COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jaser, 2024 ONCA 448

DATE: 20240605

DOCKET: C61185

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

BETWEEN

His Majesty the King

Respondent

and

Raed Jaser

Appellant

Megan Savard and Riaz Sayani, for the appellant

Lisa Mathews and Ian Bell, for the respondent

Heard: December 20-21, 2023

On appeal from the convictions entered by Justice Michael Code of the Superior Court of Justice, sitting with a jury, on March 20, 2015, and from the sentence imposed on September 23, 2015, with reasons reported at 2015 ONSC 5855.

Table of Contents

A... Overview.. 3

B... Background. 3

C... Issues. 16

D... The O’Connor and Garofoli Applications. 17

E.... The Failure to Grant Severance. 46

F.... The Conspiracy Instructions. 74

G... Reasonable Apprehension of Bias. 108

H... Mr. Esseghaier’s Fitness. 124

I..... The Sentence Appeal 136

J.... Conclusion. 140

By the Court:

A. Overview

[1] The appellant, Raed Jaser, appeals his convictions on three terrorism-related charges. He also seeks leave to appeal and, if leave is granted, appeals from the life sentence with parole ineligibility for ten years. His co-accused, Chiheb Esseghaier, was convicted on five terrorism-related charges and also received a life sentence. Mr. Esseghaier initially appealed, but has abandoned his appeal. Counsel for Mr. Jaser advanced several grounds of appeal. Despite counsel’s able submissions, we would not give effect to any of them. We dismiss the appeal for the reasons that follow.

B. Background

(1) The Crown’s theory and the indictment

[2] The Crown alleged that Mr. Jaser and Mr. Esseghaier were committed Islamic Jihadists, who agreed to engage in murderous attacks on Canadian citizens as a way of forcing the Canadian government to remove its troops from Afghanistan.

[3] On the Crown’s theory, Mr. Jaser and Mr. Esseghaier had agreed, by August 2012, to commit mass murder to further their terrorist ends. They discussed ways in which they could carry out their agreement. They also attempted to recruit others to assist in their plan. Specifically, they attempted to recruit a man known to them as Tamer El Noury.[^1] As it turned out, Mr. El Noury was an undercover Federal Bureau of Investigation (“FBI”) agent who had been assigned to befriend Mr. Esseghaier, a suspected terrorist.

[4] The Crown’s case focused on events between late August and late September 2012. The Crown’s evidence consisted primarily of intercepted communications and Mr. El Noury’s testimony.

[5] There were five counts in the indictment brought against Mr. Jaser and Mr. Esseghaier.

[6] Count one alleged a conspiracy between Mr. Jaser and Mr. Esseghaier in August and September 2012 to endanger the safety of persons and cause damage to property in connection with the transportation of persons or goods in a manner likely to cause death or bodily harm for the benefit of a terrorist group. Count one related to a plan to compromise the cement supports of a bridge so that it would collapse and derail a VIA passenger train travelling from New York to Toronto. This was referred to at trial as the train plot.

[7] Count two alleged a conspiracy between Mr. Jaser and Mr. Esseghaier in August and September 2012 to murder persons unknown for the benefit of a terrorist group. In support of this charge, the Crown relied not only on the evidence of the train plot, but also on evidence of other plans to commit murder discussed by Mr. Jaser and Mr. Esseghaier. One plan involved a series of assassinations by snipers targeting leading Canadian citizens, particularly Jews (the sniper plot). Another involved poisoning food to be consumed at a Canadian military base (the poisoning plot).

[8] The Crown submitted that the evidence revealed that Mr. Jaser and Mr. Esseghaier believed they would be able to carry out one or more of their murder plans by early December 2012. In the end, none of the plots ever came to fruition. Mr. Jaser and Mr. Esseghaier had a heated argument on September 24, 2012 after a chance encounter with local police while they were reconnoitering a possible site for the derailment of a VIA train. Mr. Jaser professed to have lost faith in Mr. Esseghaier’s ability to successfully carry out any of the terrorist-related activity they had discussed. As a result, Mr. Jaser parted ways from Mr. Esseghaier.

[9] Counts three and four alleged that between September 7 and 24, 2012, Mr. Jaser and Mr. Esseghaier knowingly participated in activities of a terrorist group for the purpose of enhancing the ability of that group to facilitate or carry out terrorist activity. The activities alleged in counts three and four as substantive offences were among the acts relied on by the Crown as acts in furtherance of the conspiracies alleged in counts one and two. For example, the Crown alleged that Mr. Jaser’s and Mr. Esseghaier’s attempts to recruit Mr. El Noury to their terrorist projects between September 7 and 24, 2012 were both substantive offences under counts three and four, and acts in furtherance of the conspiracies alleged in counts one and two.

[10] Count five charged only Mr. Esseghaier and alleged that he participated in the activities of a terrorist group for the purposes of enhancing the ability of that group to carry out terrorist activities. This count related to Mr. Esseghaier’s conduct between September 25, 2012 and February 2013, after he and Mr. Jaser had parted ways. The Crown maintained that Mr. Esseghaier continued in his efforts to bring about Islamic Jihad and that his acts in furtherance of that effort included attempts to recruit various individuals to the cause.

[11] The jury convicted Mr. Esseghaier on all five counts. The jury was unable to reach a verdict with respect to Mr. Jaser on count one, but convicted him on counts two, three, and four.

(2) The chronology of the proceedings

(a) The proceedings at trial

[12] This was a difficult and lengthy trial. There were many complex legal issues. The formulation of the appropriate jury instructions presented a herculean task for the trial judge. Trial counsel and the trial judge are to be commended for their efforts throughout the long proceedings. The jury also deserves the thanks of the community.

[13] Mr. Esseghaier chose to be unrepresented by counsel at trial and took the position that he could be tried only according to the Holy Quran, and not the Criminal Code, R.S.C. 1985, c. C-46. The trial judge ruled that the Criminal Code applied to Mr. Esseghaier and appointed amicus to assist Mr. Esseghaier: R. v. Jaser, 2014 ONSC 2277; R. v. Jaser, 2014 ONSC 3885. Mr. Esseghaier maintained his position that he would not participate in the proceedings throughout the pre-trial motions and the trial itself. Mr. Jaser submits that his trial was rendered unfair by Mr. Esseghaier’s conduct during the trial. We will refer to the relevant aspects of Mr. Esseghaier’s conduct when we address this ground of appeal.

[14] There were several pre-trial motions brought in 2014. Some of the rulings are challenged on appeal and will be addressed in detail below. The trial began in January 2015. Neither Mr. Jaser nor Mr. Esseghaier testified or called witnesses. The jury deliberated for ten days and returned verdicts on March 20, 2015.

[15] Sentencing began in July 2015. The trial judge was once again required to resolve various difficult issues, including Mr. Esseghaier’s fitness for the purposes of sentencing. The trial judge ultimately imposed sentence on September 23, 2015.

(b) The proceedings on appeal

[16] Mr. Jaser and Mr. Esseghaier both appealed. One ground of appeal alleged an error in the jury selection process. The appellants contended that the correct procedure was not followed during the challenge for cause procedure, and that this error vitiated the verdicts. In May 2018, Watt J.A. directed that their appeals should be bifurcated and the jury selection issue heard first.

[17] This court heard the consolidated appeals on the jury selection issue, allowed the appeals, and ordered a new trial: R. v. Esseghaier, 2019 ONCA 672, 396 C.C.C. (3d) 298. The Crown successfully obtained leave to appeal to the Supreme Court of Canada. That court unanimously allowed the appeal, holding that while the jury selection process was improper, the curative proviso in s. 686(1)(b)(iv) of the Criminal Code should be applied to rectify that error: R. v. Esseghaier, 2021 SCC 9, [2021] 1 S.C.R. 101. The Supreme Court of Canada restored the convictions and remitted the appeals of Mr. Jaser and Mr. Esseghaier to this court for hearing on the other grounds of appeal.

[18] The hearing of the appeals pertaining to the other grounds was delayed in this court for several reasons.

[19] Mr. Esseghaier’s mental state, and in particular his fitness, became an issue on appeal as it had been on sentencing. This issue precipitated various proceedings before a case management judge and the panel.

[20] Mr. Jaser also raised a ground of appeal alleging a reasonable apprehension of bias on the part of the trial judge. As is often the case, this ground of appeal required an application to adduce fresh evidence that was not part of the trial record. After various case management hearings and a proceeding before the panel dealing with a production request (R. v. Jaser, 2021 ONCA 162, 403 C.C.C. (3d) 421), the parties were able to reach an agreed statement of facts (“ASF”) setting out the circumstances relevant to the reasonable apprehension of bias claim.

[21] The hearing of the appeal was further delayed when Mr. Esseghaier decided to abandon his appeal. Mr. Esseghaier’s conduct at trial is an important part of one ground of appeal advanced by Mr. Jaser. Mr. Jaser questioned whether Mr. Esseghaier was fit to abandon his appeal. He argued, in any event, that he would be prejudiced if Mr. Esseghaier were allowed to do so. The court appointed counsel for Mr. Esseghaier for the purpose of addressing questions relating to Mr. Esseghaier’s proposed abandonment of his appeal: R. v. Esseghaier, 2022 ONCA 340.

[22] The panel heard submissions and, on June 21, 2022, after a hearing during which Mr. Esseghaier confirmed his decision to abandon his appeal, this court dismissed Mr. Esseghaier’s appeal as abandoned.

[23] There were other less significant matters that required case management and scheduling hearings. We will not detail those issues. The appeal was eventually heard on December 20-21, 2023. The delay in bringing this appeal to a hearing is regrettable; however, it was largely attributable to circumstances beyond anyone’s control.

(3) The evidence and parties’ positions at trial

[24] The Crown alleged that Mr. Esseghaier returned to Canada from Iran in March 2012 as a committed Islamic Jihadist. He was looking to recruit others to assist him in carrying out terrorist activities in Canada. He already knew Mr. Jaser.

[25] In June 2012, Mr. Esseghaier came to the attention of the FBI, based on his apparent connection to Jihadist activities. Mr. El Noury was assigned the task of meeting Mr. Esseghaier and gaining his confidence with a view to investigating Mr. Esseghaier’s involvement in terrorist activities. Mr. El Noury played the role of a wealthy Arab real estate mogul, anxious to lend financial support to terrorist activities in North America.

[26] Mr. El Noury first met Mr. Esseghaier in June 2012. They became friends. Mr. El Noury travelled to Montreal on September 7, 2012 to meet with Mr. Esseghaier. Mr. Esseghaier spoke of his Iranian and Palestinian “brothers”. Mr. Esseghaier’s “brothers” were Islamic terrorists he had met earlier that year in the Middle East. Mr. Esseghaier told Mr. El Noury that he and his “Palestinian brother”, who Mr. Esseghaier later identified as Mr. Jaser, were involved in different “projects” together.

[27] Mr. El Noury and Mr. Esseghaier drove from Montreal to Toronto the next day (September 8, 2012) to meet Mr. Jaser. On the Crown’s theory, by September 8, 2012, Mr. Jaser and Mr. Esseghaier had already taken steps in furtherance of the train plot. Security video surveillance subsequently obtained by the police showed Mr. Jaser and Mr. Esseghaier at the St. Catharines train station on August 26, 2012. That station is located on the VIA train line that runs between New York and Toronto. The Crown alleged that Mr. Jaser and Mr. Esseghaier examined a bridge near the St. Catharines train station as a possible site for the proposed train derailment.

[28] In August and September 2012, Mr. Esseghaier lived in Montreal and Mr. Jaser lived in Toronto. They met on several occasions in September 2012, and had lengthy discussions about various matters, including their commitment to Islamic Jihad and ways in which they could commit mass murder to support their cause. Relying primarily on intercepted communications involving Mr. El Noury, Mr. Jaser, and Mr. Esseghaier,[^2] and physical surveillance evidence, the Crown alleged that by September 24, 2012 Mr. Jaser and Mr. Esseghaier committed the following acts in furtherance of their murderous agreement:

• They scouted the rail station at St. Catharines.

• They scouted other bridge locations along the VIA rail line on September 17, 18 and 24, 2012.

• They pressed Mr. El Noury to join their cause. Mr. Jaser told Mr. El Noury that preparations for the attacks were being delayed by the lack of funding. Mr. El Noury indicated a willingness to provide that funding.

• They discussed the specific needs of the various plots, particularly the train plot, in some detail on several occasions. The specifics included the manner in which the bridge would be compromised, the acquisition of the appropriate tools needed to compromise the bridge, and the preparation of a video to be made public after the attack, explaining the reasons for the attack.

• They arranged a “safehouse” in Toronto where property related to their plans could be kept until needed, and where the parties to the agreement could stay if necessary. Mr. Esseghaier moved into the “safehouse” in the fall of 2012.

• They repeatedly emphasized their commitment to Jihad and world events which, in their view, justified the mass murder of innocent people in furtherance of their cause.

• They discussed other murderous plots, including the sniper plot and the poisoning plot. Mr. Jaser favoured the sniper plot because that plot focused on killing “important” people, and not merely “the sheep” who would be travelling on the train.

• They discussed recruiting others to assist in the plots.

[29] The many conversations also revealed tensions between Mr. Jaser and Mr. Esseghaier. There were theological differences. Mr. Jaser also believed that it was tactically wrong to take instructions from the “Iranian brothers” about the details of terrorist attacks in Canada. Mr. Jaser thought that those decisions should be left to people who were familiar with the country and the people. Mr. El Noury opined that Mr. Jaser wanted to be in charge of the operation. Finally, Mr. Jaser was concerned that Mr. Esseghaier was careless and not paying sufficient attention to details. Mr. Jaser seemed much more concerned about being caught than did Mr. Esseghaier.

[30] Mr. Esseghaier and Mr. Jaser had a falling out on September 24, 2012. On the Crown’s theory, the conspiracies Mr. Jaser and Mr. Esseghaier had entered into came to an end on that day. However, Mr. Esseghaier continued until February 2013 in his efforts to recruit others with a view to carrying out one or more of the murderous plots he had discussed with Mr. Jaser.

[31] The trial judge summarized the Crown’s position as follows:

The position of the Crown is that the evidence is overwhelming that Esseghaier and Jaser entered into a general conspiracy to murder persons unknown, and, in furtherance of that, entered into a conspiracy to damage a railway bridge and derail a train. The conspiracy to murder persons was not restricted to persons who had the misfortune to be travelling on a train one day; it was a general conspiracy to murder persons unknown until Canadian troops leave Muslim lands.

[32] At trial, counsel for Mr. Jaser took the position that there was little dispute about what Mr. Jaser said or did. Although Mr. Jaser did not testify, his statements on the intercepted communications, and his actions shown on the video surveillance, were not in dispute. However, the defence maintained that whatever Mr. Jaser may have said in the intercepted communications, or done on the video surveillance, the Crown had failed to prove there was a true meeting of the minds between Mr. Jaser and Mr. Esseghaier to commit the offences described in the indictment. The defence argued that Mr. Jaser never intended to actually commit any of the offences that he and Mr. Esseghaier had discussed. The trial judge summarized the defence position:

It is Mr. Jaser’s position that, on the whole of the evidence, the Crown has failed to demonstrate that he said what he said and did what he did with the necessary states of mind to amount to the criminal offences alleged.

[33] The defence maintained that, unlike Mr. Esseghaier, Mr. Jaser had no sincere terrorist aspirations. He was a fraudster hoping to cheat Mr. El Noury and Mr. Esseghaier out of their money by pretending to be an Islamic Jihadist. As the trial judge put it when summarizing the position of the defence:

All of this was nothing more than playing the role he had taken on; it was his legend.[^3]

[34] Mr. Jaser pointed to parts of the intercepted communications that he argued showed his attempts to extract money for his supposed commercial ventures from Mr El Noury. Mr. Jaser argued that these conversations were indicative of his true intentions.

[35] Mr. Jaser urged the jury to find that the evidence about the train plot depicted a plan that was so ill-conceived and half-baked as to be entirely divorced from reality. Mr. Jaser further submitted that his conduct was entirely inconsistent with any true intention to engage in terrorist activity. He reminded the jury that during one of his supposed scouting trips with Mr. Esseghaier, he struck up a conversation with some people they met near the bridge. Mr. Jaser went so far as to give these strangers his actual email address and a personalized note. Mr. Jaser also relied on the evidence that when he and Mr. Esseghaier met police officers near the train tracks on September 24, 2012, he gave them his real name and address to the officers.

[36] Finally, Mr. Jaser submitted that, at its very highest, the Crown’s case revealed musings about potential schemes and not agreements to commit the specific crimes alleged in counts one and two of the indictment.

[37] Conversely, in the Crown’s closing argument, they pointed to several features of the evidence, which they submitted were inconsistent with Mr. Jaser’s claim that he only pretended to go along with the plans as a way of obtaining funds from Mr. El Noury. For example, the Crown argued that the evidence demonstrated that Mr. Jaser and Mr. Esseghaier had agreed to commit mass murder by late August 2012, well before Mr. Jaser had any knowledge of Mr. El Noury’s existence, much less the possibility of defrauding Mr. El Noury by pretending to engage in a terrorist plot. The Crown contended that Mr. Jaser could have had no possible financial motive for pretending to agree with Mr. Esseghaier to commit mass murder. Mr. Esseghaier, who was a student at the time, had no money that Mr. Jaser could have cheated him out of by pretending to be a terrorist. The Crown argued that the evidence showed that Mr. Jaser, like Mr. Esseghaier, was a true believer who intended to carry out one or more of the murderous plots that he and Mr. Esseghaier had discussed.

[38] Mr. Jaser’s true intention during his interactions with Mr. Esseghaier and Mr. El Noury prior to September 24, 2012 was the central factual question at trial. Could the Crown prove beyond a reasonable doubt that Mr. Jaser was a real terrorist and not, as he maintained, a fraudster? The Crown and Mr. Jaser made viable arguments in support of their respective positions. Clearly, the question posed difficulties for the jury. They deliberated for ten days and ultimately were unable to reach a verdict in respect of Mr. Jaser on count one (conspiracy to derail the VIA train).

C. Issues

[39] Mr. Jaser raises several grounds of appeal. These grounds can be distilled into the following six issues, which we address in turn below:

1. Did the trial judge err in his treatment of Mr. Jaser’s O’Connor and Garofoli applications?

2. Did the trial judge err by failing to grant severance of Mr. Jaser’s trial from that of Mr. Esseghaier?

3. Did the trial judge err in his jury instructions on conspiracy?

4. Does an out-of-court comment made by the trial judge about Mr. El Noury give rise to a reasonable apprehension of bias?

5. Did the trial judge err in finding Mr. Esseghaier fit post-verdicts/pre-sentencing and not declaring a mistrial in respect of both Mr. Esseghaier and Mr. Jaser?

6. Did the trial judge err by imposing a life sentence on Mr. Jaser?

D. The O’Connor and Garofoli Applications

(1) Overview

[40] Mr. Jaser brought a third-party records application under O’Connor, seeking production of an affidavit sworn in support of a warrant issued pursuant to s. 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 (“CSIS Act”), in aid of a subsequent Garofoli application: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411; R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421.

[41] The Canadian Security Intelligence Service (“CSIS”) and the Attorney General of Canada (“Attorney General”) asserted national security privilege (“NSP”) over parts of that affidavit.

