser his chosen mode of trial, thereby resulting in a miscarriage of justice.

[28] We intend no comment on the ultimate merits of the submissions outlined above. We mean only to say that the argument is a viable one, meaning that evidence of Esseghaier’s fitness to stand trial could be received as fresh evidence on Jaser’s appeal. Jaser has made out a case for production of the assessment based on the Trotta factors.

G. Esseghaier’s Privacy Interests

[29] Jaser has demonstrated a prima facie entitlement to production of the psychiatric assessment in aid of his fresh evidence motion. However, Esseghaier has a privacy interest in the contents of that assessment, and his interest must be addressed before determining whether to order production. It is important to consider, not only whether Esseghaier’s interests could override Jaser’s interests in production, but whether there are reasonable available steps which could protect, to some degree, Esseghaier’s privacy interests, even if production is ordered.

[30] Having determined that Jaser has met the Trotta criteria for production, but that Esseghaier potentially has a significant privacy interest in the content of the assessment, we will follow the procedure outlined in McNeil, at paras. 27 and 34. The assessment, currently in the possession of former amicus, will be produced to the panel for inspection by the panel. After reviewing the document, the panel can determine whether the assessment should be ordered produced to the parties and, if so, what steps should be taken to mitigate the impact of production on Esseghaier’s privacy interest.

H. Conclusion

[31] Former amicus is asked to provide the court with three sealed copies of the psychiatric assessment within 7 days of the release of these reasons. Counsel for the Crown and Mr. Jaser are asked to bring these reasons to the attention of amicus and provide any assistance to her in the filing of the sealed copies.

Released: January 17, 2023 Fairburn A.C.J.O. Doherty J.A. G.T. Trotter J.A.