[42] In this court, Mr. Jaser takes issue with what he describes as the trial judge’s “mishandling” of the NSP claim. Specifically, he maintains that the trial judge did not follow the correct procedure and made a legal error in his O’Connor analysis. This in turn is said to have led to several forms of procedural unfairness. Mr. Jaser also maintains, in the alternative, that the trial judge errs in his Garofolianalysis. A main thread in his submissions is his contention that the NSP claim ought to have been determined by the Federal Court.

[43] Before explaining why we see no legal or procedural error, we begin with a review of the factual backdrop for both the O’Connor and Garofoli hearings, and review the procedure to be followed under s. 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA”), where a determination of NSP is required. We also review the rulings that evolved from each application. We then explain why there was no legal error involved in how this matter proceeded, why no procedural unfairness resulted, and why the trial judge’s Garofoli ruling is owed deference. As we will explain, how this matter proceeded was shaped by tactical choices made along the way.

(2) Background

(a) Factual background

[44] During pre-trial motions, Mr. Jaser brought an application under ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms, seeking the exclusion of incriminating private communications that had been intercepted pursuant to a s. 186 Criminal Code wiretap authorization, issued on September 9, 2012. Mr. Jaser’s constitutional objection rested on the suggestion that the evidence referred to in the affidavit sworn in support of the s. 186 authorization had been unlawfully obtained. In particular, he took aim at the s. 21 CSIS Act warrant that had issued on August 24, 2012.[^4] That warrant resulted in numerous interceptions of private communications, which CSIS then provided to the Royal Canadian Mounted Police (“RCMP”). The RCMP then obtained a s. 184.2 Criminal Code one-party consent wiretap authorization, which ultimately resulted in the s. 186 authorization.

[45] There was no dispute that the private communications intercepted under the initial CSIS Act warrant were linked directly to the grounds for the s. 186 authorization. Accordingly, any s. 8 breach in relation to the CSIS Act warrant could inform the “obtained in a manner” analysis pursuant to s. 24(2) of the Charter with regards to the evidence obtained via the s. 186 authorization.

[46] The Crown disclosed the Criminal Code authorizations and their supporting documentation to the defence. The Crown also disclosed the CSIS Act warrant, along with some supporting documentation. The Crown did not disclose the affidavit sworn in support of the CSIS Act warrant. Nor could the Crown have done so, because the affidavit was a third-party record, lying in the hands of CSIS.

[47] As Mr. Jaser’s entire s. 8 challenge was predicated on the lawfulness of the CSIS Act warrant, he first had to obtain a copy of the affidavit giving rise to that warrant. This is where the O’Connor application came in.

[48] Unsurprisingly, CSIS took the position that the affidavit contained information covered by NSP. CSIS therefore resisted production of those parts of the affidavit which were said to contain both “sensitive” and “potentially injurious” information. Those terms are defined in s. 38 of the CEA as follows:

potentially injurious information means information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security.

sensitive information means information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard.

(b) The bifurcated procedure mandated by s. 38 of the CEA

[49] The parties agreed at trial, and agree on appeal, that the Federal Court maintains exclusive jurisdiction under s. 38 of the CEA to determine NSP claims: R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110, at paras. 4-6. This means that where a party challenges an NSP claim in a criminal trial, a bifurcated court procedure will necessarily follow: Ahmad, at paras. 4, 5, 71, 75, 80. Only the Federal Court may decide whether information is properly the subject of NSP and, if so, whether the public interest in disclosure of that information outweighs the public interest in non-disclosure of that information, subject to any conditions considered appropriate: CEA, s. 38.06(2).

[50] It is a well established in law that NSP is not quite so absolute as some other forms of privilege, such as confidential informant and solicitor-client privilege. To the contrary, and as reflected in s. 38.06(2) of the CEA, even where NSP exists, the public interest in disclosure will from time to time outweigh the public interest in non-disclosure. In such cases, the Federal Court shall order disclosure. Accordingly, had this matter proceeded in the Federal Court, that court could have decided what was properly the subject of an NSP claim and then decided what privileged information, if any, should nonetheless be disclosed: Canada (Attorney General) v. Almalki, 2011 FCA 199, [2012] 2 F.C.R. 594, at paras. 25-26, leave to appeal refused, [2011] S.C.C.A. No. 466.

[51] Practically speaking, this means that although judges presiding over criminal trials remain the guardians of trial fairness, to the extent that NSP claims require determination, the trial judge’s jurisdiction is suspended and the Federal Court’s jurisdiction takes over. After the Federal Court’s determination, the trial judge may, pursuant to s. 38.14 of the CEA, make any order necessary to protect the accused’s right to a fair trial, provided that the trial judge’s order complies with the terms of any order made by the Federal Court pursuant to ss. 38.06(1)-(3): Ahmad, at para. 6, 33-35, 52, 79. The trial judge’s options include remedies up to and including the imposition of a stay of proceedings: CEA, s. 38.14(2).

[52] To be sure, this bifurcated procedure can be cumbersome, leading to inefficiencies and delays in the criminal justice system: Ahmad, at paras. 5, 73-80. Even so, to the extent that an NSP claim must be resolved, there is no jurisdictional flexibility built into the statutory scheme: the matter must proceed in the Federal Court.

[53] That brings us to what happened in this case and, specifically, the fact that despite the invocation of NSP, the matter never went to the Federal Court.

(c) The O’Connor/Garofoli procedure followed in this case

(i) The bespoke O’Connor procedure

[54] Even though CSIS claimed NSP over parts of the affidavit that lay at the heart of the O’Connor application, those privilege claims were never litigated in the Federal Court. This is because s. 38 of the CEA was never invoked. Instead, with input from counsel, the trial judge created a bespoke procedure whereby he conducted and ruled upon the O’Connor application without the merits of the privilege claims ever being determined. That procedure went as follows.

[55] As with all O’Connor applications, the first stage involved an assessment of the likely relevance of the affidavit to an issue at trial: O’Connor, at para. 138. Mr. Jaser wanted to bring a challenge to the s. 21 CSIS Act warrant alleging insufficient grounds. In particular, he wanted to argue on a Garofoli threshold that the grounds contained in the affidavit fell short of the statutory preconditions for a s. 21 CSIS Act warrant, such that the authorizing judge could not have issued the warrant: Garofoli, at p. 1452; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30.

[56] An O’Connor application, brought in anticipation of a Garofoli application, must be carefully circumscribed to only produce what the Garofoli application will address: World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 116. In this case, there was no question that the whole affidavit was likely relevant to the Garofoli application. Therefore, the trial judge quickly disposed of the first stage of O’Connor with a resounding “yes”. Accordingly, the trial judge ordered that the affidavit be produced to the court, under seal and ex parte, with all NSP claims under s. 38 of the CEA clearly identified by CSIS.

[57] The second stage of O’Connor involves a balancing of competing interests: O’Connor, at para. 150. In this case, those competing interests involved Mr. Jaser’s interest in the disclosure of the full affidavit in the context of an application challenging the admissibility of highly incriminating evidence, as balanced against the need to protect information that was said to be cloaked in NSP.

[58] This balancing exercise gave rise to a thorny jurisdictional issue. The trial judge and both parties recognized that the trial judge did not have the jurisdiction to determine the legitimacy of the NSP claim. Nor did he have the jurisdiction to determine whether, even if the privilege claims had been properly made, the public interest in disclosure outweighed the public interest in non-disclosure pursuant to s. 38.06(2) of the CEA. That jurisdiction lay exclusively with the Federal Court. Accordingly, everyone recognized from the outset that if the privilege claims had to be determined, the matter would have to proceed to Federal Court.

[59] In the end, though, no one triggered the s. 38 process in the Federal Court. This was not because the trial judge and parties were oblivious to this jurisdictional route, but rather because they saw a path forward that did not require adjudicating the NSP claims. That path was as follows.

[60] CSIS and the Attorney General exercised their clear jurisdiction to permit the trial judge to see the entire unredacted affidavit: CEA, ss. 38.01(6)(c), 38.03(1), 38.031(1). Although there were multiple conditions attached to his review of the document, many of which were directed at ensuring the security of the information over which NSP was claimed, the trial judge had the opportunity to review and work with the entire affidavit, including those portions that were said to be covered by NSP.

[61] When the O’Connor hearing resumed, the Crown conceded the second stage of O’Connor, agreeing that the affidavit should be disclosed to Mr. Jaser, subject to redactions for the asserted NSP claims. As we will explain later in these reasons, the parties were provided a full opportunity to weigh in on how the matter should proceed from there. Ultimately, and with the full concurrence of the parties, the matter proceeded on the assumption that the NSP claims were legitimate, and that no disclosure would be made of the information that lay behind those claims. This was all made subject to the ability of either party, at any point, to start a proceeding in the Federal Court.

[62] The trial judge and Crown (who, given the nature of the charges, was a federal Crown), then engaged in sensitive and guarded conversations about the extent of the redactions that needed to be made to the CSIS Act affidavit before it could be produced. These interactions unfolded much like court-Crown interactions during a step six Garofoli proceeding: Garofoli, at p. 1461; R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at para. 83. The Crown acted as the conduit to and from CSIS. At the trial judge’s behest, the Crown worked closely with CSIS to narrow as much as possible those parts of the affidavit over which NSP was claimed.

[63] In the end, after much back and forth, the redactions were limited to those parts of the affidavit over which CSIS was not prepared to abandon its NSP claims, many of which Crown counsel said the Crown would not be relying upon to uphold the warrant under Garofoli. The trial judge described the redacted affidavit that was ultimately produced to Mr. Jaser as not as strong as the unedited affidavit in terms of the sufficiency of its grounds:

I was satisfied that the edited Affidavit disclosed the most important grounds for the CSIS wiretap of Jaser’s private communications. However, some paragraphs of the Affidavit that set out additional grounds relating to Jaser remained edited because CSIS claimed s. 38 C.E.A. privilege over these paragraphs. In other words, the edited Affidavit was not as strong as the unedited Affidavit, in terms of the sufficiency of its grounds. I ordered that the edited Affidavit should be produced to the defence.

R. v. Jaser, 2014 ONSC 6052, at para. 40.

[64] At the end of the O’Connor hearing, the defence received not only the redacted affidavit, but also judicial summaries in relation to the redacted information over which CSIS continued to claim NSP. The summaries were prepared by the trial judge, with input from the Crown and CSIS.

[65] Neither party, at any point, objected to the way in which the O’Connor application proceeded. Nor did either party at any point see the need to trigger a s. 38 hearing in Federal Court. Indeed, as we will return to, the parties can only be described as having supported the procedure used on the second stage of O’Connor.

(ii) The Garofoli hearing

[66] Once the O’Connor application was completed and the defence had the redacted affidavit and summaries in hand, everyone agreed that the Garofoli application could proceed.

[67] Section 21(2)(a) of the CSIS Act requires that the affidavit in support of an application for a warrant must include the facts relied on to justify the belief, on reasonable grounds, that a warrant is required to enable an investigation into “a threat to the security of Canada…”. The term “threats to the security of Canada” is defined in s. 2 of the Act as including: “activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada…”.

[68] Although s. 21 does not contain an explicit evidentiary threshold for issuance, the Federal Court of Appeal has interpreted the provision as requiring reasonable grounds to believe – credibly-based probability – that a threat to the “security of Canada exists and that a warrant is required to enable its investigation”: Atwal v. Canada, 1987 CanLII 8975 (FCA), [1988] 1 F.C. 107 (C.A.), at p. 109; see also Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344, at para. 177.

[69] Mr. Jaser’s Garofoli application was quite narrow in its focus. He largely honed in on para. 28 of the affidavit, which was said to be misleading in nature. The original para. 28 read as follows:

According to information received from the RCMP in June 2012, JASER attends the Abu-Huraira Mosque in Toronto. While at the mosque, JASER was seen distributing DVD copies of Anwar Al Awlaki… lectures to young males. JASER also holds private meetings at his house during which he discusses jihad with young males. [Emphasis added.]

[70] The sub-facial attack on para. 28 was rooted in the meritorious claim that the information as conveyed could leave a reasonable reader with the impression that a member of the RCMP made the reported observations of Mr. Jaser. That was not so. Rather, the information had been provided to the RCMP by a confidential informant. Ultimately, the trial judge edited para. 28 by excising the reference to the information having been received from the RCMP. Once excised, the paragraph was left bereft of its source. In the end, the trial judge concluded that the unsourced paragraph was of “little or no weight” as it stood, “when viewed on its own.”

[71] The trial judge went on to give three cascading reasons for dismissing the Garofoli application: 2014 ONSC 6052. The trial judge’s primary reason lay in the step five procedure, an analysis into whether the disclosed information, standing on its own, was sufficient to pass the standard of review – namely, whether there exists sufficiently reliable information in the affidavit, that might reasonably be believed, upon which the warrant could have issued: Garofoli, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51; and R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40.

[72] The trial judge concluded that considering only those portions of the affidavit that had been disclosed to Mr. Jaser, and even without reference to para. 28, there was still sufficient information for the issuing justice to have issued the warrant. In his written ruling, the trial judge explained why the warrant could have issued:

In my view, paras. 33-38 of the CSIS Affidavit [all of which were disclosed], standing alone, do not provide particularly strong “reasonable and probable grounds” to believe that Jaser and Esseghaier were planning a “threat to the security of Canada”, given that they lack the context that was provided by the balance of the unedited Affidavit. Nevertheless, a reasonable judge could draw this inference from these paragraphs and that is the relevant and limited standard of review, pursuant to Garofoli, when the alleged s. 8 violation involves the sufficiency of the basis for a prior court order. [Emphasis in original.]

[73] As an alternative basis for upholding the warrant, the trial judge looked to the edited para. 28. He then considered the edited paragraph in combination with paras. 33-38. Although standing on its own the amplified and unsourced para. 28 was worth “little or no weight”, when considered in the context of the other disclosed information, it acquired “some limited weight.” Therefore, when para. 28 and paras. 33-38 were considered together, they “easily” provided a “proper basis from which a judge could be satisfied that the requisite grounds for a s. 21 wiretap authorization existed.”

[74] Only then did the trial judge turn to step six of Garofoli, offering a second alternative reason for upholding the warrant. Under step six, the Crown may apply to have a reviewing court consider “so much of the excised material as is necessary to support the authorization”: Garofoli, at p. 1461. The trial judge may only do this where satisfied that the accused is “sufficiently aware of the nature of the excised material to challenge it in argument or by evidence”: Garofoli, at p. 1461. Judicial summaries are provided for this purpose.

[75] In explaining his second alternative reason for dismissing the Garofoli application, the trial judge noted that the Crown relied on a very small portion of the undisclosed parts of the affidavit, namely four paragraphs referring to Mr. Esseghaier’s alleged connection to “an entity believed to be involved in extremist activity”, as the judicial summaries put it.

[76] The trial judge rejected Mr. Jaser’s suggestion that the judicial summaries of the redacted information were insufficient to allow him to challenge the excised material. In the trial judge’s view, the summaries were adequate to the task. In the end, the trial judge concluded that he “would have upheld the CSIS wiretap authorization if it had been necessary to proceed to ‘step six’”: at para. 94.

[77] Having dismissed the Garofoli application, the intercepts became admissible, and the trial moved on. At no point did anyone ask to go to the Federal Court.

(3) Analysis

(a) Overview

[78] Mr. Jaser takes issue with what he describes as the trial judge’s “mishandling” of the NSP claims during the O’Connor application. He also maintains that the trial judge erred when he dismissed the Garofoli application. More specifically, Mr. Jaser raises the following issues:

(650) Legal error at the second stage of O’Connor and failure to follow correct procedure

Mr. Jaser maintains that the trial judge made a legal error in considering, or more accurately deferring to, the unresolved NSP claims at the second stage of O’Connor. He argues that the trial judge was not permitted to consider those claims at all as that was strictly within the jurisdiction of the Federal Court. Had the trial judge properly stayed within his own lane and determined the O’Connor application without regard to the claimed NSP, he would have ordered production of the entire affidavit. This is because the entire content of that affidavit was clearly relevant to the pending Garofoli application.

According to Mr. Jaser, that production order would have then triggered the Federal Court process for determining the legitimacy of the NSP claims and what had to be withheld from disclosure. Mr. Jaser argues that this was the only appropriate way to proceed in this case, and is likely the only appropriate way to proceed in any case of this nature.

(650) Procedural unfairness

Mr. Jaser submits that he was denied procedural fairness in several ways, including:

Circumvention of the Federal Court process: Given the trial judge’s failure to order production of the whole affidavit, the procedure for dealing with the NSP claim under s. 38 of the CEA was not triggered. This is said to have worked to Mr. Jaser’s detriment because the s. 38 process would have offered him more procedural fairness, including the assistance in Federal Court of amicus with a “defence counsel role”.

Summary exercise: The summaries prepared in the O’Connorprocess were never intended to be used in the Garofolihearing at step six, as eventually happened. Trial counsel’s strategic decisions were based on their understanding that the summaries would be used only for the purpose of the second stage of the O’Connor application and not step six of Garofoli.

Section 650 error: By proceeding as he did, the trial judge improperly excluded Mr. Jaser from his trial, in violation of s. 650 of the Criminal Code.

(650) Errors in the Garofoli analysis

In the alternative, the trial judge is said to have erred in concluding at step five of Garofoli that the edited affidavit was sufficient to support the issuance of the warrant.

[79] We will address each of these errors in turn, explaining why we reject the submissions that the trial judge fell into legal error by proceeding as he did or that procedural unfairness resulted. Lastly, we will address why we would defer to the trial judge’s primary reason for dismissing the Garofoli application, which was made under step five.

(b) No error at the second stage of O’Connor or failure to follow the correct procedure

(i) Submissions on appeal

[80] Mr. Jaser raises two related issues about the trial judge’s application of step two of O’Connor and the procedure adopted in this case given the NSP claims.

[81] The first complaint comes down to a suggestion that at the second stage of O’Connor, the trial judge was legally required to disregard the NSP claims, order production of the entire affidavit, and thus trigger a Federal Court hearing where the privilege claims could be resolved. By proceeding as he did, on the assumption that the information over which NSP was claimed would not be disclosed, the trial judge is said to have applied an erroneously high standard at the second stage of O’Connor, one that presumed non-production of relevant information based strictly on an assertion of privilege.

[82] As Mr. Jaser notes, the affidavit was relevant to the Garofoli proceeding and, besides the question of NSP which the trial judge could not address, there was nothing pushing against production of the full affidavit. Thus, according to Mr. Jaser, since the trial judge was not permitted to determine the question of NSP, there were no competing interests for the trial judge to weigh at the second stage of O’Connor. Accordingly, Mr. Jaser maintains that the trial judge had no choice but to simply order the production of the whole affidavit.

[83] As part of his second complaint, Mr. Jaser asks this court to clarify that in circumstances such as these, trial judges must complete the O’Connor analysis without considering NSP, and then the matter should proceed to the Federal Court. Mr. Jaser leans heavily on a decision of Dambrot J. – R. v. Huang, 2018 ONSC 831 – as a model example of this proposed procedure.

[84] Mr. Jaser contends that, as in Huang, the trial judge should have found likely relevance and ordered production. The Attorney General would have then been forced to launch an application in the Federal Court, invoking the court’s jurisdiction to consider the claim of NSP: CEA, ss. 38.01(1), 38.03(3), 38.04(1). Mr. Jaser emphasizes that once in the Federal Court, the legitimacy of the NSP claims could have been determined, and to the extent some of the information was cloaked in privilege, a proper balancing could have taken place: CEA, s. 38.06(2). Counsel for Mr. Jaser emphasizes that the Federal Court has subject-matter expertise, is well versed in NSP, and is well equipped to procedurally deal with such claims in a secure environment.

[85] Then, after the Federal Court had conducted a proper weighing exercise and ruled, and all appeals were exhausted, the matter could then have returned to the trial court where the trial judge had discretion to make any orders necessary to preserve the fairness of the proceedings: CEA, ss. 38.14(1), (2).

(ii) No error in the trial judge proceeding as he did

[86] In our view, the trial judge did not err in his application of step two of O’Connor or err by failing to follow a particular procedure. There was no legal requirement for this matter to proceed in the Federal Court. Respectfully, a trial judge, presiding over a criminal trial, is not legally required to proceed in the manner Mr. Jaser suggests. Although a trial judge is without any jurisdiction to decide the legitimacy of NSP claims, the trial judge remains squarely vested with the jurisdiction to move the trial forward in a fair and efficient manner. To the extent that the latter can be achieved without impinging on the jurisdiction of the former, there is nothing wrong and much right with proceeding in exactly that manner. That is what the trial judge did in this case, and counsel agreed with the manner of proceeding.

[87] How to proceed will be informed by the circumstances of each individual case involving NSP. Those circumstances necessarily include the positions taken by the parties. Depending on those circumstances, the party asserting NSP in a criminal court need not prove that the information cloaked in that privilege claim is in fact properly the subject of that claim. In other words, an assertion of privilege may suffice. A similar approach already occurs elsewhere in the privilege realm, such as with confidential informant privilege. The Crown has a duty to assert confidential informant privilege. This means that the Crown redacts materials before disclosure for purposes of a claimed – but not proven – privilege: R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at paras. 32-33. It is rare that those redactions – the information over which privilege is asserted – are challenged: R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, at p. 996; R. v. Grant (1997), 1997 CanLII 1727 (ON CA), 102 O.A.C. 220 (C.A.), at para. 18.

[88] In our view, that is precisely and quite appropriately what happened here.

[89] From the very outset, everyone accepted that if the NSP claims had to be determined, or if there was any question about disclosing information over which the claims had been made, the matter would have to proceed in the Federal Court. Yet everyone also recognized that if the matter went to the Federal Court, the trial would be put on hold.

[90] Although Mr. Jaser originally took the position now advanced on appeal – that the trial judge should make a disclosure order that would trigger the Federal Court hearing – a lengthy colloquy ensued. The trial judge proposed the process that was ultimately followed. As long as CSIS and the Attorney General agreed, the court could conduct an ex parte review of the entire affidavit, redact those parts covered by the NSP claims, and, with the assistance of the Crown, prepare summaries of that redacted information. The trial judge referred to his suggestion as a “very practical way of proceeding” and counsel for Mr. Jaser responded that he was “open to that sort of practicality”.

[91] The parties knew well what their options were. The procedure that was ultimately followed was not forced upon Mr. Jaser. Indeed, at all times, he could have brought his own application in the Federal Court. While he suggests on appeal that the trial judge should have made a disclosure order that would have forced the Crown to bring an application in the Federal Court to protect the information that had been ordered disclosed, the fact is that at any point, Mr. Jaser could have sought disclosure in the Federal Court. Ahmad, at para. 18, is clear on this point:

If the Attorney General has not authorized the unconditional disclosure of the information and no disclosure agreement has been reached, the disclosure issue may be taken before the Federal Court on the initiative of the Attorney General, the Crown, the accused (if he or she has been made aware of it), or any other person who seeks the disclosure of the protected information (s. 38.04). [Emphasis added.]

[92] At no time did Mr. Jaser seek to engage the Federal Court process. Rather, he was open to the practicality of proceeding as the trial judge had suggested. And, at trial, he was satisfied. After the redacted affidavit and summaries had been produced following the second stage of O’Connor, he made clear that he was prepared to proceed to the Garofoli application on the basis of what had been provided. Here is what counsel for Mr. Jaser said:

So we are prepared to proceed with the, our Garofoli application on the basis of what has been produced. So there’s no need for further submissions in respect of the O’Connor application per se, and what we were going to propose… is that we will file our materials on the Garofoli application notice record and factum…

[93] The trial judge clarified counsel’s position, inquiring whether counsel was “not presently contemplating s. 38 litigation in the Federal Court, subject to, obviously, [their] right to revisit that decision at any time”. Counsel made it crystal clear:

In respect of the Garofoli application, we’re not proceeding on a s. 38. Whether there are some other s. 38 issues independent of the Garofoli application, that’s still to be worked out, but we can certainly proceed with the Garofoli without the thought that it will get interrupted by a s. 38.

[94] The record is clear: everyone knew that they could go to the Federal Court to have the privilege claim determined; everyone was content to remain within the trial court; and, after the ruling was made and the affidavit was produced along with the summaries, everyone was content to proceed to the Garofoli application.

[95] We note that there is nothing curious about the defence having agreed to proceed as they did. Under a step five Garofoli procedure, where the court looks only to the disclosed parts of the affidavit – not behind the redactions – to determine whether the warrant “could” have issued, it inures to the benefit of the defence to have as little information as possible open for consideration on review. The trial judge referred to this as the parties having made a “risk assessment”:

[Crown counsel] figured he had enough to run with and [defence counsel] figured you had little enough that you can attack it and the two of you took your risk assessments and brought them to court and you’re putting them in front of me and you’re gambling that there’s too little here. And, [Crown counsel’s] gambling that he’s got enough and that’s all that’s going on. And, [if either] of you have made an erroneous risk assessment you can go after the Federal Court and try and get more. [The Crown] may want more, [the defence] may want more. Those are your calls; you’re the litigators here, not me. [Emphasis added.]

[96] At the end of the day, contrary to Mr. Jaser’s submission on appeal, the trial judge did not err at the second stage of O’Connor. In the particular circumstances of this case, the second stage analysis was shaped by the parties’ understanding and agreement that the information over which CSIS and the Attorney General continued to claim NSP would not be disclosed pursuant to O’Connor. At no point did the trial judge purport to exercise s. 38 CEA jurisdiction. Nor at any point was the trial judge legally obligated to send the matter to the Federal Court. Quite simply, in the circumstances of this case and given the consent of counsel, the bona fides of the NSP claim did not need to be determined.

(iii) No procedural unfairness

[97] Mr. Jaser suggests that he was subjected to three types of procedural unfairness.

Advantages of proceeding in the Federal Court

[98] First, Mr. Jaser claims that had the matter proceeded in the Federal Court, as he says it should have, he would have been provided with various procedural advantages that come with litigating s. 38 claims in that court. Most specifically, he points to the fact that it is commonplace for the Federal Court to appoint amicus – a specially designated lawyer who can be privy to the information behind the claim of NSP. Federal Court decisions suggest that amicus may engage in privileged conversations with the accused at least up until the point they view the information behind the NSP claim, and may make full submissions during in camera and ex parte hearings, including by cross-examining witnesses: see generally Canada (Attorney General) v. Al Jabri, 2023 FC 40, at para. 26; Huang v. Canada (Attorney General), 2017 FC 662, at paras. 22, 25-27; and Canada (Attorney General) v. Llewellyn, 2024 FC 143, at para. 25. Mr. Jaser characterizes such amicus as playing a “defence counsel role”. Given the failure to engage the s. 38 process, he says that he was denied the benefits that would have come with the near certain appointment of an amicus to assist in the litigation.

[99] Although we are careful not to speak for the Federal Court, from its jurisprudence it appears likely that an amicus may well have been appointed had this matter proceeded in the Federal Court. It is also true that the trial judge was not in favour appointing an amicus in relation to this aspect of the trial. However, the fact is that Mr. Jaser’s experienced counsel knew the procedural benefits that would have come had the matter proceeded in the Federal Court. Mr. Jaser nonetheless chose not to do so, instead agreeing to the practical procedure invoked by the trial judge.

[100] That decision was available to Mr. Jaser. He cannot now complain that his decision to forgo the Federal Court was one that amounts to procedural unfairness, simply because he did not get what he knew he was not going to get in the trial court. He made a decision about how to proceed, and an appeal to this court is not the time to reconsider that decision.

Use of O’Connor judicial summaries at step six of Garofoli

[101] Second, Mr. Jaser claims that procedural unfairness arose when the trial judge used the summaries made for the redacted information under O’Connor stage two in the Garofoli hearing at step six. Mr. Jaser maintains that he believed that the summaries would only be used for stage two of O’Connor and not step six of Garofoli. He says that the trial judge’s use of those summaries at step six of the Garofoli application caught him by surprise and created a situation that he never anticipated.

[102] Respectfully, we cannot accept this characterization of what occurred during the Garofoli application. Indeed, the use of the judicial summaries on a potential step six application was specifically adverted to by both the Crown and the trial judge during the O’Connor proceeding, while the procedure was still being sorted out. The Crown commented:

The typical Garofolicontext where the Crown is sort of resorting to the Step 6 procedure where there are grounds that had been redacted, and because of the way they’d been written, they can’t be produced without compromising a privilege, but it’s possible to craft a judicial summary that provides sufficient information to the defence in the context of the Garofoli review to challenge that content by way of evidence or submission or argument, and much of it I would think would be, to the extent there are challenges, will be by way of argument.

[103] Although the trial judge then expressed hope that it would not be necessary to “reach Step 6 procedures”, it cannot be suggested on this record that the defence was taken by surprise when the Crown advanced, as an alternative position on the Garofoli application, that the s. 21 CSIS Act warrant should be upheld under step six.

[104] Not only was the defence on notice of the potential for a step six argument and the possibility that the summaries might be relied upon for that purpose, but we note that Mr. Jaser’s Garofoli application was decided at a time when the step six procedure had come into greater use. Although we acknowledge that it took some time before the step six procedure became widely used, by the year 2014 it was in much more common use and its use in this case could not have come as a surprise to the defence: R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68; R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742; and R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4.

[105] Further, although the defence did express some concern about the step six procedure at the Garofoli hearing, and specifically that the trial judge was inclined to add some limited information to the judicial summaries, counsel fairly acknowledged that it was open for the trial judge to do so. The additional information was simply that certain redacted paragraphs included information that came from “a number of different sources”, that it included “considerable detail”, and that it included both “historical background” and “current information”.

[106] In the face of counsel’s objections to adding more information than what was provided during the O’Connor application, the trial judge reminded the defence that they could at any point proceed to the Federal Court to raise the disclosure issue. Counsel acknowledged this fact.

[107] There was nothing wrong with the trial judge adding some limited information to the summaries for purposes of step six of Garofoli. That is precisely what happens in a step six procedure, because the reviewing judge must be satisfied that the accused is “sufficiently aware of the nature of the excised material to challenge it in argument or by evidence”: Garofoli, at p. 1461. That is all the trial judge was doing: attempting to make the defence sufficiently aware of the content of the redacted information, such that they could meaningfully challenge it.

[108] In these circumstances, the use of the O’Connor judicial summaries, with some additions, created no procedural unfairness. And, in any event, we emphasize that the Garofoli decision did not come close to turning on the step six procedure. The trial judge only briefly addressed step six as his second alternative reason for dismissing the Garofoli application. His primary reason was that the disclosed information was sufficient to uphold the s. 21 CSIS Act warrant at step five. As we will shortly explain, the trial judge’s reasons in that regard are without error.

Section 650 of the Criminal Code

[109] Third, Mr. Jaser submits that, in the absence of an established privilege, the ex parte features of the O’Connor and Garofoli hearings violated s. 650 of the Criminal Code. Section 650 provides that, subject to specified exceptions, “an accused… shall be present in court during the whole of their trial”. Mr. Jaser relies on R. v. M.C., 2023 ONCA 611, 430 C.C.C. (3d) 281, in support of his argument. In that case, the accused and his counsel were excluded, over their strenuous objections, from hearing submissions by a third-party record holder on a s. 278 application, even though there was no concern about privilege.

[110] This is a very different case. As explained, Mr. Jaser made an informed tactical decision to proceed with the redacted affidavit and judicial summaries. At no point was he excluded from the courtroom. He was present in court for the entire proceeding, just not privy to what lay behind the redactions. Even if being precluded from looking behind the redactions meant that he was not “present” under s. 650(1) – a legal proposition that we do not accept in these circumstances, or in many other circumstances where privilege is claimed – Mr. Jaser’s consent to that procedure meant that his absence was permissible under s. 650(2)(b): R. v. Pilotte (2002), 2002 CanLII 34599 (ON CA), 163 C.C.C. (3d) 225 (Ont. C.A.) at para. 64, leave to appeal refused, [2002] S.C.C.A. No. 379; R. v. Welsh, 2013 ONCA 190, 115 O.R. (3d) 81, at para. 136, leave to appeal refused, [2013] S.C.C.A. No. 383 (Welsh), [2013] S.C.C.A. No. 384 (Robinson), and [2013] S.C.C.A. No. 385 (Pinnock). There was accordingly no jurisdictional error under s. 650 in this case.

[111] In conclusion, we see no procedural unfairness arising from the manner in which this matter proceeded.

(iv) No error at step five of the Garofoli analysis

[112] Mr. Jaser argues, in the alternative, that the trial judge erred in concluding at Garofoli step five that the edited affidavit was sufficient to support the issuance of the warrant.

[113] The standard of review on a Garofoli application is one of deference to the issuing judge. This court also stands in the position of a reviewing court, but one step removed, in the sense that we also owe deference to the first reviewing judge. Charron J.A. (as she then was) explained the standard to be applied by this court in R. v. Grant (1999), 1999 CanLII 3694 (ON CA), 132 C.C.C. (3d) 531 (Ont. C.A.), at para. 18, leave to appeal refused, [1999] S.C.C.A. No. 168:

[T]he usual deference is owed to the findings of the trial judge in her assessment of the record “as amplified on the review” and her disposition of the s. 8 application. In the absence of an error of law, a misapprehension of the evidence or a failure to consider relevant evidence, this court should not interfere with the trial judge’s conclusion.

See also R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 22, leave to appeal refused, [2010] S.C.C.A. No. 84.

[114] The trial judge did not commit a legal error: he correctly stated the statutory prerequisites for a s. 21 CSIS Act warrant and the Garofoli standard of review. Nor did he misapprehend the evidence or fail to consider relevant evidence. Rather, under step five of Garofoli, he carefully considered the disclosed information and concluded that based on that information, the warrant could have issued. We see no difficulty with that conclusion.

[115] We can do no better than the trial judge on this point, who stated at paras. 86-87:

What is determinative, in this regard, is paras. 33-38 of the CSIS Affidavit. These paragraphs set out the substance of the two intercepted conversations between Jaser and Esseghaier in May and August 2012. These paragraphs have not been edited and there has been no sub-facial attack on their accuracy. I have already summarized them above… and have described them as the most important part of the Affidavit. [Defence counsel] conceded that they arguably disclose discussions between Jaser and Esseghaier about some unstated kind of covert and unlawful activity. However, he also submitted that they did not necessarily disclose a “threat to the security of Canada” because the exact nature of the covert and unlawful activity was not revealed. [The Crown], on the other hand, submitted that the repeated references to “God” playing some role in the covert and unlawful activity, the reference to being “ready to give … their blood”, the reference to needing “help” from “the brothers”, and the reference to a “reconnaissance trip”, were all consistent with planning a religiously motivated act of violence. That, of course, is the definition of a “threat to the security of Canada” which should at least be investigated pursuant to s. 21 of the CSIS Act…

… In my view, paras. 33-38 of the CSIS Affidavit, standing alone, do not provide particularly strong "reasonable and probable grounds" to believe that Jaser and Esseghaier were planning a "threat to the security of Canada", given that they lack the context that was provided by the balance of the unedited Affidavit. Nevertheless, a reasonable judge could draw this inference from these paragraphs and that is the relevant and limited standard of review, pursuant to Garofoli, when the alleged s.8 violation involves the sufficiency of the basis for a prior court order. [Emphasis in original.]

[116] Having reviewed paras. 33-38 ourselves, we are of the view that the trial judge accurately summarized them. Much like the trial judge’s first alternative position, our view is that when the amended para. 28 is combined with those paragraphs, the affidavit “easily” surpassed the Garofoli threshold of review.

[117] The trial judge committed no legal error on the O’Connor application, Mr. Jaser was not subjected to procedural unfairness, and we defer to the trial judge’s step five Garofoli determination. This ground of appeal fails.

E. The Failure to Grant Severance

(1) Overview

[118] Mr. Jaser submits that the trial judge erred in failing to grant severance from his co-accused, Mr. Esseghaier. Mr. Jaser brought two severance applications – one in the course of pre-trial motions, and the other at the beginning of jury selection. The trial judge dismissed both applications.

[119] As explained below, we see no error in the manner in which the trial judge exercised his discretion in refusing the two severance applications. Moreover, his failure to order severance did not result in an injustice to Mr. Jaser.

[120] As noted at the beginning of these reasons, Mr. Esseghaier posed a trial management problem at times. From the outset of the proceedings, he took the position that he should be tried under the Holy Quran. He refused to recognize the authority of Canadian law.[^5] He said that he would only engage counsel who shared the same views. This did not happen. Consequently, Mr. Esseghaier remained self-represented throughout the proceedings. He refused to meaningfully participate in the trial. Instead, he made many outbursts and quarrelled with the trial judge, especially during pre-trial motions. By comparison, Mr. Jaser was respectful and compliant; he was represented by very experienced counsel.

[121] On application by the Crown, the trial judge appointed amicus with a limited role, not as defence counsel, in accordance with Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3: R. v. Jaser, 2014 ONSC 2277.

(2) Background

(a) The first severance application

[122] The first severance application was brought in the midst of pre-trial motions, roughly three months before jury selection. The application was based on Mr. Esseghaier’s disruptive behaviour during the proceedings.

[123] Counsel for Mr. Jaser made thorough submissions on the issue that were focused on the prejudice that his client faced. He submitted that, if Mr. Jaser was tried with Mr. Esseghaier, Mr. Jaser would not receive a fair trial. As already noted, Mr. Jaser’s position at trial (and on appeal) was that he was not genuine in his dealings with Mr. El Noury; instead, he viewed him as a source of cash. Mr. Jaser was concerned that the jury’s view of him would be coloured by the jury’s view of Mr. Esseghaier as a “religious fanatic”. The jury would conclude that they were both radical Muslim Jihadists. It would undermine Mr. Jaser’s defence. However, there was a formidable body of uncontradicted evidence emanating from Mr. Jaser (e.g., the wiretap evidence) in which he enthusiastically portrayed himself in this same light.

[124] Amicus made submissions in support of the severance application, but for different reasons. He submitted that, in a joint trial the trial judge would have to constantly curtail Mr. Esseghaier’s behaviour in the presence of the jury in order to protect Mr. Jaser’s interests. This would compromise the appearance of fairness for Mr. Esseghaier. In contrast, if Mr. Esseghaier were tried alone, the trial judge could afford him more leeway in his behaviour.

[125] The trial judge dismissed the application as premature. He said: “I intend to keep my reasons as brief as possible and not comment on the detailed merits of all arguments so as not to prejudge them in the event that the motion is renewed at some point in the future.”

[126] The trial judge recognized the strong presumption in favour of joint trials in cases involving conspiracy and common enterprises, citing R. v. Crawford, 1995 CanLII 138 (SCC), [1995] 1 S.C.R. 858, at paras. 30-32, R. v. Suzack (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.), at paras. 87-91, and R. v. Sarrazin (2005), 2005 CanLII 11388 (ON CA), 195 C.C.C. (3d) 257 (Ont. C.A.), at para. 59. He considered six factors that Mr. Jaser’s counsel relied upon in support of granting severance.

[127] The first factor, which counsel placed his greatest emphasis on, was the one that the trial judge found to be premature – the trial judge’s ability to manage Mr. Esseghaier’s behaviour as a self-represented accused. As the trial judge explained:

Nevertheless, Esseghaier continues to make submissions from time to time about his belief in the supremacy of the rules that emerge from the Holy Qur’an. Given that the Holy Qur’an includes rules that relate to social and economic issues, Esseghaier’s own submissions sometimes include assertions as to his beliefs about how the Holy Qur’an addresses some of those particular social and economic issues. In addition, and on a very few occasions, Esseghaier has also expressed his views about current events such as various wars that are going on abroad.

Given the above tendency in Esseghaier’s submissions, [counsel for Mr. Jaser] submits that there is a risk, indeed even a probability, that Esseghaier will continue to raise these issues, but this time, [counsel for Mr. Jaser] submits it may be in front of the jury and this could prejudice Jaser's right to a fair trial.

[128] The trial judge offered three answers to this submission on the first factor. First, he intended to instruct Mr. Esseghaier not to raise these issues in front of the jury. Second, the trial judge believed that Mr. Esseghaier would follow his instructions. Third, the trial judge said that “the context of a jury trial is very different” and “I am not yet persuaded as to how Esseghaier will conduct himself … in front of a jury.” On this basis, he was not persuaded that the case for severance had been established at that time. He left it open for counsel to renew the application if circumstances changed.

[129] With respect to the second factor, the trial judge expressed concern about the time and expense that would be involved in conducting two trials. This favoured joinder, not severance.

[130] On the third factor, the trial judge recognized that there was “some risk” or “a potential” for inconsistent verdicts if there were two trials. This was based on the “substantial overlap in the issues and in the evidence in this particular case as against both of the two accused.”

[131] Fourth, the trial judge dismissed concerns about the potential for prejudice caused by the jury hearing inadmissible evidence that related only to Mr. Esseghaier. He did so based on the “substantial overlap” in the evidence and his intention to instruct the jury to keep the evidence separate as against each of the accused.

[132] The fifth factor related to Mr. Jaser’s preferred mode of trial. He wished to explore the possibility of re-electing to be tried by a judge sitting without a jury. However, Mr. Esseghaier’s refusal to participate in the proceedings frustrated Mr. Jaser’s wishes.

[133] This issue requires some explanation. By virtue of being charged with conspiracy to commit murder, an offence listed in s. 469(e) of the Criminal Code, the compulsory mode of trial is by judge and jury: s. 471. Exceptionally, a s. 469 offence may be tried before a judge without a jury, but only with the “consent of the accused and the Attorney General”: s. 473(1). This is sometimes referred to as a waiver of a jury trial, rather than a re-election: David Rose, Quigley’s Criminal Procedure in Canada (Toronto: Thomson Reuters, 2023), at § 13:4.

[134] Another Criminal Code provision was also in play. Section 567 provides that, in a situation with jointly charged accused persons, “unless all of them elect or re-elect or are deemed to have elected the same mode of trial”, they will all be tried by a court composed of a judge and jury. This provision is designed to avoid jointly charged accused from obtaining severance by electing different modes of trial.

[135] The upshot of all of this was that, because of Mr. Esseghaier’s refusal to seek a re-election, Mr. Jaser was locked into a trial by judge and jury absent severance.

[136] The trial judge expressed “some sympathy” with Mr. Jaser’s situation, but noted that the issue was speculative because the Attorney General had not yet indicated whether he would consent to a re-election. The trial judge gave another reason for rejecting this submission:

Furthermore, it is difficult to give significant weight to prejudice that flows from the ordinary operation of provisions of the Criminal Code which give primacy to trial by jury as the presumptive and historic form of trial in serious cases like this one.

[137] Finally, the trial judge considered the potential for prejudice that severance would cause to the truth-seeking function of the trial. He acknowledged that there was no indication of antagonistic defences (where the truth-seeking function of a criminal trial is most at risk by severance). He said: “I am satisfied that separate trials could cause some prejudice to the truth-seeking goals of the criminal trial by potentially depriving a jury at Esseghaier’s trial of any evidence elicited by counsel for Jaser at Jaser's trial.” In other words, Mr. Esseghaier stood to benefit from being jointly tried with Mr. Jaser, owing to the skill of Mr. Jaser’s trial counsel.

[138] The first severance application was dismissed.

(b) The second severance application

[139] The second severance application, along with an application to declare a mistrial, was brought roughly three months later. It was triggered by events that happened on the first day of jury selection.

[140] Earlier in the day, before the jury panel was assembled in court, the trial judge spent considerable time instructing Mr. Esseghaier to refrain from making religious statements in the presence of the jury, and to refrain from giving what Mr. Esseghaier referred to as “sincere advice” to others about religious matters. Mr. Esseghaier insisted he was obliged to do so to give jurors an opportunity to repent before death. Nonetheless, he agreed not to make spontaneous religious comments if the trial judge said the following words each day: “Please take note that Chiheb Esseghaier considers himself as a visitor who gives sincere advice to the people of the courtroom, not as an accused who defends himself in the trial.” The trial judge agreed to put this caveat on the record at the beginning of each court day in the absence of the jury.

[141] That same morning, Mr. Jaser and Mr. Esseghaier were arraigned. The trial judge gave his opening instructions to the jury panel. The trial judge commenced the selection process by separating the large jury panel of approximately 400 prospective jurors into smaller groups for the purposes of conducting the challenge for cause procedure. Twenty-two jurors were selected for the first group. They were excused until the following week while the grouping continued.

[142] In the afternoon, the remainder of the jury panel was brought into court to continue with the selection process. When Mr. Esseghaier was brought into court, he refused to sit upright in the prisoner’s box. Instead, he descended to the floor and prayed. He ignored the trial judge’s repeated instructions to be seated. The trial judge eventually directed the panel to leave the courtroom. As they were filing out, the following exchange was recorded:

UNIDENTIFIED FEMALE VOICE: We are in Canada. Would you please sit down?

THE COURT: Madam…

UNIDENTIFIED FEMALE VOICE: Ma’am.

UNIDENTIFIED MALE VOICE: Ma’am.

THE COURT: Madam, madam…

[LAUGHTER]

UNIDENTIFIED FEMALE VOICE: Jesus.

[143] In the discussion that followed, Mr. Esseghaier explained that he behaved in the way that he did because he was not given sufficient time to eat and pray over the lunch break. The trial judge inquired into the matter and confirmed that court officers had brought Mr. Esseghaier back to court prematurely that day.

[144] Based on these events, Mr. Jaser renewed his severance application and sought a mistrial. He submitted that, with the exception of the group of 22 prospective jurors who were excused until the following week, “the well … [had] been poisoned” with the remainder of the jury panel because they had witnessed the incident described above.

[145] The trial judge gave an oral ruling that day in which he dismissed both applications. He concluded that there were other options available: “[T]here are still remedies short of a mistrial and severance that are available and that should be tried and that I think can be effective given the early stages that we are at.”

[146] The trial judge acknowledged that the incident caused some prejudice to Mr. Jaser, but that the greater impact would be on Mr. Esseghaier. The trial judge said that the jury is “if anything … getting a message of Mr. Jaser’s separateness from Mr. Esseghaier.”

[147] The trial judge outlined the steps he would take to address the incident. He said he would excuse the prospective juror who inappropriately addressed Mr. Esseghaier when the jury panel was asked to leave the courtroom. The trial judge said he would also allow an additional question as part of the challenge for cause, focused on the prospective jurors’ ability to remain impartial after having witnessed Mr. Esseghaier’s behaviour and the exchange that ensued. In addition, the trial judge said that he would give the jury panel a strong cautionary instruction.

[148] Following the delivery of his reasons, the jury panel was reassembled in the courtroom. The trial judge gave the following instructions:

Members of the jury panel, I want to give you an instruction about the incident that happened this afternoon, … after the lunch recess, after we all came back from lunch, and you, … obviously, saw Mr. Esseghaier saying his prayers in the first five minutes or so after we were back in court. So, please listen carefully to what I’m about to say. It's very important that you listen, and understand, and follow these instructions that I'm going to give you. There’ll be many, many instructions in the course of a jury trial, so, these are the first instructions you’re receiving, and they are instructions to the panel as a whole. Most instructions in a jury trial are just to the 12 members of the jury, or, 14, as we’re gonna have in this case. But, here, these instructions [have to] be given to all of you, because you all witnessed this incident. The first thing I have to tell you, and I say this as forcefully as I can, that incident was entirely irrelevant and you must set it aside.

You are judges now in this case. You’re not ordinary members of the public. You are about to become judges, if you become a juror in this case, and you must adopt the discipline of a judge. And the discipline of a judge is that we set aside irrelevant matters, and I tell you that incident was entirely irrelevant. It has no bearing whatsoever on anything in this trial, and you must completely ignore it. It has nothing to do with the facts of this case. It has nothing to do with the law in this case, and you must disregard it, and adopt the discipline of a judge of separating things in your mind that are completely irrelevant.

We all acquire information about all kinds of irrelevant things and this is one thing that I'm telling you, you must set aside. I also note the obvious and this shouldn’t be necessary to even say, it clearly has nothing to do with Mr. Jaser, who had nothing to do with it whatsoever. He simply sat there and you must, of course, not use it in any fashion in relation to Mr. Jaser. [Emphasis added.]

[149] The trial judge further explained to the jury panel that, due to a misunderstanding, Mr. Esseghaier did not have sufficient time to pray over the lunch break. He assured the jury panel members that this would not happen again. The trial judge concluded by saying:

So, for all those reasons, you must follow my instructions to completely disregard this incident. It has no bearing whatsoever on this trial.

[150] The trial judge continued with the selection process until 14 jurors were selected to sit on the jury.

[151] Following this incident and the trial judge’s second severance ruling, Mr. Esseghaier’s behaviour improved. He was generally compliant with the trial judge’s directions. He expressed his religious beliefs in the presence of the jury on only one further occasion – during his closing address to the jury, which was pre-vetted by the trial judge, and read to the jury by amicus. However, he did not otherwise participate in the trial.

[152] Mr. Jaser did not renew his severance application again.

(3) Analysis

(a) The legal framework for severance

[153] The power of a trial judge to order the severance of accused persons (or counts on an information or indictment) is found in s. 591(3) of the Criminal Code, which provides:

The court may, where it is satisfied that the interests of justice so require, order

(a) that the accused or defendant be tried separately on one or more of the counts; and

(b) where there is more than one accused or defendant, that one or more of them be tried separately on one or more of the counts. [Emphasis added.]

[154] As with many procedural decision points in a criminal trial, the critical question is whether the “interests of justice” require severance. In R. v. Savoury (2005), 2005 CanLII 25884 (ON CA), 200 C.C.C. (3d) 94 (Ont. C.A.), this court held, at para. 22:

The interests of justice encompass those of the accused, the co-accused, and the community as represented by the prosecution. The trial judge must weigh these sometimes competing interests and will direct severance only if the accused seeking severance satisfies the trial judge that severance is required.

See also R. v. Atwima, 2022 ONCA 268, 412 C.C.C. (3d) 392, at para. 117; R. v. Moore, 2020 ONCA 827, 153 O.R. (3d) 698, at para. 10.

[155] As noted above, the trial judge recognized the strong presumption that accused persons charged with the same offences be tried together. Separate trials involve greater cost and delay. Moreover, a joint trial enhances the search for the truth and avoids the possibility of inconsistent verdicts, especially where the evidence against each accused person is the same: see Crawford, at para. 30; Savoury, at para. 25.

[156] This rule is applied with even greater force where the accused persons are alleged to have acted in concert (see e.g., Savoury, at para. 22) or, as here, they are alleged to have conspired with each other. In R. v. Chow, 2005 SCC 24, [2005] 1 S.C.R. 384, Fish J. stated the rule, at para. 10: “Separate trials for those who are alleged to have conspired or to have committed a crime in concert remain the exception and not the rule. In principle, severance will only be granted where a joint trial will work an injustice to the accused”. See also Sarrazin, at para. 59.

[157] Over the years, the courts have recognized certain factors that are helpful in informing the decision to grant or refuse severance. As noted above, s. 591(3) of the Criminal Code addresses both the severance of multiple counts against one accused (s. 591(3)(a)) and the severance of co-accused (s. 591(3)(b)). There is a certain degree of cross-pollination in the jurisprudence, whereby severance-of-count cases draw upon severance-of-accused cases, and vice versa. The relevant considerations are not necessarily the same. Severance of accused cases tend to be more complicated because the interests of a co-accused must be taken into account – not just the interests of the accused making the application.

[158] With all of this in mind, the following factors (and perhaps others) are relevant to cases in which the severance of accused persons is sought:

• the general prejudice to the accused seeking severance, and to the co-accused

• the extent to which the evidence against both or all accused persons is the same

• the risk of prejudice from the admission of evidence that relates to a single co-accused

• the possibility of inconsistent verdicts

• that severance will compromise the search for the truth in terms of depriving one or more triers of fact of relevant evidence

• the time and expense involved in ordering multiple trials

• the potential prejudice to the accused in terms of the right to be tried within a reasonable time

• the existence of antagonistic defences as between the co-accused

• that one co-accused wishes to call another co-accused as a witness

See R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 18; R. v. Jeanvenne, 2010 ONCA 706, 261 C.C.C. (3d) 462, at para. 29; and R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 73.

[159] A trial judge’s decision to grant or refuse severance is entitled to deference on appeal. As the Supreme Court of Canada held in R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, at p. 354, the severance decision “requires the exercise of a great deal of discretion” on the part of the trial judge, and “an appellate court should not interfere with the issuing judge’s exercise of discretion unless it is shown that the issuing judge acted unjudicially or that the ruling resulted in an injustice” (emphasis added). See also Atwima, at para. 118.

[160] In Last (a case involving the severance of counts), Deschamps J. explained the two different points of reference in the Litchfield approach to appellate review. The question of whether the trial judge acted unjudicially engages an inquiry into the circumstances that prevailed at the time of the severance application; whether the ruling resulted in an injustice, on the other hand, requires an examination of the impact of that ruling on the entire trial as it unfolded: see Last, at para. 15, citing R. v. Rose (1997), 1997 CanLII 2231 (ON CA), 100 O.A.C. 67 (C.A.), at para. 17.

[161] Returning to Savoury, at para. 26, the court elaborated on the standard of review, explaining when a judge has acted “unjudicially”:

This court will interfere with the exercise of that discretion where the trial judge had failed to consider the relevant principles, or has considered an irrelevant principle. If the trial judge has erred in principle, it falls to this court to decide, according to the proper principles, whether severance should have been granted. Even if a trial judge has considered the relevant principles, this court will review the trial judge's exercise of her discretion against a reasonableness standard. [Emphasis added.]

(b) No error in exercising discretion to refuse severance

[162] As discussed in more detail below, Mr. Jaser submits that the trial judge acted unjudicially in deciding both the first and second severance applications. He contends that both decisions were unreasonable. Further, he submits that the record as a whole reveals that the failure to grant severance resulted in an injustice to him.

[163] In their submissions, the Crown supports both of the trial judge’s severance rulings. The Crown submits that the trial judge properly exercised his discretion to refuse severance based on sound legal principles. The Crown submits that both rulings were reasonable. Further, the Crown contends that, while Mr. Jaser may not have received an ideal trial from his perspective, the steps taken by the trial judge to deal with Mr. Esseghaier’s behaviour resulted in a fair trial. There was no injustice.

[164] We see no error in the manner in which the trial judge exercised his discretion to dismiss both severance applications. Furthermore, considering the record as a whole, the failure to order severance did not amount to an injustice for Mr. Jaser.

[165] Given Mr. Jaser’s wide-ranging submissions on severance, some of which were not advanced before the trial judge, we begin by addressing some of Mr. Jaser’s more general submissions. We then turn to an assessment of the two severance rulings, and their impact on the fairness of the trial.

[166] At a general level, Mr. Jaser submits that the trial judge’s overall approach to severance prioritized trial efficiency over trial fairness. Mr. Jaser also submits that the trial judge’s severance rulings were inadequate because they were essentially “boilerplate” rulings.

[167] We do not accept these submissions. From beginning to end, the trial judge’s diligence in conducting this trial is evident. Insofar as the severance applications are concerned, the trial judge prioritized efficiency in only one sense – by providing timely oral rulings on both severance applications. There was no compromise to the fairness of the proceedings.

[168] The trial judge did not provide “boilerplate” reasons. The trial judge responded directly to the submissions made on Mr. Jaser’s behalf. The trial judge applied the relevant factors that are meant to inform severance decisions, which are outlined above. This was especially evident in his first ruling. As for the second severance application, there was nothing routine about how the issue arose, nor how the trial judge responded. As we will explain, his ruling was tailored to the unique situation that unfolded before him.

[169] It must be emphasized that the trial judge was confronted with an uncommon severance scenario. The more common situation involves accused persons who are adverse in interest on factual or legal issues, whereas this was a case of a disruptive co-accused.[^6] Moreover, the issue of severance was not based solely on static considerations known at the time of the severance application; instead, Mr. Esseghaier’s in-court behaviour was inconsistent. It was a moving target.

[170] Trial judges are often required to engage in predictive reasoning in gauging how certain decisions will impact on the fairness of a trial, especially one that is expected to be complex and lengthy. Trial judges do not make their decisions in a vacuum. They are made with an awareness of the many procedural safeguards that are available in a criminal trial, especially the powers of a trial judge to provide corrective instructions and warnings to the jury. Moreover, many rulings may be re-visited during the course of a trial, severance included. Thus, the issue of severance remains a possibility as the trial unfolds.

[171] It was in this context that the trial judge exercised his discretion to refuse severance on both occasions. In our view, both of his rulings were legally correct and resulted in reasonable decisions. Looking at the record as a whole, the joint trial of Mr. Jaser and Mr. Esseghaier did not result in an injustice.

[172] This is a case in which deference to the trial judge’s exercise of discretion is particularly important. As we have noted, Mr. Esseghaier’s behaviour created a unique situation for trial management purposes. Having cumulatively spent many hours in discussion with Mr. Esseghaier, the trial judge was clearly in the best position to assess the situation and the feasibility of the steps he took to preserve trial fairness.

(c) The first severance ruling was reasonable and error-free

[173] Mr. Jaser mounts a broad attack on the first severance ruling. He submits that the trial judge failed to give sufficient weight to some factors, while giving too much weight to others. He also contends that the decision is unreasonable. We do not agree.

[174] On the first severance application, trial counsel placed his greatest emphasis on Mr. Esseghaier’s in-court behaviour and its impact on Mr. Jaser’s fair trial interests. In his ruling, the trial judge said that “[trial counsel] concedes that [this factor] is by far the most important. Absent that factor, there would be no realistic prospect of success on the motion in my view” (emphasis added).

[175] The trial judge understood the challenges presented by Mr. Esseghaier’s behaviour. As noted above, after spending hours engaged in discussions with Mr. Esseghaier, the trial judge believed that he would be able to address the problem by controlling Mr. Esseghaier’s conduct in the courtroom. He expressed the hope that Mr. Esseghaier’s behaviour might well be moderated once the jury phase of the proceedings commenced. Mr. Jaser’s trial counsel acknowledged in submissions that the presence of a jury “may change the dynamic” and that there were means of controlling Mr. Esseghaier’s behaviour. We cannot find that this approach was unreasonable, especially since he left the door open to Mr. Jaser to re-apply for severance.

[176] With respect to Mr. Jaser’s more specific arguments, he submits that the trial judge erred in: (i) failing to fully grasp the challenge posed by Mr. Esseghaier; (ii) giving insufficient weight to Mr. Jaser’s inability to seek the Attorney General’s consent to a trial by judge alone; (iii) relying on the possibility of inconsistent verdicts; (iv) finding prejudice to the truth-seeking function if severance were to be granted; and (v) failing to consider Mr. Esseghaier’s interests. We do not accept these submissions.

[177] Mr. Jaser submits that the trial judge failed to fully grasp the challenge posed by Mr. Esseghaier. Even if his behaviour could be controlled, Mr. Esseghaier failed to participate in the trial for religious reasons. Whether he was disruptive or silent, the jury would have viewed Mr. Esseghaier as a “religious fanatic”, which would have tarnished their view of Mr. Jaser as well. Mr. Jaser submits that the trial judge failed to appreciate this moral prejudice that arose from Mr. Esseghaier’s behaviour, which was a form of bad character evidence.

[178] The trial judge appreciated the broad claim of prejudice advanced by Mr. Jaser’s trial counsel. In his ruling, he said he would instruct the jury that Mr. Esseghaier’s religious objections to the proceedings were completely irrelevant. Mr. Jaser submits that this was an ineffective approach – the jury should have been instructed on the issue of moral prejudice. But this instruction was not requested by trial counsel. Moreover, it would have contradicted the trial judge’s instructions that his behaviour was irrelevant, especially as it related to Mr. Jaser.

[179] Mr. Jaser submits that the trial judge gave insufficient weight to Mr. Jaser’s inability to seek the Attorney General’s consent to a trial by judge alone. As discussed, Mr. Esseghaier’s obstinance prevented Mr. Jaser from going down this road. Severance would have paved the way.

[180] The trial judge gave this factor appropriate consideration. At the time he gave his first severance ruling, the Attorney General had not indicated whether consent would be given. It was entirely a matter of speculation. In the circumstances, this factor could not be given any weight at all at the time. Counsel did not raise this issue with the trial judge following the first severance ruling.

[181] The trial judge strongly urged Mr. Esseghaier to consider cooperating in a manner that would result in a judge alone trial, but he refused to do so. Mr. Jaser submits that the trial judge should have done more to get the Attorney General to consent to a judge alone trial. We do not agree. The trial judge made his views on the matter very clear. In reality, he was powerless to force the Attorney General’s hand on such an important aspect of prosecutorial discretion.

[182] Mr. Jaser further submits that, in addressing the prospect of re-election, the trial judge failed to consider other terrorism-related incidents that occurred at the time. The first severance application was made four days after a fatal car ramming in Saint-Jean-sur-Richelieu, and two days after the fatal shooting at the Canadian National War Memorial. Although these two events were brought to the trial judge’s attention, he did not advert to them in his ruling. We see no error. In the course of submissions, the trial judge recognized that these events may have been relevant to seeking a trial before a judge alone. But again, at the time, the prospect of obtaining the consent of the Attorney General was speculative.

[183] Moreover, an alternative remedy was achieved through the challenge for cause process. The challenge for cause questions included: (i) three questions about whether the prospective jurors had heard anything about the case from media coverage; (ii) three questions about whether the prospective jurors would have trouble judging without bias, including because “the persons charged are Muslims who are alleged, in part, to have planned terrorist attacks on non-Muslim targets or victims”; and (iii) a question whether the prospective jurors’ impartiality would be affected by the incident on the first day of jury selection. Although counsel did not seek to have the two other terrorist incidents specifically included in the challenge for cause, the second group of questions was broad enough to address these concerns.

[184] Mr. Jaser submits that the trial judge erred in placing reliance on the possibility of inconsistent verdicts if severance were to be granted. We do not accept this submission. As the trial proceeded, the scope of the conspiracy narrowed somewhat, such that there was a “substantial overlap in the issues and in the evidence” against both accused, as the trial judge put it. In any event, this factor was not critical to the trial judge’s analysis in refusing to grant severance.

[185] Similarly, we do not accept Mr. Jaser’s submission that the trial judge was wrong in his consideration of damage to the truth-seeking function if severance were to be granted. Had severance been granted, it would have been open to the Crown to call Mr. Esseghaier as a witness at Mr. Jaser’s trial, and vice versa. And as the trial judge observed, if severance were granted, Mr. Esseghaier would have been denied the benefit of any helpful or exculpatory evidence elicited by Mr. Jaser’s trial counsel.

[186] Mr. Jaser, citing Savoury, submits that this observation was misplaced, because this factor – the truth-seeking function – is only concerned with the loss of inculpatory evidence and its detrimental impact on the truth-seeking function. We see no principled reason to make this distinction: the truth-seeking function of a criminal trial may be compromised by the loss of inculpatory or exculpatory evidence. This was a proper factor for the trial judge to consider in determining whether severance was in the interests of justice.

[187] Lastly, Mr. Jaser submits that the trial judge erred in failing to consider Mr. Esseghaier’s interests when deciding the matter of severance. As noted above, amicus submitted that Mr. Esseghaier would have more leeway in how he conducted himself if he were to be tried alone; in a joint trial, his behaviour would have to be curtailed, and to his detriment.

[188] We are not persuaded that this is a relevant consideration at this stage of the proceedings. Mr. Esseghaier has abandoned his appeal. The focus is on the fairness of Mr. Jaser’s trial. Nonetheless, as noted directly above, Mr. Esseghaier’s interests were appropriately considered by the trial judge.

[189] Mr. Jaser’s submissions make no mention of the cost and time involved in ordering severance and conducting two separate trials, perhaps both with a jury. The trial judge considered this factor in his reasons, but did not place much emphasis on it. Nonetheless, it is noteworthy that the time and expense in running two trials would have been enormous. Depending on who the Crown decided to try first, the trial of either Mr. Jaser or Mr. Esseghaier would have been seriously delayed. Both men were in custody. Also, severance would have required Mr. El Noury to testify twice. As we will discuss in relation to the ground of appeal concerning a reasonable apprehension of bias, Mr. El Noury faced risks to his personal safety, necessitating the implementation of protective orders and special arrangements. This factor strongly supported the joinder of Mr. Jaser and Mr. Esseghaier.

[190] In conclusion, there are no shortcomings in the manner in which the trial judge exercised his discretion to dismiss the first severance application. He fairly balanced the factors for and against severance advanced by trial counsel for Mr. Jaser, amicus, and the Crown. He appreciated the competing interests at play. He signalled his willingness to revisit the issue, which he ultimately did. The trial judge did not act unjudicially. His decision was reasonable at the time it was made.

(d) The second severance ruling was reasonable and error free

[191] Mr. Jaser submits that the second severance/mistrial application was tainted with legal errors and was also unreasonable. In his submission, the circumstances giving rise to the second severance application should have caused the trial judge to reconsider his conclusion on the first severance application that he would be able to control Mr. Esseghaier’s behaviour.

[192] A number of months passed between the first application (October 24, 2014) and the second application (January 23, 2015). During this period of time, there were a number of incidents where Mr. Esseghaier misconducted himself. On one occasion, he refused to leave his cell because he did not consent to being searched. He also exhibited defiant behaviour in court on occasion. Mr. Jaser submits that this was a result of a deterioration in Mr. Esseghaier’s mental condition. For the reasons we will come to on the fitness issue, we consider this submission to be speculative.

[193] We see no error in the trial judge’s second severance ruling. The incident that happened during jury selection was caused partly by a misunderstanding about the time Mr. Esseghaier needed to both eat and pray during the lunch break. That Mr. Esseghaier became upset was understandable; how he reacted was not. Nonetheless, the trial judge did a good job of explaining to the jury that the fault for the incident had to be shared, and that it would not happen again.

[194] Mr. Esseghaier’s second severance application was triggered by a completely unacceptable comment from a citizen who was summoned for jury duty. But the trial judge acted immediately and effectively in remedying this situation by:

• discharging the problematic prospective juror from the panel

• giving a very strong caution to the rest of the panel to ignore what they may have seen or heard

• permitting counsel to ask an additional question on the challenge for cause

• making arrangements to ensure that Mr. Esseghaier would have enough time to say his prayers during future lunch breaks

[195] We are of the view that these measures were adequate to defuse the unfortunate incident that occurred that day. The trial judge gave a powerful instruction to the jury, reproduced in para. 148, above, which we consider to be effective.

[196] The trial judge did not err in failing to revisit his findings on the first severance application in light of Mr. Esseghaier’s outbursts between the first and second severance applications. An important plank in the trial judge’s exercise of discretion on the first severance application was his belief that Mr. Esseghaier would behave differently before a jury. As noted above, trial counsel acknowledged that the presence of a jury “may change the dynamic.” And, as we will discuss, this is exactly what ended up happening once the trial began – Mr. Esseghaier’s conduct improved. Thus, Mr. Esseghaier’s behaviour between the two severance applications, which occurred before the jury had been selected, need not have caused the trial judge to revisit this finding. Moreover, the incident that occurred during jury selection did not warrant a re-consideration of the other reasons for initially denying severance. The jury selection incident had no relevance to these other factors.

[197] Although the events giving rise to second severance application did transpire in the presence of the jury panel, it was a unique situation that was adequately remedied by the swift and effective measures taken by the trial judge.

[198] In conclusion, the trial judge properly exercised his discretion in refusing the second severance application. We see no errors in his analysis. The decision was reasonable at the time that it was made.

(e) Failure to grant severance did not result in injustice

[199] As it turned out, the trial judge’s appraisal of his ability to conduct the proceedings in a manner that preserved trial fairness was correct. There were very few problems after the second severance application was dismissed. Mr. Esseghaier’s conduct improved and there were no further outbursts or incidents in the presence of the jury. Importantly, experienced trial counsel did not bring another application for severance as the trial continued. Mr. Jaser has failed to identify anything that would have justified re-visiting this issue.

[200] This was a long, complex, and unique trial. It would have been a challenge for any trial judge to maintain the fairness of the proceedings for all concerned – both the two accused and the community, represented by the prosecution: Savoury, at para. 22. The trial judge managed to maintain that balance.

[201] Mr. Jaser’s contention that Mr. Esseghaier’s non-participation in the trial caused an injustice has not been established. With the exception of the incident that occurred during jury selection, the jury had no knowledge of what occurred in the months leading up to their selection, nor what transpired in their absence.

[202] Mr. Esseghaier’s refusal to participate in the trial during may well have left a poor impression of him in the eyes of the jury. But, similar to what the trial judge noted in his first severance ruling, this behaviour tended to differentiate the two men. Mr. Jaser was completely invested in his trial, represented by very experienced counsel. He was able to advance his position that his apparent participation in Mr. Esseghaier’s plots were not genuine.

[203] The jury deliberated for ten days and asked numerous questions before reaching its verdicts with respect to the two men. Despite an exhortation from the trial judge, the jury was unable to reach a verdict with respect to Mr. Jaser on count one (the train plot), whereas they found Mr. Esseghaier guilty on this count. This demonstrates that the jury followed the trial judge’s instructions to consider the evidence against each man separately. Mr. Jaser was found guilty on the other charges he faced based on his own recorded words. He failed to raise a reasonable doubt that his words were not genuine. Mr. Esseghaier’s conduct at the joint trial did not prevent Mr. Jaser from advancing his position.

[204] We dismiss this ground of appeal.

F. The Conspiracy Instructions

(1) Overview

[205] As outlined above, the indictment contained two conspiracy charges. Count one alleged a conspiracy to derail the VIA train and count two alleged a conspiracy to commit murder. Both conspiracies referred to the same time frame, named only Mr. Jaser and Mr. Esseghaier as members of the conspiracies, and alleged that the criminal objects of the conspiracies were to be done for the benefit of, at the direction of, or in association with, a terrorist group. The jury convicted Mr. Jaser on count two (conspiracy to commit murder) but could not reach a verdict on count one (the train plot). The jury convicted Mr. Esseghaier on both conspiracy charges.

[206] In essence the conspiracy alleged in count one to derail the VIA train was a particular of the conspiracy to commit murder alleged in count two. The Crown maintained that Mr. Jaser and Mr. Esseghaier agreed to commit mass murder in furtherance of their terrorist beliefs (count two). Pursuant to that agreement, they further agreed that one of the means they would use to commit those mass murders would involve the derailment of the VIA train (count one).

[207] The Crown alleged that, in addition to agreeing to derail the train, Mr. Jaser and Mr. Esseghaier, also in furtherance of the agreement to commit mass murder, discussed other possible murderous plots, including the sniper plot. On the Crown’s arguments, these discussions, while not necessarily going so far as agreements to use those methods, provided evidence of both the agreement to commit mass murder and the agreement to derail the train.

[208] The jury instructions were delivered over four days. The multi-count indictment, the prolix nature of some of the relevant Criminal Code provisions, the notorious complexity of conspiracy instructions, and the trial judge’s detailed and even-handed 150-page review of the evidence, combined to make the trial judge’s instructions lengthy, at times complicated, and somewhat repetitive.

[209] Strictly speaking, since the jury did not convict Mr. Jaser on the conspiracy charged in count one, the grounds of appeal based on alleged misdirection concerning the law of conspiracy relate only to the conspiracy charged in count two, on which Mr. Jaser was convicted. However, for the purposes of this ground of appeal, neither Mr. Jaser nor the Crown drew any distinction between the relevant instructions given in the context of count one and the parallel instructions given in respect of count two. Both parties approached the conspiracy instructions as applicable to both counts, unless the content of a particular instruction made it clear that the instruction was intended only for one of the conspiracy counts. For example, the instructions on the unlawful objects to be proved were obviously different for count one than for count two. We take the same approach to the conspiracy instructions as the parties did.

[210] Mr. Jaser submits that the conspiracy instructions were “confusing”, “insufficiently” tailored to the issues, and “legally incorrect”. Counsel makes four submissions in support of those assertions:

• The trial judge should have told the jury that Mr. Jaser was not guilty of either conspiracy if he was only pretending to agree with Mr. Esseghaier. Instead, the trial judge effectively told the jury it could find the agreement alleged in counts one and two, even in the absence of a genuine intention on Mr. Jaser’s part to derail the VIA train (count one) or commit murder (count two).

• The trial judge made two errors in his Carter instruction: R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938. First, he improperly “wove together” the Carter instruction with the instructions on the elements of the offence of conspiracy. In doing so, the trial judge effectively told the jury to ignore Mr. Jaser’s defence that he feigned his agreement to participate in terrorist activity. Second, the trial judge erred when he instructed the jury on the co-conspirator exception to the hearsay rule before instructing the jury on the elements of the offence of conspiracy.

• In light of Mr. Jaser’s “feigned agreement” defence, the jury should have been given an “all or nothing” instruction. The jury should have been told that if Mr. Jaser’s defence left the jury in doubt as to his intentions to actually carry through with the agreements, the jury must acquit both Mr. Jaser and Mr. Esseghaier. If the jury had no such doubt, they must convict both men. The trial judge wrongly told the jury they could reach different verdicts in respect of Mr. Jaser and Mr. Esseghaier on the conspiracy charges.

• The jury’s conviction of Mr. Esseghaier on count one and their failure to reach a verdict as against Mr. Jaser on count one amounted to inconsistent verdicts, revealing a misunderstanding of the meaning of agreement in the context of the conspiracy instructions. The inconsistent “verdicts” on count one undermined the safety of the verdicts on all of the other counts.

(2) Principles governing appellate review of jury instructions

[211] The principles governing appellate review of jury instructions are well known but worth repeating: see R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 30-31, 53; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 54; R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 34-43, 72; R. v. Triolo, 2023 ONCA 221, at paras. 184-85, aff’d R. v. Lozada, 2024 SCC 18, at para. 14; and R. v. Ethier, 2023 ONCA 600, 430 C.C.C. (3d) 121, at para. 28.

[212] A jury instruction is not an academic exercise, or a dissertation on legal principles. It is a roadmap directing the journey from deliberation to verdict, tailored to the specific case, and intended to guide twelve reasonable, intelligent laypersons to a true verdict based on the application of the relevant legal principles to the evidence. A jury instruction which serves that function is an adequate jury instruction.

[213] Jury instructions must be considered as a whole. Individual words and phrases in a jury instruction cannot be isolated and parsed to the point where they lose any connection to the rest of the charge. The instructions must be reviewed in the context of the evidence heard by the jury, and the position taken by the parties on the relevant issues.

[214] The sufficiency of a jury instruction does not depend on whether the trial judge used a specific formula or turn of phrase, or organized the instruction in a particular way. As always, the question remains: did the instructions serve their purpose?

[215] One of Mr. Jaser’s arguments presents a good example of a submission that, at root, targets phraseology rather than the substance of the instruction provided to the jury. He argues that the trial judge confused the meaning of agreement and the concept of intention when explaining to the jury the elements of the conspiracy charges. On this submission, the failure to accurately draw the line between the conduct and the intention components of conspiracy resulted in misdirection.

[216] As this court recently observed in R. v. Stordy, 2024 ONCA 284, at para. 53, when considering the meaning of the word “agreement” in s. 172.2 of the Criminal Code:

There is some artificiality involved in separating the act and mental element of an agreement for the purposes of s. 172.2. The two are necessarily intertwined given the nature of the offence.

[217] More to the point, it is not necessary, for the purposes of properly instructing a jury on a conspiracy charge, that the trial judge clearly distinguish between the conduct and mental components of conspiracy. What matters is not the label placed on a particular element of the offence, or how distinctions are drawn for analytical purposes, but whether the jury understands the findings it must make before convicting an accused. If the jury understood that it could only convict Mr. Jaser and Mr. Esseghaier of conspiracy if satisfied beyond a reasonable doubt that they had reached a joint consensus to bring about the alleged unlawful objects, fully intending to bring those objects to fruition, the jury was properly instructed on this issue. This would be true even if the trial judge’s instructions left them unable to explain the difference between agreeing to a common unlawful object and intending to bring about that common unlawful object.

(3) Survey of the trial judge’s jury instructions on conspiracy[^7]

[218] Because jury instructions must be considered as a whole, and Mr. Jaser’s submissions depend on what he claims are the overall erroneous effects of different parts of the jury instructions, we begin with a survey of the entirety of the instructions pertaining to the conspiracy allegations.

[219] At the outset of the instructions, the trial judge referred to various general principles, including the burden of proof and the definition of reasonable doubt. He told the jury that the Crown had to prove each and every essential element of a charge beyond a reasonable doubt.

[220] The trial judge then turned to an explanation of circumstantial and direct evidence. Following a brief general explanation of the different kinds of evidence, the trial judge related those instructions to the issues and evidence in this case. He told the jury that the evidence relevant on the conspiracy charges was a combination of direct and circumstantial evidence. He went on to identify “the main issue” on the conspiracy charges as whether the accused had arrived at an agreement and had the intention to carry out the unlawful object of the agreement:

The two accused’s various statements, intercepted by the police, could be seen as direct evidence as to whether they had or had not arrived at an agreement and whether they did or did not have the requisite intention. They’re also circumstantial evidence, the fact of what was said is a piece of circumstantial evidence from which you can draw inferences but the content of what’s being said, the truth, the reliability of what’s being said could be considered by you as direct evidence of whether there was or was not an intention and an agreement, the two essential elements. So you’ve got direct evidence in this case.

At the same time, the two accused’s actions, what they actually did – such as inspecting various locations related to railway bridges on a number of occasions, attempting to enlist Tamer El-Noury’s assistance, taking steps to rent a “safe house”, and assigning various tasks to each other, to simply give you four examples of items of circumstantial evidence of what was actually being done – depending on your findings of fact about those items of circumstantial evidence, that could be seen as circumstantial evidence from which you may infer that the requisite agreement and/or intention either existed or did not exist.

[221] These instructions offered an early and accurate description of the ultimate question to be answered by the jury on the conspiracy charges. As the trial judge explained, based on things done and said by Mr. Jaser and Mr. Esseghaier, the Crown argued that the jury should infer the existence of agreements to bring about the unlawful objects along with the intention to carry out those agreements. At the same time, and referring to many of the same actions and conversations, counsel for Mr. Jaser argued that the jury should have a doubt about the existence of the agreement and/or any true intention to bring about the unlawful objects, and should instead conclude that Mr. Jaser was merely pretending to agree.

[222] The trial judge next turned to the hearsay rule. He described the rule and certain exceptions to the rule, including the co-conspirator exception to the hearsay rule. The trial judge gave the jury the classic three-step explanation of the operation of the co-conspirator exception laid down in Carter, at p. 947. That instruction is appropriate, sometimes with modifications, even if the conspiracy allegations involve a two-person conspiracy: see R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, at pp. 742-43;[^8] R. v. Bogiatzis, 2010 ONCA 902, 285 C.C.C. (3d) 437, at paras. 29, 55-60; R. v. Puddicombe, 2013 ONCA 506, 299 C.C.C. (3d) 543, at paras. 84-88, 91-94, leave to appeal refused, [2013] S.C.C.A. No. 496.

[223] The trial judge explained in some detail each of the three steps in the Carter process and the evidence relevant to each step. We do not understand Mr. Jaser to challenge the substance of the Carter instructions. However, he does submit that those instructions should have been given after, and separate from, the instructions on the elements of the conspiracy offences.

[224] The trial judge’s Carter instructions can be summarized as follows:

Step One

The Crown must prove beyond a reasonable doubt that one or both of the alleged conspiracies between Mr. Jaser and Mr. Esseghaier existed. The jury were to make that determination based on an assessment of all of the evidence relevant to the question of whether the conspiracy existed, including acts and statements of both accused. The jury was instructed not to decide whether Mr. Jaser or Mr. Esseghaier were a member of the conspiracies at this stage, and reminded that Mr. El Noury was only pretending and could not be a conspirator.

Step Two

The Crown must prove that Mr. Jaser and Mr. Esseghaier were probably members of the conspiracies alleged based on their own acts and declarations when viewed in the context of the entirety of the evidence.

Step Three

If the Crown proved the existence of the alleged conspiracy (step one), and that Mr. Jaser and Mr. Esseghaier were probably members of the alleged conspiracy (step two), then the acts and statements of either accused, if in furtherance of the conspiracy, were admissible against both to determine whether the Crown had proven the charge beyond a reasonable doubt.

[225] The first step in the Carter instruction targets the existence of the agreement as charged and not membership of any particular person in that agreement. Steps two and three of the Carter instruction focus on membership in the agreement. The jury addresses steps two and three only if satisfied beyond a reasonable doubt that the agreement charged existed based on the entirety of the relevant evidence. Membership is determined first by looking at the evidence directly admissible against an individual accused and, if that evidence meets the probable membership standard, going on to consider, with the benefit of any admissible hearsay evidence, whether the Crown has proved membership in the conspiracy by a specific accused beyond a reasonable doubt. In some cases, the evidence considered at step one of the Carter test will be very different from the evidence available to the jury in respect of a particular accused at steps two and three of the Carter instruction: see Barrow, at pp. 741-43; R. v. Nguyen, 2020 ABCA 345, 13 Alta. L.R. (7th) 215, at paras. 23-26.

[226] The trial judge concluded his instruction on the co-conspirator exception to the hearsay rule with a very strong caution against conflating the first step, which looks to the existence of the agreement, and steps two and three, which look to individual membership in the conspiracy. The trial judge told the jury that the danger of improperly conflating the two inquiries was particularly strong when, as in this case, the Crown alleged a two-person conspiracy. He put the caution in these blunt terms:

It might seem logical to you, that if you have been satisfied beyond a reasonable doubt (at step one) that an agreement or conspiracy existed between two persons, it must then follow that Esseghaier and Jaser were the two persons who entered into that agreement or conspiracy (either on a standard of probability at step two or on a standard of proof beyond a reasonable doubt at step three). Whatever logic might say to you on this point, I instruct you that it is not the law… It is not the law because, as I explained to you, the evidence you are entitled to consider on the first question, that is whether the agreement or conspiracy existed, and the evidence you are entitled to consider on the second and third questions, that is whether Mr. Jaser and/or Mr. Esseghaier entered into or joined that agreement or conspiracy, is quite different. Step one you look at all the evidence and you’re considering it as non-hearsay evidence inferring whether there was an agreement or not. At step two you’re looking at it for its truth and it only goes in against the maker. So they’re quite distinct bodies of evidence being used for different purposes in relation to different issues. So the logic of logic is wrong on this, the logic of the law is right. You’ve got different issues and different bodies of evidence and that’s why you’ve got to keep them separate.

You could come to different answers to these questions because you will be considering different bodies of evidence and deciding different issues when you’re considering each of these questions at step one and step two. Different bodies of evidence, different standards of persuasion, different issues…

I want to stress that you cannot simply jump from the conclusion that an agreement existed (at step one) to the conclusion that the Crown has proved beyond a reasonable doubt that Mr. Jaser and/or Mr. Esseghaier entered into or joined that agreement or conspiracy (at step three).

[227] The trial judge repeated the caution on at least two other occasions during his instructions. The trial judge’s caution reflects the language used in Bogiatzis, at para. 57, and the model charge provided in Appendix A of Puddicombe: see also paras. 91-94.

[228] After completing his instructions on hearsay evidence, the trial judge turned to the elements of each of the five offences in the indictment. He dealt with each count separately and broke each count down into its essential elements. As he had indicated at the outset of his charge, he told the jury that it could only convict if the Crown proved each and every element beyond a reasonable doubt.

[229] The trial judge began with an explanation of conspiracy. He told the jury:

A “conspiracy” is an intentional agreement to commit a crime with the further intention of actually carrying out that crime (which is referred to as the “unlawful object”).

[230] The trial judge told the jury that agreement and an intention to agree were the essential elements of conspiracy. He suggested to the jury that they focus on those two elements when addressing the conspiracy charges:

Mr. Jaser’s defence as you have heard in [his trial counsel’s] closing address, focuses on the two elements of conspiracy – namely, agreement and intention… And the reason for that focus in Mr. Jaser’s defence is because his position is that there never was a true agreement or a true intention because his conduct was feigned.

[231] In a specific reference to the unlawful object alleged in count one of the indictment, the plot to derail the VIA train, the trial judge once again stressed the nature of Mr. Jaser’s defence:

The issue here in relation to Mr. Jaser is whether he seriously intended to cause the damage, as opposed to merely pretending or feigning.

[232] Having expressly told the jury that conspiracy required proof of an agreement to commit a crime and an intention to follow through on that agreement, and having reminded the jury that Mr. Jaser’s defence was that he was only pretending to agree, the trial judge waded into the jurisprudential thicket surrounding the meaning of the words “agreement” and “intention” in the context of a conspiracy charge. He described an agreement as:

… a positive meeting of minds or a true consensus between two persons in which they jointly agree to act together in order to bring about a specific crime.

[233] The trial judge also told the jury that proof of an agreement required:

… a minimum of two persons, since one person alone cannot agree or conspire, and those two persons must take the positive step of deliberately agreeing that they will act together in order to commit a specified crime…

The positive step of deliberately agreeing that they will act together in order to commit a specified crime… Nothing more than that. An agreement means more than mere negotiations and it means more than mere knowledge about some plan or mere acquiescence in some plan. It is an act of positively agreeing with the general nature or criminal object of the plan and agreeing to act together in order to bring about that “unlawful object.”

[234] The trial judge reviewed the evidence relevant to whether the Crown had established the agreements alleged in the conspiracy counts. He reminded the jury, as he had told them when addressing the Carter instruction, that the question of the existence of the agreement was distinct from the question of membership in the agreement, and that different parts of the evidence were potentially applicable to each issue.

[235] The trial judge then turned to the intention component of the crime of conspiracy:

The accused must intend to carry out the agreement. This element relates to the subjective state of mind of the accused. In other words, it is a mental element. The agreement must not be mere talk or bravado or feigned enthusiasm or mere negotiating. This is obviously the critical issue for Mr. Jaser. Feigned enthusiasm doesn’t get you there; we’re talking about a true intention. Rather, there must be a genuine intention that the parties to the agreement will put it into effect.

[236] The trial judge told the jury that as it was common ground Mr. El Noury was only pretending to agree, he could not be found to be a member of the conspiracy. The trial judge also reminded the jury that Mr. Jaser’s defence “is to the effect that his statements were insincere”.

[237] The trial judge concluded his instructions on the meaning of intention as applied to conspiracy in these words:

Based on all the evidence, that is relevant and admissible in relation to each accused, ask whether the Crown has proved beyond reasonable doubt that the particular accused formed the intent to carry out an agreement to commit the “unlawful object”…

[238] After explaining the elements of agreement and intention to the jury, the trial judge focused on the requirement that the Crown prove beyond a reasonable doubt that each of the accused was a member of the alleged conspiracy. To explain to the jury how it should determine membership, the trial judge understandably returned to the three-step Carter instruction he had provided to the jury when explaining hearsay evidence.

[239] The trial judge reminded the jury that the Crown alleged only a two-person conspiracy. He repeated his instructions applicable to steps two and three of the Carter instruction. He specifically told the jury that if it was not satisfied on the balance of probabilities that either Mr. Jaser or Mr. Esseghaier was a probable member of the conspiracy, based on their own acts or declarations, the jury must acquit that accused. He once again cautioned the jury against conflating their inquiry into the existence of the agreement and the separate inquiry based on different evidence into the accused’s membership in the agreement.

[240] The trial judge told the jury to deliberate separately with respect to each accused. He said:

You can only find an accused guilty of this specific conspiracy as charged, if you are satisfied beyond a reasonable doubt that one accused conspired with the other accused. You cannot find an accused guilty on the basis that he conspired with someone else… [Mr. Esseghaier] is only charged with conspiring with Mr. Jaser and Mr. Jaser is only charged with conspiring with Mr. Esseghaier…

However, I stress that you must deliberate separately in relation to each accused. There are different bodies of evidence admissible against each accused and the verdict you reach in relation to one accused does not mean that you must reach the same verdict in relation to the other accused.

[241] The trial judge repeated many of the instructions summarized above when he turned to the conspiracy to commit murder count (count two). He told the jury that to convict, they must be satisfied beyond a reasonable doubt that Mr. Jaser and Mr. Esseghaier entered into an agreement to commit murder, intending to carry out that object. He said:

The real issue in my view, is not whether they were talking about murder. It is not a crime to talk about murder. It becomes a crime when both an agreement and an intention to commit murder are formed, that is, when the first two required elements of count two exist… In my view, you should focus on these two elements of conspiracy, as explained in my instructions above…

[242] The trial judge went on to deal with the other elements of the conspiracy charges, and the elements of the other three allegations in the indictment. He followed with a detailed review of the evidence. The trial judge ended the instructions with a balanced summary of the positions of the parties, including Mr. Jaser. The instructions made Mr. Jaser’s defence crystal clear: he insisted he was a fraudster, and not a terrorist.

[243] During the jury’s deliberations, they asked for a further instruction and clarification of the charge concerning the element of intention in the conspiracy charges. The trial judge responded:

It is important to remember that the element of intention relates to the element of agreement. The two go together because the agreement and the intention must both co-exist at some point in time. In addition, the element of intention actually refers to the agreement. I am going to set out some of the well-known and authoritative pronouncements about the element of intention and you will see that it is always interwoven with the element of agreement. That is because the two elements must relate to one another and they must coincide at the same point in time.

Accordingly, in order to understand the element of intention you must go back to the instruction about the element of agreement... An agreement in the law of conspiracy means a positive meeting of minds or true consensus between two persons in which they jointly agree to act together in order to bring about a specific crime… The element of intention means that the two parties to the agreement genuinely meant to bring about that crime as opposed to feigning such an intention while having some other intention such as making money.

[244] The trial judge followed up this instruction with a further explanation as to the interaction between the agreement element and the intention element:

There must exist an intention to put the common design into effect. A common design necessarily involves an intention. Both are synonymous. The intention cannot be anything else but the will to obtain the object of the agreement.

Each of the conspirators must have a genuine intention to participate in the agreement. A person cannot be a conspirator if he or she merely pretends to agree. A conspiracy requires an actual intention in both parties at the moment of exchanging the words of agreement to participate in the act proposed.

(4) The instruction did not leave the jury with the understanding that it could convict Mr. Jaser on the conspiracy charges absent a genuine intent by Mr. Jaser to commit the unlawful object of conspiracy

[245] Mr. Jaser contends that the jury should have been given a “straightforward” instruction that if he was only pretending to agree, or if the jury had a doubt on this question, then there was no agreement and he must be acquitted on both conspiracy charges. He argues that instead of this straightforward instruction, the trial judge artificially separated the “agreement” element from the “intention” element when defining conspiracy. This unnecessary distinction left the jury under the misapprehension that it could find that the conspiracies existed, without being satisfied that Mr. Jaser actually intended to carry out the unlawful objects of the conspiracies. Counsel contends that on the trial judge’s approach, Mr. Jaser’s defence that he was only pretending to agree fell to the wayside.

[246] We cannot accept this argument. As we read the charge, the trial judge, on several occasions, did tell the jury that if Mr. Jaser was only pretending to agree, or if they had a doubt on that question, then they must acquit him on the conspiracy charges.

[247] A proper evaluation of Mr. Jaser’s submission requires that the instructions be read as a whole. The overall message conveyed by the instructions is more important than the meaning which might be teased from an isolated sentence or paragraph. In the challenged instructions, the trial judge repeatedly and unequivocally told the jury that Mr. Jaser’s defence to the conspiracy charges was that he was pretending or feigning agreement to the terrorist activities in the hopes of defrauding Mr. El Noury and Mr. Esseghaier. The trial judge further told the jury that unless the Crown proved that Mr. Jaser truly intended to carry out the unlawful objects of the agreement, there was no conspiracy and Mr. Jaser must be acquitted.

[248] The trial judge also repeatedly told the jury that the Crown was required to prove both an agreement, and the intention to carry out that agreement. In addition, the trial judge extensively defined both terms. He never suggested to the jury that an agreement or intention alone, without the other, would suffice to establish guilt. Both were prerequisites to convictions on the conspiracy charges.

[249] The trial judge’s description of conspiracy as including an “agreement” element and an “intention” element accords with well-established jurisprudence: see United States of America v. Dynar, [1997] 3 S.C.R. 462, at para. 86; R. v. Alexander (2005), 2005 CanLII 32566 (ON CA), 206 C.C.C. (3d) 233 (Ont. C.A.), at para. 48, leave to appeal refused, [2005] S.C.C.A. No. 526. That jurisprudence describes the agreement element as requiring proof of a common design – that is a true consensus between two or more persons to bring about the unlawful object. The same jurisprudence describes the intention element as the intention to bring about the unlawful object. The two elements obviously overlap. As Taschereau J. said in the seminal case of The Queen v. O’Brien, 1954 CanLII 42 (SCC), [1954] S.C.R. 666, at p. 668:

There must also be a common design to do something unlawful, or something lawful by illegal means. Although it is not necessary that there should be an overt act in furtherance of the conspiracy, to complete the crime, I have no doubt there must exist an intention to put the common design into effect. A common design necessarily involves an intention. Both are synonymous. The intention cannot be anything else but the will to attain the object of the agreement. [Emphasis added, original emphasis removed.]

[250] Because the “intention” element is effectively subsumed in the “agreement” element, some trial judges, when explaining the meaning of conspiracy to a jury, do not separate the “agreement” element from the “intention” element, but instead present the two as part of a single whole. For example, Watt’s Manual combines the agreement and intention elements as follows:[^9]

An agreement is the coming together or meeting of the minds of two or more people who have a common object or purpose and agree to act in furtherance of that common object or purpose. Each person intends and expresses, by words, action, or both, the same purpose or object. [Emphasis in original.]

[251] It may be that instructions along the lines laid down in Watt’s Manual will avoid any risk of the confusion between the agreement and the intention to agree, which Mr. Jaser submits arose on these instructions. However, there is also considerable merit to the Crown’s argument that the trial judge’s approach was particularly well suited to this case, in that it placed the spotlight on the requirement that the Crown prove that Mr. Jaser truly intended to go through with the agreements and commit the unlawful objects. The trial judge’s approach to the meaning of conspiracy put Mr. Jaser’s main defence at the centre of the instructions. We are not satisfied that the distinction made by the trial judge between agreement and intention prejudiced Mr. Jaser’s defence.

[252] It may be that the jury, if asked, would have had difficulty explaining the precise difference between the “agreement” element and the “intention” element of conspiracy as presented by the trial judge. They would not have been alone. Judges and academics have had similar difficulties. The problem lies not in the language of the trial judge’s instructions, but in the nature of the crime of conspiracy. The definition of conspiracy does not lend itself to a neat and exact division between conduct and intention: Stordy, at paras. 50-53.

[253] Fortunately, a proper jury instruction did not require that the jury be able to articulate the precise difference between the “agreement” element and the “intention” element of conspiracy as defined by the trial judge. What was necessary was that the jury understand exactly what the Crown had to prove beyond a reasonable doubt before Mr. Jaser could be convicted. The jury had to be satisfied that Mr. Jaser and Mr. Esseghaier had reached a true consensus to bring about the unlawful objects of the conspiracy, fully intending to bring those unlawful objects about. If the jury understood those requirements, as we think they did, it is irrelevant that they may not have been able to explain the exact difference between the two.

[254] In advancing this submission, counsel focused almost exclusively on the trial judge’s instructions on the meaning of the word “agreement” in the context of step one of the Carter instruction. The jury is required to consider at step one whether the Crown has proven the alleged agreement existed beyond a reasonable doubt. Counsel contends that the trial judge erred in failing to tell the jury during this part of his instruction that there would be no agreement if Mr. Jaser was only pretending to agree to the unlawful objects, or if there was a reasonable doubt on that issue. Counsel argues that the jury may well have concluded that the agreement existed without determining whether Mr. Jaser intended to bring about the unlawful objects.

[255] Counsel for Mr. Jaser is correct that the trial judge did not make reference to Mr. Jaser’s claim that he was only pretending to agree at step one of his Carter instruction. He could have done so. But once again, context is important. Immediately before the trial judge began his step one Carter instruction, he told the jury he would give them only a brief summary of the meaning of conspiracy, but that detailed instructions on the elements of conspiracy would follow. In his brief summary, the trial judge told the jury that the Crown had to prove that Mr. Jaser and Mr. Esseghaier agreed to achieve a common unlawful purpose. As explained in O’Brien, and adopted in Dynar, a common unlawful purpose connotes an intention to achieve that purpose.

[256] The trial judge did not expressly refer to Mr. Jaser’s defence, that he was only feigning agreement, when describing step one in the Carter instructions. However, he did tell the jury that in deciding whether the agreement existed at step one, they must look at all of the relevant evidence, including Mr. Jaser’s statements and conduct. Mr. Jaser relied on those very statements and conduct to support his defence that he was only pretending to agree with Mr. Esseghaier. The trial judge also specifically told the jury that Mr. Jaser’s acts and declarations were relevant to whether the alleged agreement, as well as the required intention, “did or did not exist.” To this extent, the trial judge did, while explaining the concept of agreement to the jury at step one of the Carter instruction, refer to the evidence relevant to whether Mr. Jaser had the intention to carry out the unlawful objects.

[257] When the trial judge reached the more detailed explanation of conspiracy he had promised the jury, he made it abundantly clear that conspiracy required proof of a common unlawful object, and an intention to achieve that object. He also specifically alluded to Mr. Jaser’s defence that he was only pretending to agree with Mr. Esseghaier and could not be found to be a conspirator if the jury accepted or had a doubt about that claim.

[258] Although we do not accept that the trial judge made the alleged error in his initial instructions, the recharge was even clearer. In the recharge, the trial judge told the jury that an agreement:

… means a positive meeting of minds or true consensus between two persons in which they jointly agree to act together in order to bring about a specific crime.

[259] The trial judge followed this definition of agreement, taken from binding jurisprudence, with the further instruction that the Crown also had to prove intention. The trial judge defined intention as meaning:

… the two parties to the agreement genuinely meant to bring about that crime as opposed to feigning such an intention while having some other intention such as making money.

[260] The recharge not only correctly defined the constituent elements of an agreement, but also related that definition directly to Mr. Jaser’s defence. The trial judge then went on to provide the jury with several judicially accepted definitions of conspiracy, including the following:

Each of the conspirators must have a genuine intention to participate in the agreement. A person cannot be a conspirator if he or she merely pretends to agree. [Emphasis added.]

[261] We are satisfied the trial judge properly instructed the jury on the meaning of conspiracy and properly put Mr. Jaser’s defence on the conspiracy counts to the jury.

(5) No errors in the Carter instruction

[262] Mr. Jaser submits that the trial judge erred in weaving the Carter instruction into his instructions on the elements of the conspiracy offences and that he further erred in giving a Carter instruction before instructing the jury on the elements of the conspiracy offences. Mr. Jaser relies on R. v. Nicholson, 2018 SKCA 62, 365 C.C.C. (3d) 268, and Bogiatzis in support of these submissions.

[263] Nicholson involved an alleged conspiracy between two people to murder their spouses. The Crown’s case against the appellants consisted of out-of-court statements made by both, some of which were surreptitiously recorded. The appellants claimed that the conversations between them did not go beyond mere discussions. There was also evidence from which it could be inferred that one of the appellants was aware that he was being surreptitiously recorded and was saying things, knowing they were being overheard by his spouse, intending to get a reaction from her and her family.

[264] As the evidence against each appellant came from their own statements, the Crown did not rely on the co-conspirator’s exception to the hearsay rule. No Carter instruction was given, and the Court of Appeal for Saskatchewan held that none was necessary: Nicholson, at paras. 161-63. Apart from acknowledging that a Carter instruction can be appropriate in a two-person conspiracy, if the Crown relies on the co-conspirator exception to the hearsay rule, the court did not address the content of a Carter instruction in cases involving two-person conspiracies: Nicholson, at para. 124. The adequacy of any Carter instruction, or its location in the jury charge, was not an issue in that appeal.

[265] As we read Nicholson, the appeal was allowed because the trial judge did not make it clear to the jury that to convict either appellant of conspiracy, they had to be satisfied that both accused intended to agree and intended to carry out the unlawful purpose: Nicholson, at paras. 74-75, 84-85. For the reasons set out above, we are satisfied that mistake was not made in this case. The jury in this case was told that it had to conclude beyond a reasonable doubt that Mr. Jaser and Mr. Esseghaier entered into a common design with each other to commit the unlawful acts alleged in the conspiracy counts, fully intending to bring those about. The jury was further told that Mr. Jaser must be acquitted if the Crown did not prove beyond a reasonable doubt that Mr. Jaser actually intended to carry out the unlawful objects.

[266] The trial judge did not expressly tell the jury that an acquittal of Mr. Jaser on the basis that he did not actually intend to carry out the agreements would also require the acquittal of Mr. Esseghaier. That instruction was, however, implicit in the direction that the Crown must prove the common unlawful design between Mr. Jaser and Mr. Esseghaier to commit the alleged acts and also that both intended to carry out the unlawful objects. In any event, any non-direction with respect to the impact of Mr. Jaser’s defence that he was only pretending to agree on Mr. Esseghaier’s case could have had no effect on the verdicts on count two, the conspiracy to commit murder charge. Mr. Jaser was convicted on that count. The jury clearly must have rejected his claim that he was only pretending to agree to commit mass murder and concluded beyond a reasonable doubt that he actually intended to do so.

[267] In summary, nothing in Nicholson assists Mr. Jaser in his submissions pertaining to the Carter instruction. We will return to Nicholson when we address his submission that the jury should have been given an “all or nothing” instruction.

[268] We come next to Bogiatzis, the other authority relied on by Mr. Jaser. Bogiatzis is a somewhat complicated case. In Bogiatzis, the Crown alleged a conspiracy to traffic in cocaine. To prove that conspiracy, the Crown led evidence of a broader conspiracy to traffic in cocaine and relied on that broader conspiracy to trigger the co-conspirator exception to the hearsay rule: at para. 1. Consequently, the conspiracy relied on by the Crown to trigger the co-conspirator exception to the hearsay rule was not the conspiracy the Crown had to prove beyond a reasonable doubt to establish the charge against the appellant.

[269] In considering the adequacy of the Carter instructions, Rosenberg J.A., for the court, held that the jury may have wrongly concluded that it could use acts and declarations in furtherance of the broader conspiracy as evidence to prove the conspiracy alleged in the indictment, without first deciding on evidence directly admissible against each accused, that each accused was probably a member of the broader conspiracy: at paras. 31-41.

[270] The court found that, in the circumstances, it was essential that the trial judge alert the jury to the distinction between the elements of the conspiracy charged in the indictment, and the conspiracy alleged for the purpose of the co-conspirator exception to the hearsay rule. Rosenberg J.A. said, at para. 55:

In my view, the first step in giving instructions in this case is to draw a clear distinction between the elements of the offence as charged in the indictment and the conspiracy allegations for the purpose of the evidentiary rule. In other words, this is not the kind of case where the co-conspirator’s exception instructions should be integrated into the instructions on proof of the conspiracy. Thus, the trial judge may first wish to deal with elements of the offence as charged in the indictment… [Emphasis added.]

[271] The problem identified in Bogiatzis does not arise in this case. The conspiracies alleged in the indictment against Mr. Jaser were the same conspiracies relied on for the purposes of engaging the co-conspirator exception. Explaining the operation of that evidentiary rule in respect of the elements of the offences charged was a necessary part of the instruction.

[272] Bogiatzis does address the application of the Carter instruction to conspiracies involving only two people, referring to the application as “challenging”: at para. 24. Bogiatzis, relying on Barrow, acknowledges that Carter applies to two-person conspiracies. The court goes on to say, at para. 26:

The difficulty therefore lies not in the theory of the application of the exception to a two-person conspiracy, but in the need for careful instructions on what evidence the jury may use at the various stages of the Carter analysis, and how the evidence may be used.

[273] In applying Bogiatzis, this court in Puddicombe provided an example of the “careful instructions” referred to in Bogiatzis: Puddicombe, Appendix A. The instructions in this case mirrored those suggested in Puddicombe.

[274] Mr. Jaser’s further submission that the Carter instruction should have been given only after the instructions on the elements of the conspiracy charges cannot succeed as a standalone argument. The ordering of jury instructions is very much a matter for the trial judge. We see no prejudice to Mr. Jaser flowing from the trial judge’s decision to give the Carter instructions before addressing the elements of the various offences.

(6) The trial judge was not required to give an “all or nothing” instruction

[275] Counsel for Mr. Jaser submits that a feigned agreement defence advanced in a joint trial alleging a two-person conspiracy must result in the same verdict for each accused. We understand the reference to “all or nothing” to mean that the jury should have been told that the verdicts in respect of Mr. Jaser and Mr. Esseghaier on each conspiracy count had to be the same. Mr. Jaser submits the trial judge wrongly told the jury that they could arrive at different verdicts in respect of Mr. Jaser and Mr. Esseghaier on each of the conspiracy counts.

[276] Counsel submits that, absent proof beyond a reasonable doubt that Mr. Jaser actually intended to go through with the unlawful objects described in counts one and two, both Mr. Jaser and Mr. Esseghaier had to be acquitted on those counts: see e.g., R. v. Déry, 2006 SCC 53, [2006] 2 S.C.R. 669, at para. 35. Consequently, the jury should have been given an “all or nothing” instruction in respect of each of the conspiracy charges.

[277] We accept counsel’s submission to a point. If the jury had a doubt about whether Mr. Jaser actually intended to carry out the unlawful object alleged in count one, the jury was required to acquit both Mr. Jaser and Mr. Esseghaier. The same applied to count two. Those acquittals would not flow from the nature of Mr. Jaser’s defence, but rather from the nature of a two-person conspiracy allegation. If the Crown alleges that only two persons conspired but fails to prove that one actually intended to carry out the unlawful objects, there is no meeting of the minds, no agreement, and no conspiracy. That result follows regardless of the basis upon which the jury had a doubt about the existence of a true meeting of the minds: Nicholson, at para. 44.

[278] However, it does not follow from the conclusion that the failure to prove the agreement required the acquittal of both accused that the jury should have been told that the verdicts on each of the conspiracy counts had to be the same for Mr. Jaser and Mr. Esseghaier. The jury may have been satisfied beyond a reasonable doubt, based on all the relevant evidence, that the alleged conspiracies existed, in the sense that there was a true consensus to bring about the unlawful objects. At the same time, the jury may not have been satisfied, based on the acts and declarations directly admissible against Mr. Jaser, that he had been shown to be a probable member of the conspiracy. The jury may, however, have been satisfied based on the evidence directly admissible against Mr. Esseghaier that he had been shown to be a probable member of the conspiracy. If the jury came to those conclusions, the jury would properly acquit Mr. Jaser and could convict Mr. Esseghaier if satisfied beyond a reasonable doubt that he was a member of the conspiracy: Barrow, at paras. 73-77; Bogiatzis, at paras. 24-25.

[279] On the evidence adduced in this case, the possibility of different verdicts on the conspiracy charges was far from theoretical. On the entirety of the evidence, it was open to the jury to conclude that the agreements alleged in counts one and two had been proved beyond a reasonable doubt. However, the evidence directly admissible against Mr. Esseghaier to prove his probable membership in the conspiracies was arguably stronger than the evidence against Mr. Jaser. It was reasonably open to the jury to come to different conclusions on the question of the probable membership of Mr. Esseghaier and Mr. Jaser in the two conspiracies. Those different conclusions would justify different verdicts.

[280] Not only did the evidence provide a basis for the different verdicts, the instructions to the jury did the same. The trial judge specifically told the jury that if it had a doubt as to whether the Crown had proven the probable membership of an accused in the conspiracy based on that accused’s own acts and declarations, it must acquit that accused on that charge.

[281] An “all or nothing” instruction would have been wrong. The trial judge properly identified the basis upon which the jury could reach different verdicts as against Mr. Jaser and Mr. Esseghaier in respect of either or both conspiracy charges.

(7) The jury’s verdicts on count one were not inconsistent

[282] Mr. Jaser submits that the failure of the jury to arrive at a verdict against him on count one, while at the same time convicting Mr. Esseghaier on count one, demonstrates that “at least one juror accepted Jaser’s feigned agreement defence.”

[283] Mr. Jaser submits that it follows from the acceptance by at least one juror of Mr. Jaser’s feigned agreement defence that the jury could not properly convict Mr. Esseghaier on count one. The failure to return a verdict on Mr. Jaser and the conviction of Mr. Esseghaier on count one are, therefore, inconsistent verdicts. Mr. Jaser next argues that the inconsistent verdicts reflect the trial judge’s failure to properly explain the impact of Mr. Jaser’s feigned agreement defence. That defence applied to all counts. Mr. Jaser submits that it is fair to conclude that the jury’s misapprehension of the feigned agreement defence, as demonstrated by the inconsistent verdicts on count one, infected the verdicts on the other counts as well.

[284] Verdicts are said to be inconsistent and unreasonable when they cannot be reconciled on any rational or logical basis and are not verdicts which a jury, acting reasonably, could have reached: R. v. R.V., 2021 SCC 10, [2021] 1 S.C.R. 131, at paras. 29-31.

[285] We do not accept that the two verdicts returned by the jury on count one were irreconcilable. In reaching that conclusion, we reject Mr. Jaser’s interpretation of the failure of the jury to reach a verdict in respect of Mr. Jaser on that count. The failure to arrive at a verdict on count one does not mean that any member of the jury accepted any part of the feigned agreement defence. The failure to reach a verdict on count one does not necessarily have anything to do with that defence.

[286] The jury’s failure to reach a verdict in respect of Mr. Jaser indicates that at least one juror was not satisfied beyond a reasonable doubt that the Crown had proven all the essential elements of the offence in count one as against Mr. Jaser. One essential element was Mr. Jaser’s membership in the alleged conspiracy. As explained above, the jury, after finding beyond a reasonable doubt that the agreement existed, were required to consider whether Mr. Jaser was a probable member of that conspiracy based only on the evidence directly admissible as against Mr. Jaser. If one juror or more was not satisfied, based on that evidence that Mr. Jaser was a probable member of the conspiracy, the jury could not return a verdict against him on count one, even though satisfied beyond a reasonable doubt that the agreement alleged existed.

[287] As Mr. Jaser has not demonstrated any inconsistency in the verdicts arrived at on count one, there is no basis upon which to consider whether the verdicts on counts two to five were improperly impacted by the verdicts on count one.

G. Reasonable Apprehension of Bias

(1) Overview

[288] Mr. Jaser applies to admit fresh evidence relating to an event that transpired outside of the courtroom during the trial. In a private hallway in the courthouse after Mr. El Noury had completed his testimony, the trial judge made comments to one of Mr. El Noury’s colleagues, another FBI agent who went by the name “Nelly”. The trial judge said that Mr. El Noury was a “hero” and asked Nelly to “take care of him.” Mr. Jaser submits that these utterances demonstrate a reasonable apprehension of bias on the part of the trial judge, one that requires a new trial.

[289] The Crown does not oppose the admission of this evidence. The Crown acknowledges that the trial judge should not have made these comments. However, the Crown submits that this isolated incident, in the context of a long and complicated trial, would not lead a reasonable observer to conclude that the trial judge was incapable of conducting a fair trial.

[290] We admit the fresh evidence and we agree with the parties that the trial judge’s comments should not have been made. However, when this incident is viewed in the context of the trial as a whole, a reasonable person would not conclude that the trial judge was biased in favour of the prosecution. It does not meet the high threshold required to rebut the strong presumption of judicial impartiality.

(2) Fresh evidence

(a) The proposed fresh evidence

[291] The proposed fresh evidence is contained in an ASF.

[292] The circumstances giving rise to this application came to light in an unusual way. At some point following the trial, Mr. El Noury left the FBI. Nelly also left the FBI, although it is not clear whether they left at the same time. In October 2017, over two and half years after the trial, Mr. El Noury wrote a book entitled, American Radical: Inside the World of an Undercover Muslim FBI Agent (New York: Dutton, 2017).[^10] In this memoir, he discusses Mr. Jaser’s trial at great length and detail.

[293] When Mr. El Noury attended in Toronto to testify in this case, Mr. El Noury was accompanied by other FBI agents (including Nelly), for security reasons. These agents accompanied Mr. El Noury inside and outside of the courthouse. The trial judge made a number of what he called “protective orders” designed to conceal the identity of Mr. El Noury, and another witness, when they testified. These orders were made because of their on-going participation in anti-terrorism investigations in Canada and the United States. The trial judge had the benefit of affidavits from senior police officials in Canada and the United States who explained that terrorist groups and other individuals were actively attempting to uncover the identities of the small number of agents involved in these kinds of undercover counter-terrorism efforts.

[294] In addition to the protective orders, special arrangements were made for Mr. El Noury to access the courtroom by using private hallways in the courthouse. These hallways are generally not accessible to the public; they are used by judges and court staff. These arrangements are sometimes necessary when there are security concerns for witnesses. As the trial judge said during a colloquy with counsel during which this issue was discussed: “Certainly, witnesses for a long, long time have been brought in and out of courtrooms through quieter entrances and exits in order to protect them. It’s commonplace.”

[295] The trial judge took steps to ensure that the jury was not aware of these arrangements. When the jury entered the courtroom, Mr. El Noury would already be seated in the witness box; he would leave the courtroom after the jury retired.

[296] Trial counsel for Mr. Jaser did not object to the protective orders or these special arrangements.

[297] The fresh evidence arises from a fleeting encounter Nelly had with the trial judge in one of the private hallways. This occurred after Mr. El Noury completed his testimony. In his book, Mr. El Noury describes how this scenario was brought to his attention:

My bags were already packed and in the car. Hal and his men ushered me back to the break room, where I changed out my suit and into jeans and a sweatshirt. Nelly was late getting back there. He walked in with a grin on his face.

“[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.” [Emphasis added.]

[298] In the lead-up to the hearing of this appeal, the Crown asked the RCMP to inquire as to whether Mr. El Noury or Nelly had contemporaneous notes or memory aids concerning this incident. Counsel for Mr. Jaser (and for Mr. Esseghaier before he abandoned his appeal) sought an order under s. 683(1)(a) of the Criminal Code directing the Crown to obtain and disclose certain information from the FBI relating to this issue in the form of willsay statements or affidavits. The Crown resisted this motion. In fact, the Crown brought a motion for an order to summarily dismiss the disclosure motion.

[299] This panel heard the Crown’s motion: R. v. Esseghaier, 2021 ONCA 162, 403 C.C.C. (3d) 421. In dismissing the Crown motion, the court said, at para. 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?

[300] The Crown made these inquiries, resulting in the receipt of a letter from the FBI, which provided the following information:

Nelly provided that while he does not specifically recall the conversation – as he deemed it to be in passing – he believes that something to the effect referenced in the book did occur which he would have then related to Elnoury. Additionally, Nelly provided that he would have relayed the conversation to Elnoury because Nelly felt the judge was particularly hard on Elnoury during his testimony and it would be good for Elnoury to hear that the judge had no issue with him.

As Nelly felt this conversation was neither substantive nor relevant, Nelly did not memorialize the conversation and therefore has no notes or memory aids.

Elnoury recalls the conversation as it is written in the book as told to him by Nelly. Elnoury did not memorialize the [conversation] and therefore has no notes or memory aids. [Emphasis added.]

[301] In the ASF, the parties agreed that, if Nelly and Mr. El Noury were to provide evidence, “their evidence would be consistent with what is referenced in this agreed statement of facts.” Further, at the hearing of the appeal, the Crown conceded that what Mr. El Noury described in his book actually happened. We proceed on the same basis.

(b) The fresh evidence is admissible

[302] As noted above, the Crown does not oppose the admission of the fresh evidence. The power of an appellate court to admit fresh evidence derives from s. 683(1)(d) of the Criminal Code:

For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice, …

receive the evidence, if tendered, or any witness, including the appellant, who is a competent but not compellable witness.

[303] In R. v. Widdifield (1995), 1995 CanLII 3505 (ON CA), 25 O.R. (3d) 161 (C.A.), at pp. 168-71, the court observed that applications to admit fresh evidence are most commonly invoked when an appellant wishes for an appellate court to consider additional material that is relevant to a factual or legal determination made at trial. In those circumstances, the exercise of discretion to admit the fresh evidence is governed by the criteria established in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. Where fresh evidence is admitted on this basis, the conviction must be set aside: R. v. Stolar, 1988 CanLII 65 (SCC), [1988] 1 S.C.R. 480.

[304] However, where the proffered fresh evidence is not adduced for the purpose of challenging a factual or legal issue at trial, but is instead adduced to cast light on the validity or fairness of the trial process, the Palmer criteria do not necessarily apply. Examples of this use of fresh evidence include allegations of ineffective assistance of counsel (R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.); R. v. Blake, 2023 ONCA 220, 166 O.R. (3d) 641), conflicts of interest (R. v. Marrone, 2023 ONCA 742, 431 C.C.C. (3d) 330), the exclusion of the accused from their trial contrary to s. 650 of the Criminal Code (R. v. S.M., 2022 ONCA 765, 164 O.R. (3d) 561), and claims of a reasonable apprehension of bias (R. v. Cowan, 2022 ONCA 432, 162 O.R. (3d) 321). Similarly, the Palmer criteria are not applicable in the circumstances before us.

[305] We admit the fresh evidence. However, the admission of the fresh evidence is not determinative of this ground of appeal. It is merely the first step. It must also be determined whether the substantive claim in this case, a reasonable apprehension of bias, has been established.

(3) Reasonable apprehension of bias

(a) The parties’ positions

[306] Mr. Jaser submits that the trial judge’s “hero” comments gave rise to a reasonable apprehension of bias by indicating that he pre-judged Mr. El Noury’s credibility and that he believed Mr. Jaser and Mr. Esseghaier were “villains”, who were guilty of the offences charged. The fact that the comments were made outside of court and not in the presence of the jury demonstrates that the trial judge knew that they were improper. Mr. Jaser submits that this tainted the trial judge’s exercise of discretion in every ruling that he made, including the Garofoli ruling, the severance applications, and several aspects of the sentencing proceedings. Mr. Jaser claims that these decisions “reinforced the powerful impression that he had closed his mind early on to the possibility that [the two accused] were anything other than committed extremists.”

[307] The Crown relies heavily on the fact that this was a jury trial. The jury never heard the trial judge’s “hero” comment. Moreover, the Crown submits that the trial judge’s singular comment, in the context of a very lengthy jury trial, could not undermine the strong presumption of impartiality on the part of Canadian judges. It further contends that Mr. Jaser has failed to point to anything in the record to establish that any of the trial judge’s discretionary rulings made throughout the trial reflected even a hint of bias against Mr. Jaser. Lastly, the Crown submits that the credibility of Mr. El Noury was not challenged at trial;[^11] his testimony was corroborated by the wiretap interceptions played for the jury.

(b) The relevant principles

[308] The principles relating to bias claims are well-known and have been discussed in many decisions of the Supreme Court of Canada and this court.

[309] Impartiality lies at the heart of the judicial process; it is vital to the integrity of our justice system. In Marrone, Zarnett J.A. said, at para. 92: “It is a fundamental right of a party to a judicial proceeding that the judge is, and appears, impartial. Bias is the inverse of impartiality.”

[310] A century ago, this foundational principle was captured in the often-quoted words of Hewart L.C.J. in R. v. Sussex Justices, ex parte McCarthy, [1924] 1 K.B. 256, at p. 259: “…a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” See also Ethical Principles for Judges (Ottawa: Canadian Judicial Council, 2021), at p. 33.

[311] The test for establishing a reasonable apprehension of bias is whether a reasonable person, properly informed and viewing the matter realistically and practically, would conclude that the decision-maker could not decide the case fairly: Committee for Justice & Liberty v. Canada (National Energy Board) (1976), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting); Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20-21; and Marrone, at para. 93.

[312] The test is a stringent one. In R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, the court said, at para. 18: “There is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption.” See also Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 59; R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 117, per Cory J.; R. v. Ruthowsky, 2018 ONCA 552, at para. 21; R. v. Grant, 2016 ONCA 639, 342 C.C.C. (3d) 514, at para. 128; and Marrone, at para. 94. The presumption may only be rebutted by “cogent evidence that demonstrates that something the judge did or said gives rise to a reasonable apprehension of bias”: R. v. Richards, 2017 ONCA 424, 349 C.C.C. (3d) 284, at para. 45. See also S. (R.D.), at para. 117.

[313] When the impartiality of a judge is challenged, the impugned conduct or comments of the judge must be in viewed in the context of the entire record to determine whether the alleged bias influenced the decision-making process: R. v. MacMillan, 2024 ONCA 115, at para. 78. In jury trials, it is an important consideration whether the impugned conduct occurred in the presence of the jury: see R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, at para. 95; R. v. Murray, 2017 ONCA 393, 138 O.R. (3d) 500, at para. 97; and R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 51. Although in-court comments by a trial judge in the jury’s absence are hypothetically capable of giving rise to a reasonable apprehension of bias, these instances would be rare. After all, in jury trials, the jury is the trier of fact; it determines guilt or innocence, not the trial judge. Therefore, events that occur in their absence, “at least in most cases, cannot affect them or their decision”: Murray, at para. 97; see also John, at para. 51; R. v. Valley (1986), 1986 CanLII 4609 (ON CA), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 235, leave to appeal refused, [1986] S.C.C.A. No. 298.

[314] Further, the comments or conduct of judges outside of the courtroom may give rise to a reasonable apprehension of bias. For example, in Cowan, this court determined that a reasonable apprehension of bias was created when, shortly after the jury’s guilty verdict in a murder trial, the trial judge met with the prosecution team for dinner and drinks. As MacPherson J.A. said, at para. 31: “… it is difficult to imagine how the ‘reasonable and right minded person’ would dispel the spectre of bias where the trial judge shares drinks and a meal with the prosecution team minutes after the jury entered a conviction on a very serious criminal charge.”

(c) No reasonable apprehension of bias

[315] We are not persuaded that the trial judge’s single comment, made during the course of a lengthy trial, would give rise to a reasonable apprehension of bias in the eyes of a reasonable and fair-minded member of the public. Nor are we persuaded that the comment had any impact on the jury’s fact-finding process.

[316] Mr. Jaser urges upon us the most sinister of interpretations of the trial judge’s words and his motives – by calling Mr. El Noury a hero, he conveyed his opinion that Mr. Jaser (and Mr. Esseghaier) were “villains”, and he did so “in secret” because he knew that it was improper. We are not prepared to view the incident this way.

[317] In our society, the word “hero” is frequently used in a colloquial sense, and in many different contexts. For example, it can signify an act of bravery by putting oneself in harm’s way (e.g., participating in a life-saving event). It might also be used to characterize an impressive achievement (e.g., in the context of team sports). One does not require a villain to be a hero. Modern usage of this word is far too broad to ascribe the meaning urged upon us by Mr. Jaser.

[318] It is clear that Mr. El Noury was required to put himself in harm’s way by participating in the undercover investigation of alleged terrorist activities. As noted above, this was established by the affidavit evidence of two senior police officials. It was recognized by all parties, who agreed to the protective orders and special arrangements that were made at this trial. It is also widely accepted that those engaged in embedded undercover work expose themselves to danger. That is why courts take serious measures to protect their identities when they become involved in the court process. The trial judge’s comments reflect this reality, irrespective of whether he believed the testimony of Mr. El Noury, and notwithstanding what he thought about Mr. Jaser and Mr. Esseghaier.

[319] It is also important to note that the trial judge’s “hero” comment was followed by the comment that Mr. El Noury’s “service and commitment” was appreciated. This is resonant of an exchange the trial judge had with Mr. El Noury during his testimony.

[320] One day during the trial, in the middle of his cross-examination, and before the jury was brought in, Mr. El Noury addressed the trial judge to tell him that he had taken “great offence” to something the trial judge had said to him. This was based on an earlier exchange in which Mr. El Noury had refused to answer a question that the trial judge thought was entirely proper. Mr. El Noury was worried that answering the question might breach NSP. Mr. El Noury said that the trial judge implied that he took national security and his oath too seriously. Mr. El Noury told the trial judge “I do take that very seriously, national security, in addition to the oath to my country and my government.”

[321] The trial judge said that “I didn’t realize I said anything that could vaguely give offence” and “[l]et me assure you, sir, I would never, never, never suggest that taking your oath seriously would be a problem of any kind.” After further discussion, the trial judge said: “I assure you, I am very sensitive to national security privilege and I will make sure that it is protected.”

[322] In this exchange, the trial judge merely recognized Mr. El Noury’s commitment to his oath and to preserving NSP. No counsel took objection or commented on what happened.

[323] The same theme emerged days later, when Mr. El Noury completed his evidence. The trial judge said the following:

All right, members of the jury, as I mentioned before, we are going to take the afternoon recess and Mr. Michaelson is going to make sure he has got his other witnesses ready, and we will say goodbye to Agent El Noury.

And on behalf of the Administration of Justice, thank you for attending here in Canada, Agent El Noury.

[324] Mr. El Noury then thanked everyone involved – Crown counsel, defence counsel, the trial judge, and members of the jury. The jury retired. Mr. El Noury left the courtroom. After a very brief exchange with counsel, the trial judge left the courtroom, likely within minutes of his exchange with Nelly.

[325] We view these previous in-court exchanges and comments in a similar way to the comments that are impugned on appeal – a show of respect by the trial judge for commitment and service, and not as indicative of bias. Granted, the use of the word “hero” may have been somewhat expansive. It should not have been said. However, the trial judge’s comments were consistent with his in-court comments, to which no one took objection. Overall, the impugned comments were innocuous.

[326] We add two further observations. First, it is obvious that the trial judge was not tasked with determining the credibility of Mr. El Noury. Second, Mr. El Noury’s credibility was not in issue in any event – the weight of the case against Mr. Jaser and Mr. Esseghaier was comprised of their own words, which were recorded and played for the jury.

[327] Returning to Mr. Jaser’s submissions, we do not accept that we should infer that the trial judge uttered his words outside of the courtroom secretly, and because he knew it was improper to make such comments. There is nothing to support the contention that the trial judge planned ahead of time to make his comments when he had a private moment with Nelly. There is no evidence that the trial judge expected to see Nelly when he did. As Mr. El Noury said in his book, he had just left court and Nelly was “late” getting back to the room where Mr. El Noury was changing. The scenario in the ASF suggests more of a spontaneous encounter than what is suggested by Mr. Jaser. It would appear that this incident occurred within minutes of the trial judge’s in-court remarks, to which no one took objection.

[328] As for secrecy, there is nothing in the ASF to suggest that the trial judge and Nelly were necessarily alone when the words were exchanged, although they may have been. Courthouses are busy places, including in the hallways behind the courtrooms, where many people come and go, including other judges and court staff.

[329] During the hearing of the appeal, counsel for Mr. Jaser was asked whether the claim of bias could be made if the trial judge had put his comments on the record immediately after his encounter with Nelly, or if he had made them in court, in the absence of the jury. Counsel responded that, had this occurred, at least counsel would have had the opportunity to address the issue with the trial judge. However, by acting as he did, the trial judge chose to keep the matter off the record.

[330] Again, we are not prepared to impute such invidious motives to the trial judge. The two in-court exchanges referred to above suggest that the trial judge was content to speak of Mr. El Noury’s service in the courtroom, including one time in the presence of the jury.

[331] We return to the test that must be applied: would a reasonable person, properly informed and viewing the matter realistically and practically, conclude that the decision-maker could not decide the case fairly? In our view, looking at the “hero” comment in the context of the entire record, the reasonable person would not find a reasonable apprehension of bias on the part of the trial judge. In a court record comprised of dozens of volumes of evidence, submissions, and colloquies with counsel, Mr. Jaser was not able to identify a single hint of negativity on the part of the trial judge that was directed towards Mr. Jaser or his counsel. The trial judge’s final instructions to the jury were as fair and balanced as they were comprehensive.

[332] Mr. Jaser points to adverse rulings that the trial judge made in the trial as indicative of a reasonable apprehension of bias. These rulings are challenged on this appeal. Mr. Jaser attempts to adorn his substantive submissions with the suggestion that the rulings are also undermined by bias. We do not accept this submission. The fact that these rulings did not go in Mr. Jaser’s favour provides no support for the submission that the trial judge’s “hero” comment gave rise to a reasonable apprehension of bias.

[333] In the course of a lengthy and complicated trial, a trial judge will be called upon to make any number of rulings. Most rulings, especially on evidentiary matters, will engage the trial judge’s discretion. Merely tabulating the number of unfavourable rulings made – without more – does not constitute the “cogent” evidence required to displace the strong presumption of impartiality. As Watt J.A. said in Murray, at para. 97: “The analysis is not mathematical. And what is critical is what occurred in the presence of the jury. Events that took place in their absence, at least in most cases, cannot affect them or their decision”.

[334] Again, although we agree that the trial judge should not have made his “hero” comment, in the context of the trial as whole, a reasonable person viewing the matter realistically and practically would not conclude that the trial judge was incapable of conducting the trial fairly. He did just that.

[335] Finally on this issue, Mr. Jaser submits that, even if this ground of appeal fails, we should consider the trial judge’s impugned words as an “irregularity” in the trial that, along with other shortcomings in the conduct of the trial, contributed to its overall unfairness. As we have explained, we find no reversible errors on the trial judge’s part. The trial judge’s comments to Nelly do not push this case into the realm of an unfair trial.

H. Mr. Esseghaier’s Fitness

(1) Overview

[336] The issue of Mr. Esseghaier’s fitness arose several months after verdicts had been rendered. Amicus asked the trial judge to make an order for Mr. Esseghaier to undergo a psychiatric assessment. The trial judge acceded to this request with a view to obtaining relevant information for purposes of sentencing. The psychiatrist’s report resulting from the assessment opined not only on a psychiatric diagnosis, but also that Mr. Esseghaier was unfit within the meaning of s. 2 of the Criminal Code. The trial judge then ordered another assessment. The second report contradicted the first on the issue of fitness. The trial judge accepted the second fitness opinion and the sentencing proceeded.

[337] Mr. Jaser maintains that the trial judge erred in law and misapprehended the first psychiatrist’s opinion when he found Mr. Esseghaier fit. In Mr. Jaser’s submission, had the trial judge not erred, Mr. Esseghaier would have been found unfit, and the trial judge would have been required to declare a mistrial for both Mr. Esseghaier and Mr. Jaser.

[338] Mr. Jaser further maintains that the failure to grant a mistrial resulted in a miscarriage of justice because, in light of what happened at sentencing, questions remained about whether Mr. Esseghaier had been: (i) unfit during the trial; and (ii) not criminally responsible within the meaning of s. 16(1) of the Criminal Code during the course of the conspiracy. Mr. Jaser says that fairness demanded that he be permitted the opportunity to explore those questions.

[339] For the reasons that follow, we reject Mr. Jaser’s position on these issues.

(2) Background

(a) Mr. Esseghaier’s conduct

[340] As previously discussed in our reasons on severance, Mr. Esseghaier was generally cooperative during the trial. Although he remained largely silent in front of the jury, he was communicative with the court and followed directions well. It was only following the verdicts, and prior to sentencing, that Mr. Esseghaier started to express the view that he was like the “prophet Jesus” and the “prophet Joseph”, and that his soul would rise to heaven at the age of “33 lunar years”, which he said would be on December 25, 2014 (a date that had already passed).

(b) The first psychiatric assessment: Dr. Lisa Ramshaw

[341] Prior to sentencing, amicus requested that a psychiatric assessment be ordered to assist the court in determining the fit and appropriate sentence for Mr. Esseghaier.

[342] The trial judge correctly noted that there is no Criminal Code provision that provides for a psychiatric assessment post-verdict, pending sentence: R. v. Jaser, 2015 ONSC 4729, at para. 24. Accordingly, the trial judge made the order pursuant to s. 21(1) of the Mental Health Act, R.S.O. 1990, c. M.7, which reads as follows:

Where a judge has reason to believe that a person who appears before him or her charged with or convicted of an offence suffers from mental disorder, the judge may order the person to attend a psychiatric facility for examination. [Emphasis added.]

[343] To be clear, at this stage amicus was not suggesting that Mr. Esseghaier was unfit. Nor was amicus suggesting that Mr. Esseghaier was unfit at trial, or that he may have been not criminally responsible for his acts on account of mental disorder: Criminal Code, s. 16(1); R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, at pp. 1354-55; R. v. Woodward, 2009 ONCA 911, at para. 5. Indeed, amicus specifically disavowed any such suggestion. Rather, amicus expressed the view that if Mr. Esseghaier suffered from a mental disorder, then that disorder might inform his degree of moral culpability on sentencing.

[344] The trial judge said that it was a “close case” as to whether there was sufficient evidence to justify an order for a psychiatric assessment under the Mental Health Act. Even so, he concluded that it would be “helpful at sentencing” to know whether there was something that made Mr. Esseghaier more susceptible to religious extremism. In these circumstances, and especially given that Mr. Esseghaier consented to the psychiatric assessment being done, the trial judge made the order.

[345] Dr. Lisa Ramshaw conducted the first psychiatric assessment. She met with and interviewed Mr. Esseghaier over three days in June 2015. She also gathered collateral information from others, including Mr. Esseghaier’s parents, and was given access to various parts of the trial record. Based on that information, Dr. Ramshaw opined that Mr. Esseghaier suffered from “a psychotic disorder, most likely schizophrenia”, which had “only manifested since his arrest.” She also opined in both a written report and in her later testimony that, at that “juncture”, namely July 2015, Mr. Esseghaier was “unable to participate meaningfully in the proceedings” and was “more likely than not unfit.”

[346] The Crown took issue with Dr. Ramshaw’s commentary on Mr. Esseghaier’s fitness in the summer of 2015. Among other things, the Crown took the view that Dr. Ramshaw had been working with an incomplete record when she arrived at the conclusion that Mr. Esseghaier was currently unfit and that she had applied the wrong legal test for fitness.

(c) The second psychiatric assessment: Dr. Phillip Klassen

[347] In light of those concerns, the Crown asked that the trial judge order a second report be prepared. The Crown and amicus initially asked that the second assessment be conducted pursuant to s. 672.11(a) of the Criminal Code, which allows an order for an assessment “to determine whether the accused is unfit to stand trial”. However, the trial judge concluded that he was without jurisdiction to make that order because the s. 2 Criminal Code definition of “unfit to stand trial” applies only to proceedings “before a verdict is rendered”.

[348] The jurisdiction to deal with these post-verdict/pre-sentence issues involving fitness continues to vex the courts.[^12] That being said, the parties do not raise the jurisdictional issue on appeal and we need not address it. Nothing in these reasons, though, should be taken as support for a specific jurisdictional route.

[349] Although the trial judge was “reluctant” to accede to the request for another psychiatric assessment, he made a second order pursuant to s. 21 of the Mental Health Act. This time he directed Dr. Philip Klassen to assess Mr. Esseghaier’s fitness at the time of sentencing and “any other relevant aspect of sentencing”.

[350] In his report dated August 27, 2015, Dr. Klassen agreed with Dr. Ramshaw that Mr. Esseghaier had a “psychotic illness, marked most notably by delusions”, most likely schizophrenia. Dr. Klassen described Mr. Esseghaier’s illness as including a paranoid subtype of schizophrenia where there are “relatively well-organized or systematized delusions, without significant thought disorder, or other evidence of deficit”.

[351] Like Dr. Ramshaw, Dr. Klassen opined that Mr. Esseghaier may